01 Sep Cease and Desist Letters As A Branding Opportunity

Posted at 22:16h in Litigation by

In my last post I discussed how an attorney ignorant of internet culture can harm a client’s reputation through a well intentioned but imprudent cease-and-desist letter. To balance that warning, there’s good news: a savvy attorney can use a cease-and-desist letter to help a client’s brand.

People on the internet love to make fun of humorless, bumptious cease-and-desist letters. That’s the Streisand Effect. But the same internet hordes who trash your client’s brand can also celebrate it if you write a letter that’s funny, inventive, and reasonable.

Back in 2012 an author named Patrick Wensink published a satirical book called Broken Piano for President. The cover closely imitated the distinctive label art of Jack Daniel’s whiskey. If Jack Daniel’s lawyers had followed standard operating procedure, they would have sent a dry and threatening letter. Instead, Jack Daniel’s in-house counsel chose a creative approach: they sent a letter to the author praising the book art, agreeing that Jack Daniel’s distinctive art is a good subject of affection and nostalgia, gently explaining why companies must protect their trademarks, and offering to contribute to different cover art on the next printing. The tone was friendly, funny, and reasonable.

The result was an astounding branding coup for Jack Daniel’s. The letter went viral across a wide range of popular web sites, providing Jack Daniel’s with what amounted to a free marketing campaign. Young internet users are conditioned to see cease-and-desist letters as authoritarian and stodgy; Jack Daniel’s managed to position their brand as friendly and cool with this vital demographic.

Not every defamatory post or intellectual property violation is an occasion for mirth – sometimes a pirate is just a pirate. But whenever possible, a lawyer preparing a cease-and-desist letter should ask not just can I avoid making this worse, but can I use this opportunity to make things better by understanding internet culture.

The National Pork Board could have used that advice. In 2010 a popular web site called ThinkGeek marketed “canned unicorn meat” – “an excellent source of sparkles!” – with the phrase “the new white meat.” The National Pork Board – tasked with making people like pork more – sent a swift, turgid cease and desist letter, warning of infringement on its “the other white meat” trademark. The result was a public relations coup – for ThinkGeek.  The site received a flood of free publicity as the letter went viral. 

Assuming the National Pork Board cares what people think about it, it could have used this as an opportunity to burnish its image by sending a funny, friendly, yet still firm letter; the resulting viral response could have boosted the Board as much as the web site.

Dear ThinkGeek,

We have the honor of representing the National Pork Board, which in turn has the honor of helping everyone understand the obvious: pigs are magnificent.

The Pork Board was bemused to notice that ThinkGeek is selling unicorn meat. Most people associate unicorns with high fantasy, purity, and poorly-painted murals on the sides of suspicious domestic vans. “Unicorn” does not conjure the image “haute cuisine,” except for in a dream we had once after consuming an entire bottle of tequila, in which unicorns acted as servers at a banquet comprised exclusively of bagels. 

We note that ThinkGeek has been marketing unicorn meat with the phrase “the new white meat.” This is very close to the National Pork Board’s federally registered trademark “the other white meat.” Now, the Pork Board has absolutely nothing against unicorns. Pork, like unicorns, is almost universally beloved, nutritious, sustainable, and at least in the case of bacon almost mystical. However, we must respectfully request that ThinkGeek not infringe the Pork Board’s registered trademark by using the confusingly similar phrase “the new white meat.” It’s not that we mind the unicorns using it, you see. It’s just that if the Pork Board doesn’t protect its mark, then it could be misappropriated and used to sell nearly anything – marmosets, raccoons, undisciplined children, and what-have-you. [Take note, National Raccoon Board: if you try it, our response will be swift and pitiless.] 

Therefore, we respectfully request that ThinkGeek cease using the “new white meat” phrase in marketing – and immediately, as unicorns, pigs, and lawyers are not renowned for patience. Let’s chat over coffee if you have any concerns. Um … no snacks, thanks, I had a big breakfast.

If that letter went viral, the internet would be laughing with the National Pork Board, not at them – and just like Jack Daniel’s, they could position themselves ideally with a key demographic.

Ken White

Ken White

Ken White is a founding partner of Brown White & Osborn LLP. He focuses on criminal defense and civil litigation, and particularly on white collar crime and First Amendment issues. He is a contributor to the Brown White & Osborn LLP blog.
Ken White

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