Starbucks and the $6 check
By Debby Winters
What do coffee drinks and beer have in common? Would you confuse one for the other? No, this is not going to be about the health benefits of coffee vs. beer. It is going to be about the Goliath, Starbucks, and the Davids of the world…as least as far as trademark infringement goes.
Recently, Starbucks, one of the largest companies in the US sent a “cease and desist” letter to a brewery in Missouri. In this letter, Starbucks claimed that the brewery, who was serving a beer called “Frappicino,” was confusing customers with Frappucino, Starbucks’ signature coffee drink.
The pub, Exit Six Pub and Brewery in Cottleville, Missouri, not only wrote a mocking letter to Starbucks and its lawyers, but also sent a check for $6 for damages Starbucks may have suffered due to the debacle that Exit Six Pub inadvertently created. In addition, the Brewery renamed its beer from Frappicino to “the F word.” The story has gone viral.
While the entire incident was pretty humorous, it calls attention to the way large corporations go after small businesses for what seems pretty silly “similarly confusing” products when what they should be doing is going after foreign companies for real trademark infringement.
The recent Chick fil-A trademark incident is another example. Are today’s customers so confused that they think walking into a bar and ordering a beer is the same as ordering a coffee drink at a big nation chain like Starbucks? It is true that Starbucks is on every corner, and it is also true that many businesses have “merged” together in the same working space but I think we need to give today’s customers more credit than that.
The excuse that the Goliath large corporations use is that one must be vigilant about keeping others from using its mark, if one wants to retain rights to the mark itself, but customer confusion must be taken into account. If two products with a similar name would not confuse the customer, then there is no confusion and thus no trademark infringement. What the Goliaths are doing is forgetting about customer confusion and going after anyone using a similar mark for any product. In reality these alleged infringers, the Davids of the world, may even be able to register their mark considering they would do so in a different class from the marks of the large corporations.
Starbucks is no stranger to trademark infringement. In 2001 Starbucks alleged Black Bear Micro Roastery was using the name “Charbucks” and that infringed, blurred, and tarnished its famous trademarks. Charbucks, introduced in 1997, is Black Bear’s darkest roast coffee. The court found minimal similarity and weak evidence of actual association between the two brands. This court said no to trademark infringement of a name that sounds similar with the same product, coffee. The silliness of going after a beer as being confusing in light of the court ruling in the coffee case shows that Starbucks never had a chance to showing infringement. The point for Starbucks is to scare small companies into giving up the use of a “similar” name, hoping to never get into court where they have to prove their case.
It isn’t like Starbucks hasn’t won in one of these cases because they have. Starbucks has won trademark infringement lawsuit against a Chinese company that used a similar name and logo. A Shanghai court ordered Shanghai Xingbake Coffee Shop to pay Starbucks 500,000 yuan ($61,956) in damages, which is believed to be one of the largest awards against a Chinese company for trademark infringement. The court also said that Shanghai Xingbake must stop using the name and logo, which translates to Starbucks in English, the company said. This was the second favorable ruling for the company in an international trademark case, a Starbucks spokeswoman, Lara Wyss, said. Starbucks, which is based in Seattle, won trademark protection in Russia in November after an individual there tried to register the Starbucks name and logo. This is where Starbucks should concentrate, on folks that are actually using its name and logo.
Starbucks and other large Goliaths, like Chick-fil-A, should stop bothering the small businesses Davids that are selling products that would not confuse customers anyway, and concentrate its resources on overseas companies that are actually infringing.