
The Other 'F Word': Brewer Responds To Starbucks Over Beer Name - mydpy
http://www.npr.org/blogs/thetwo-way/2013/12/30/258427295/the-other-f-word-brewer-responds-to-starbucks-over-beer-name
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blazespin
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.

[1]
[http://en.wikipedia.org/wiki/George_Howell_(entrepreneur)#St...](http://en.wikipedia.org/wiki/George_Howell_\(entrepreneur\)#Starbucks_buyout)

~~~
nwh
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.

~~~
goodcanadian
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.

~~~
danellis
Starbucks might not brew beer, but there are plenty of brewers who use coffee
in their beers, so the likelihood of confusion isn't that small.

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bedhead
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.

~~~
delinka
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.

~~~
lazerwalker
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.

------
will_brown
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.

~~~
danielharan
Why fight it in court when he can get this much free publicity by conceding?

If Starbuck were to ever cash that $6 cheque, it would rank as one of the best
advertising spends in history.

The cost of changing the name on that beer? Probably rewriting it on a
blackboard.

~~~
will_brown
>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.

------
famousactress
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.

~~~
chaostheory
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.

~~~
famousactress
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.

~~~
chaostheory
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).

~~~
famousactress
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.]

~~~
chaostheory
> 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

~~~
famousactress
> 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.

~~~
chaostheory
> 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."

~~~
famousactress
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.

~~~
chaostheory
I wasn't offended. I was just alarmed by what I felt is a very dangerous
mindset.

------
harvestmoon
I don't think this is brilliant. If I start selling a beer called Coca-Cole, I
should certainly expect a C&D letter.

~~~
jerf
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.

~~~
harvestmoon
Yes, it is a brilliant marketing move how he's playing it.

------
guard-of-terra
I didn't know Frappuccino was trademarked. Imwas fairly sure this is a common
title.

~~~
cstejerean
From Wikipedia:

"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"

~~~
ghaff
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.

------
nsxwolf
Snarky responses to clear trademark violations don't impress me.

------
cgore
Vanilla creme ale sounds good. I know where I'm going next time I'm over on
that side of the river.

~~~
degroat
It is good, TC!

------
sokoloff
"We also promise to stop production of our 'Starbuck-McDonalds-Coca Cola-
Marlboro Honey Lager' for fear of further repercussions."

Nice.

------
falcolas
Sounds like in this process, the owner has come up with a great new name for
his stout:

The F Word

~~~
nationcrafting
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.

------
mydpy
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.

------
jaredmck
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)

