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A Kind Demand Letter? Stranger Things Have Happened (Apologies)

Posted in Advertising, Branding, Infringement, Marketing

Chicago pop-up bar “The Upside Down” rode a wave of popularity program all the way to Netflix’s legal department. And that’s where things took an unexpected turn!

Okay, that lede could probably be less obviously playful. You might say the same thing about Netflix’s cease-and-desist letter to the operators of “The Upside Down.” Featuring replicas of the Stranger Things sets, the bar made no secret of its association to the show, saying it was “paying homage to the instant-classic television show about the haunting happenings in Hawkins, Indiana & the brave kids of the Hawkins Middle School A.V. Club who saved their friend & their town from the devious deeds of the Hawkins National Laboratory & the subsequent devastation of the Demogorgon!”

One might think a zealous trademark lawyer would instantly send a sternly-worded demand letter to the operators, insisting that the bar immediately cease operations. Instead, last month, Netflix’s in-house counsel sent along one of the friendliest demand letters you’re likely to find (click for the full size image):

That’s right, instead of pulling out citations to the Lanham Act, and reciting a string of trademark applications or registrations, Netflix went right for the gusto – a reference-laden, kind-hearted letter, asking only that the pop-up bar “not extend . . . beyond its 6 week run” and that the owners “reach out to us for permission if you plan to do something like this again.”

Make no mistake – outside counsel can be extremely valuable in assessing enforcement options, and the best way to deal with infringement. We all know that lawyers can, and frequently do, “ghostwrite” letters for in-house counsel or business contacts to send directly to infringers. But that doesn’t mean that a lawyer must write only in a caustic tone!

Ultimately, the letter resulted in excellent PR for both the bar and for Netflix. And a lesson to all in the trademark enforcement world – every once in a while, it’s okay to crack a couple jokes, even in a demand letter.