22 Oct 2009 @ 9:03 AM 

I can’t help but think I’m going to be a little bit of a wet blanket, but I’ve been thinking a bunch about all of this.
Victory for Vermonster.
Aside from my original post on this a couple of weeks ago, while I was in the midst of an awesome head cold, I’ve been pretty quiet about the Monster v. Vermonster thing. A little bit of that has been in knee-jerk reaction to the intense outpouring of — well… noise — that happened around the internet in general right around the same time I posted my piece. A little bit of it was because the whole thing played out in a way that really kind of surprised me.

Social media is a measurement of fads. Not to say that social media, itself, is a fad (I think it’s here to stay) or that this case was somehow illegitimate and doesn’t deserve the attention it received, but the push that this particular story received via social media feels like a fad, and the notion that Tweeters somehow saved this beer feels like even more of group hallucination. I still think that Monster acted rashly and irresponsibly through this entire process and that the whole thing should have been a quick and quiet conversation between lawyers. Maybe hindsight is 20/20, but at the same time, if you’re running a publicly traded corporate entity, you should be good enough to respond to bumps in the road without making bizarre mistakes. There will be a lot of lessons learned out of this, mostly by large companies and lawyers.

Anyway.. fads and social media.

If you want to see an interesting social phenomenon, keep an eye out on the Twitter Trending Topics. It’s that list just below the search box. (Twitter users: Note how many of those are hash tags and quit already. You don’t need to hash tag every damn post.) Trending topics are a sociology dissertation waiting to happen. They represent the most popular current topics on Twitter. They range from popular news items to celebrities to funny hash tags (yes, okay). It’s like a snapshot of pop culture.

As far as I know, Rock Art and/or Boycott Monster were never in the Twitter Trending Topics list, but it didn’t matter. The noise generated by different aspects of social media – a dedicated Facebook group (15,000 members), a Care2 Petition (1,300 signatures), and shit-ton of Twitter traffic – was enough to get noticed by a few national media outlets at which point Hansen’s felt like there was undue pressure, primarily because it was damaging the reputation of their company and their product.

So, did social media save Vermonster? In a sense. My opinion is that Rock Art saved Vermonster; I’ll get to that in a sec. It’s my feeling that social media got the attention of larger parties (the national media and, eventually, Bernie Sanders (I-VT)) to get the issue resolved in a much faster, but much messier, way than I believe it would have been originally resolved.

To that end, go social media! Good work. Kudos to you. You texted like champs.

Now, I’m not party to everything that went on, nor am I any sort of lawyer – trademark, or otherwise – but I think this whole thing got blown way – and I mean WAY – out of proportion:

To my understanding, Rock Art was issued a Cease and Desist letter from attorneys hired by Hansen’s Beverage, namely one Continental Enterprises.

It’s a standard tactic used to protect your trademarks. Basically, if you have filed for a trademark and somebody else is doing something that could cause confusion of that trademark, it is your obligation as the trademark holder to ask them to stop. If you do not, and do not continually file statements of use, the trademark may be considered abandoned and you run the risk of losing it. Basically, a trademark is as good as your branding initiative and your team of lawyers. If you suck at keeping your brand, you risk losing the right to exclusively use said trademark. So what do you do? You send letters to people who may be infringing upon your trademark and you ask them to stop doing so.

Of course, this only works when somebody is actually doing something that is similar to your trademark. The trademark for an energy drink in no way resembles the trademark for a fermented beverage. There’s a really nice rundown of many of the trademarks involved at PJ’s blog Starting a Brewery.

This particular company – CE – apparently has a reputation for aggressively stretching the boundaries of trademark law. They’ve previously acted, for other companies, in pretty much exactly the same way they did in this instance. In case you missed it, C&D letters were also issued to BevReview.com (for posting an image of a Monster Energy Drink in a review in their forums), as well as actor Trygve Lode for being photographed with a Monster Energy Drink, whilst in costume as a monster (seen to the left). I wish I was making this up, but I’m not.

The actions are akin – to me, anyway – to those troll debt collection agencies. The ones that buy up a bunch of debt from companies at a significant discount and then attempt to collect on the full value of said debt, regardless of the fact that it may have been paid already, non-existant, held by dead people, whatever. They’re the kind of people that send you sternly worded letters with items in it that say things like, “Failure to respond to this request in writing within 30 days constitutes your agreement that you are liable for this debt.” It’s kind of slimy, but it picks off the low-hanging fruit and makes them money.

Similarly, these types of C&D letters are meant to stop the people who don’t want to bother arguing and will just comply immediately because it’s easier to stop using a name somewhere than it is to pay your lawyer a few hundred dollars to draft a response letter saying, “Your trademark and my product are entirely dissimilar. Please go away.” but in really official lawyery terms. A Cease and Desist Letter is not a lawsuit. It is a letter saying, “please stop doing this or we will consider taking you to court.”

The good folks at Rock Art, completely understandably, got scared. They’re a small company getting what appears, at least on the surface, to be a threat from a multi-billion dollar company. Further complicating the matters, they attempted to use the telephone to take care of the matter. CE stood up for themselves because – hey, they were just doing what their client hired them to do, back off man! The people at Hansen’s probably had no idea what CE was even up to, because that’s why you hire other companies – so you don’t have to worry about what they’re up to. Rock Art felt like they weren’t getting due response from these companies that he was calling – and he probably wasn’t – got frustrated, and dealt with the issue the only way he could think of.

Where everything gets bizarre, to me, is where social media starts to pick up on it. Once the wave of sympathy started moving for Rock Art the flood gates kind of opened up. Matt, at Rock Art, made a video with a couple of friends of his pleading his case – and quite compellingly, I might add (heck, I posted it, he really plead his ‘little guy’ case quite well) – and it went viral. All of a sudden, you’ve got this really compelling David v. Goliath story making the rounds and it’s centered around a couple of great topics: small business (the hard working American) vs. big business (faceless corporation) and it all had to do with everybody’s favorite working-class-beverage (I hate that, even if it’s true): beer!

Then somebody brought up the word boycott. Consumers think boycotts are fun, because it reminds them that they actually hold power over corporations. Indeed! Stop buying goods from a company and they will (eventually) do poorly. The reason consumers like boycotts is because they aren’t working for a company that’s being boycotted, but I digress.

I have a hard time believing that a 2 – 3 week boycott by Vermont distributors and random craft beer drinkers around the country did anything to hurt Hansen’s bottom line. Much more likely, they were worried about their reputation being tarnished in the long run. Too late, Hansen’s. Too late.

From what I understand, once things started getting pushed around on social media and local news outlets, Matt Nadeau at Rock Art started hearing from people in the chain of command at Hansen’s who, I’m sure, let him know that they weren’t actually trying to put him out of business, that this was standard business practice and that, yes, we can settle this out of court, let’s just draft some language to make it official.

And then this crazy thing happened where somebody at Hansen’s – Mark Hall, President of Monster Beverage – decided to respond to a letter by just.. some person who wrote in. Unsurprisingly, it was posted on Facebook. In it, Mr. Hall accuses Matt Nadeau and Rock Art of orchestrating this entire PR campaign revolving around this C&D letter. It’s actually a pretty brilliant accusation, but it’s a tough pill to swallow. In fact, as far as I’m concerned, this letter of accusation of Machiavellian scheming is where Monster does far more damage to itself than anything else. (Here Matt’s passionate response, as well.) But he makes a really good point:

When we reach an accommodation with RA which we will no doubt do in the next day or so how will we undo the damage to our brand and reputation? Who will have really won? Will you be as passionate about telling our side? My guess is no one will hear about the resolution because it is not nearly as sexy a story.

Nobody. Why? Because everyone wants to see the little guy win. And he has. Beer and confetti all around! From everything I’ve seen so far, he has retained the right to brew Vermonster so long as he promises to not get into the energy drink market. But was that ever the question? Like… at all?

As Andy Crouch brought up this morning, what has he actually won? Was his ability to continue to manufacture Vermonster ever really in doubt? Or has he actually won an enormous — and FREE — PR campaign on the backs of the quick fingers of fad-driven social media fans? How much more Vermonster will Rock Art sell this year? I’m willing to bet a lot.

I don’t think that’s bad, but it sure is interesting!

As a kind of postscript, I have a hard time feeling bad for Hansen’s in all of this. They hired a firm with a bad reputation to do unpleasant work poorly. Something like this was going to rear up and bite them in the ass eventually.

I also can’t help feel that the real lesson out of all of this is going to be obscured by the frantic re-Tweeting of “OMGZ WE WON!!11!”: Trademark law needs a good overhaul and companies like this one (CE, not Hansen’s) need to have their business practices reviewed on a regular basis for bullying – because this is exactly what this action was. The backbone of this country’s economy is small businesses, and these kinds of actions threaten small businesses.

Vermonster was never a threat to Monster Energy drink, and while it could have been (and maybe should have been) a quiet conversation between lawyers, the real story is that the C&D letter should never have been sent in the first place.


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