So. Lance Armstrong would have us believe he had an Oprah-style “A-ha” moment—a critical instance in his life when he made a profound revelation about himself. In his recent interview with Oprah Winfrey—the woman who made “A-ha” moments her stock and trade on both her show and in her magazine—Armstrong copped to some of his lies but revealed that his motivation was more akin to an “Uh-oh” moment: I’ve lost almost everything; time for a calculated appearance to save what little dignity—er, money—I’ve got left. After over a decade of unremitting lies, accompanied by adamant, indignant denials, Armstrong’s admission that he doped offers little catharsis for the sports public; his feet of clay have been glaringly obvious for too long. It feels as though there’s nothing left to mine in this pathetic, dishonorable story. But the actions of Armstrong’s foundation—an organization that has been spared much of the shame from the fallout from his vulgarly tardy confession—deserve another look.
The Lance Armstrong Foundation (LAF) learned from its founder the benefits that can come from being simultaneously pugnacious and sanctimonious. LAF is a notorious trademark bully, as I recently learned from a case involving two Vermonters, the I AM VERMONT STRONG (IAVS) charity, and Armstrong’s charity juggernaut. Writing on the blog “The IP Stone: Deciphering Intellectual Property Law for Business,” Jamie Fitzgerald, a Vermont intellectual property lawyer with Downs Rachlin Martin PLLC, humorously details the maddening case. Her article “Confusingly Similar? Don’t Make Me L.A.F.” is a must read.
The now ubiquitous I AM VERMONT STRONG license plates—which generate money for Hurricane Irene relief in the Green Mountain State—were an outgrowth of a movement started by two Vermonters, Eric Mallette and Lyz Tomsuden even before the storm’s waters receded. Tapping into the buck-up, can-do spirit Vermonters so readily displayed in the hurricane’s aftermath, Mallette and Tomsuden began selling I AM VERMONT STRONG T-shirts to benefit Vermont disaster relief organizations, donating 100% of the profits to recovery efforts. Demand for the shirts was so tremendous, Fitzgerald explains, that “its empowering message of resilience went viral—so viral that copycats quickly surfaced,” and they needed legal assistance.
Fitzgerald took the case pro bono, and in late September 2012, IAVS applied to register the slogan I AM VERMONT STRONG as a federal service mark for “charitable fundraising to support disaster relief organizations.” In short order, Fitzgerald received word that LAF threatened to oppose the registration claiming a strong likelihood that I AM VERMONT STRONG would easily be confused with LAF’s registered trademark LIVESTRONG. As Fitzgerald explains, when LAF sought and obtained an extension of time in which to file their opposition to the registration of I AM VERMONT STRONG, the IAVS application was essentially “held hostage for over three months.”
A few days before the opposition deadline, LAF sent a letter to Fitzgerald asserting that IAVS’s fundraising efforts were “virtually identical” to that of LAF—a bold and absurd claim given that LAF’s fundraising is for cancer research and lobbying efforts in the field of cancer recovery. As Fitzgerald acknowledges, “Granted, getting cancer is a disaster, but not the kind that would find relief through I AM VERMONT STRONG’s fundraising efforts.” Clearly, LAF’s lawyers were trolling for a fight; it’s what they do.
Laura Stampler, writing in Business Insider magazine, revealed last March that the San-Francisco based website Telemarkia placed the Lance Armstrong Foundation on its list of America’s top ten brand bullies. Stampler asserts that LAF—which is number two on the list, tucked right behind Kellogg’s—has concluded that it now has exclusive trademark rights to the words “strong” and “live.” LAF’s lawyers have threatened—among dozens of others—Headstrong Fight Gear, Born Strong Athletics and an apparel store with the earnest but cumbersome name Live the Beauty of Being Strong.
According to the Daily Beast’s Alex Heard, LAF spent nearly $500,000 in 2012 on perceived trademark infringements, money that perhaps should have been spent on cancer research. Heard explains that in these situations the bullies almost always win: “Trademark disputes are not a level playing field. Big dogs can stomp little dogs by sheer dint of their financial might, and the companies being opposed are often small enough that the prospect of an extensive legal battle is terrifying.”
It would be easy to dismiss LAF’s amped up trademark policing as a case of IP lawyers on steroids. But there’s something bigger at work here. Whether it’s a for-profit corporation or a non-profit charity foundation, those at the top set the tone and shape the culture of any organization. In his Oprah interview, Armstrong admitted that he’d turned into a bully. Bizarrely, he blamed his willingness to torment others on his cancer diagnosis, saying, “Before my diagnosis, I was a competitor, but not a fierce competitor. Then I said I will do anything I need to do to survive. Then I brought that ruthlessness, win-at-all costs attitude to cycling.” He then directed his career and his foundation from this repellent position. Subordinates and colleagues got the message and acting accordingly.
Armstrong’s foundation has done a lot of good for those fighting cancer. But how awful that so many people were unwittingly drafted to prop up his house of cards. The ruthlessness and viciousness he employed to protect his lies virtually destroyed the reputations and careers of those who actually told the truth. And his bullying—mimicked by his foundation’s legal team—reached all the way to the Green Mountain State in the midst of our deep despair. Thank goodness, as Fitzgerald says, LAF picked on the wrong 90-pound weakling.