Gary J.

Rinkerman
202-230-5178 Direct
202-842-8465 Fax
gary.rinkerman@dbr.com

Law Offices November 14, 2013

1500 K Street N. W.
Suite 1100
Washington, D.C.
20005-1209 VIA EMAIL, FAX, REGISTERED MAIL AND WEB FORM
(202) 842-8800 Arian Shahdadi
(202) 842-8465 fax
www.drinkerbiddle.com
General Counsel
Tumblr, Inc.
CALIFORNIA 35 East 21st Street, 6E
DELAWARE New York, NY 10010
ILLINOIS Email dmca@tumblr.com
NEW JERSEY
Fax (646) 513-4321
NEW YORK

PENNSYLVANIA

WASHINGTON D.C.
For Settlement Purposes Only
WISCONSIN
Re: Notification of Infringing Tumblr Account

Dear Mr. Shahdadi:

My firm represents Wal-Mart Stores, Inc. (“Wal-Mart”) with respect to

intellectual property, defense against unfair competition and other matters.

We are contacting Tumblr, Inc. (“Tumblr”) to demand, without limiting or waiving

any other Wal-Mart rights and remedies, that Tumblr immediately suspend the “The Walmart
Elves” account that appears at the following URL in violation of Wal-Mart trademark rights
in the term WALMART ELVES (USPTO Serial No. 85850358), as well as in violation of
other Wal-Mart intellectual property rights and Tumblr’s Community Guidelines and Terms
of Service:

http://walmartelves.tumblr.com/

A screenshot of this Tumblr page is attached as Exhibit A. Also attached as Exhibit B is

a printout of the USTPO record and status page for Serial No. 85850358, which claims
WALMART ELVES for the following services in International Trademark Class 35:
“On-line retail store services featuring a wide variety of consumer goods of others;
Promoting the goods and services of others; Provision of information and advice to
consumers regarding the selection of products and items to be purchased; Retail store
services featuring a wide variety of consumer goods of others.” As noted in this
trademark record, Wal-Mart has is the owner of numerous prior registrations of the
famous WAL-MART trademark, which has been in use for more than 50 years in
connection with a wide variety of goods and services. See, e.g., PTO Reg. Nos. 3612344,
3612345 and 4180335.

Established 1849
November 14, 2013
Page 2

Wal-Mart has established extensive use of the “Walmart Elves” in past holiday
seasons, including as a hashtag on Twitter as a brand personality in relation to
@WalmartSpecials in 2011 and @Walmart in 2012. Accordingly, in our view, the use of
“The Walmart Elves” as a Tumblr account name and Tumblr domain name does not
constitute a protected parody or any other fair of use of Wal-Mart intellectual property,
but rather merely appropriates a term and online identity in which Wal-Mart has
established trademark rights.

In light of Wal-Mart’s trademark and other intellectual property rights, we also

request that the above-cited “Walmart Elves” Tumblr account be deactivated and that
Wal-Mart be given the opportunity to reserve and register this Tumblr account name.
The current account holder is neither authorized by nor affiliated with Wal-Mart.
However, the accounts and postings by the account owner improperly use Wal-Mart’s
trade name, service marks and other indicia of identity and intellectual property to
mislead, cause confusion and otherwise violate the rights of Wal-Mart. We also note that
numerous Tumblr postings appear to be in violation of Terms of Service and Community
Guidelines posted on the Tumblr site regarding content suitable for placement on Tumblr,
such as, e.g., the postings exhibited below, which encourages Tumblr page visitors to
unlawfully trespass into Wal-Mart stores to replace Wal-Mart signage with signage
critical of Wal-Mart, and which infringes Wal-Mart’s spark trademark (PTO Reg. No.
3940220):
November 14, 2013
Page 3

See also, e.g., http://walmartelves.tumblr.com/post/38206235449/we-walmartelves-were-

able-to-sneak-into-a (admission of the “WalmartElves” Tumblr account holder that “we
were able to sneak into” a Wal-Mart and replace signage). The following is an
additional example of unauthorized usage of a Wal-Mart logo design on this site:
November 14, 2013
Page 4

In addition, we note that a prominent feature on this Tumblr account are the
following unauthorized derivative works of Wal-Mart’s copyrighted logo designs, as
shown below:

This is only a representative sample of this type of infringement, which appears

throughout this Tumblr webpage. Although Wal-Mart does not concede that the Digital
Millennium Copyright Act (“DMCA”) applies to Tumblr’s activities, included below are
the elements of a DMCA notice: (i) the end of this letter contains a physical or electronic
signature of a person authorized to act on Wal-Mart’s behalf with regard to enforcement
of intellectual property rights; (ii) as stated above, the rights infringed include Wal-
Mart’s trade name, service mark and other intellectual property, including Wal-Mart
logos; (iii) the material to be removed or for which access is to be disabled include the
unauthorized “Walmart Elves” Tumblr account cited herein, and the information
provided is reasonably sufficient to permit you to locate and remove this material; (iv)
contact details for the author of this letter as the complaining party appear both in the
heading and in the final paragraph of this letter; (v) the complaining party hereby affirms
that it has a good-faith belief that use of Wal-Mart’s material in the manner complained
of above is not authorized by the owner of intellectual property rights, its agent, or the
law, including the law of fair use; and (vi), the complaining party hereby affirms that the
information in this notification is accurate, and, under penalty of perjury, that it is
authorized to act on Wal-Mart’s behalf to enforce its intellectual property. We reiterate
that in our view the materials at the “Walmart Elves” Tumblr page do not constitute “fair
use” of otherwise protected content.

Based on the above, and without limiting or waiving any other Wal-Mart rights,
Wal-Mart demands the immediate suspension of the unauthorized “The Walmart Elves”
November 14, 2013
Page 5

Tumblr account cited above. We also request confirmation of permanent removal and
that Tumblr take action to detect and prevent future postings of such unauthorized
content.

No statement herein should be construed as a waiver of any rights, claims or

remedies that Wal-Mart may assert in the future. All such rights, claims and remedies are
hereby expressly reserved I look forward to receiving your written assurances that you
have complied with this notice.

I can be reached by telephone at (202) 230-5178 or by email at

gary.rinkerman@dbr.com. Thank you for your cooperation in this matter.

GJR/PJC
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The Walmart Elves Page 1 of 10

The Walmart Elves

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changewalmart:

Support Carlton and workers like him this Black Friday (Nov. 29th) as workers call for change at Walmart. Action.ChangeWalmart.org/BFPledge

• 3 days ago > changewalmart

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artistsvswalmart:

Art By Miriam X

#WalmartStrikers #Walmart

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The Walmart Elves Page 3 of 10

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#WalmartElves HATE Walmart

#WalmartElves HATE Walmart

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#WalmartElves agree! Hey, Walmart, stop trying to silence workers!

artistsvswalmart:

Art By Len Gundert

#WalmartStrikers #Walmart

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The Walmart Elves Page 4 of 10

•
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◦ #walmartstriker
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Check out artistsvswalmart for #WalmartStrikers art: #WalmartElves love it!

Art By Alma Sheppard-Matsuo

#WalmartStrikers #Walmart

•
◦ #walmart elves
◦ #WalmartElves
◦ #WalmartStrikers
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got $12.5 million to spare? - #WalmartElves reblogging richpeopleofwalmart Tumblr

richpeopleofwalmart:

If you do, you could buy Christy Walton’s house in Jackson, WY. So you know, go check under your sofa cushions for loose change and see how
many millions you can cobble together.

http://walmartelves.tumblr.com/ 11/14/2013
The Walmart Elves Page 6 of 10

(this is not a hotel, it’s actually a house. more photos here.)

What’s the lowdown on Christy’s six bedroom, seven bathroom estate? Here’s the description from the listing:

Luxury, privacy and location meet at this 2.45-acre estate bordering Ellen Creek with direct ski in/out access to the Jackson Hole
Mountain Resort. An architectural masterpiece, the fully-furnished home incorporates traditional alpine-style with impeccable
European details, including imported stone pavers, 200 yr. old reclaimed white oak floors, cathedral ceilings and hand-crafted Italian
Albertini windows. And a creek runs through it: Ellen Creek meanders through the grounds, past abundant wildflowers, against the
panoramic backdrop, creating small ponds and waterways. A small summer guest cabin, built circa 1906, offers 2 extra bedrooms.
Additional amenities include: 3-car attached, heated garage and driveway; hydronic in-floor heat…

Sounds like Walmart money got Christy a pretty dreamy house. Back on Earth, many Walmart associates are earning less than $25,000 a year.
(Even if a Walmart associate did make $25,000 a year, and saved every dollar he or she earned rather than spend it on things like, say, rent or
food, the associate would have to work for 500 years to be able to afford Christy’s mansion.)

Bonus fact: The buyer of this home will also apparently acquire an army of pillows.

•
◦ #WalmartElves
◦ #WalmartSTrikers
◦ #walmartstrikers
◦ #boycottwalmar
• 3 days ago > richpeopleofwalmart
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Alice Walton receives award for being a rich person

richpeopleofwalmart:

http://walmartelves.tumblr.com/ 11/14/2013
The Walmart Elves Page 7 of 10

Alice Walton recently received the Archives of American Art medal for inheriting a gigantic fortune and using some of said inherited gigantic
fortune to buy up all the art her contributions to the art community. Congrats.

• 3 days ago > richpeopleofwalmart

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walton house tour! one of the aspen houses - #WalmartElves should take a peek inside
richpeopleofwalmart:

While many Walmart workers struggle just to keep a roof over their families’ heads, the Waltons own at least seven houses in the swanky ski
resort town of Aspen, Colorado.

We’ll be checking some of them out over the next few weeks. Shall we begin with the most recent acquisition?

Improving on perfection

This vacation house, purchased last year for $6.3 million, is associated with Rob and Melani Walton in public records. (You’ll recall from a
previous house tour that Rob and Melani’s home base is in Arizona, where they own three adjoining mansions.) If you want to experience the 6
bedroom, 6 bathroom, 7,000+ square foot house for yourself — and enjoy amenities including a concierge and a ski gondola within walking
distance — it appears that you can rent it! Assuming you’re willing and able to fork over $3,700 a night, that is. If you’re a Walmart worker
earning an average of $8.81 an hour, you’d have to work for over 420 hours before you collect enough cash to spend even one night here.

The rental description calls the house “perfection,” but apparently it doesn’t yet pass Rob and Melani’s muster: They recently got a building
permit for some renovations.

There are more pictures of the place here.

http://walmartelves.tumblr.com/ 11/14/2013
The Walmart Elves Page 8 of 10

◦ #WalmartElves
◦ #WalmartStrikers
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#WalmartElves Stand with Walmart Strikers

#WalmartElves Stand with Walmart Strikers

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Dear Walmart, the #WalmartElves on #WalmartStrike have been busy organizing communities that do not shop at Walmart. We provide support for
#WalmartStrikers. We invite Walmart workers to submit stories about abuses committed by Walmart to our Tumblr!

• 4 days ago
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About
Walmart claims #WalmartElves do the work of underpaid workers. We are the WalmartElves, and we're on Walmart Strike. We demand a living wage for
Walmart Workers. Click Submit to tell us your Walmart Elf story.

Me, Elsewhere
• @@Walmart_Elves on Twitter

Twitter
@Walmart_Elves
No Walmart Elves

Elves are not actually real so it should be obvious we are a parody account. #WalmartElves on #WalmartStrike

• Dear Walmart, we are #WalmartElves & we are NOT hired by unions or anyone. We stand w/ #WalmartStrikers b/c it's the right thing to do. about 21
hours ago • Reply

• RT @WalmartElvesLOL: You should believe it. They already kidnapped us #Walmartelves http://t.co/OeMMJA7sNq @PKGM @MrWordsWorth about
21 hours ago • Reply

• RT @CalFireNews: Sacramento Mayor Kevin Johnson under investigation after $700,000 Donations Before #BigBox Store Vote
http://t.co/z2jm2bmk… about 21 hours ago • Reply

• RT @stacyfmitchell: Our new Walmart report: The truth behind one of the biggest #climate polluters and slickest #greenwashers in America. h… about
21 hours ago • Reply

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Word Mark WALMART ELVES

Goods and IC 035. US 100 101 102. G & S: On-line retail store services featuring a wide variety of consumer
Services goods of others; Promoting the goods and services of others; Provision of information and advice
to consumers regarding the selection of products and items to be purchased; Retail store services
featuring a wide variety of consumer goods of others
Standard
Characters
Claimed
Mark Drawing
(4) STANDARD CHARACTER MARK
Code
Serial Number 85850358
Filing Date February 14, 2013
Current Basis 1B
Original Filing
1B
Basis
Published for
April 30, 2013
Opposition
Owner (APPLICANT) Wal-Mart Stores, Inc. CORPORATION DELAWARE 702 SW 8th Street Bentonville
ARKANSAS 727160520
Attorney of
Danica Acosta
Record
Prior
3612344;3612345;4180335
Registrations
Type of Mark SERVICE MARK
Register PRINCIPAL
Live/Dead LIVE

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