The Whiskey Rebellion

http://brokenpianoforpresident.com/2012/07/19/jack-daniels-lawsuit-the-full-scoop/

by Hoff • 14 years ago

179 109 14 years ago

ceejayoz• 14 years ago

Well, next time I make my bourbon BBQ sauce, I know what's going in it. This sort of responsible behaviour needs encouraging.

stevoski• 14 years ago

That sort of responsible behaviour encourages responsible drinking of their product!

carsongross2• 14 years ago

A great product coupled with decency?

It's such a crazy idea... it just might work.

excuse-me15• 14 years ago

And it's worth how much in free advertising and brand image?

Assuming that JD is actually owned by some mega-corp fizzy beer maker (they are not "brewers"!) it's a clever way of giving the impression that they are still good ol' boys.

Compare that to the Disney corps hunting down of every sick children's hospital that paints cartoon characters on it's walls.

true_religion• 14 years ago

Jack-Daniels is owned by Brown-Forman which specializes in spirits and not beer. The least alcoholic lines they run are wine.

cwp3• 14 years ago

Yeah. They're behaving like reasonable human beings to fool us into thinking they're reasonable human beings. But they can't fool us. Imagine the evil they could accomplish if we gave them the benefit of the doubt.

jfb• 14 years ago

Great product?

tptacek14• 14 years ago

It's at least not bad whiskey.

nonameisfinetoo• 14 years ago

I'm so knowledgeable about liquors and stuff, I can't stand dilettante whiskey drinking. Beotians! those that think that the black sticker bottle contains but urine and alcohol.

Go be a liquor nerd somewhere else.

carsongross2• 14 years ago

Yep. Great product.

dkersten• 14 years ago

The cheap bottles of JD, IMHO, don't taste so great - but the more expensive bottles (I guess they're aged more?) are pretty good!

esbwhat2• 14 years ago

not as nice as they were in the case of ilovejackdaniels.com:

http://www.addedbytes.com/blog/what-happened-to-ilovejackdan...

Anechoic• 14 years ago

In April of 2008, the people responsible for the Jack Daniel's trademark contacted me and asked me to stop using the name "ILoveJackDaniels", and URL "ilovejackdaniels.com", for my site, and to change the logo.

They asked "Dave" to stop using the trademark and he did. Seems nice to me, unless you have evidence of strong-arm tactics that Dave didn't discuss on that page.

esbwhat2• 14 years ago

It's definitely not the worst, but I don't think they should have asked him at all, and (more importantly) let him redirect the old site for more than a year.

krogsgard3• 14 years ago

It baffles me why more companies can't be like this. Surely some testing could provide data on success ratio of sending "friendly" c&d letters versus the normal threatening kind. I suspect people are much more likely to play nice in this kind of scenario (especially when the reason for the c&d is not as strong), but why not at least put it to the test?

dorianj• 14 years ago

And if the infringer doesn't reply to the 'friendly' request, the 'threatening' one can certainly still be sent, with the same effect as if it were sent initially.

olalonde• 14 years ago

There might be misaligned incentives at play here. I'd bet that in a lot of cases lawyers have a strong inventive to settle those things in court.

excuse-me15• 14 years ago

Lawyers almost never want to go to court. They bill you for the hours preparing the case beforehand - but it's in court that they can lose.

excuse-me15• 14 years ago

Because their lawyers aren't this smart.

Assuming it ever came to court, it comes down to who the jury likes. Compare this letter being read out as evidence to a standard Disney-style "we will wipe you and your family from the face of the Earth" (for copying a story that we copied from Christian-Anderson) - who are th jury going to feel for?

citricsquid• 14 years ago

I would hope to all that is holy that a jury wouldn't give 2 shits what the letter says. It should be about whether or not the person infringed on a trademark, not who has the nicest smile.

It's not about lawyer's being smart, it's about most people being vindictive asshats. If someone is willing to infringe on your trademark it's most likely that they're not willing to roll over and take any polite request to stop. If you send them a letter asking politely for them to stop and they ignore the letter you then have to send another (serious) letter, which is double the lawyer time.

Sure, in a few cases like this one in makes sense because it's not a clear case of infringement and it's more likely a misguided person than a vindictive person, but in more obvious cases (like someone selling "Jack Danielson's" with the same presentation style) it makes no sense to be nice.

cwp3• 14 years ago

It probably has to do with the nature of the infringement. I doubt they'd be so friendly with a distiller that was selling "Jack Dawson" whisky with a visually similar label. The book cover isn't harmless, but it's not malicious, either.

autarch2• 14 years ago

They might be so friendly in that other case, but they shouldn't be.

There's a big difference between the two. In the book case, they have a fan in an entirely different business who infringed. They're sane enough to realize that this is very unlikely to impact their bottom line, and there's no malicious intent.

In the "Jack Dawson" case, it's naked profiteering off the original brand's name recognition, and it's clearly malicious. Why be nice?

mikeash3• 14 years ago

There are plenty of companies out there that will send a true nastygram for any sort of infringement, no matter how harmless.

mekwall• 14 years ago

I wonder if they wrote such a friendly cease-and-desist letter to Rockbaren in Gothenburg, Sweden. According to the new owner of the night club, this had already been played out between the old owner and JD. Seems not!

http://www.goteborgdaily.se/news/jack-daniel-s-to-sue-gothen... http://www.rockbaren.com

jontro• 14 years ago

Exactly my thought, they have been keeping going on with this for a long time now. It seems reasonable, the resemlence is really striking

tptacek14• 14 years ago

Unsurprising. Not only are there literally hundreds of liquor bottle designs to choose from and this one chose Jack Daniels because of its obvious brand association with rock & roll, but this is a club that prominently displays other liquor brand sponsorships under an umbrella of a design derived from a competing brand.

skibrah• 14 years ago

thats the kind of attitude you have when they serve JD in the water cooler

excuse-me15• 14 years ago

If they were olympic sponsors they would be demanding that he removed the letters "J" and "D" from anywhere they appear in the text of the book

electromagnetic• 14 years ago

I've trademarked vowels, I intend to sue J.K. Rowling, and all major authors for every AEIOU and occasional Y used. I figure it could be worth millions per novel.

excuse-me15• 14 years ago

The new laws introduced for the OxxxxxxxICS are ridiculous - it's now a criminal offence to use:

..any two of the following: Games, 2012, Two Thousand and Twelve Twenty Twelve

Or use of any one of them alongside any mention of: gold, silver, bronze, London, medals, sponsor, sponsors

http://www.shoosmiths.co.uk/news/3983.asp

flexie• 14 years ago

That lawyer sets a great example to follow.

ck2• 14 years ago

They are being nice because it's protected under "parody" free speech and they'd lose.

I don't drink so I am not very familiar with their label but I definitely don't think of JD when I see it.

tptacek14• 14 years ago

You mean parody fair use. Tricky, and thus risky, and so probably not worth it. Jack Daniels has a very distinctive brand, and the publisher used it to promote a commercial product.

So, for example, a risqu� parody of an L.L. Bean magazine advertisement was found not to constitute infringement. L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 28 (1st Cir. 1987). Similarly, the use of a pig-like character named "Spa'am" in a Muppet movie was found not to violate Hormel's rights in the trademark "Spam." Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497 (2d Cir. 1996). On the other hand, "Gucchie Goo" diaper bags were found not to be protected under the parody defenseGucci Shops, Inc. v. R.H. Macy & Co., 446 F. Supp. 838 (S.D.N.Y. 1977). Similarly, posters bearing the logo "Enjoy Cocaine" were found to violate the rights of Coca-Cola in the slogan "Enjoy Coca-ColaCoca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972). Thus, although the courts recognize a parody defense, the precise contours of such a defense are difficult to outline with any precision. [em mine]

Your point is well taken though. It's probably not a slam dunk case.

excuse-me15• 14 years ago

To be a parody you have to be paroding the thing you are copying, not using it to parody a third party. The defense is intended to stop ACME company preventing you saying "Boycott ACME" by claiming ownership of the name. It doesn't allow you to copy ACME's fine range of anti-roadrunner products to protest against something else.

For example Weird Al's songs are parodies but they aren't protected because he is parodying the Amish NOT Coolio.

mikeash3• 14 years ago

Weird Al isn't parodying the artists he parodies? What?

TeMPOraL3• 14 years ago

Wasn't this submission link a Boing Boing article just 15 minutes ago? What the hell is going on HN? Not only the title renaming frenzy, but now the submission links change? I'm really confused...

sosuke• 14 years ago

I think I'll go put my money where my mouth is in support of Jack Daniels and pour some over ice.

TeMPOraL3• 14 years ago

Good idea; I'm going to buy one with next money I can spare.

tptacek14• 14 years ago

Whoah whoah taking this maybe a little bit too far; before we make Jack Daniels the Louis CK of bourbon (presumptive nerd favorite in exchange for one congenial gesture), maybe you should try some Evan Williams Black Label. It costs 2-3 cups of coffee, and is way better.

apawloski2• 14 years ago

There's a surprising number of cynical replies to this letter. I have two considerations in response:

1. Did the JD lawyer expect the letter to be publicly displayed when he wrote it? I think it's unreasonable to expect this.

2. Even if it is some sort of PR stunt, why is this a bad thing? Is it even possible to have a mutualistic relationship between consumers and companies any more?

tptacek14• 14 years ago

I was thinking perhaps there's a willfulness argument to be built on an infringer refusing to alter a design even when the trademark owner offered to subsidize the alteration.

Also, as pointed out cross-thread, when your argument is uncertain, it pays to be nice.

nirvana• 14 years ago

Besides being polite this letter provides two remedies that are unusual, and I think there might be a potential third that would make these cases much less contentious.

First off, it doesn't demand a removal of the book for sale, but merely requests that the next printing have a different cover. That's a huge step forward, and since the need here is to protect the trademark ability of the brand, outrageous demands really aren't' called for. Offering to pay for the cost of changing it if they are willing to do it earlier, is also a generous remedy that protects the brand. The violator doesn't lose money, and the act of paying for the remedy is an act of protection.

I wonder if there isn't a third remedy in cases like this, where it isn't flagrant violations: That being licensing the brand.

Certainly trademarks are licensed all the time- coca-cola licensed clothing is a good example. So, someone using your trademark under license doesn't undermine the ability to protect the mark.

Thus they could have offered to license the mark (as a third possibility) for a reasonable fee. The fee would have to be industry standard (e.g.: "You can use it for $1" would undermine their ability to protect the brand) but I imagine for mildly infringing or only partially infringing situations like this the remedy is probably not too high.

Not that the publisher of this book would likely want to take them up on it, but maybe given the books content in some cases that might be preferable-- where the infringement on the brand has positive economic value for the book, and everyone makes out ok.

The trademark is protected, and the publisher makes a bit more money by being able to use this design than they would if they had to do something completely different.

Further, this activity- of issuing licenses- shows diligence of protecting the mark which enhances its trademark ability. You might not know all the violators of your trademark, but it is the failure to defend the mark that can cause you to lose it. A license is obviously not a failure to defend the mark, and so it helps bolster the mark. (This is what it would seem to me, but I'm not a lawyer.)

Yet I've never seen someone offer to license the trademark to a violator.

qw• 14 years ago

Yet I've never seen someone offer to license the trademark to a violator.

Licensing would probably push the case into another department and out of the lawyer's hands. I wouldn't be surprised if they act out of self interest and prefers to deal with it themselves.

tptacek14• 14 years ago

Well, licensing will earn them a negligible amount of money, while continuing to promote the notion of a "rock & roll American whiskey label" that just happens to comprise all the distinct elements of the Jack Daniels label; that's textbook dilution.

drumdance• 14 years ago

The fact that they even off to help financially is really encouraging. Perhaps they could structure this similar to a product placement deal like you see in Hollywood.

sliverstorm• 14 years ago

Is it possible to license a likeness, though? Notice the logo was mimicked here, not copied. It is clearly not actually a JD logo.

Tyrannosaurs• 14 years ago

If it's a violation then presumably it can be - after all isn't that all a license is, an agreement not to press violations in exchange for money?

sageikosa• 14 years ago

http://en.wikipedia.org/wiki/Trade_dress

Rather than trade-mark, this falls more under trade-dress, but otherwise, the same ideas apply. By not objecting, JD might be seen by some as endorsing or promoting the book in question.

If the book were a parody or critique of Jack Daniels, then fair use might apply. If it were satire (and Jack Daniels is not the target), then fair use is less likely to be upheld.

slackwalker• 14 years ago

This is pretty great marketing for the first edition.

evolve2k• 14 years ago

I personally applaud JD for their gentlemanly approach to sending legal letters.

yojimbo311• 14 years ago

I really love this approach, and I hope that my fear of the outcome of this is an irrational one. By not qualifying the offer to "just this once"/whatever I fear they may inspire more copycats and prove to the rest of the trademark gatekeepers, that being respectful and helpful just invites more infringement.

I can only remember seeing Ben & Jerry's doing this with a C&D request before, but I'm sure there have been at least a couple more companies willing to forego "more effective" intimidation for the "small" chance of creating an ally. It seems to me to have more to do with an overwhelmingly strong culture in those companies to be great at what they do rather than beating everyone else at what they do. Kudos to Christy Susman and anyone else that gave her the freedom to make these choices instead of taking the "easy" way. It gives me hope.

The Whiskey Rebellion

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