Citing intellectual property abuse, Beverly Hills-based lawyer
Alan S Gutman said Dr Pepper's promotion was "an unmitigated
disaster which defrauded consumers and, in the eyes of vocal fans,
'ruined' the day of Chinese Democracy's release."
A trade mark attorney said that Rose may have had a strong case
– but his own behaviour eight months ago appears to have weakened
it.
The high-profile album was the subject of numerous missed
deadlines over several years. These repeated delays became the
subject of a Dr Pepper press release in March.
"In an unprecedented show of solidarity with Axl, everyone in
America, except estranged GNR guitarists Slash and Buckethead, will
receive a free can of Dr Pepper if the album ships some time –
anytime! – in 2008," it said.
The release made a joke of the album's high-profile delays,
pointing out that the soft drink shared Rose's quest for
perfection. "We know once it's released, people will refer to it as
'Dr Pepper for the ears' because it will be such a refreshing blend
of rich, bold sounds – an instant classic," said the release.
When it became clear that Chinese Democracy would be released in
2008, Dr Pepper said it would honour its promise. However, in what
Gutman called "a cynical attempt to mitigate its exposure," Dr
Pepper restricted the offer to a 24-hour window. Americans had to
visit drpepper.com on Sunday, the day of the album's release, to
obtain a coupon that could be redeemed for a free drink.
The rush for coupons caused the website to crash. Dr Pepper
extended the deadline for another day, but some fans then
complained on other sites that they had been unable to obtain a
coupon.
On Tuesday, the day after the offer expired, Rose's lawyer wrote
to Larry Young, CEO of Dr Pepper Snapple Group Inc.
"To begin with, our clients are outraged at your treatment of
their fans and the American public in general," wrote Gutman. He
described the company's failure to meet demand as "a complete
fiasco".
He accused the drinks company of a "raw and damaging commercial
exploitation of our clients' rights" and said that consumers had
been misled into thinking that there was a "copromotional
relationship" between the parties. "This association is even more
damaging in light of your shoddy execution of your disingenuous
giveaway offer," he wrote.
However, the letter from Gutman does not mention that his client
appeared to respond to Dr Pepper's initial announcement. A
statement appeared on the official Guns N' Roses website two days
after the original Dr Pepper press release was issued.
Attributed to Axl Rose, it said: "We are surprised and very
happy to have the support of Dr. Pepper with our album Chinese
Democracy as for us this came totally out of the blue. If there is
any involvement with this promotion by our record company or others
we are unaware of such at this time. And as some of Buckethead's
performances are on our album I'll share my Dr. Pepper with
him."
Jude Tonner, a trade mark attorney with Pinsent Masons, the law
firm behind OUT-LAW.COM, said that if this was a UK case, Rose's
statement in March could undermine his own case.
"If Rose had stayed silent, he probably had a good case over the
unauthorised press release. It's probably a trade mark use and so
in the UK there would be an argument of both trade mark
infringement and passing off," said Tonner. "We've seen cases like
this before, notably when TalkSport used an image of Eddie Irvine
without permission."
In 2003, racing driver Eddie Irvine won damages from radio
station TalkSport Radio after it used his image in an advert
without his permission.
"As a consequence of what appeared on the band's website,
Dr Pepper will surely argue that Axl was happy and had given his
permission," said Tonner. "It implies that he consents to the use.
However, under UK law, the onus would be on Dr Pepper to prove
this."
Earlier this year, rapper 50 Cent sued fast-food chain Taco Bell
in the US after it invited him to change his name in a letter sent
to newspapers.
"For one day this summer, change your name either 79 Cent, 89
Cent or 99 Cent by showing up to one of our more than 5,600
locations nationwide and rapping your order in the drive thru with
your new moniker," it said.
50 Cent argued that Taco Bell used his image and trade marks to
promote itself without his permission.
Tonner said that Rose's case might be limited to any detriment
caused to the Guns N' Roses brand as a consequence of fans'
ill-feeling towards the promotion.
Gutman's letter demands full-page apologies in national
newspapers, an extended offer to consumers and "an appropriate
payment" to Rose and the band.
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