Trademark Snarkiness. Really?

Trademark Snarkiness

I'm wearing a bow-tie but I'm doing it ironically.

I’m wearing a bow-tie but I’m doing it ironically.

 

Recently, I’m sure you probably saw it – it got a lot of coverage, even from NPR) – Exit 6 Brewery got pretty snarky with Starbucks. And Starbucks defended itself (somewhat) here. I had several people ask me about this; what my thoughts were, what I would have done, etc. I promised a blog post, and I’m finally getting around to doing it. So, here we go…

Exit 6 is surprised?

Exit 6 Brewery (in Cottleville, MO) got a Cease & Desist letter from Starbucks Corporate HQ saying, in essence, “Hey, uh, the word ‘Frappuccino®’ is our registered trademark, please stop using it.”

Jeff Britton, responding for Exit 6 to the Dec 9 Starbucks letter, decided to make a “statement.” We’ll get into what made it snarky later. Here’s my question/concern. Exit 6 was marketing a beer called “Frappicino…” wait, let’s look at that again…

Was Exit 6 surprised that Starbucks would have an issue with this? Did they think changing TWO letters was enough to make their mark distinct and avoid legal “likelihood of confusion?” I’m betting they didn’t ask their attorney. This is so close, it could border on intentional infringement.

And, we’re talking about Starbucks Coffee Co. here. We’re not talking about a trademark owned by Bob’s Dry-Cleaners in Bethesda, MD. This is Starbucks, who work so hard on their brand that internationally, all the uniforms, restaurants, and products match – even in the grocery store. These are not unsophisticated, “Hey, whoa! We never thought something like this would happen!” guys.

If Exit 6 Brewery really were surprised, they are way way uneducated about the business and, in particular, the beer industry. If they weren’t surprised, then they decided to flaunt the mark and see what happens – seems like a jerk move to me.

Snarky, really?

Jeff’s letter and the $6 check – ha, that was funny, right? Well, yes, and no. Sure, that was pretty cute and he made Starbucks look like a big, bad dummy. But what did it really tell us?

Well, first see my previous blog about why some Trademark Attorneys can be jerks; I touch on why Cease and Desist Letters are written like that.

Then let’s think about the two parties involved. No large business (like Starbucks) wants the negative publicity of “smacking down” the “little guy.” My guess is that they probably would have negotiated some agreement along the lines of “My bad, we won’t do it again.” Instead, they didn’t get the chance to do that, a small brewery in middle America just made them look stupid – EVEN though Exit 6 was in the wrong – and maybe intentionally so. I’m betting that Starbucks never really wanted to “punish” or “squash” Exit 6, but to maintain their trademark rights, they HAVE to police the people/businesses that violate those rights. My guess, too, is that they never wanted this to be this public.

The whole situation made Exit 6 look, to the unenlightened, like the hip, quick-witted, small business showing the big guy “what’s what.” But, once you dig a little more, it really says that maybe the Exit 6 guys were just looking for publicity at the expense of someone else.

Caution

So here’s the part that really concerns me: okay, fine – Exit 6 burned a bridge with Starbucks, no big whoop. But, the craft beer industry is small, and brewers depend on each other to reflect well on the profession. What if this had been another small brewery? Would they have been as snarky (and PUBLIC) about the response? If this is how Exit 6 treats a multi-billion dollar corporation, how would they treat someone – like another brewer – that might not be able to fight back as effectively?

The industry, even though it’s still experiencing double-digit growth year after year, is small enough that you better be really sure that it’s a bridge you want to burn before you set it alight. There just aren’t that many bridges out there for the small brewer to use as kindling.

For example, look at the Magic Hat / West 6th debacle last year – both breweries came off looking like jerks; no one really wins. I’d also bet that the argument between Magic Hat and West 6th probably forever foreclosed the possibility of a collaboration later on – or even them treating each other civilly in the event of a different dispute.

So my thoughts are these: (1) don’t be so quick to jump on a publicity bandwagon with a snarky response – you might burn a bridge you need later, and (2) look at the facts before you support one side or the other.

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