
The Whiskey Rebellion - Hoff
http://brokenpianoforpresident.com/2012/07/19/jack-daniels-lawsuit-the-full-scoop/
======
krogsgard
It baffles me why more companies can't be like this. Surely some testing could
provide data on success ratio of sending "friendly" c&d letters versus the
normal threatening kind. I suspect people are much more likely to play nice in
this kind of scenario (especially when the reason for the c&d is not as
strong), but why not at least put it to the test?

~~~
cwp
It probably has to do with the nature of the infringement. I doubt they'd be
so friendly with a distiller that was selling "Jack Dawson" whisky with a
visually similar label. The book cover isn't harmless, but it's not malicious,
either.

~~~
autarch
They might be so friendly in that other case, but they shouldn't be.

There's a big difference between the two. In the book case, they have a fan in
an entirely different business who infringed. They're sane enough to realize
that this is very unlikely to impact their bottom line, and there's no
malicious intent.

In the "Jack Dawson" case, it's naked profiteering off the original brand's
name recognition, and it's clearly malicious. Why be nice?

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carsongross
A great product coupled with decency?

It's such a crazy idea... it just might work.

~~~
jfb
Great product?

~~~
tptacek
It's at least not _bad_ whiskey.

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sosuke
I think I'll go put my money where my mouth is in support of Jack Daniels and
pour some over ice.

~~~
TeMPOraL
Good idea; I'm going to buy one with next money I can spare.

~~~
tptacek
Whoah whoah taking this maybe a little bit too far; before we make Jack
Daniels the Louis CK of bourbon (presumptive nerd favorite in exchange for one
congenial gesture), maybe you should try some Evan Williams Black Label. It
costs 2-3 cups of coffee, and is way better.

~~~
jsolson
First, Jack Daniels is not bourbon; it's Tennessee whiskey.

Second, if you're going to tell people to drink Evan Williams, at least point
them towards the single barrel. It lacks most of the abrasive industrial
solvent characteristics of the black label, and if I recall correctly it's
still typically cheaper than JD.

~~~
tptacek
Are you saying you like Jack Daniels more than Evan Williams Black Label?

I am happy to have provided the opportunity for someone to draw the
distinction between "Tennessee whiskey" and "Bourbon", that written point
being a regulatory requirement for all message board discussions regarding
whiskey. :)

~~~
krogsgard
the definition of bourbon varies based on country, but pretty much it's
anything over 50% corn based.

The difference in "Tennessee Whiskey" is the charcoal filtration. They pour
the whiskey over an enormous pile of charcoal, which provides a unique flavor,
independent of standard bourbon. They obtained the legal right to distinguish
it this way a long time ago. To me, technically, Tennessee Whiskey could be
called bourbon, but bourbon should not be called Tennessee Whiskey without
this process. IE, square/rectangle relationship.

After the charcoals, it goes to the barrels, and anything that ages
appropriately (usually depends on the height of the barrel in the storeroom
and the strength of the winters/summers) between, I think, 3 and 7 years
becomes JD black label. If it hasn't aged after 7 years, it becomes green
label. Gentlemen Jack gets put through the coals twice, and single-barrel is
well, single-barrel.

If you haven't been to Lynchburg, I recommend it. It's an awesome tour.

~~~
justincormack
Surely charcoal filtration not coal?

~~~
krogsgard
Yeah, charcoal. Fixed - sorry about that.

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ceejayoz
Well, next time I make my bourbon BBQ sauce, I know what's going in it. This
sort of responsible behaviour needs encouraging.

~~~
stevoski
That sort of responsible behaviour encourages responsible drinking of their
product!

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TeMPOraL
Wasn't this submission link a Boing Boing article just 15 minutes ago? What
the hell is going on HN? Not only the title renaming frenzy, but now the
submission links change? I'm really confused...

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ck2
They are being nice because it's protected under "parody" free speech and
they'd lose.

I don't drink so I am not very familiar with their label but I definitely
don't think of JD when I see it.

~~~
excuse-me
To be a parody you have to be paroding the thing you are copying, not using it
to parody a third party. The defense is intended to stop ACME company
preventing you saying "Boycott ACME" by claiming ownership of the name. It
doesn't allow you to copy ACME's fine range of anti-roadrunner products to
protest against something else.

For example Weird Al's songs are parodies but they aren't protected because he
is parodying the Amish NOT Coolio.

~~~
mikeash
Weird Al isn't parodying the artists he parodies? What?

~~~
excuse-me
In the strict first amendment sense - no he isn't (with the possible exception
of the Nirvana one)

The parody protection is very narrowly defined, mainly to stop the target
using it to squash opposition. You can't automatically use artist X's
tune/style/etc to parody politician Y. And just making your own funny version
of something is definitely not

~~~
mikeash
The first amendment has nothing to do with this, as far as I know. The
question of parody is entirely in the realm of copyright/trademark law.

Can you give more information about how parody is defined in the context of
fair use here? My understanding is that Weird Al would be completely within
his rights to make all of his parodies without permission from the original
artists, and that he only seeks there permission out of courtesy and a desire
to maintain a good relationship with people. The Wikipedia page backs me up on
this, although we could both be wrong.

~~~
excuse-me
In Campbell v. Acuff-Rose Music Inc. the 'live2 crew' won on their parody of
"Pretty Women", because they were making a comment on the original song. While
family guy lost "when you wish upon a weinstein" because they merely
appropriated the "when you wish upon a star" song to comment America's
stereotype of Jews. But they weren't saying anything about the song.

Basically I can parody your work to make a comment on it. I can't appropriate
it to parody someone else.

Weird Al gets permission from the artist - but that's mainly a, don't cause
trouble, keep the record company happy.

He would still have to pay for the rights to the music owners when the song is
used, although the owner of the music rights may well not be the artist. Which
is why some songs are performed live but not on the albums - the payment for
singing "happy birthday" at a concert is very different from putting out a cd
of it.

ps - I am not a lawyer - although my dog has been trained to piss on their
BMWs

~~~
dlgeek
Eh? Family Guy won - [http://www.reuters.com/article/2009/03/16/us-usa-
familyguy-s...](http://www.reuters.com/article/2009/03/16/us-usa-familyguy-
song-idUSTRE52F6W620090316?feedType=RSS)

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mekwall
I wonder if they wrote such a friendly cease-and-desist letter to Rockbaren in
Gothenburg, Sweden. According to the new owner of the night club, this had
already been played out between the old owner and JD. Seems not!

[http://www.goteborgdaily.se/news/jack-daniel-s-to-sue-
gothen...](http://www.goteborgdaily.se/news/jack-daniel-s-to-sue-gothenburg-
night-club) <http://www.rockbaren.com>

~~~
tptacek
Unsurprising. Not only are there literally hundreds of liquor bottle designs
to choose from and this one chose Jack Daniels because of its obvious brand
association with rock & roll, but this is a club that prominently displays
_other_ liquor brand sponsorships under an umbrella of a design derived from a
competing brand.

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apawloski
There's a surprising number of cynical replies to this letter. I have two
considerations in response:

1\. Did the JD lawyer expect the letter to be publicly displayed when he wrote
it? I think it's unreasonable to expect this.

2\. Even if it is some sort of PR stunt, why is this a bad thing? Is it even
possible to have a mutualistic relationship between consumers and companies
any more?

~~~
tptacek
I was thinking perhaps there's a willfulness argument to be built on an
infringer refusing to alter a design even when the trademark owner offered to
subsidize the alteration.

Also, as pointed out cross-thread, when your argument is uncertain, it pays to
be nice.

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yojimbo311
I really love this approach, and I hope that my fear of the outcome of this is
an irrational one. By not qualifying the offer to "just this once"/whatever I
fear they may inspire more copycats and prove to the rest of the trademark
gatekeepers, that being respectful and helpful just invites more infringement.

I can only remember seeing Ben & Jerry's doing this with a C&D request before,
but I'm sure there have been at least a couple more companies willing to
forego "more effective" intimidation for the "small" chance of creating an
ally. It seems to me to have more to do with an overwhelmingly strong culture
in those companies to be great at what they do rather than beating everyone
else at what they do. Kudos to Christy Susman and anyone else that gave her
the freedom to make these choices instead of taking the "easy" way. It gives
me hope.

------
skibrah
thats the kind of attitude you have when they serve JD in the water cooler

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esbwhat
not as nice as they were in the case of ilovejackdaniels.com:

[http://www.addedbytes.com/blog/what-happened-to-
ilovejackdan...](http://www.addedbytes.com/blog/what-happened-to-
ilovejackdaniels-dot-com/)

~~~
Anechoic
_In April of 2008, the people responsible for the Jack Daniel's trademark
contacted me and asked me to stop using the name "ILoveJackDaniels", and URL
"ilovejackdaniels.com", for my site, and to change the logo._

They asked "Dave" to stop using the trademark and he did. Seems nice to me,
unless you have evidence of strong-arm tactics that Dave didn't discuss on
that page.

~~~
esbwhat
It's definitely not the worst, but I don't think they should have asked him at
all, and (more importantly) let him redirect the old site for more than a
year.

~~~
apawloski
From what I understand, companies are _required_ to defend their trademarks,
lest their inaction be used to indicate tacet approval of use in court.

More importantly though, they own the trademark and have the right to decide
what can be explicitly linked to their brand. Even if the site wasn't making
money off of it (to be honest, I'm not familiar with the one in question) the
fact that it was using the JD name in a way JD didn't like warrants a C&D.

So yes, they _could have_ been nicer, but they were in the right, and I don't
think their request was unreasonable.

------
flexie
That lawyer sets a great example to follow.

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evolve2k
I personally applaud JD for their gentlemanly approach to sending legal
letters.

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slackwalker
This is pretty great marketing for the first edition.

------
nirvana
Besides being polite this letter provides two remedies that are unusual, and I
think there might be a potential third that would make these cases much less
contentious.

First off, it doesn't demand a removal of the book for sale, but merely
requests that the next printing have a different cover. That's a huge step
forward, and since the need here is to protect the trademark ability of the
brand, outrageous demands really aren't' called for. Offering to pay for the
cost of changing it if they are willing to do it earlier, is also a generous
remedy that protects the brand. The violator doesn't lose money, and the act
of paying for the remedy is an act of protection.

I wonder if there isn't a third remedy in cases like this, where it isn't
flagrant violations: That being licensing the brand.

Certainly trademarks are licensed all the time- coca-cola licensed clothing is
a good example. So, someone using your trademark under license doesn't
undermine the ability to protect the mark.

Thus they could have offered to license the mark (as a third possibility) for
a reasonable fee. The fee would have to be industry standard (e.g.: "You can
use it for $1" would undermine their ability to protect the brand) but I
imagine for mildly infringing or only partially infringing situations like
this the remedy is probably not too high.

Not that the publisher of this book would likely want to take them up on it,
but maybe given the books content in some cases that might be preferable--
where the infringement on the brand has positive economic value for the book,
and everyone makes out ok.

The trademark is protected, and the publisher makes a bit more money by being
able to use this design than they would if they had to do something completely
different.

Further, this activity- of issuing licenses- shows diligence of protecting the
mark which enhances its trademark ability. You might not know all the
violators of your trademark, but it is the failure to defend the mark that can
cause you to lose it. A license is obviously not a failure to defend the mark,
and so it helps bolster the mark. (This is what it would seem to me, but I'm
not a lawyer.)

Yet I've never seen someone offer to license the trademark to a violator.

~~~
sliverstorm
Is it possible to license a likeness, though? Notice the logo was _mimicked_
here, not copied. It is clearly not actually a JD logo.

~~~
Tyrannosaurs
If it's a violation then presumably it can be - after all isn't that all a
license is, an agreement not to press violations in exchange for money?

------
excuse-me
If they were olympic sponsors they would be demanding that he removed the
letters "J" and "D" from anywhere they appear in the text of the book

~~~
electromagnetic
I've trademarked vowels, I intend to sue J.K. Rowling, and all major authors
for every AEIOU and occasional Y used. I figure it could be worth millions per
novel.

~~~
excuse-me
The new laws introduced for the OxxxxxxxICS are ridiculous - it's now a
criminal offence to use:

..any two of the following: Games, 2012, Two Thousand and Twelve Twenty Twelve

Or use of any one of them alongside any mention of: gold, silver, bronze,
London, medals, sponsor, sponsors

<http://www.shoosmiths.co.uk/news/3983.asp>

~~~
eru
I couldn't find the criminal offense bit. Read more like civil law to me. Did
I miss something?

