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?
Assuming it ever came to court, it comes down to who the jury likes.
Compare this letter being read out as evidence to a standard Disney-style "we will wipe you and your family from the face of the Earth" (for copying a story that we copied from Christian-Anderson) - who are th jury going to feel for?
It's not about lawyer's being smart, it's about most people being vindictive asshats. If someone is willing to infringe on your trademark it's most likely that they're not willing to roll over and take any polite request to stop. If you send them a letter asking politely for them to stop and they ignore the letter you then have to send another (serious) letter, which is double the lawyer time.
Sure, in a few cases like this one in makes sense because it's not a clear case of infringement and it's more likely a misguided person than a vindictive person, but in more obvious cases (like someone selling "Jack Danielson's" with the same presentation style) it makes no sense to be nice.
So if you don't want to become a fax or xerox or kleenex you have to stamp down on anyone using the name generically.
But you also have to protect other aspects of the brand image. If you can't show that you have rigorously policed somebody using the JD bottle image, then when another drinks maker comes along and calls their product "John Smith's whiskey" but puts it in a bottle like this then they can claim that JD obviously didn't attach any importance to the shape/design of the bottle because they hadn't pursued other users
Second, fax was never a trademark (or copyrighted), its origination is from Latin, 'fac simile'.
Finally, Xerox and Kleenex (and others like Hoover) didn't become generic because they didn't defend their trademarks, the problem was never that rival brands named their products using these names. If I buy a bottle of Pepsi and call it "a coke" then Coca-Cola can't raise any legal objection against either Pepsi or me, and it is this sort of thing that might (and to an extent, already has) lead to other brands being called "coke".
Coca cola famously won a case preventing others calling themselves "Coke" but lost the Cola part when it was shown that they regarded it as a general term for any similar drink. I suspect Apple's lawyers are more careful when anybody else tries to call a tablet a something-PAD.
Coca-Cola can prevent other companies from calling their products "coke" - but there aren't companies out there calling their products "Xerox" or "Kleenex". Their problem is that consumers refer to other products using their brand names, so the fact that Coca-Cola have preserved their trademark is irrelevant if there are people (and there are) who see a bottle of Pepsi and say "I'm going to grab a coke".
It's such a crazy idea... it just might work.
Go be a liquor nerd somewhere else.
Assuming that JD is actually owned by some mega-corp fizzy beer maker (they are not "brewers"!) it's a clever way of giving the impression that they are still good ol' boys.
Compare that to the Disney corps hunting down of every sick children's hospital that paints cartoon characters on it's walls.
Edit: worth pointing out that there are a bunch of independent distilleries in America, which I'm led to believe by bourbon-lovers make some amazing drinks - but I don't know nearly enough about this area to give examples. It's just that the big companies outnumber and massively out-produce the small ones.
Edit: given the Wondrich reference further down it seems that you are. I've decided that cocktails have an appealing relationship to programming: they're arcane procedures that require specialized knowledge, but unlike software they're done in five minutes and they make you drunk.
If you read whiskey nerd blogs, you'll sometimes even pick up a backlash against bespoke indie distilleries; whiskey being much easier to do than to do well.
But the cynical engineer in me assumed that all the "Billy-Bob still pisses in every barrel just like his grand-pappy did in 1869" type advertising, meant that it was actually made in a chemical plant in New Jersey by Union Carbide!
Must admit I've never tried the stuff - always worked on the principle that if it's not a single malt made on Speyside it's not worth drinking.
Jack Daniels is distilled in Lynchburgh, TN. You can visit them.
I doubt Jack Daniels is going to blow you away. I don't even mix with it. But it's thoroughly drinkable, in the same way that a Coke on ice on a hot day is drinkable even though its origins are dubious (way more so than Jack Daniels).
Also: just because something is easy to find doesn't mean its integrity is compromised. You can get Three Floyds Alpha King in most supermarkets in Chicago. Three Floyds is still a very, very serious brewery, and Alpha King is a serious beer.
But I think limiting yourself to Speyside is foolish. The fact that you do this makes me assume you've tried single malts from other areas, and I also presume that you didn't just try one once and jump to the conclusion that everything not Speyside sucks. So maybe you don't need this advice, but I'll give it anyway.
I'm a big Speyside fan, and most of the time I buy a reasonably expensive bottle that's where it's from, but there are some great bottles from other areas, in particular (for me at least) Islay and the Islands. Talisker for example is like no whisky I've ever drunk, but is pretty fantastic. Laphroaig and Ardbeg are two Islays that have some really nice releases, and even Bowmore, despite being a brand best known for cheap and average bottles in supermarkets, have a few decent ones.
Oh, and even outside Scotland you might be surprised. Ever tried Yamazaki from Japan?
I could never understand the "knocking back a drink with a grimace" type drinks though.
What sort of thing are you talking about with the "knocking back.."? For most people the first time you drink any whisky is like that, for many so is the first time you drink beer.
40% is a random figure and probably an exaggeration, but here's a map of the centre of Oxford (i.e. Oxford without suburbs) showing university buildings and colleges in red: http://www.planetware.com/i/map/ENG/oxford-map.jpg (note also how the majority of green spaces are owned by colleges for sport, as well)
Edit: looking closer at that map I see some missing buildings that should be on there, and at least a couple that are smaller than they should be. But I don't know the whole university well enough so maybe there are also some shown too big, or some that shouldn't be on there at all.
In response to excuse-me, personally I drink nice scotch when I want to enjoy a drink, but if I'm drunk and getting drunker, why waste money on something good when I'm not going to appreciate it?
The best part is that they're all by the same guy. A true American hero, if you ask me.
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.
As someone who mixes many of his Manhattans and Old Fashioneds with Williams (alongside Rittenhouse 100 rye), and who has tried it blind against Jim Beam black label, Maker's, and Daniels, I endorse wholeheartedly Eric Felten's take in The Wall Street Journal:
"It's a terrific deal. Most of the [inexpensive] bourbons I tasted were barely adolescents -- Beam, for example, spends about four years barrel aging. But Evan Williams is made of whiskey that has been in oak for five to seven years, and the extra age comes through. The nice spicy rye in the mash also comes through, giving the bourbon a dash of cinnamon that keeps the vanilla sweetness from cloying. Evan Williams is a good, solid, no-nonsense bourbon. "
I've had the single barrel. It's fine, very nice for sipping. But by no means would I use it in the drinks where I use regular Evan Williams. It's a little too mellow for a cocktail (although Esquire came up with an interesting one - basically a Manhattan made with Lillet blanc instead of sweet vermouth - I think they called it a Yellow Dog. You'll notice Lillet is much more meek than a sweet vermouth, even a relaxed Dolin. That way it doesn't overwhelm the soft nine-to-twelve-years-aged Single Barrel).
(update - here's a link to the Evan Williams Single Barrel cocktail - http://www.esquire.com/features/how-to-give-a-toast-0212)
Dave Wondrich, by the way, is a total bad-ass. His book _Imbibe_ is a supremely readable history and guide to cocktails. Those Esquire cocktail articles are uniformly fantastic.
Not sure about American whisky aging, though that sounds plausible.
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. :)
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.
I do try to follow the principle of "voting with one's money" though, so I think it is only fair for me to show the appreciation for this JD move by buying a bottle.
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.
So, for example, a risqu� parody of an L.L. Bean magazine advertisement was found not to constitute infringement. L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 28 (1st Cir. 1987). Similarly, the use of a pig-like character named "Spa'am" in a Muppet movie was found not to violate Hormel's rights in the trademark "Spam." Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497 (2d Cir. 1996). On the other hand, "Gucchie Goo" diaper bags were found not to be protected under the parody defenseGucci Shops, Inc. v. R.H. Macy & Co., 446 F. Supp. 838 (S.D.N.Y. 1977). Similarly, posters bearing the logo "Enjoy Cocaine" were found to violate the rights of Coca-Cola in the slogan "Enjoy Coca-ColaCoca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972). Thus, although the courts recognize a parody defense, the precise contours of such a defense are difficult to outline with any precision. [em mine]
Your point is well taken though. It's probably not a slam dunk case.
For example Weird Al's songs are parodies but they aren't protected because he is parodying the Amish NOT Coolio.
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
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.
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
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?
Also, as pointed out cross-thread, when your argument is uncertain, it pays to be nice.
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.
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.
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.
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.
Rather than trade-mark, this falls more under trade-dress, but otherwise, the same ideas apply. By not objecting, JD might be seen by some as endorsing or promoting the book in question.
If the book were a parody or critique of Jack Daniels, then fair use might apply. If it were satire (and Jack Daniels is not the target), then fair use is less likely to be upheld.
Licensing would probably push the case into another department and out of the lawyer's hands. I wouldn't be surprised if they act out of self interest and prefers to deal with it themselves.
..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