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Lawsuit on hold while USDA reviews pork trademark contract

USDA is conducting an independent review of the contract. No settlement talks are taking place, a spokeswoman says.
Carol Ryan Dumas

Capital Press

Published on March 29, 2016 3:01AM

Last changed on March 31, 2016 3:25PM

The National Pork Board’s purchase of “The Other White Meat” trademarks from National Pork Producers Council in 2006 is coming under review by USDA in response to a lawsuit alleging the purchase was unlawfully authorized and represents a misappropriation of producers’ checkoff assessments.

The lawsuit, filed in federal court in 2012 by the Humane Society of the United States and joined by an Iowa pork producer and Iowa Citizens for Community Action, also alleges the Pork Board’s ongoing payments of $3 million per year under the purchase agreement effectively “allow the Board and NPPC to evade federal restrictions against the use of checkoff dollars for purposes of influencing legislation and government policy.”

The District Court of D.C. dismissed the case for lack of standing in September 2013, but a U.S. Court of Appeals ruled the Iowa farmer does have standing and reinstated the case in August 2015.

“The litigation has been stayed pending USDA’s review of the Pork Board’s contract for the purchase of ‘The Other White Meat’ trademarks. There are no ongoing settlement discussions with any party during USDA’s independent review,” Nicole Navas, U.S. Department of Justice public affairs specialist, said in an email.

Representatives of NPPC met with USDA last week, fearing a settlement with HSUS.

The joint stipulation requesting the stay, granted Jan. 6, states the review will include a valuation of the trademarks and consideration of relevant material submitted by the plaintiffs. USDA’s decision following the review is due by May 2.

It also states USDA will not authorize the $3 million annual payment due July 1 until at least two weeks after the review is completed. In addition, the plaintiffs agreed to dismiss their request for an order requiring USDA to recover funds already distributed to NPPC in the purchase.

The Pork Board’s total outlay for the intellectual property is $60 million, which includes financing over 20 years.

NPPC rejects the plaintiffs’ assertions that the Pork Board overpaid for the trademark rights, that a switch to a new campaign in 2011 renders the “white meat” slogan all but worthless and the purchase represents a “sweetheart deal” to support NPPC’s lobbying efforts.

The Pork Board approached NPPC about purchasing the trademarked intellectual property, and NPPC owned it and was entitled to sell it. Valuations of the slogan and pork chop logo were conducted, arm’s-length negotiations were held with both sides represented by counsel, and the purchase was approved by USDA, said Dave Warner, NPPC director of communications.

“If HSUS thought there was a problem with the sale, why did it wait more than six years to file its lawsuit?” he asked.

The lawsuit is retaliation for NPPC’s victory over HSUS’ proposed federal legislation regarding housing for laying hens. At the heart of it, HSUS is trying to deny NPPC money it can use to lobby against HSUS initiatives that are meant to put animal agriculture out of business, he said.

In the complaint, HSUS cites NPPC’s role in that defeat and states NPPC’s alleged “unlawful conduct” directly impedes its animal-welfare efforts.

The Pork Board’s announcement in 2011 that “The Other White Meat” slogan was being replaced and its 2012 budget showing payment of the annual $3 million for the trademarked property — despite a termination clause in all checkoff agreements — led HSUS to investigate the purchase, said Matt Penzer, an attorney for HSUS.

It’s the USDA’s responsibility to producers to make sure their checkoff dollars are being spent lawfully and effectively, he said.

The question now is whether there is really a value in paying for this trademark that has been relegated to heritage status, he said. Producers have paid to build a new branding campaign and they continue to pay for the original trademarks, which were developed with checkoff money, he said.

While “The Other White Meat” slogan is no longer being used, the pork chop logo is. And the slogan is still widely recognized, Warner said.

The slogan and logo were developed and paid for by NPPC, and the Pork Board’s annual payment must continue because it still owes half of the purchase price, he said.


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