IP Disputes: Can You Catch More Flies With Honey?

In all intellectual property disputes, it is important to decide the best approach for the particular situation. While I will always vigorously defend the rights of my clients, it is not always necessary to take an overly aggressive approach.

A cease and desist letter regarding potential trademark infringement has gone viral after being dubbed by its recipient as “perhaps, the most polite cease and desist ever written.” Patrick Wensink, author of the satirical novel Broken Piano for President received the letter from Brown-Forman Corp.’s Jack Daniel’s Tennessee Whiskey brand. Jack Daniel’s contends that the book cover infringes on the trademark for the whiskey’s iconic black label.

The letter from Jack Daniel’s attorney Christy Susman reads:

We are certainly flattered by your affection for the brand, but while we appreciate the pop culture appeal of Jack Daniel’s we also have to be diligent to ensure that Jack Daniel’s trademarks are used correctly. Given the brand’s popularity, it will probably come as no surprise that that we come across designs like this on a regular basis. What may not be so apparent, however, is that if we allow uses like this one, we run the very real possibility that our trademark will be weakened. As a fan of the brand, I’m sure that is not something you intended or would want to see happen.

I recognize that every case is different and that client objectives are different in every case.  While I applaud Ms. Susman’s and Jack Daniel’s approach in this particular case and can see the benefit to the brand of this type of approach, I recognize that a nicer, gentler approach will not always be successful, or achieve a client’s goals.  Whether it’s taking a hard line, or making nice with an infringer, I believe a client directed approach will ultimately best serve my client’s needs.


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