As you all know, a while back I posted an article about how the makers of The Walking Dead had their boxers in a bunch because the guys at The Toking Dead were, and I’m paraphrasing here, going to cause confusion among consumers between the brands AND that the guys at The Toking Dead were, in their minds, making money off of The Walking Dead success and riding their coattails, so to speak.
I have to be honest, ever since I found out about this, it hasn’t left my mind. Now, I don’t usually use my website as a forum to spout my opinions from a soapbox but, I am truly just in shock that this whole thing is even going to trial.
When I posted that first article, I felt compelled to voice my disapproval and frankly, my disgust for a number of reasons. First and foremost, I still believe in free enterprise, which I consider to be one of the vital cores of the foundation of this country. Second, I found the allegations against The Toking Dead were not only petty but, outright ridiculous once I read the complaint myself. Third, I am a HUGE supporter of small business. I like to support the little guy and, in all actuality, I tend to keep my money pretty local, because for the most part, I want my money to go back into my community.
When I found out that the guys were being sued because of their name The Toking Dead, I couldn’t believe what I was hearing. How many products do we see day in and day out that have similar names and do similar things or have similar content? It’s called a competitive market.
In my original article I used an analogy to try to get people to stop thinking of this as strictly ZOMBIE related or strictly MARIJUANA related. We are too intelligent of a species to allow ourselves to focus a decision on a LEGAL matter based solely on our personal feelings about the subject at hand. I feel that, in the horror community (and please, correct me if I’m wrong), zombies are a very personal issue to a lot of fans. It’s almost like one of those things where you either love it or you don’t. I feel that although we’ve come a long way in a number of states, the general consensus about marijuana is still a very heated topic for people as well. It seems you have to be on one side of the line or the other, you either fully support or you don’t.
I decided to use soda (pop, to some of you folks) as a general product of replacement to take the personal fire out of the equation. The fact is, common sense doesn’t really exist anymore, so I don’t address common sense as much as I used to. But logic DOES exist, we have proof after proof of logic in math and in science. So, I tried to apply LOGIC to the situation, instead of emotion. And yet, to my amazement, what I considered to be logical in this situation seemed to go unacknowledged by the complainant’s representative in this matter. I’ll get to that in a minute. But it became clear to me that this law suit was not about LOGIC and more about ego and money, if anything.
Shortly after I posted that article the guys at The Toking Dead were very appreciative (and continue to remain so, by the way) and asked if I would be willing to submit a witness statement for their defense in what I consider to be this ridiculous legal battle. I said I would and after reading the plaintiff’s claim (which is public record once it’s filed people), I spent a couple of days working up my statement. I sent it to them and they were once again very grateful, kind and beyond appreciative. My statement basically consisted of my article, altered to be appropriate for a legal document, with some additions about myself, my opinion and I even submitted pictures to refute the plaintiff’s claims. Of course, I had to include my personal contact information as well. This was going to the other side’s attorneys.
Well, lo and behold, not but a few days after my name is submitted as one that will be preparing a witness statement, a lawyer from the plaintiff called me directly. He had NOT gotten my statement yet, which WAS on the way to him, yet he still felt the need to call and “touch base” (as if we are on the same side) and see what I was going to be testifying to. I told him pretty much my witness statement word for word, because truth be told, I have a pretty damn good memory, especially when I wrote it myself.
Now, this lawyer was nice enough, polite, clearly not trying to intimidate me or anything, just wanting to ask me some questions. I don’t know if he recorded this conversation. Usually the law requires that you inform someone if the conversation will be recorded, but I just assumed he was because lawyers like to record things, especially to go back and make notes. I also don’t know if he was truly just asking me questions or if he was interviewing me now in the hopes that when he got my statement there where be contradictions. Who knows? But I grew up around law enforcement and that included lawyers so, I kind of knew what to expect. But what else can I say except what I put in my statement?
Regardless, I felt it odd and premature for him to call me when he hadn’t even read my statement yet. He went on to tell me that the basis of the lawsuit was specifically about the Mark (Trademark) The Toking Dead being too similar to the Mark The Walking Dead and that it will cause confusion. He asked me outright if I thought with the two names being so similar, did I think that it would cause confusion, with it being ‘The’ and then a word with ‘ing’ and then ‘Dead’. I had to almost chuckle as I said, “No, are you confused between Coca-Cola and Pepsi-Cola?” He repeated his question if I thought it was confusing. Again, I said no and thought to myself, “how many different ways are you going to make me say it, it’s not gonna change the meaning no matter how you try to get me to change the words. I’ll still pick words that mean what I’m wanting to say.” (Insert eyeroll here)
Also, when I started talking about the content in the comics, which is specifically stated item by item in the plaintiff’s complaint, he maintained that that was not part of the lawsuit and that wasn’t a concern. Well, if it’s not a concern then why is it mentioned in the complaint? I think if I’m supplying you with a witness statement of my opinion as to the asinine claims of YOUR client, I think I should be allowed to address anything I deem relevant, including what was cited in the complaint against The Toking Dead. I also mentioned that the logos are anything BUT similar. He didn’t think that was important. I basically asked him that if they are worried about confusion, wouldn’t it start at the sight of the logo on a particular product? He quickly moved on.
Now remember, this guy called ME. I didn’t call him. He wanted to talk to me. I didn’t seek him out. He wanted to ask ME questions. I was raised that if you ask a person a question, you let them answer it completely. You don’t know what they are thinking so you don’t know when they are done speaking on the issue. He seemed to think that HE was going to tell ME what was important enough for him to hear. Oh no no no, my friend.
Rule #1 of talking to me…don’t ask my opinion if you don’t really want it, because it might not be something you want to hear.
I don’t think this lawyer liked what I had to say. And I think that he started the conversation with a certain air about him because he was talking to what I think he presumed to be just some comic book fan. I don’t think he was prepared for the fact that I had much more knowledge, education and experience than what he thought. There were a few times I seemed to catch him off guard with my responses.
After we got off the phone, the subject still seemed to continue to eat at me and eat at me.
How is it that after getting approved for the Mark, these Walking Dead guys can come in and say they shouldn’t have it? The Toking Dead guys went through every correct and legal channel I’m aware of in order to get the Mark. Which I have had to experience myself with a personal business in the family. I witnessed the process of getting the Trademark and Copyright to secure your intellectual property. And even then, our images were stolen and published under someone else’s name.
But here’s the thing…we didn’t have the money to sue the creeps who were using our actual images. AND THAT is real Trademark and Copyright infringement. It wasn’t like they did something similar. They straight stole the intellectual property and printed it and made money on it. Probably still are to this day. All we could do was send a Cease and Desist letter and hope that they stopped. Because we didn’t have millions to intimidate and drive them away, the thousands it would have cost to go through the legal process when we were just starting out in our business. Eventually, we ended up liquidating the business.
The makers of The Walking Dead don’t even have THAT to base their case on. They are complaining about a name, a moniker. Something that is still be all measures, unique to them, just as The Toking Dead is unique to the guys there. And that’s how the government agencies saw it. So, the Mark was granted. Now the makers of The Walking Dead are trying to corner the zombie market in every sense of the phrase.
On the flip side, “The Walking Dead” has been a general term to describe zombies since at least 1968. And they think they coined this phrase. To me it’s descriptive…and that’s what I told the lawyer. When I hear The Walking Dead, I think it to be too general of a term referring to zombies as a whole and therefore cannot be argued as their own corner on the zombie market.
I mean, let’s look at the dictionary definition of zombie.
1 a corpse said to be revived by witchcraft,
especially in certain African and Caribbean religions.
• (in popular fiction) a person or reanimated corpse [this would mean a corpse brought back to life] that has been turned into a creature capable of movement [capable of walking, reaching, touching, grabbing, etc.] but not of rational thought [braindead], feeds on human flesh = THE WALKING CORPSE THAT IS BRAINDEAD
In other words, a walking dead body…hence, the walking dead. So how can these guys think that just because they called a comic book series and a tv series The Walking Dead that that phrase is somehow so specific to them, their product, their content and their intellectual property, that it lost its GENERAL descriptive purpose, which has existed longer than they have?
Now I know this probably doesn’t seem like me and it probably sounds repetitive. But you have to understand. This corporate conglomerate is trying to stifle the free speech and creativity of a smaller company. They are trying to bury these guys under a mountain of paperwork in the form of motions and depositions and statements. They are forcing the guys to use capital defending their already approved Mark instead of allowing them to put those funds into their business. They are using up hours and hours, days and days of time that the guys could be creating, selling, educating, building their own brand. And yet they claim that The Toking Dead is somehow getting rich and fat off of THEIR zombie idea, which is not even really their idea…I mention that in my first article. (I’ll put a link to it down at the bottom.)
Just imagine what the soda industry would be like if Coca-Cola had been allowed to continue to drive out any competitor with “cola” in their name. Think about all the cheaper brands that we grew up on that wouldn’t have been there if Coca-Cola had been allowed to corner that market. Coke would be the only cola brand. No Pepsi. No RC (Royal Crown). No Sam’s or Shasta. Just Coke. And they would have been able to charge whatever the market would allow because they would be the only cola product. Imagine that. How much would you pay for a Coke when it was the only cola product on the market???
If that had been allowed, we’d have only one version of everything, one brand, one choice. That’s not capitalism. That’s not free enterprise. And that surely isn’t the American Dream that so many come to this country looking for.
So now go back to zombies. How boring would the horror genre be if we only had The Walking Dead’s interpretation of zombies? Only Bram Stoker’s version of Dracula. Only one version of a werewolf movie. No other slasher films except Halloween.
The whole world of the horror genre is built on those who had ideas before the ones now. Those previous creators inspired and motivated others to develop a love for the genre and want to be a part of it. In order to do that, you take things that have ghosts and ghouls, zombies and monsters, vampires and werewolves, the evil and the dark, and you build something with it. You create something that you hope will entertain the masses.
Imagine if John Carpenter had come to Wes Craven and said, “Nope, you can’t make a horror movie where the killer wears a mask and uses a knife. I did that. That’s mine. I’m suing you.” The entire horror community would have been appalled and Carpenter would have looked like a petulant child acting like an ass…hmmmmm, remind you of any recent behaviors? But Carpenter realized that it was a general idea and that anyone could use it and build on it and still create something that the community could love.
Rest assured that in the horror community there are enough customers for every type of zombie, every type of monster, every kind of demon and psycho, every sort of paranormal activity. There’s plenty of customers to go around. Fact of the matter is, you can’t please everyone with just one product.
I’m a perfect example. I never jumped on The Walking Dead bandwagon. Haven’t read a comic or seen one episode of it. But, it’s not hard to figure out the story. Yet, I love the whole idea behind The Toking Dead. I felt it was finally a fresh and new take on zombies, another thing I included in my conversation with Mr. Briefcase.
Bottom line is, to be so greedy, so arrogant, so stingy and so narrowminded as to try to crush a fellow member of the very horror society you have made billions off of, just seems so over the top to me. It is more like bullying out the little guys. I can’t abide that. That’s why we have laws against allowing people monopolies in business. We NEED competition in business. As consumers we deserve options, choices. We need competition in life. It’s what pushes us to go farther, be better, try harder, be more creative.
It’s such a shame that instead of being happy for the guys at The Toking Dead as fellow horror lovers, these millionaires are pissed that they are even in business. To me it’s like the equivalent to a race being run and although The Walking Dead finished first, they are still sore that they had to work at the win because they weren’t the only ones competing. It’s like they’d be bitter that they had to run the race in the first place, like it should just be known that they are the best and no one should ever come along and try to test that. And that my friends, is just the worst way to be.
There’s always someone better than you and there’s always someone worse. And even if you do make it to the best that is only permanent as long as you continue to earn it and work for it. Best is only temporary if you just sit on it and don’t strive to be better.
Now that I have gotten everything out of my system, I’m going to end this with a shout out to the guys and their crew at The Toking Dead. I know they have tons of support and I just hope that this whole mess works out for them. I admire their willingness to fight against the big guys and I respect not only that, but I respect what they do and why.
MUCH LOVE TO MY FRIENDS AT THE TOKING DEAD!!!!
For my original article click the link below:
The Countess of the Crypt