Back in August, Chicago-based Emporium Arcade Bar opened a pop-up location called "The Upside Down," a temporary bar designed to look like one of the main sets from Netflix's hit science fiction-horror series.
Just one problem: The whole thing was done without any discussion or agreement with Netflix, so the streaming service sent Emporium a letter on Aug. 23 urging the bar to shut the operation down.
But this was no ordinary cease-and-desist. In place of the standard-issue "we will sue you until you cry" threats, in-house counsel from Netflix wrote a humorous and blissfully nerdy letter, using a string of "Stranger Things" references to make clear that something needed to change.
"Look, I don't want you to think I'm a total wastoid, and I love how much you guys love the show. (Just wait until you see Season 2!) But unless I'm living in the Upside Down, I don't think we did a deal with you for this pop-up," the company said in the letter. "You're obviously creative types, so I'm sure you can appreciate that it's important to us to have a say in how our fans encounter the worlds we build."
The letter, first reported by DNAInfo Chicago, was fun but firm, saying "we're not going to go full Dr. Brenner on you" and allowing the pop-up to play out its scheduled run until September, but clearly warning action was needed.
"We love our fans more than anything, but you should know that the demogorgon is not always as forgiving," Netflix wrote. "So please don't make us call your mom."
The letter to Emporium was both legally effective — the owners of the pop-up quickly agreed to wrap up the project — and a public relations boon, resulting in a deluge of media coverage praising Netflix's lighter approach.
Experts say the "Stranger Things" letter is a case study in how to speak softly but carry a big trademark stick, dutifully policing intellectual property rights while avoiding the PR headache that can result from draconian threats against a much smaller company.
"This a great example of how you can get a legal point across without being aggressive when the situation really doesn't call for it," said Jesse Saivar, a partner at Greenberg Glusker Fields Claman & Machtinger LLP. "When you're talking about fans, or people that don't necessarily know they're doing anything wrong, you don't have to be overly aggressive."
There is, of course, a time and a place for antagonistic language, but in an era where such letters can easily be posted online, they can also cause more trouble than they're worth.
In 2013, for example, Starbucks got ugly press on CNN, Fox News, The Huffington Post and other outlets when it sent a standard cease-and-desist to a Cottleville, Mississippi, brewpub called Exit 6 Pub and Brewery over a few online reviews of a "Frappicino" beer.
The pub's owner responded with a sarcastic letter that quickly went viral, mocking the coffee giant for arguing that the bar's customers thought the "beverage coming out of the tap would have actually been coffee." He even offered to pay back the profits he made on the small-batch beer — $6.
Before that, in 2011, Chick-Fil-A looked like a bully when The New York Times, The Washington Post and many others reported that the fast-food chain had sent a cease-and-desist to Bo Muller-Moore, a Vermont folk artist who wanted to register his "Eat More Kale" brand as a trademark. Chick-Fil-A uses the misspelled "Eat Mor Chikin" as a slogan.
Muller-Moore fought back hard, retaining pro bono counsel and launching a full-fledged media campaign against Chick-Fil-A. In December 2011, Vermont Gov. Peter Shumlin held a press conference throwing his support behind "Eat More Kale," saying "Chick-Fil-A, get out of the way." Eventually, in 2014, the U.S. Patent and Trademark Office issued Muller-Moore's registration.
And just this past summer, the Olive Garden caught plenty of flak after it threatened to sue over AllOfGarden.com, a blog run by a self-styled "Olive Garden connoisseur" about his various attempts to eat as much Never Ending Pasta as possible.
Olive Garden quickly announced that the letter had been generated automatically and that the chain would not pursue claims against the blog, but not before Gizmodo, Bloomberg and Fox News all ran stories about the company's threat against one of its super fans.
A lighter-touch letter, like the one Netflix sent last month, doesn't guarantee that problems faced by Starbucks, Chick-Fil-A and Olive Garden can be avoided, but it certainly gives the offending party less fodder if it plans to post the letter online.
And on a more basic level, it can sometimes be more effective in quickly and cheaply ending the allegedly infringing use — which should be the goal of anyone sending a cease-and-desist.
"A harsher letter can back people into a corner where they want to fight it," Saivar said. "A friendlier letter can get them to understand that is just something we have to do, but we'll be reasonable about it."
Netflix isn't the first company to be rewarded for a friendly-but-firm approach.
In 2012, Jack Daniel's sent a letter to author Patrick Wensink over the cover of his new novel, "Broken Piano for President," which had been designed to mimic the iconic black-and-white label on the company's whiskey bottles.
The letter said the distiller was "flattered by your affection" and could appreciate the pop culture appeal but explained that it felt the design was too similar. The letter also related to Wensink as an author, saying he must face IP challenges himself. Calling him a "Louisville neighbor," Jack Daniel's only asked that he alter the cover whenever the book was reprinted; if he was willing to do so sooner, the brand would cover a chunk of the costs to do so.
Like the Netflix letter last month, the letter from Jack Daniel's went viral in a good way. Business Insider called it "the nicest cease-and-desist order of all time"; The Atlantic called it the "model for every cease-and-desist letter."
A few days later, Wensink posted on his blog that he would comply with "the most polite cease and desist ever written." He even declined the company's offer of assistance, saying he didn't need "any of that sweet corporate booze money to redo the cover."
Peter S. Sloane, a trademark attorney at Leason Ellis, said companies like Jack Daniel's are "increasingly sensitized" to the public relations problems that can arise from ugly letters that leak online.
For those that aren't, last month's letter from Netflix might need to be required reading.
"Whether or not the claim is valid or overreaching, brand owners are more sophisticated about the public relations angle than ever with the ability of infringers to bring negatively publicity through the internet and over social media," Sloane said.
--Editing by Mark Lebetkin and Brian Baresch.
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