Two good friends have sent me the Jack Daniel’s cease and desist letter dubbed the nicest ever! And you can see why here.
Afro
Leo attended two presentations at INTA in May by brand owners of well known marks who
strongly advocated a more engaging approach much like the one illustrated by
the JD letter. They emphasised tone, less threatening language and the use of
persuasion to curb the infringement. Hell, one even suggested a telephone call!
But
attorneys chatting in the hallways afterwards expressed their disquiet. There
are times when you need to be more forthright. Some infringers are crooks and wasting time on
niceties is costly, inefficient and may even promote the infringing behaviour; the
infringer just senses hesitation and weakness which is then exploited. In short, Jack
Daniel’s often works better straight up, not diluted. Afro Leo agrees.
However,
the trend to be more diplomatic and user friendly has been coming for some time:
1.
In jurisdictions such as the UK and Ireland there are provisions
against unjustified trade mark threats precisely to curb abuses, especially by
big brand owners. There are also guidelines on what must be contained in
letters enforcing trade mark rights.
2.
Big brand owners and attorneys have become more cautious too.
The power of the infringer has increased significantly because of social media
and the web. An ill conceived cease and desist letter is easily published for
the world to see, to the detriment of both the brand owner and lawyer.
3.
The role of the brand is also changing. It needs to be far
more communicative and engaging now than it has ever been. Consumers are
attracted to brands because they associate with them and an overly aggressive trade
mark lawyer is often a turn-off. Who wants to date the steroid fuelled bouncer
at the door?
4.
The public is also more aware. It is not difficult to
research case law on infringement and it is very satisfying to draft a snorting
retort to a letter that is not spot on; and
5.
The persona of IP is also experiencing a shift. Copyright,
for example, is at risk of being perceived as an outdated inhibitor in an age where collaboration and
sharing has become the rage. In Africa, the perception is more acute because
the vast majority of enforcement is by foreign brand owners, and access to
information/education that much more expensive, allegedly because of copyright.
So,
kudos to JD’s attorney for raising the profile of us lawyers and for becoming
the only IP attorney that I know to become famous for a job for which we are
infamous. Now go on “Give that girl a hug”.
