The humorous news of a trademark dispute between Starbucks and a Missouri brewpub named Exit 6 Pub and Brewery and its witty owner, Jeff Britton, has been making the rounds on the internet. In December, Starbucks sent a cease and desist letter to Exit 6 after discovering that the pub had been selling a stout beer named “Frappicino,” a misspelled version of Starbucks’ trademark, “FRAPPUCCINO.” Starbucks’ letter was a standard cease and desist letter and demanded that Exit 6 cease selling beer under the name. Starbucks did not ask for money or threaten a lawsuit. The Starbucks letter can be seen here . While this type of demand is common, it was Britton and Exit 6’s response, posted to Facebook and picked up by Above the Law , that has made headlines and entertained the internet. The response is a humorous point-by-point everyman’s rebuttal of Starbuck’s letter and should be read in its entirety. Some highlights include referring to a Frappuccino as the “F word” and including a check for six dollars to cover the profits of the sale of three drinks, even though Starbucks did not request any type of payment.
Cease and desist letters from large corporations and the occasional humorous response have become something of an internet meme as of late. See here and here . The stories are written so as to make the “big guy” look like a bully and everyone loves a story about the little guy thumbing his nose in the face of “corporate heavy-handedness.” And from a public relations standpoint, it certainly seems like a bone-headed move by Starbucks. So why does this keep happening?
The key to understanding the persistence of this meme lies in the fact that U.S. trademark law leaves trademark owners little choice but to actively police and enforce their trademarks. A famous mark like FRAPPUCCINO must be diligently policed for several reasons. First, trademark law puts the burden of policing a trademark on the mark owner. Owners must pursue infringers to the extent necessary to ensure that the mark does not lose its distinctiveness. Failure to police can lead to claims of genericness or abandonment, both of which can cause the cancellation of a trademark. Failure to police in one instance can even be used against a trademark owner if it tries to enforce its mark at a later time, perhaps against more aggressive infringement by a competitor.
So while we all cheer on Exit 6 and Starbucks is left with a bit of a public relations snafu, expect other trademark owners to continue diligently policing their trademarks rather than risk losing the rights to valuable intellectual property. Now you know the “rest of the _______” [edited due to the risk of trademark infringement of this trademark].