Inflatable enema nozzles, Bardex, C. R. Bard, Inc and generic names

A week ago I received the following mail:

Our firm represents C , R. Bard, Inc. of Murray Hill, New Jersey, owner of the federally registered trademark BARDEX. The BARDEX trademark has been registered in the United States since 1951 in connection with various medical products, specifically urological catheters (US. Trademark Registration No. 543,922).

We learned of the improper and unauthorized use of our clients’ mark in connection with your website, likera.com. In particular, improper references to the BARDEX mark appear at the following URLs:

/blog/wp/self-bondage-hotel-session-62-lots-of-latex-and-water-or-do-not-move
/sb/real/strict/ses37.php
/sb/real/strict/ses46.php

etc….

The improper references also appear when conducting an Internet search using the terms “likera.com” and “bardex.” (Website printouts enclosed)

References to “Double bardex nozzle,” “Double bardex enema nozzle.” “Bardex nozzle,” “Double-balloon bardex enema nozzle,” and “Bardex enema nozzle” are likely to cause confusion as to the origin of the products or services identified and dilute the value of our client’s federally registered mark. BARDEX is not related to enemas or enema equipment.

BARDEX only identifies our client’s medical products that originate from C. R. Bard, Inc.. namely urological catheters, which require a prescription and must be distributed and/or used under a physician’s supervision.

We are concerned that the improper reference to our client’s mark is likely to mi lead consumers, resulting in misuse and possible injury. Furthermore, because the BARDEX trademark is widely known in the medical field as a trademark of C. R. Bard. Inc., consumers may believe either that the activities of this website are somehow affiliated with our client, or that our client has somehow sponsored, approved, or authorized the use of the BARDEX trademark. Accordingly, We request that you revise the Website to refer to a “Balloon Catheter Nozzle” or some other generic phrase, without referring to our client’s trademark.

We would like to resolve this matter quickly and amicably, Without resort to the courts or other legal processes, if possible. To that end, please remove improper references to the BARDEX mark from your website, including posts therein and other materials that you distribute. Specifically, we request that you:

l. Immediately delete each reference to the BARDEX mark from your Website, and from any other materials distributed by you.

2. Immediately discontinue each use of the BARDEX mark in any hidden text, source code language, and on search engine indices and lists referring to your Website.

We will continue to monitor your website to determine whether improper references to the BARDEX mark continue to appear.

Please provide Written confirmation of your compliance with our client’s request. If the references to our client’s mark are not removed and We do not hear from you or your attorney by June 10, 2011, we will consider all means available to prevent you from using our client’s mark.

Very truly yours,

OBLON, SPIVAK, MCCLELLAND,
MAIER & NEUSTADT, PC.
Roberta S. Bren

My thoughts (in chronological order):

– What????

– Never heard of the company called Bard Medical, I thought that “bardex” is just a term related to the nozzle/catheter design. A good example is “diesel”.

– “Googling” (another example) for the related words led me to this wiki-page:

Legally speaking, Bardex is a trademark of C. R. Bard, Inc., in reference to various urological catheters. The company also makes a line of rectal catheters which have one or more inflatable balloons intended to maintain the position of the catheter while inserted.

However, inside the fetish community, many individuals use the C. R. Bard company’s line of products for anal play (rather than medicine), calling them just a “Bardex,” in a similar way that “Kleenex” or “Xerox,” both trademarks of their respective corporations, tend to be used generically (i.e. “could you pass me a Kleenex”). “Bardex” is on the verge of becoming a generic as well … but with a very different meaning than C. R. Bard ever wanted!

Because of this, C. R. Bard’s lawyers (currently Roberta S. Bren of Oblon Spivak McClland Maier and Neustadt) have sent threatening letters to various sites that use their name in this fashion, including BME (because someone mentioned shoving a “Bardex up their ass” in a story on Eunuch.org)

Bard Medical do make enema equipment (although not specifically under the “BARDEX” mark, so it’s sort of like calling your “Volkswagen Golf” a “Beetle”).

As far as their demand that people not refer to using BARDEX (censored by -LR) products in their ass, the complaint is of debatable merit—trademark law does not generally protect against personal “misuse” of a product unless a specific license agreement has been violated. For example, the odds of being successfully prosecuted by Ford over saying, “Today I ran over an old lady with my Ford—when it comes to vehicular homicide, you can’t go wrong with Ford,” are probably slim.

Some high-traffic adult websites have responded by manipulating the search engines by leaving, in large letters in high-profile places, tags like:
“BARDEX (censored by LR) is BEST for kinky enema butt sex!”

As a result of both this and the popularity of these products for anal play, a web-search for Bardex will return a huge volume of pornographic and adult content rather than medical catalogs. Whatever you choose to do with C. R. Bard’s products, if you decide to write in a public forum about your anal (or other) experiences with a BARDEX product, you should be sure to include a note along the lines of “BARDEX is a registered trademark of C. R. Bard, Inc.”—otherwise you can certainly expect to be threatened with a lawsuit as well.

– No wonder… I do use “xerox” for referring to any photocopier (what should theoretically make companies like Nashuatec crazy), but I HATE when any navigation system is called “a tomtom” (I don’t like TomTom and use Garmin) and any MP3-player – an ipod (at least in NL).

– So… I complied and replaced all references to Bardex on my site with “double balloon enema nozzle“.

– But on the bright side… Such respectable companies spend so much time and money to search, read, copy, paste, etc the materials published on the site… Wow! I hope at least some of the poor guys/gals found something enjoyable here.

And as a summary/reminder: please do not use the word “Bardex” for anything not made by Bard Medical. Brdx, B-X, double balloon catheter, inflatable enema plug are OK. I will check the forum/comments periodically, just in case.