The Canadian Bar Insurance Association
Intellectual Property

Netflix takes 'softball' approach with Stranger Things pop-up bar

Though companies have traditionally been counselled to aggressively monitor and enforce their intellectual property, some are taking other approaches in an effort to earn positive publicity, especially where circumstances of the infringement are more minor, Toronto intellectual property lawyer Erika Murray tells

The popular streaming service, Netflix, chose the latter route, using language from a hit show in notifying a bar that it was infringing copyright, says Murray, an associate with Bhole IP Law. The pop-up bar in Chicago, which themed itself after the hit Netflix show Stranger Thingswas served with a tongue-in-cheek cease-and-desist letter from the company.

The concept bar intended a short run between Aug. 18 and Oct. 1, before the show's second season premiered Oct. 27.  

Netflix's counsel took a soft approach, reminding the bar's owners that while they didn't have permission to use the theme, they could continue as long as the venture didn't extend beyond the six weeks and that in future they seek permission for any plans to involve the show and its contents.

"We love our fans more than anything, but you should know that the demogorgan (the show's monster) “is not so forgiving," in-house counsel wrote in its Aug. 23 cease-and-desist letter to the bar. "So please don't make us call your mom."

Netflix likely took the softer approach after having seen numerous other public relations nightmares incurred by other more aggressive companies, and perhaps recognizing that publicity for the bar and the company's legal response could garner a significant amount of positive attention.

"Their cleverly drafted softer cease-and-desist approach went viral and actually promoted the show as well as the bar owners, who were allegedly infringing Netflix’s intellectual property," Murray says.

She warns never to pilfer an idea from one of biggest entities in the U.S. entertainment business, no matter how ubiquitous the imagery and concepts from one of its shows are in pop culture.

"Really, they were ripping off the show's brand and content, their intellectual property," she says. "Without having a licensing agreement or someone's permission, you can't piggyback off someone else's brand and make money.

"The IP owner will generally win, especially if they are a larger company," Murray says.

There are various ways owners of intellectual property can use cease-and-desist letters, which are, no matter the language, formal requests to halt infringement activities, she says.

"They can send the furious demand letter, which is pretty common in intellectual property litigation," Murray says. "That letter insists on an immediate termination of the use of the intellectual property" and possibly a tally of associated earnings and profits.

She says the approach IP counsel takes depends on who's infringing the intellectual property as well as the owner of the associated IP rights.

"It balances on who it is, how deep their pockets are, how co-operative they are, how serious the infringement is, and their appetite for litigation," Murray explains. A legal battle could demand a long-term commitment, which some companies will avoid in favour of a settlement.

"If the owners are trying to get a licensing agreement out of it, perhaps the softball approach is best, where they require the licensee to ask for permission and pay for using the owner’s intellectual property," she says.

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