Writing and receiving demand letters is part of the daily grind. We send and receive all types – the nice-ish demand when the facts aren’t 100% favorable. The stern demand when there is egregious conduct (although I will never, ever write GOVERN YOURSELF ACCORDINGLY on a letter). The outlandish demand with no legal basis (often sent by both pro se parties and attorneys alike, but not me of course).
For the most part, demand letters and responses are exercises in posturing, providing notice of bad behavior, and creating a record for future litigation. But, every now and then attorneys can break out of their mahogany shell and write a demand letter that, a) has some humor, and b) does not engage in the typical “govern yourself accordingly and immediately cease and desist from XYZ…”
That brings me to a cease and desist letter sent by Netflix to the operator of a “pop-up bar” named The Upside Down and that has a Stranger Things theme.
The marketing looks like this:
“The Upside Down” is the name given to an alternate reality within the show – it is a dimension. As I’ve blogged before, even fictional brands can receive trademark protection. While “The Upside Down” isn’t a brand on the show, it is a label or term that fans will obviously recognize. In fact, it would not be unusual at all for fans to think that this pop-up bar has some official connection to the show. It uses the “official” typeface and design (although that’s not uncommon) and many other show-related elements and themes:
Put simply – this could have easily been a GOVERN YOURSELF ACCORDINGLY letter to shut down the temporary bar and protect the Stranger Things brand assets. But that’s not what happened. This did:
Well played, Netflix Director/Senior Counsel of Content & Brand IP. Many clients would not allow such a letter to go out because they perceive the mahogany/govern-yourself-accordingly treatment as the way things should be. Anything other than that is, well, strange. But strange can be good, and in this case a typical demand letter could have resulted in some Streisand Effect-level backlash. Instead of that, Netflix’s legal department comes across as chill while still putting the pop-up bar on notice that this is a one-time deal and anything after that will not be tolerated. Could this encourage others to do the same across the country? Maybe, and I bet those letters won’t be as fun, but for now, even potential new pop-up bar operators are on notice that Netflix is watching.
GOVERN YOURSELF STRANGELY
Kevin W. Wimberly, Esquirious