SHEPHERDSTOWN – When Garth Janssen, the proprietor of Lost Dog Coffee, received a cease and desist letter from the Driscoll and Seltzer law firm last week, he was dumbstruck.
“My initial reaction was shock,” Janssen said. “‘Whoa. This can’t really be real. What’s next?’”
When Janssen started reading further, he felt like the demands were very ominous. “I thought, ‘This is scary. I’ve worked really hard for the business,’” Janssen said. “It is my sole income for my two boys and myself. We have four employees, two of which are very dependent on the income here for their life.”
Cease and desist
The letter makes two demands of Janssen and threatens a lawsuit if the demands are not met. The first: Janssen must give up all use of the phrase “Lost Dog” in relation to his coffee shop or any other food service establishment, as well as any merchandise related to those establishments. The second: Janssen must turn over ownership of his domain name – www.lostdogcoffee.com – to the Lost Dog Café, a small chain of restaurants with two locations in Arlington, Va. and one in McLean, Va..
Janssen said he immediately called Richard Driscoll, the lawyer representing the Lost Dog Café, who had sent him the threatening letter.
“I explained to him that we are not a restaurant, that we are not in conflict with beer, pizza and burgers, which is what they do. We are a very focused coffee and tea house,” Janssen said. “We serve cookies and muffins. That is the extent of our food. We have some bagels. We don’t cook anything on-site. We don’t even have a toaster.”
He says Driscoll took a hard line.
“He gave me the dates mapping out how I am supposed to divest myself of use of the words ‘Lost Dog’ by Sept. 15, or appropriate legal action will be taken,” Janssen said.
The cease and desist letter spells out the possible consequences of such legal action: a legal injunction to force the name change, monetary damages, the requirement to repay potential lost profits, and destruction or confiscation of products and labels infringing on the trademark. If it is found that the infringement is intentional, then attorney’s fees and “treble damages” – that is, damages equal triple the amount a court determines is owed – could also fall upon Lost Dog Coffee, according to the letter.
Janssen said he was shocked that the Lost Dog Café would suddenly threaten legal action over trademark issues. He says both businesses have been aware of each other for years without any conflict.
Lost Dog Coffee has been in business under that name for over 16 years, said Janssen, and “they’ve know about us and we’ve known about them for, I would say, the vast majority of that time. Their employees have come here. I’ve gone to their restaurant. We’ve laughed about it.”
The Lost Dog Café is older than Lost Dog Coffee, having been in business for 27 years, but Janssen wonders why the threat of legal action was postponed for so many years if the owners were truly concerned that the similar names were hurting their business.
This is the second trademark dispute involving a Shepherdstown small business in as many years. Last year Mellow Moods Café was told to change its name by the estate of famed reggae musician Bob Marley when the newly-established Marley Beverage Company was preparing to release a line of canned teas called Marley’s Mellow Mood. The Marley estate ultimately dropped the matter after Mellow Moods fought back.
Janssen said the letter is particularly threatening because the prospect of litigating a trademark dispute in court would lead to legal fees he could ill afford.
“If I was to be sued for something like this and be required to hire legal counsel, that would rock my ship to the point where it would definitely put my business at serious risk,” he said, adding that the alternative – giving in to the letter’s demands – could also put his business at serious risk.
“It would put my business at risk if I would have to change my name,” Janssen said. “That would alter the perception of my business. If I lost my web domain, people would not be able to find me. I wouldn’t be able to sell coffee and tea online like I do now.”
Janssen said he thinks this double bind is being used by the Lost Dog Café’s lawyer to “bully” his company into submitting.
“It would be very, very expensive for me, and they figure that I am just going to be intimidated,” Janssen said. “The lawyer told me, ‘You know, you might just want to consider changing the name. You really don’t need the hassle or the financial burden of this.’”
After Janssen got the letter, he posted the news on Facebook, where it spread like wildfire. In short time, a longtime customer had created a website called “The Campaign to Protect Lost Dog Coffee” – www.lostdogcoffee.us – and a related online petition on the Change.org website. As of Tuesday afternoon, the petition had over 750 signatures.
“People relate to Lost Dog Coffee now in a way that is above and beyond just a coffee shop. They see it as a marker, a representation of what Shepherdstown truly is,” Janssen said.
Many of Janssen’s customers also began to make their feelings known on the Lost Dog Café’s website and Facebook page, posting numerous complaints and vowing not to patronize their business until the cease and desist letter was withdrawn. The Washingtonian published an online article on the dispute Monday, and on there many commenters who claimed to be regular customers of the café also sided with Lost Dog Coffee.
“I’m not orchestrating this. People who are responding to my initial, I think calm, Facebook post, are taking their own initiative to do what they think is right. They are emailing and writing letters to the law firm, and they’re dropping comments on the Facebook page,” Janssen said.
“I don’t think the business owner realizes the capacity of the Shepherdstown community, and what this business means to folks. There are a lot of folks that are really passionate about Lost Dog Coffee.”
‘Blown out of proportion’
Ross Underwood and Pam McAlwee, the co-owners of the Lost Dog Café, said that the public had developed a number of misconceptions as stories of the trademark dispute propagated across social media.
“Everything has been overblown on this. If you know me and Pam, we are not going to make (Janssen) do anything. This whole story has been blown way out of proportion,” Underwood said in a telephone interview.
“I keep getting these emails – like, hatemail from West Virginia,” McAlwee said. “We feel like we’re being found guilty before people have heard the other side of the story.”
Underwood and McAlwee were shocked to find their small chain of cafés portrayed as a large corporation picking on a small business.
“We are a small business too. We started off 27 years ago working 14 hour days seven days a week. We still work a lot,” McAlwee said.
“We are not a big corporation,” Underwood said. “We have sold two franchises to people who used to work for us. We have this name that is protected, and we have to have some legal work done on it, but it isn’t to the point that this guy is going to have to stop doing business or anything like that.”
“That’s just the way it is legally worded, and it is not going to happen,” he said.
Both Underwood and McAlwee, who were on vacation in Yellowstone during the time the letter was sent, said they have not even seen the letter that was sent out in their name.
McAlwee said they essentially want Janssen to sign an agreement saying that he will not, for example, expand his business to begin selling pizza and sandwiches.
“We just have to make sure that he’s not going to start selling pizza. That is how we framed it when we went to the lawyer,” McAlwee said. “I didn’t realize that it was to this magnitude. What I thought that it was going to say was: ‘Ok. He can be Lost Dog Coffee, but he can’t one day start selling pizza and sandwiches and be Lost Dog Coffee and Cafe.’”
McAlwee said she thought Janssen was reacting to the letter unreasonably and said she thought the entire dispute could be worked out if both sides would sit down and talk the issue out.
“I feel as if he is aggressive and not acting as a small business but attacking without talking to us, but so be it. I have tried to contact him,” McAlwee said in a text message. “I don’t think a war is necessary. We are looking for a reasonable solution. Details will have to be worked out and agreed upon among the three small business owners involved.”
Janssen said the owners of Lost Dog Café are “clearly responsible” for their lawyer’s threats, which, in clear terms, demand that he immediately turn over his domain name and stop using the phrase “lost dog.” Lawyers he has talked to advised him against speaking directly to Underwood and McAlwee at this point because of the legal actions threatened in the cease and desist letter, he said.
He notes that the letter states that copies were sent to both Underwood and McAlwee.