Coffee is for Closers, Not for Brewers

by Winthrop & Weinstine, P.A.
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When life gives you a cease and desist letter, make lemonade. Or, depending on your profession, maybe some beer. That’s what Jeff Britton, owner of the Exit 6 Pub and Brewery in Cottleville, Missouri chose to do after receiving a cease and desist letter on behalf of Starbucks.

The owner penned a humorous response that is definitely worth a read. Among other things, Mr. Britton promised that he would no longer use “Frappicino,” but instead opt simply for “The F Word.” He also sent Mr. Bucks a check for six dollars. The story spread with incredible speed. The letter appears to have been written on December 23 and, less than two weeks later, the story has appeared across major media outlets such as ABC News, CNN, Fox News, NPR, Time magazine online, USA Today, as well as web-based media like Gawker, Huffington Post, and legal blog Above the Law.

The Exit 6 Pub sold both a vanilla cream ale and a coffee stout that, when mixed, tasted like a Starbrucks brand Frappuccino® coffee drink.  Starbucks’ attorney was concerned that if the Frappuccino® were to be used by the business as a type of beer that it might cause confusion as to whether there was some affiliation with Starbucks. Starbucks would be on pretty solid ground with such a claim, considering it has its own brand of coffee liqueur and also (unbeknownst to me) because Starbucks operates a couple dozen locations around the country that serve beer and wine (branded as Starbucks Evenings). Combine this with the strength and fame of the mark, there is a more than reasonable argument in support of a likelihood of confusion if the brewery had used this “Frappicino” mark for its beer.

But the brewery never used the mark. Instead, three of its patrons labelled the beer “Frappicino” on Untappd, a user-driven website/social app for ranking beers.  A user can label the beer anything they want, as evidenced by the claim by Paul S. that he was recently enjoying a Starbucks-McDonalds-Coca-Cola-Marlboro Honey Lager.

For me, the take-away here is not that Starbucks was making questionable legal claims or sending unnecessary and intimidating cease and desist letters. Likelihood of confusion aside, Starbucks certainly has the right (and some might say duty) to correct misuse of the Frappuccino® mark in order to prevent the mark from becoming a generic name for a particular coffee-based beverage. Instead, it is another reminder that regardless of how big a client’s brand may be, any cease and desist letter should be carefully scrutinized for tone, appropriateness of any demand, and whether the evidence supports the assertions contained in the letter.

In this instance, it appears that there was a disconnect between the evidence and the demand. Starbucks could have spent a bit more time to investigate the evidence or instead temper its “demand” to a request for more information. Had either occurred, perhaps the tongue-in-cheek response never would have been created (so I guess I’m happy things turned out the way they did). Thankfully for Starbucks, the media coverage (social and traditional) hasn’t vilified the company like other instances of other David versus Goliath story.  But I doubt that Starbucks has seen any positive results from the coverage, so I would guess they would have preferred it not happen at all.

In the end, Starbucks got what it wanted – the offending posts were removed from Untappd.com and the brewery promised not to use “Frappicino.” And, in the process, Exit 6 Pub and Brewery got a Venti®-sized amount of free publicity. Mr. Britton apparently is selling t-shirts featuring the six-dollar check and his most recent batch of The F Word beer sold out in three hours. He is currently considering increased production. Starbucks can keep their coffee, I think Mr. Britton is more than happy with his lemonade.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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