Considering how many of these cease and desist letters are getting published on line lately, you’d think their lawyers would find a way to write them that would make them look a little less petty and insecure.
Couldn’t have said it better myself.
via Lawyerist
Where I work, we often advise people about the downsides of getting involved with the formal legal process: the expense, the emotional toil, and the unforeseen consequences. This is a story about why IP lawyers may need to re-evaluate those “unforeseen consequences” now that the Internet provides informal, inexpensive ways for companies to fight back.
Olson and Bear LLP, the law firm that represents the MONSTER energy drink trademark, sent Rock Art Brewery, a small-town Vermont brewery, a cease-and-desist letter. The letter opposed Rock Art’s trademark filing for its “Vermonster Beer.” Olson and Bear argued that the name “VERMONSTER” used for beer would be confusingly similar to the term “MONSTER” used on energy drinks.
Olson and Bear LLP took the usual hard-line approach with Rock Art. When the owner of Rock Art offered “to stay out of energy drinks with The Vermonster, if they leave him alone in beer,” Olsen and Bear made the claim that “Monster [wasn't] concerned with energy drinks, that Monster wants to now get into beer.”
Whether Monster has the actual intention in the immediate future of getting into the beer market, or whether Olson and Bear just wanted to allow Monster to keep its options open isn’t clear. What was clear is that Olsen and Bear was “ready to take immediate action” (as law firms often are) which meant filing an expensive lawsuit against Rock Art. Rock Art, which is essentially a mom-and-pop-hometown-hero-style local business, didn’t have the means of defending itself if it went to court.
After the popular craft beer blogs picked up this story and the owner of Rock Art released highly sympathetic Youtube video explaining the situation to the public, there was an immediate backlash against Monster Energy Drink brand online. This online backlash even led to real-world boycotts of Monster. Rock Art’s video “is now easily the highest-rated brewery video ever on YouTube with over 320 votes and a 5-star average.” For Monster, this is a huge PR failure.
Attorney Doug Riley predicted this weeks before the backlash began: “What I’ve seen happen — where the likable company is the good guys, with a homegrown local Vermont product, and on the other side is this big, faceless, conglomerate corporation — is usually the corporation will back off. It’s bad for publicity, and the Vermont company is really not a threat.” He didn’t have to be a fortune-teller to predict this might happen, he just understands exactly how the Internet has changed the game regarding policing trademarks.
In the end, the situation got settled quickly, out-of-court and in Rock Art’s favor.
Lessons learned? Yes, firms do have to police their clients marks, and to be fair to Olsen and Bear, they don’t just target the small guys who it knows may not be able to put up a fight, they go after everyone.
For example, when one looks at the registration by Coca-cola of a drink called “Monster Refreshment” you can see that [Monster] is not afraid to take on companies far bigger than they are.
But the question still remains, how much was the registration for VERMONSTER in connection with beer really a threat to MONSTER in connection with soft drinks / energy drinks, and was the a winner-takes-all fight really worth all of the expense (legal fees) and negative press for Monster? Was the situation so untenable that a license couldn’t have been worked out?
The Internet makes it really easy for the public to fight for the little guy. When you send a cease and desist that attacks someone’s livelihood (even if you have every right to) that person is going to use everything at their disposal to fight back. In this Post-Twitter landscape, it might be EASIER to go after a company like Coca Cola, that plays by the old, formal lawyer-versus-lawyer rules than a company like Rock Art that will wage a guerrilla PR war and will probably win (at least in the court of public opinion).
Lawyers defending small business and mom-and-pops, take note. Leverage your client’s fanbase to keep them out of court.
via BeerNews and A Good Beer Blog
Just in case you want to know what won this war for Rock Art, it wasn’t a brief, it was a video:
As a law-student legal clerk at New Media Rights, Shaun Spalding provides pro-bono legal assistance to artists, filmmakers, entrepreneurs and anyone else who creates or shares their work online. If you have any legal questions, you can direct them to Shaun’s supervising attorney. You can tap into what he's thinking via Tumblr, or figure out what he's doing via Twitter: @SASpalding