Are Overly Aggressive Trademark Lawyers Learning Not To Be Such Assholes All The Time?

from the maybe! dept

It's been just over 17 years since I coined the phrase "The Streisand Effect," which has totally taken on a life of its own. A key reason for naming it was to hopefully wake up overly aggressive lawyers to the fact that sending a nasty, threatening cease and desist letters to try to suppress information or stop someone from doing something wasn't a good idea. A few years later, a lawyer friend of mine mentioned that he thought that the concept of The Streisand Effect had done its job -- and that many, many corporate lawyers were much more averse to sending out such aggressive letters, recognizing that there might be a better approach. However, I still find it's pretty typical for many lawyers to immediately go for the the nasty threat letter, so it seemed like perhaps the lawyers hadn't quite gotten the message.

So... it's kind of a pleasant surprise to see how at least one large company -- and possibly a bunch of large companies -- handled the recent "drop" from the merry pranksters at MSCHF (who are no strangers to legal controversies). The new drop is the C&D Grand Prix, in which MSCHF was selling racecar-style shirts emblazoned with corporate logos from some of the biggest (and most legally aggressive in protecting their trademarks) brands out there:

People could buy each shirt, and then there was a special prize: anyone who bought the shirt of the "winner" of the Grand Prix would also get a MSCHF Grand Prix champion's hat. How could a company "win"? By being the first company, whose logoed shirt was for sale, to send MSCHF a cease and desist.

What's funny is that we had considered a remarkably similar idea at Techdirt many years ago (though a bit more focused on highlighting some absurdities of trademark law), but decided not to do it because we don't have a giant bank account like MSCHF does.

Of course, there were some big questions about how would the various companies respond, and, incredibly, none of the companies (as far as we can tell) actually freaked out about this and went ballistic. It's possible such letters are still coming. However, at least one of the companies prodded by the Grand Prix, Subway, actually took this all in good spirit. Very soon after MSCHF launched the Grand Prix, it tweeted "Two can play this game. Who's interested in this bad boy?" and posted an image of a Subway colored shirt, but with MSCHF's logo on the front:

Well played, Subway. Well, played.

Except, of course, to win the Grand Prix, someone had to send an actual cease and desist, and after a few users bugged Subway about it, the company complied:

The tweet says "You asked and you shall receive. Give the people hats @mschf." And the posted image says:

Dear MSCHF,

It is with great pleasure and a distinct honor to send this cease and desist to MSCHF INC. We didn't want to send this, we really didn't, but with free hats on the line, how could we not.

With that being said... stop using our logo or we'll sue you, lol. Now give the people free hats!

Strongly Worded Lawyer Sign-Off,
Subway

Now, obviously, this is joking, but it appears that MSCHF has accepted it as the winning entry in the Grand Prix.

Now, some may be slightly upset that this stunt didn't (yet?) provoke a "real" cease and desist letter, but I'm moderately happy with that fact, as it suggests that perhaps (maybe? really?) itchy trigger trademark lawyers at these big firms are (maybe? possibly?) realizing that shooting off a cease and desist letter at the first opportunity isn't the best decision.

Of course, if they had decided to use the logo of a clothing company like The North Face, perhaps the outcome would have been a bit different...

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Filed Under: c and d grand prix, cease and desist, streisand effect, trademark
Companies: mschf, subway