On the Liquid Death “Armless Palmer” controversy

As reported by many outlets, including this article on The Sports Room, the relatively well known canned water/drink brand Liquid Death was at the center of a controversy and legal dispute. The dispute centered around the name of one of their drinks, a hybrid of lemonade and iced tea, commonly known as an “Arnold Palmer” after the late legendary golfer of the same name. Liquid Death called their take on the drink an “Armless Palmer” in line with the other drink flavor names under their brand such as “Grim Leafer”, “Rest In Peach”, “Convicted Melon”, and “Berry It Alive”.

Well, turns out that the late golfer’s name for this combination is a licensed trademark, specifically licensed by Arizona Beverage Company, one of the companies competing against Liquid Death. Not surprisingly, neither Arizona nor those in charge of Arnold Palmer’s estate were very happy about seeing this parody/trademark infringement on the shelves of local stores. They threatened legal action to defend the trademark. Now I don’t fault them for this, as trademarks have to be legally defended or they risk being lost.

And then came Liquid Death’s response to the legal threat. Obviously, they are not going to discontinue the product entirely. No, Liquid Death just came up with a new name for it. Enter “Dead Billionaire”. A great way to keep the branding on theme, yet an ever-so-subtle middle finger at the competitors threatening legal action. Note that Liquid Death takes a bit of poetic license here, as according to the Wikipedia article about Arnold Palmer, his estate was worth only $875 million at the time of his death. Close enough, I say; his name as a beverage trademark has almost certainly brought in the difference since then.

I don’t usually drink tea-and-lemonade blend beverages, regardless of name, but I may well pick up one of these to see what it’s like.

(Full disclosure: within the last 12 months, I did do some merchandising work for Liquid Death. The reference photo above was not taken at the store where I did the merchandising.)

Trademark infringement accusations run amok

The Houston Chronicle recently reported on a Houston restaurant being the recipient of legal bullying by none other than McDonald’s. Yes, the “billions and billions served” gargantuan international hamburger joint, whose food in some circles is synonymous with “#$%&”, has accused the one-location Jus’ Mac of trademark infringement.

I’m sorry if my bias is showing. I liked the food at Jus’ Mac from the one time I got to eat there months ago, and I’m a supporter of local businesses when feasible. I’ve never been a fan of McDonald’s, and while the hard boycott hasn’t been there for a while it’s always been “why eat at McDonald’s when I can go to Little Big’s, Tacos A Go-Go, Last Concert Cafe, Chipotle, Taco Cabana, etc?” (Yes, McDonald’s used to own part of Chipotle, but does no longer as of 2006.)

To me, this is clearly an attempt by McDonald’s at intimidation, and at first glance it certainly smells like intimidation for intimidation’s sake. I think McDonald’s’ well-intentioned attempt to protect their trademarks is failing miserably in the execution department. As we learned from the “hot coffee” lawsuit, common sense appears to be lacking in the legal department at McDonald’s. (For those unfamiliar with the hot coffee case: several previous suits were settled for small amounts and McDonald’s did nothing to keep them from happening; McDonald’s tried to settle for a laughably low $800 in response to Stella’s generous initial demand for $20,000. Ultimately, McDonald’s paid out an amount “less than $600,000” but we can assume much higher than the $20,000 Stella originally sought.)

Anyway, if you believe them, McDonald’s seriously thinks that people will mix up macaroni-and-cheese dishes with a Big Mac hamburger or any other of their menu items that have “Mac” in the name. I find this hard to believe; the restaurants are certainly different enough in style. I certainly think it’ll be difficult for McDonald’s to convince a jury there’s potential for confusion. That’s the problem, though: by the time it gets to a jury, McDonald’s has probably already bankrupted Jus’ Mac with legal costs. I know I’m not the only person who sees this as a travesty compared to real justice, yet this kind of war of attrition is exactly what our “justice system” has turned into.

So if you live in or plan to visit Houston, swing by Jus’ Mac at 2617 Yale and check it out. And pass the word to McDonald’s that what they are doing isn’t cool at all.