"Stop infringing on my trademark, young whippersnapper."

So it seems that a couple of my recent blog posts have been about alcohol, specifically a bourbon’s red wax trademark and an alleged drunken beat-down. This post is no different, concerning the immensely popular Jack Daniel’s whiskey, which has a long and storied history, has been featured in iconic pop culture pieces like the movie Animal House, has been the subject of the subject of iconic country songs, and can even be used to brush one’s teeth.

This time, a Jack Daniel’s cease and desist letter to author Patrick Wensick has received a lot of positive coverage on the internet. Wensick used a play on the Jack Daniel’s logo for the cover of his book, Broken Piano for President, an indie novel about a guy who plays in a band, drinks heavily, and invents a really good hamburger. The letter alleges that Wensick “weakened” Jack’s trademark, politely asks Wensick to stop using the cover in future prints of the book, and offers to help pay to change the existing copies in print because Wensick is “both a Louisville ‘neighbor’ and fan of the brand.” Esquire has christened this letter the “Nicest Cease-and-Desist Ever,” and commentators have lauded Jack’s sensible and pleasant approach to business. Wensick seems pretty happy, agreeing to stop using the cover in future prints, and writing in his blog that he could “imagine ol’ Gentleman Jack penning [the letter] himself, twirling his bushy mustache.” One blog pronounced the result a win-win: “Patrick Wensink gets to keep his book on the shelves, Jack Daniel’s protects their trademark and both parties get a huge PR bump.”

On the surface, Jack Daniel’s often seems to employ this play-nice approach. In this interview, David Gooder, who works on trademark issues for Jack Daniel’s and its parent company, assures readers that the company tries to “do what we think is the most fair,” keeping in mind the image of the brand when the company decides to “come out swinging a hammer” to enforce trademark rights, versus just sending a nice letter. Jack Daniel’s certainly is not afraid to go to court, a fact which Gooder references in the interview.

While Jack may have been concerned about its image as a bad guy in considering whether to sue, there might be other, more practical factors to take into account. First, it may not be worth it from a cost-benefit perspective for Jack to litigate. Assuming that the book cover does dilute or infringe upon the brand, the effect on business may not be as severe as a trademark infringement in the alcohol industry, Jack’s primary domain. The book is from a comparatively obscure independent publisher when compared to, say, Penguin Books. And considering the cost of litigation, sending a nice letter and offering to help pay to defray the cost of changing the cover of the indie book might be cheaper and thus more preferable to getting in-house counsel to start on the case or retaining outside counsel. On Wensick’s side, even if he had a legitimate defense to trademark dilution or infringement, he may not be able to muster the funds, as an indie author, to put on an effective defense to a beverage conglomerate. Both sides are glad that a nice letter could sort out the whole situation, yes, but the real win-win is that Jack Daniel’s saves some money in protecting its marks, and Wensick doesn’t have to spend the potential profits from his book in litigation, even if he’s right.

Cal Albritton

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