I recently read an article about a Starbucks attorney sending a Cease-and-Desist letter to a small brewpub in Bumfish, U.S.A. It seems the brewmaster/owner splashed one stout beer (Founders Breakfast Stout) on top of the brewery’s vanilla crème ale and, voila!, some customers claimed it reminded them of a Frappuccino™. The owner then listed the beer combination on his menu as a “Frappicino”, the misspelling unintentional on his part.

The letter, among others things, claimed that the brewmaster’s FRAPPICINO trademark differed only by one letter from Starbucks’ FRAPPUCCINO™ and that the usage was liable to cause “brand confusion”. Now, other than creating a question regarding the intelligence of Starbucks’ attorneys (by my count, FRAPPICINO differs from FRAPPUCCINO™ by two characters), the public’s reaction to Goliath flicking David in the ball sack was, if nothing else, entirely predictable. The brewmaster’s solution, however, was much more original:

He calculated the sales of said beer mixture (estimated at three) and mailed Starbucks a gloriously sarcastic, tongue-in-cheek apology, agreement to cease and most definitely desist, and included a check for six bucks—the gargantuan chain’s share of the FRAPPICINO profits to date.

Now before all you trademark lawyers out there start howling about a business’s need—regardless of size or prowess—to enforce a trademark in order to keep it, this posting is not suggesting Starbucks did anything untoward in sending a letter. The question (as implied by the title of this blog) is whether or not some pure humbleness of wording might not have served the same “protective” purpose while fostering both good relations with the small business owner and the general consuming public all at the same time?

No one need answer my (mostly) rhetorical question because, as irony would have it, Jack Daniel’s already did. Esquire magazine recently showcased the “Nicest Cease-and-Desist Ever, by Jack Daniel’s“:

Author Patrick Wensink had created a cover for his book, Broken Piano For President, that very closely resembled a quite famous (and recognizable) whiskey label. This time when Goliath was made aware of David’s faux pas, yes, the senior attorney for Jack Daniels sharpened her digital pencil. Rather than espouse typical, unseemly legal jargon, however, she instead wrote a Cease-and-Desist letter to champion and challenge the constitution of all Cease-and-Desist letters, from that hallowed day forward:

Too often we hear that there is no hope left (and I don’t mean only in reference to laws, the court system, justice, or the seemingly ever-devolving, sharkskin image of our nation’s lawyers). Many of us—myself included—have succumb at times to the realist perspective that nothing we do can change the direction of the world; that even we writers (perhaps especially we writers) do not wield enough power or influence or weight to change the way City Hall does business. 

Well I submit that the power of the written word is infinite, and in the right hands, can move mountains.

I have no idea what Christy Susman, Senior Attorney – Trademarks, for Jack Daniel’s looks like, but I want to kiss her. Not in a sexual way; rather in that way that says “you are MY kind of human being—carry on!”. You simply cannot read that letter, knowing it is a Cease-and-Desist from a corporate lawyer, and not believe in the power of words to make the world in which we live a much kinder, more tolerant, and exceedingly decent place.

Brava, Ms. Susman.

Fishin’ A.

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The blank page is dead…long live the blank page.

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Author known to use spontaneous satire, sarcasm, and unannounced injections of pith or witticisms which may not be suitable for humorless or otherwise jest-challenged individuals. (Witticisms not guaranteed to be witty, funny, comical, hilarious, clever, scintillating, whimsical, wise, endearing, keen, savvy, sagacious, penetrating, fanciful, or otherwise enjoyable. The Surgeon General has determined through laboratory testing that sarcasm can be dangerous, even in small amounts, and should not be ingested by those who are serious, somber, pensive, weighty, funereal, unsmiling, poker-faced, sober, or pregnant.) For those who enjoy and/or revel in the utterance of profanity, the author reserves the right to substitute “fish” for “fuck” without fear of repercussion, mental reservation, or purpose of evasion.