The Other 'F Word': Brewer Responds To Starbucks Over Beer Name

http://www.npr.org/blogs/thetwo-way/2013/12/30/258427295/the-other-f-word-brewer-responds-to-starbucks-over-beer-name

by mydpy • 13 years ago

99 53 13 years ago

npr.org

guard-of-terra• 13 years ago

I didn't know Frappuccino was trademarked. Imwas fairly sure this is a common title.

teamonkey• 13 years ago

It is[1] but only for "coffee beverages for consumption on or off the premises".

[1] http://tsdr.uspto.gov/#caseNumber=74187456&caseType=SERIAL_N...

cstejerean• 13 years ago

From Wikipedia:

"A coffee shop there, in Boston, Massachusetts, combined a milk shake with coffee and called it "frappuccino". When Starbucks bought the shop, the Coffee Connection, it bought the trademarked name."

"Many of Starbucks' competitors, in the United States, in the Philippines and elsewhere, have begun offering drinks similar to the popular and trademarked frappuccino and called them "frappe" with or without the accent, some which do not include any coffee"

ghaff• 13 years ago

A "frappe" was originally(?) the Boston/New England term for what others normally call a milk shake. In Boston, some took "milk shake" to mean just flavored milk. You don't see the frappe term used in this context much any longer but it was still fairly common when the Coffee Connection chain was around.

btn• 13 years ago

The name may have passed into the vernacular, but it was invented for the particular drink that Starbucks now sells in 1992: http://www.bostonmagazine.com/news/blog/2012/12/07/frappucci...

blazespin• 13 years ago

Normally I'm not a particularly big fan of trademarks (eg, Facebook was a term Zuck took that was already established to describe college year books, he shouldn't have been allowed to get that. It's also somewhat descriptive, which is another no-no on trademarks). Frappuccino is a pretty unique (and meaningless) word that Starbucks spent considerable monetary resources to acquire from George Howell [1] and further used its marketing budget to ensure it had meaning in the consumer mind.

I think if they don't want the word associated with Alcoholic beverages I am pretty sure they are right to ask this guy to cease and desist. Also, if they don't, and for whatever reason this guys beer becomes popular and loss of distinctiveness occurs, they may lose their trademark via abandonment.

[1] http://en.wikipedia.org/wiki/George_Howell_(entrepreneur)#St...

nwh• 13 years ago

That being said, frappuccino is hoveringly close to being generic and therefor not a trademark anymore. I've certainly seen other stores offering a product of the same name, or at last customers asking for a drink of the same. They do certainly need to be seen to be actively defending if they don't want to lose it.

goodcanadian• 13 years ago

Well' sure. It has become somewhat generic, but as long as they protect it, it remains their mark. That said, Starbucks doesn't brew beer, so the likelihood of confusion is low. I doubt they would prevail in court.

raverbashing• 13 years ago

Now that I noticed, Frapuccino is the only menu entry with a (R) mark beside it http://www.starbucks.com/menu/drinks

I have to check next time I'm in a store

ricardobeat• 13 years ago

I don't see how frappuccinno is any less descriptive than facebook, it's a portmanteau of frappè + cappuccino. It never crossed my mind it was a Starbucks' trademark until now, I've seen it used everywhere.

thesis• 13 years ago

Everywhere? You mean on every corner in a local starbucks near you as described in the article?

scrabble• 13 years ago

I think if they don't want the word associated with Alcoholic beverages I am pretty sure they are right to ask this guy to cease and desist.

The guy also stated in the article that they were completely correct to issue a cease and desist, even if he sarcastic in his response.

harvestmoon2• 13 years ago

I don't think this is brilliant. If I start selling a beer called Coca-Cole, I should certainly expect a C&D letter.

Natsu• 13 years ago

I doubt I'm alone, but I had no idea it was a Starbucks trademark in the first place. I thought it was just the generic name of the drink and did not associate it with Starbucks at all. That said, I don't drink coffee.

jerf• 13 years ago

The putatively brilliant bit is in taking the C&D and turning it into a PR bonanza, which he has. Else why would we even be talking about this?

Note that unlike some stories like this, he's not standing his (legally hopeless) ground, but has indeed changed the offending name, so he turned something he had to do anyhow into a benefit for his business.

harvestmoon2• 13 years ago

Yes, it is a brilliant marketing move how he's playing it.

Groxx• 13 years ago

If you start selling a pasta dish called Coca-Cola, does the same logic apply?

falcolas• 13 years ago

Sounds like in this process, the owner has come up with a great new name for his stout:

The F Word

nationcrafting• 13 years ago

Exactly. And since brands are strengthened by a good story behind them, he'll have this story to tell. Stories of the David vs Goliath variety are always popular with brands that are built on slightly rebellious values.

sokoloff• 13 years ago

"We also promise to stop production of our 'Starbuck-McDonalds-Coca Cola-Marlboro Honey Lager' for fear of further repercussions."

Nice.

cgore• 13 years ago

Vanilla creme ale sounds good. I know where I'm going next time I'm over on that side of the river.

degroat• 13 years ago

It is good, TC!

nsxwolf• 13 years ago

Snarky responses to clear trademark violations don't impress me.

bedhead• 13 years ago

There is nothing "brilliant" about this. People just like seeing smarminess, particularly if it's directed at a "big evil corporation". Frankly I thought the guy's response was douchey.

delinka2• 13 years ago

And profitable. Until his publicity stunt, he'd sold enough of them to earn six entire dollars of legitimate United States currency. And now it seems like more people are having their alcoholic F Word more often. The lawyer gets paid, Starbucks protects it's mark, this guy's brewery is selling drinks, and we get an entertaining story. Everyone wins.

lazerwalker• 13 years ago

To be fair, his claim to have sold "six dollars worth" based on the one or two dudes who said they were drinking it on Untappd (which is sort of like Foursquare for beer) not actual sales numbers. I'm not begrudging him for it, but he was being fudgy with numbers for the sake of splashiness.

famousactress7• 13 years ago

Putting any personal feelings about smarminess aside, I assume people are using the word brilliant to describe this because:

1. He complied with the order

2. ..while gaining an enormous amount of press

3. ... and generating more revenue

If enormous corporations are going to lawyer after tiny business, it's awesome for said businesses to use PR-judo to leverage the attention into something positive.

[Edit: My more detailed thoughts on why this is completely acceptable in a top-level comment here: https://news.ycombinator.com/item?id=6995479 ]

rmrfrmrf2• 13 years ago

I agree with you. On top of that, the response wasn't even that well written, and the fact that the business owner somehow thought he was entitled to use a Starbucks trademark just because he was too small a fish to fry is rather ridiculous.

janogonzalez• 13 years ago

I will shed one tear for Starbucks

famousactress7• 13 years ago

There seems to be quite a bit of negativity in the thread about the Brewery's action. Some adorable holding up of the idea that it's unfair or unethical to violate Starbuck's trademark and then flip the reaction to one's advantage.

I think that's complete bullshit. I also think the fact that people have been conditioned to think that way is a big part of the reason why there's such an enormous and growing wealth and power divide in the world today.

There aren't ethics in a vacuum, and (despite some pretty interesting legal decisions here in the US lately) Starbucks isn't a person. It isn't even a bunch of people. It's an emergent super-organism that coldly evaluates actions and their consequences against a consumer market.

I promise you that if the consequence-computer told them they could name a coffee after some small brewery and turn a profit from the reaction (regardless of the law), they would do it. Of course they would!

There are no ethics in a vacuum. Applying an ethical framework when dealing with an organization this large is silly and puts you at a disadvantage. There are laws and consequences. In this case, the C&D is a very affordable consequence and the small business owner leveraged the entire situation to his advantage. Good for him.

chaostheory5• 13 years ago

It isn't "bullshit" to complain about something unethical. I feel that it's this type of thinking ("because I can and it's legal and it doesn't matter that it's wrong") that's the cause of a lot of the world's problems: from patent trolling lobbying for corporate welfare, to even more mundane stuff like spam and crapware from installers. When people start thinking that this is acceptable, it's not too far from thinking "because I can totally get away with it, there's nothing wrong with not doing it regardless of the ethics and legality" leading to even worse shit like selling fake food or dumping pollutants and waste into rivers.

famousactress7• 13 years ago

I'm not arguing that ethics are bullshit. I'm arguing that they don't apply to your relationship with Starbucks because Starbucks is of a size and makeup that it's achieved a humanity index which approaches (if not reaches) zero. It's akin to applying an ethical framework to your relationship with a robot.

I agree that "because I can" is causing enormous problems. The most damaging perpetrators of this are these corporate super-organisms (Starbucks being just one example) and sociopathic assholes (this includes patent trolls).

In dealing with either of those entities (but not each-other!) we do the world a disservice holding ourselves to a one-sided ethical yardstick. Fuck ethics when dealing with them. Play by their rules.

rmrfrmrf2• 13 years ago

    Change your apps name. Not that big of a deal.

    Steve

    Sent from my iPhone

jccc• 13 years ago

(Without necessarily disagreeing with your broader point...)

I also think the fact that people have been conditioned to think that way is a big part of the reason why there's such an enormous and growing wealth and power divide in the world today.

St. Charles is home to mega-churches and wealthy conservatives. The county went to Romney 60 percent to 39 in 2012. Here's Cottleville specifically compared with Missouri state averages:

- Median household income above state average.

- Median house value above state average.

- Unemployed percentage below state average.

- Black race population percentage below state average.

- Foreign-born population percentage below state average.

- Renting percentage significantly below state average.

- Number of rooms per house above state average.

http://www.city-data.com/city/Cottleville-Missouri.html

The tone of this letter goes after the lawyer more than Starbucks. (I.e., "Please apply the enclosed $6.00 towards the legal fees Ms Owen Kramer received for her efforts in nabbing Exit 6 [...] We realize Mr Bucks probably paid her more than Exit 6 made last year.") Hating the lawyers is a bipartisan national pastime, but it is a special interest of people whose reasons for doing it might be at odds with yours.

The bar is tiny, and Starbucks is huge. But before we get all 99%, we shouldn't assume this particular bar owner is arguing your case with his clever response to the C&D letter.

famousactress7• 13 years ago

Whether the business owner has more disdain for Starbucks or Starbucks' lawyer doesn't seem like a particularly interesting distinction to me. I'm also not suggesting the letter-writer believes anything I'm saying here. I'll quickly concede that a vast minority of people agree with my take on this.

The argument that I'm proposing is only that the business owner didn't act unethically in violating the trademark or in writing the letter... regardless of his motives.

will_brown2• 13 years ago

This is the second C&D story on the HN front page in so many days. In both instances the recipient of the letter conceded.

If this ever happens to you, at least avail yourself to a free consultation with an attorney. In this instance the Brewer would likely have prevailed.

As a lawyer, the first thing I did was go to the USPTO trademark database and search for each of the registered marks listed in the C&D. The key here is none of Starbucks Frapucinno registered marks are registered for beer specifically rather non-carbonated soft-drinks. What does this mean? This means the burden shifts from a presumption of Trademark violation by the Brewer back to Starbucks to prove they 1. have a valid Trademark for Frapucinno vis-a-vis beer, and 2. Once a Trademark is established for beer, Starbucks must establish there is likelihood of confusion in the market place (e.g. people are buying the misspelled Frapicino under the belief they are buying an actual Starbucks product).

The funny part is the misspelling, intentional or not, creates a difficult burden on Starbucks to prove the reasonable consumer would believe a legit Starbucks product is spelled wrong - think Fony/Coby/Sony electronics.

I myself once received a C&D for Trademark infringement for V-Blood, a vampire themed energy drink I manufactured and distributed. The registered Trademark owner of Blood asked I stop using the mark blood in commerce with my vampire themed energy drink, perhaps I will post that C&D and my response on HN one day. Needless to say I did not stop my use of blood nor was a lawsuit ever filed.

danielharan• 13 years ago

Why fight it in court when he can get this much free publicity by conceding?

If Starbuck were to ever cash that $6 cheque, it would rank as one of the best advertising spends in history.

The cost of changing the name on that beer? Probably rewriting it on a blackboard.

will_brown2• 13 years ago

Why fight it in court when he can get this much free publicity by conceding?

What I am saying is it would never get to court. It is one thing for Starbucks or anyone else to send a C&D, it is a whole other ballgame to bring a Trademark lawsuit in Federal Court, exposing Starbucks to sanctions and attorneys fees.

Separately, the free publicity is not tied to the Brewery conceding (except the bonus points for doing it in a comedic way), but the free publicity is tied to Starbucks sending the C&D in the first place, the story would get a lot more publicity if the Brewery told Starbucks to fuck off - which could be done in an equally comedic way. However, if you think this is a lot of free publicity, this case actually going to court would result in 10 fold the publicity. Plus when the little guy prevails over Starbucks, gets their attorneys fees paid maybe even gets the Court to sanction Starbucks and their Corporate outside counsel... maybe 100 times the free publicity, again it would never go that far this C&D is a lot of posturing and very little legal merit, the attorneys know that and that is why the got the result they were seeking with nothing more than a certified letter.

mydpy• 13 years ago

The argument for both sides are valid. My use of 'brilliant' to describe this story and the emotions attached cone from a personal experience with a C&D letter; my sister's fledgling in-house one-employee business was served a C&D letter for a naming dispute that had very little legal basis. However, my sister did not have the legal experience or money to fight this battle. Fortunately her business is thriving now, but it caused her countless sleepless nights and anxiety, so when I saw this article my first reaction was to send it to her.

jaredmck• 13 years ago

Note that the brewer didn't officially name his beer Frappucino - someone just checked it in on Untapped named as such (it was their vanilla creme ale with a splash of Founder's Breakfast Stout added)

The Other 'F Word': Brewer Responds To Starbucks Over Beer Name

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