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.
And anywhere else that sells prebottled drinks labeled "Frappuccino." Until now, I didn't realize those bottles sitting in the local grocer probably have a Starbucks logo on them someplace.
And they aren't licensing anything from Starbucks?
For a while I was looking into opening a coffee shop and it's fairly straightforward to license names and sell coffee and coffee products from a lot of major coffee companies. Not that I care for Starbucks coffee, but it was the biggest brand that business brokers pushed on me.
No way for me to know, but I doubt it. I'm talking about very small shops very out of the way, and quite a long time ago as well. I assume it was under the radar.
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.
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.
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.
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.
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.
>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.
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.
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.
Just because Starbucks is a large, profitable organization, it doesn't mean that it gives people a blank check for doing anything they want against Starbucks regardless of whether or not it's wrong.
> The most damaging perpetrators of this are these corporate super-organisms
That doesn't mean all corporations including Starbucks are the same. Over generalizing something doesn't help. Are you going to tell me that everyone belonging to a particular ethnic group is prone to stealing so we should just lock them all up at night?
> 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.
When you start down this road, it'll be easier and easier to start breaking your own rules on when it's right time to do the right thing (or prevent yourself from being asshole at times).
Your argument is circular because it assumes it's possible to do something "wrong" to Starbucks. I'm arguing that it's not possible because ethics don't actually exist in the relationship in the first place. Ethics are a social contract that Starbucks won't participate in. Any participation on your part is optional, and I believe silly.
> That doesn't mean all corporations including Starbucks are the same.
No, of course they're not all the same. But at some point they abandon humanity and are literally incapable of making an ethical choice independent of business value. Certainly the brewer or other small businesses are well below this index. There are people at those entities that are capable of making a ethical decision without regard to how it will affect the organization. Where organizations cross that line is fuzzy, but Starbucks is certainly past it.
Also, I don't believe I'm generalizing at all. I certainly think the evaluation is case-by-case, but I'd certainly be quick to assume that any publicly traded company worth billions falls into this category.
[Edit: Also, I didn't say it gives anyone a blank check. There are obviously legal consequences, and the law increasingly vastly favors entities like Starbucks, because money buys law in the US. In short: If you're the brewer in this story the scales are already tipped against you. Opting-in to the idea that you ought to treat Starbucks the way you ought to treat your next door neighbor doesn't help anyone but Starbucks.]
> Ethics are a social contract that Starbucks won't participate in.
Really? This is a really strong assumption. So people as a group cant act in an ethical manner?
> Also, I don't believe I'm generalizing at all.
But you are. Here are your generalizations:
* Ethics are a social contract that Starbucks won't participate in. (What proof do you have?)
* But at some point they [ALL corporations] abandon humanity and are literally incapable of making an ethical choice independent of business value.
> Also, I didn't say it gives anyone a blank check. There are obviously legal consequences, and the law increasingly vastly favors entities like Starbucks, because money buys law in the US
yes might equals right and the ends always justify the means /s
> Really? This is a really strong assumption. So people as a group cant act in an ethical manner?
I'm not sure, but I don't see any evidence that large corporate organizations do. I think at some point distributing responsibility for ethics craves a system for them and the system that ends up depended on is market reaction, and law. Corporations like Starbucks pour enormous amounts of energy manipulating both to serve their interest (profit), so I don't see any evidence of actual ethical behavior except when it lines up conveniently with consumer appreciation. You could argue that's the system working (the ethics of a large enough corporation become a perfect proxy of the ethics of it's consumers) but that argument falls down unless there's complete transparency and an attempt to share truth about company behavior with consumers as opposed using misdirection and marketing, or outright lies to manipulate public opinion.
> * Ethics are a social contract that Starbucks won't participate in. (What proof do you have?)
This isn't a generalization, it's specific to one corporation. I don't have any proof, I have an (admittedly unpopular) model for thinking about companies at this scale that makes it impossible for them to participate in. Per my above corporation, Starbucks' ethics are the ethics of it's consumers (informed beyond Starbucks' interest) and applied through patronage (or lack of it). It's a machine that will behave only if we stop feeding it when it doesn't (which depends on us knowing about it's behavior). I don't think this is as radical an idea as I'm making it sound.
> * But at some point they [ALL corporations] abandon humanity and are literally incapable of making an ethical choice independent of business value.
Fair, yeah. A generalization. One I stand behind unless we turn up any counter examples.
> yes might equals right and the ends always justify the means /s
If you're suggesting that my thoughts lead to this idea then I'm being misunderstood. I certainly don't think either of those things are true. Law != Righteousness (though proponents of existing law love to use this fallacy to demonize critics and offenders), and the idea that money buys law can't possibly be controversial. Hopefully I didn't imply that I think our legal system ought to work that way, I don't.
> I'm not sure, but I don't see any evidence that large corporate organizations do.
> This isn't a generalization, it's specific to one corporation. I don't have any proof
In Starbuck's case, they popularized fair trade coffee and they offered their part time employees health insurance way before any federal mandate. There are plenty of other examples as well for other companies.
> If you're suggesting that my thoughts lead to this idea then I'm being misunderstood.
Ok you're advocating being an asshole towards what you feel are a powerful group of people. In my opinion it's not that far off from saying, "Hey this group of people are wealthy and stingy. Let's take their stuff, and make it legal to put them in gas chambers because they're ruining our country."
Drawing a line between believing that it's not unethical to violate Starbucks' trademark and Hitler is jaw dropping, and really pretty hurtful. I don't think we share enough common ground to continue this discussion. I apologize if I've offended.
(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.
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.
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"
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.
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)
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...