from the biting-the-hand dept
For sure, the most frustrating examples of dumb trademark disputes are when one party bullies into silence another party for doing something that actually helps the bully. If you need an example of this, you can look to the time Olive Garden tried to take down AllOfGarden.com, a site with a satirical take on the Olive Garden menu. That example is particularly instructive for two reasons. First, AllOfGarden was essentially a tongue-in-cheek love letter to the restaurant chain run by someone who was very much a fan of said chain. Second, Olive Garden eventually apologized and rescinded its threat, due in part to the public backlash and the fact that it must certainly have realized that the site, if anything, helped drive some measure of interest in the restaurant itself.
We will have to see if supermarket chain Publix ends up handling this the same way, because it has apparently bullied someone running social media accounts alerting fans to the availability of a particular sandwich into silence.
The account “Are Publix Chicken Tender Subs On Sale?” — with nearly 40,000 followers — has been dormant since March 11. One of its final tweets noted that the subs were, indeed, on sale, and added ominously: “This may be our last Tweet.” Since then, it stopped sharing updates altogether. An accompanying Facebook page also went silent.
A big clue about what happened: In another post, the Twitter account said it had received a cease-and-desist order from Publix objecting to a related text-message notification service. The account promised more details “later this week,” but never shared more information. Since then, dozens of hungry Twitter users have tweeted at the account asking where they went, whether everything was OK and earnestly asking which subs might be on sale.
So, who is behind the social media accounts and text messaging service? A 26 years old named Bryan Dickey who also works for marketing firm Postscript in California. According to Dickey, Publix contacted him upset that his texting and social media accounts were alerting the public as to when these chicken tender sandwiches went on sale. He had initially said he was going to keep his social media accounts running while taking down the text message service, but those socials have, again, since gone silent. To be clear, this was something of a commercial operation, though admittedly not much of one.
Dickey tweeted from his personal account earlier this month that Publix was objecting to a related text-message service he set up in January that allowed users to be notified about sub sales if they texted “PUBSUB” to a listed phone number. It wasn’t clear how Dickey was profiting from the service, but apparently that was too much for Publix. He said as early as January 2018 that he was making money off his Publix subs ventures and last year said he had made more than $5,000.
“Publix is bullying me with C&D’s for the SMS VIP club. Haven’t talked about it publicly yet. Basically all paths to profitability are legal red taped for now, but I can keep the socials running,” he said.
All the normal excuses for Publix’s actions are trotted out in the Tampabay.com post by third parties on the chain’s behalf. If the Twitter account or text service suddenly did something offensive, Publix would get the blame. If it didn’t go after the use of its name in this case, someone else could argue that Publix had abandoned its trademark.
But as we’ve discussed before, there are other options beyond bullying to death something like this. Working out a way to make the service or social media accounts “legitimate” through cheap or free licenses alleviates the concern about trademark abandonment. Working out an arrangement would similarly allow some flavor of quality control over the content of these accounts.
Or, as Publix chose to do, it could silence activity that was actively promoting its own products, almost certainly leading to sales that would have otherwise not occurred.