I’d like to talk for a moment about the Jack Daniel’s cease and desist letter that’s been making the rounds online the past couple days. Between trademark and copyright law in the country, it’s amazing any of us are left that haven’t been sued out of existence. Jack Daniel’s is being praised for how reasonably they handled the situation, but I think there’s a whole lot more to learn here as well, as both consumers and companies.
1: “Don’t be a dick” as a marketing strategy
As stupid as it sounds, it’s amazing just how much press you get for being civil human beings. In a way, it’s a sad commentary on the state of our markets. But, it absolutely holds true. This one letter, written by their lawyer, has paid for itself in spades. On top of it, it reinforces all the goodwill marketing they have and will do. Nobody can stand up later and say, “They act like they care about consumers, but they really don’t. Remember when they destroyed that author in the trademark dispute?” Actions don’t just speak louder than words, they amplify the effects of both.
Already, the story is lighting up about 1500 results in Google’s News search. Twitter and Facebook mentions easily blow that number away. I can almost see their CMO and legal counsel sitting at a table, plotting this whole thing out. That’s a good thing, because at the end of the day, it shows that this tone is a core part of their mission, not just a random effort by one part of their business.
2: It’s cheaper.
Seriously. I have yet to see someone point out that the offer to contribute money to the rebranding effort by Jack Daniel’s is ultimately money well spent. They stay out of court, they educate, and they save a boatload of cash at the end of the day. In a way, it’s totally a bribe, but it’s a very smart one because it’s entirely likely to work time and time again. Going to court over things like this all the time just sets up Pyrrhic victories – winning cases that you have every right to win, but spending far more money and time than is reasonably necessary to get equivalent, if not better, results.
And before anyone points out ways that this can be abused, keep in mind, it’s voluntary on their part. At the point they suspect you’re just trying to milk them, those offers will rapidly stop, and you’ll see yourself back in court – probably getting hit much harder than if you’d just not been a dick. See, that goodwill behavior can go both ways. There are times where it’s a good idea to go to court.
3: The importance of education
As I mentioned, trademark and copyright law in this country is a mess. And with so many laymen entering markets online for so many different industries, there are bound to be missteps. It’s not intentional, and it’s not malicious on their parts. The people just aren’t lawyers. The solution isn’t sue them into oblivion, but rather thoughtful education about why it’s wrong to try and use someone else’s trademark, not to mention what constitutes infringement to begin with. Stop and think about it. Do you really know what would constitute an abuse of a trademark?
You know the old adage that you’ll catch more flies with honey than vinegar? That’s what we’re talking about. Education is a far sweeter tool for success than courtrooms. You don’t change behavior in a courtroom. You change it by educating people. That lesson applies to a lot more than trademark law, too. Most importantly, by educating people on the law, we stand a better chance of fixing it and making it better for future generations, rather than teaching them to view the laws as weapons whose purpose is to be used to crush people. That’s just not healthy culturally.
4: People helping people
In the end, publicity is a two way street, and what’s good for the goose is good for the gander. In this case, the gander is author Patrick Wensink, who is seeing a surge in book sales as a result. Assuming he dutifully complies, which it appears he will, not only will Jack Daniel’s help with the cost of redesigning the cover, but in the end Patrick will have likely made far more off this book than he ever would have. Again, that’s not an invitation to abuse process we’re seeing unfold here, but rather a bulletpoint on something extremely important:
Win-Win Situations Are Possible
You don’t have to defeat the target in order to come out ahead. When everyone wins, then everyone wins, and there’s no reason that has to be a bad thing (this is a lesson our politicians need to have tattooed to their forehead).
5: Even if you win, you can lose
This goes back to the “don’t be a dick” approach to marketing and the Pyrrhic victory point. There are a lot of cases where, as a brand, you can win a trademark lawsuit in a legal sense (or even a non-legal sense). That doesn’t mean you win in the court of public opinion. A particular case comes to mind from back in 2009, where Monster sued Rock Art Brewery over their use of the product name Vermonster. Ultimately, a settlement was reached that I think was fair.
But early on, Monster appeared content to simply sued Rock Art Brewery out of existence. Not because they were right, but because they could. All went well until it hit social media channels, where Monster was pummeled in the court of public opinion. Big brands especially need to be cognizant of how willing people are to rally behind David when he’s stared down by Goliath. And that makes for bad marketing. It’s not always about making the right legal decision, but rather the right social decision. Smashing all the little people just makes the brand into a bully.
In the end, I hope this isn’t an isolated incident. I’m actually a bit surprised more companies haven’t caught on to the power of good will in the marketplace like this. Usually, these stories are pathetic commentaries on how badly situations are handled. But not this time. And it’s nice being able to talk about all the good things that can come out of this. It gives me hope that there are people doing business out there who are worth doing business with. I just wish I drank more whiskey, I’d feel really good buying a bottle of Jack Daniel’s now.