I was preparing to write another blog entry when I stumbled across an article entitled “Jack Daniels Sends The Most Polite Cease-and-Desist Letter Ever”. Apparently, an author released a book with a cover that closely resembles that of the Jack Daniels’ brand.
Anywhoo, the article praises the cease and desist letter as being very polite – which is totally opposite that of the usual type of cease and desists we see in the newsblogs. (You know the kind we’re talking about: The bullying kind. The “We’re a huge company and will sue you into the ground kind”)
Here’s the letter Jack Daniels sent:
Like I said, the article praises the cease and desist for being “polite” and “nice”. This is definitely the type of description a business person & infringer would use. In my opinion, while this letter may have shied away from the typical bullying legalese of most cease and desist letters, I wouldn’t use the words “polite” and “nice”. I would describe the letter as “clear”. It was clear in (1) demonstrating the existence of an enforcement strategy that was well thought out BEFORE the cease and desist letter was drafted and sent, (2) stating the legal position of Jack Daniels clearly and unequivocally without citing a string of statutes or case law, without stern language or needless threats of litigation, and (3) providing a solution that would satisfy the interests of ALL PARTIES INVOLVED.
This, ladies and gentlemen, is the art and science of sending a cease and desist letter. Art = The tone of the letter. Science= understanding the elements of the causes of action that the infringer violated and reflecting the substantial likelihood of succeeding in that cause of action. Art = providing a solution that satisfies the interests of everyone involved. Science = understanding intellectual property valuation, the costs of litigation (in both time and money), and pre-calculating damage awards if successful/unsuccessful.
Don’t think Jack Daniels was just being “nice”. Jack Daniels’ letter reflects that they are CLEAR about the goals and objectives of its enforcement strategy and that it understands exactly what was at stake in this particular instance of infringement, both legally and monetarily. And it exercised discipline in NOT going further than it needed.
My point: Friends don’t let friends draft and send out such letters without consulting with an IP litigator first. =)