April 19, 2011

*Sigh* - hopefully the last word on this.

This post is for public information purposes.  It may be reproduced, quoted or disseminated by anyone for any purpose.  Words which are not mine have been quoted with permission or are from documents clearly labelled as being for public consumption.


EDIT - UPDATE: This post has been very slightly edited for better grammatical use and to make some statements of mine read more clearly.  Nothing of factual substance has been altered.  Importantly, I have also removed an illustrative quote from Jon Stewart (of The Daily Show) that lampooned 'birthers' - those who insist the President Barack Obama is not a natural born US citizen.  The quote was for dramatic comparison, but did of course imply a judgement of mine on birthers' beliefs.  They have a right to their beliefs, regardless of my judgement, and I apologise for any offense as none was intended.  Ms Marino is also entitled to her beliefs.  The problem here is that she insists I share them and is making legal claims that I and everyone else do so.  

OK, so I've done all I could in the cause of reason.  I have communicated clearly.  Offered evidence, given references, dates etc.  I am reminded that there are those who so badly want to believe a given thing, that no amount of evidence or persuasion will change their minds.  So here we are.


For those not yet aware of the contretemps which has erupted lately around the use of the term 'blenderized diet', in short, Lesley Diane Marino claims to have invented it, and the concept, sometime following the birth of her daughter in 2001.  She had Facebook shut down a not-for-profit community assistance Facebook page called 'Blenderized Diet' by falsely claiming in a legal instrument that her intellectual property rights had been breached.  I was a co-administrator of that page.  Lesley has personal issues with myself and a co-administrator, and I should point out that almost all the 'factual' assertions about Beverly Hanset Burch in the text of Ms Marino's Public Release below are refuted by Beverly herself.  Beverly is choosing now, as shall I be to the extent that I can, to starve this confected drama of oxygen.


Please see HERE and also HERE for the details and responses to this story, so I don't have to repeat myself.


Ms Marino today emailed the below message, unedited by me:


April 18, 2011

For Public Release and Information:

Blenderized Diet is a concept that began from a need. A need to feed my 
daughter, Nina, in a healthy and nutritious manner despite her various 
health issues. At the time my daughter was born, no alternatives existed 
for feeding tube patients besides formula. Feeding my daughter a 
formula, full of chemicals and non-foods, was unacceptable to me. I 
spoke to various doctors and nutritionists to inquire about alternatives 
and solutions. No one was aware of any other way besides Compleat, which 
had too many chemicals. I decided to formulate my own recipes for my 
daughter. I desired to assist other individuals, who were experiencing 
the same challenges as myself, so on the last day of November 2005, I 
started the Blenderized Diet Yahoo Group.

Sometime in early 2006, I saw a post on the Total Peripheral Nutrition 
list. Beverly Hanset-Burch was looking for help with Bonnie in regard to 
a feeding tube issue. I emailed Beverly personally to aid her and share 
Blenderized Diet with her. Ultimately, Beverly incorporated Blenderized 
Diet into her daughter's daily feeding. In early 2007, I invited Beverly 
to become a co-moderator of the Blenderized Diet Yahoo Group, and she 
accepted. In May of 2007, I commissioned a web designer to develop 
BlenderizedDiet.com and I purchased the domain name. Blenderized Diet 
dot com was up and running by June 2007.

In the last two years, Beverly Hanset-Burch and I have had various 
conversations about incorporating forums into the web site, but neither 
of us knew how to accomplish this task. I was open to hearing more about 
the concept of putting forums on www.BlenderizedDiet.com 
<http://www.BlenderizedDiet.com/>, and I planned to add the forums in 
the next 6 months. During the last two to three years, I have desired to 
assist all individuals who are on some form of feeding tubes and are 
unable to make their own blends. I have expressed this desire to Beverly 
on several occasions and she thought it was not possible. Despite her 
lack of support, I have chosen to move forward with this endeavor.

In Spring of 2010, I created the Blenderized Diet Facebook page. On Feb 
02, 2011 Beverly created BlenderizedDiet.net with forums, and she 
purchased Blenderized Diet dot org. I sent correspondence to Beverly 
indicating to her that this was unacceptable. She has not taken down the 
dot net, and refuses to accept the idea that she has been unethical. In 
April of 2011, I was made of aware that Beverly or those associated with 
Beverly Hanset-Burch formed a Facebook page titled Blenderized Diet, 
which is the exact same name as my company Facebook page. I informed 
Facebook of this duplication, with supporting dates and documents.

My wish, desire and intention is to bring health, nutrition and wellness 
to all individuals, especially those with special needs. I will continue 
to uphold this intention by progressing forward despite those who wish 
to stifle this desire with unprofessional actions. Blenderized Diet is a 
concept that was created out of this desire. Additionally, educating 
medical professionals is essential in order for all individuals to have 
access to this information. I am in support of education and information 
access for all individuals, but use of the term "Blenderized Diet" in 
titles, Facebook pages, web pages, product labels and otherwise without 
permission is in direct threat of the intentions of the Blenderized Diet 
concept. This type of behavior interferes with the health and wellness 
of those who need access to feeding tube alternatives. The energy it 
takes to continue this negative behavior could be used to aid and assist 
individuals, parents and guardians who are in need. I will continue to 
devote my time and energy to helping others.

Sincerely,

Lesley Diane Marino



Perhaps Ms Marino truly believed at the time she was seeking help with her daughter's feeding issues that prior to canned formula there was no tube feeding.  However, ample demonstration of evidence to the contrary has been offered (see email to her and Facebook below for examples) and my time on what she considers 'her' Yahoo! group gave me many opportunities to participate in discussions about the wisdom of the older nurses in many hospitals who well remember pureeing foods for those with feeding tubes.  I believe Ms Marino is in fact well aware that enteral feeding has been done with pureed food for a very long time - centuries in fact, and that the term 'blenderized diet' has been in common usage and published in medical literature for this purpose since at least 1952, which is before she was born.  I make no public judgement on whether Ms Marino is attempting to assert that these facts are false based on her own beliefs (which would be clinically referred to as delusional behaviour I believe) or is attempting an outright lie.


I have a document in my possession (marked by the author as not for public reproduction) written by Ms Marino where she asserts exclusive rights to all use of the term 'blenderized diet' and gives no party permission to use it without her express consent.  In another document she also claims proprietary rights over 'all associated recipes'.


Here is an email I sent to Facebook and Ms Marino in an attempt to solve the problem of our Facebook page having been taken down.



[Please note below the original notice of suspension as required by Facebook when responding to this allegation. Below that your response to me.]

Hello all, 

I have more carefully read the terms and conditions under which Ms Lesley Diane marino has made an allegation of infringement of her intellectual property rights, causing the Blenderized Diet Faceook page to be taken down.  Here is a most relevant section, required to be acknowledged before appending one's electronic signature.

Are you the owner of such rights or a person legally authorized to act on behalf of the owner?
This must have been answered 'yes', as to do otherwise woul render the complaint ineffective.  Following is this:
By submitting this notice, you declare under penalty of perjury that all of the information contained in this notice is accurate and that the use of your intellectual property described above, in the manner you have complained of, is not authorized by the rights owner, its agent, or the law.
This must have been agreed to, as to have done otherwise would render the complaint invalid.

Lesley Diane Marino made a complaint to you alleging that she is the owner of the intellectual property rights to the term 'blenderized diet'.

I formally contend that Ms Lesley Diane Marino has no legal or indeed any sort of rights to the term 'blenderized diet' as she has stated to me and several others was in fact the complaint she made to Facebook.  She has thus made an invalid complaint.  Ms Marino has demonstrably perjured herself by asserting rights to a common usage term, and Facebook is essentially complicit in the damages thus done by failing to recognize or respond adequately to my and my co-administrators statements and evidences in this.  Your policy is effectively making you an accomplice to Ms Marino's unlawful and malicious actions.

I offer as evidence the following links:
http://www.google.com.au/#sclient=psy&hl=en&source=hp&q=+define+'blenderized+diet'&aq=f&aqi=&aql=&oq=&pbx=1&fp=934ae9d163610708
http://www.google.com.au/#sclient=psy&hl=en&source=hp&q=+blenderized+diet&aq=f&aqi=g5&aql=&oq=&pbx=1&fp=934ae9d163610708
http://books.google.com/books?id=6lCMzYmOO6cC&dq=first+mention+of+blenderized+diet&output=html_text&source=gbs_navlinks_s
http://books.google.com/books?id=ZrhswGcQY-sC&pg=PA101&dq=blenderized+diet&hl=en&ei=EHqmTdvkJ430tgPck6n6DA&sa=X&oi=book_result&ct=result&resnum=7&ved=0CF8Q6AEwBg#v=onepage&q=blenderized%20diet&f=false


This last link shows a published instance of the term Ms Marino is claiming legal ownership of, under penalty of perjury, dating to 1952 which is I am led to believe a date prior to her birth.

A search of the US trademarks and copyrights shows no such term as 'blenderized diet' being owned by any party, so Ms Marino's claim to be the 'owner of such rights' is shown to be a legal fiction in entirety.  It would be beyond the ability of any reasonable person to make a claim to ownership of such a common term as 'blenderized diet', today returning 43,000 hits on Google and extant in published literature since at least 1952 regardless of the fact that the concept itself predates written history.

I also contend that Facebook's application of Ms Marino's (patently false) claim has been unfair, prejudicial and contributory to the malicious nature of Ms Marino's actions in this matter.

As Ms Marino claims to own the intellectual property rights to the term 'blenderized diet', if Facebook is to accept this as the case (and the implication of Facebook's having taken action against one page allegedly in breach of this so far shows that they do in fact tacitly accept it) then it is the duty of Facebook to properly protect Ms Marino's interests as a user who has complained of IP infringement to remove any and all mentions or usages of the term 'blenderized diet' from Facebook.  I have here further documentary evidence that Ms Marino is making this specific claim and further expressly forbidding any party to use the term 'blenderized diet' without her consent, should you require it, but I contend that her legally binding complaint with you in the first instance negates such a need.

To properly fulfill Facebook's policy of protecting individual's intellectual property rights upon receipt of a complaint such as Ms Marino's Facebook must either 
a) remove any and all instances of usage of the allegedly breaching term from every page, personal profile, advertisment displayed, post, comment or anywhere else it may appear on Facebook or stand derelict of infringing Ms Marino's claimed rights themselves
OR
b) by failing to do so acknowledge that the claim has no merit, and reinstate any page taken down under the aegis of this demonstrably false, scurrilous and malicious claim clearly made whilst said party perjures herself in law.

I request Facebook immediately and properly uphold Ms Marino's rights as per her claim and your policies and accept that by so doing in the light of incontrovertible evidence that such a claim is false and uttered in perjury OR immediately reinstate the page 'Blenderized Diet' and undertake to treat with utmost caution any further such claims by Ms Marino.

I look forward to a very speedy and satisfactory resolution on behalf of myself and my fellow co-administrators as cc'd in to this email along with Ms Marino herself.

Sincerely,

Eric Aadhaar O'Gorman.



[Text of original notification from Facebook below]

Hello,

We have removed or disabled access to the following content that you have posted on Facebook because we received a notice from a third party that the content infringes or otherwise violates their rights:

[Page: Blenderized Diet]

We strongly encourage you to review the content you have posted to Facebook to make sure that you have not posted any other infringing content, as it is our policy to terminate the accounts of repeat infringers when appropriate.

If you believe that we have made a mistake in removing this content, then please visit http://www.facebook.com/help/?page=1108 for more information.

The Facebook Team

Hi,

Thanks for your email. As you know, we received a claim of alleged rights infringement regarding the removed content. Per Facebook's Statement of Rights and Responsibilities, users are prohibited from posting infringing content on the site.

If you believe that we have made a mistake in removing this content, then please contact the complaining party directly with the following information to resolve your issue:

Notice #: 255582578
Contact Information:
Name - Lesley Diane Marino
Email -NinaBean@tampabay.rr.com

If both parties agree to restore the reported content, please ask the complaining party to contact us via email with a copy of the agreement so that we can refer to the original issue. We will not be able to restore this content to Facebook unless we receive explicit notice of consent from the complaining party.

Thanks for contacting Facebook,

Albert
User Operations
Facebook



(end of email communication)


Now I invite you, dear reader, to draw your own conclusions.  My colleagues and I have simply started a new Facebook page with a different title - Blenderized Food For Tubies, continue to run blenderizeddiet.net and continue - along with everyone else familiar with the subject matter in the English language - to use the term 'blenderized diet'.


Unless and until some legal instrument is produced by Ms Marino proving that she owns and has sole claim to use of the term 'blenderized diet' we will continue to ignore her.  We have done some due diligence by checking copyright and trademark databases and have found nothing registered as 'blenderized diet'.  We will continue our work to freely share and facilitate the free sharing of important health information and support, unless and until some other action by Ms Marino interferes in a way that would qualify as harassment or another breach of our rights.


Please, let this be the end of a pathetic and pitiful saga.  For her sake as much as ours.
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3 comments:

  1. Thank you for laying this to rest !

    ReplyDelete
  2. let us all say she has issues as some people do and just stay with ur fb page and let her out of our minds i am a tube girl not belendised dieter or anything but i do know about them lots of people with my syndrome CHARGE syndrome r on her so called yahoo group and i dotn know if you seen the tubefeeding page on fb but this was all over there to here is what i say she has issues oviously like u say its been round for ever and we should just keep using it and if she wants to debate it then go to a hosptial and do it there

    ReplyDelete
  3. You've handled this very well, Aadhaar. My only qualm: I wish you'd left in the Jon Stewart quote. I think it made perfect sense in this context! "Birthers" should be called out on their nonsense--their assertions are without merit. Just as Ms. Marino's are. People can "believe" whatever they want, sure. But "belief" not based on fact should be called out for what it is.

    ReplyDelete