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Jack Daniels Proves That You Can Catch More Flies With Whiskey

Posted in Trademark Law

Jack Daniels “Old No. 7” Brand Tennessee Sour Mash Whiskey is marked with a distinctive black label including stylized white writing attached to a bottle of Tennessee’s finest sour mash whiskey.  For some, the image of a Jack Daniels bottle conjures images of drunken bar brawls, motorcycle gang members guzzling whiskey or the antics of inebriated 1980’s hard rock musicians.  But for Jack Daniels, the distinct black and white label on its Old No. 7 Brand whiskey represents valuable intellectual property which immediately identifies in the minds of consumers the distinct character and flavor of the contents of the bottle to which the label is affixed.  Because even those who do not consume Jack Daniels Sour Mash Whiskey recognize the label of this legendary intoxicating beverage, the Jack Daniels distillery actively confronts unauthorized users of its trademarked label in order to prevent its unauthorized use.

Many attorneys have written cease and desist letters on behalf of their clients, or at least have reviewed such letters after they have been received by clients.  These letters often are written in a fit of righteous indignation over the obvious theft of one’s brand, or the tarnishment and diminution of the value of a mark resulting from the use of a confusingly similar mark by another party.  More often than not, this results in a letter which is more capable of peeling paint off the walls or curling the recipient’s hair than it is able to clearly and concisely communicate the reasons why unauthorized use of a trademark can damage a trademark owner’s intellectual property.  Recently, however, a cease and desist letter written by counsel for Jack Daniels Distillery dispensed with the usual vitriol took a different approach.

Author Patrick Wensink is the author of the book Broken Piano for President.  The original cover of Mr. Wensink’s book was designed to closely resemble the label of Jack Daniels Old No. 7 Brand Sour Mash Whiskey.  It didn’t take long for Jack Daniels’ attorneys to send a letter to Mr. Wensink’s publisher to address this issue.  While receiving a cease and desist letter under such circumstances generally would be a sobering experience, the approach taken by Jack Daniels’ attorneys was a refreshing one (perhaps more like a wine cooler than a shot of their client’s famous 80 proof whiskey).  Displaying the southern charm you might expect from an encounter with an inhabitant of Lynchburg, Tennessee, Jack Daniels’ lawyers explained in their letter to Wensink’s publishers that they “are certainly flattered by your affection for the brand, but while we can appreciate the pop culture appeal of Jack Daniels, we also have to be diligent to ensure that the Jack Daniels trademarks are used correctly.  Given the brand’s popularity, it will probably come as no surprise that we come across designs like this on a regular basis.  What may not be so apparent, however, is that if we allow uses like this one, we run the very real risk that our trademark will be weakened.  As a fan of the brand, I’m sure that this is not something you intended or would want to see happen.”

At this point it’s worth mentioning that Lynchburg is located in Moore County, which is a dry county in Tennessee.  At the very least, it’s obvious that Jack Daniels’ attorneys are not angry drunks.  Regardless, the approach, whether or not it reflects its authors state of sobriety, is commendable.

In this instance, the overall look and the effect created in the mind of the consumer by the cover of Patrick Wensink’s book clearly had the capacity to diminish the distinctive character of the Old No. 7 Brand label owned by Jack Daniels Distillery.  Yet the lawyers, perhaps understanding that Mr. Wensink’s book cover was meant more as a form of flattery than an attempt to confuse a consumer into believing that the book contained Tennessee whiskey, accomplished their duty to prevent unauthorized use of Jack Daniels’ intellectual property without resorting to an unnecessarily nasty correspondence, rife with bile and contempt.  Ultimately, a cease and desist letter like the one written by Jack Daniels’ attorneys serves not only to strengthen the integrity of Jack Daniels’ famous trademarks by eliminating unauthorized uses, it also enhances the Jack Daniels brand image by demonstrating that it still is possible to defend a clients’ interests while maintaining civility and decorum.