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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(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.
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.
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.
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.
"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"
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.
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.
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)
[+] [-] blazespin|12 years ago|reply
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...
[+] [-] ricardobeat|12 years ago|reply
[+] [-] nwh|12 years ago|reply
[+] [-] scrabble|12 years ago|reply
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.
[+] [-] bedhead|12 years ago|reply
[+] [-] famousactress|12 years ago|reply
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 ]
[+] [-] delinka|12 years ago|reply
[+] [-] rmrfrmrf|12 years ago|reply
[+] [-] janogonzalez|12 years ago|reply
[+] [-] will_brown|12 years ago|reply
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|12 years ago|reply
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.
[+] [-] famousactress|12 years ago|reply
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.
[+] [-] chaostheory|12 years ago|reply
[+] [-] jccc|12 years ago|reply
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.
[+] [-] rmrfrmrf|12 years ago|reply
[+] [-] harvestmoon|12 years ago|reply
[+] [-] jerf|12 years ago|reply
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.
[+] [-] Natsu|12 years ago|reply
[+] [-] Groxx|12 years ago|reply
[+] [-] guard-of-terra|12 years ago|reply
[+] [-] cstejerean|12 years ago|reply
"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"
[+] [-] teamonkey|12 years ago|reply
[1] http://tsdr.uspto.gov/#caseNumber=74187456&caseType=SERIAL_N...
[+] [-] btn|12 years ago|reply
[+] [-] nsxwolf|12 years ago|reply
[+] [-] cgore|12 years ago|reply
[+] [-] degroat|12 years ago|reply
[+] [-] sokoloff|12 years ago|reply
Nice.
[+] [-] falcolas|12 years ago|reply
The F Word
[+] [-] nationcrafting|12 years ago|reply
[+] [-] mydpy|12 years ago|reply
[+] [-] jaredmck|12 years ago|reply
[+] [-] TempleOSV2|12 years ago|reply
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