Tuesday, July 24, 2012


Forgive me for amplifying the reach of something that Yahoo! says has gone viral. But I think it makes a larger point.

Patrick Wensink writes a book called Broken Piano for President. The cover looks -- deliberately, I am sure -- somewhat like the lettering on a Jack Daniel's bottle. A lawyer for the sour mash company sends the predictable cease and desist letter. The letter's kind of cute. The author blogs about it and the lawyer gets kudos. And the author and his publisher, Lazy Fascist Press, give in and agree to change the cover.

While everyone's smiling and Wensink's basking in free publicity, I'm wondering this: where's the purported trademark infringement? The lawyer suggests that, if Jack Daniel's allows this cover, "we run the very real risk that our trademark will be weakened."

How, exactly? How many people will buy the book simply because they think it's a bottle of whiskey? (message to Amazon: maybe you should start selling booze!) And if they buy the book because they get the message (Jack Daniel's Old No. 7 is not a small-batch concoction--rather, it's a mass market drink and 'a shot of Jack' is known the world over), doesn't that just prove enduring popularity of the brand? Mightn't the book cover actually benefit Jack Daniel's, demonstrating that the brand is a cultural icon (hey: it's the first whiskey I ever got sick on!). Isn't this an example of copyright and trademarking overreach--where things that are clearly 'fair use' become problems because corporations have deep pockets and the rest of us don't?

I'm not against Jack Daniel's going after another whiskey distiller who names a new product 'Whack Daniel's' or 'Jack Spaniel's' or even 'Hack Sandles.' But a book?


Dave Morris said...

I may be wrong, but I suspect it has something to do with the way our trademark and IP laws are structured. I THINK (again, I may well be wrong) that trademark owners are actually REQUIRED to protect their trademarks or risk losing them. In other words, Jack Daniels and their lawyers may well feel that the book design doesn't actually represent any threat to them at all, but if they don't go after it then some future trademark dispute against 'Jack Spaniels', which would be MORE of a genuine problem, may go against them because they hadn't protected their mark in the past.

If that IS the case, then JD basically need to go after the book designers 'just in case' of something much worse that could happen in the future. The way they've done it is, I think, probably an indication that they know it's not a big deal but it's one they sort of have to pursue.

Luckily, I live in Scotland and drinking Jack Daniels is not too much of a risk to me: Never trust a whisky which adds an 'e' to the spelling!

rn said...

Interesting thought, Dave (and very true about the 'e' in whisky.) How sad, though, that they feel compelled to make spurious claims of infringement just to prevent the possibility of being considered to have abandoned their trademark. The law may push them in that direction -- but I'd still say their argument in this case is an overreach.