Earlier this week, Smith & Wesson’s lawyers sent out a slew of Cease & Desist letters to companies that made modification to their M&P line of pistols as part of the Brownell’s M&P Dream Gun project. Specifically, S&W was concerned over use of their trademark.
It has recently come to Smith & Wesson’s attention that you have developed and are promoting for sale an “M&P Dream Gun,” (the “Infringing Product”). To create this product, you have modified an authentic Smith & Wesson M&P 9mm pistol by, inter alia, changing the grip texture and shape, machining the slide, and adding numerous accessories and replacement parts, while retaining the S&W Logo on the product. The December 18, 2015 Apex press release announcing this product and explaining Apex’s intent to exhibit the Infringing Product at the January 2016 SHOT Show exhibition is attached to this correspondence as Exhibit B. The numerous alterations made to the original design of Smith & Wesson’s firearms constitute not only unauthorized modifications to Smith & Wesson’s proprietary designs and misuse of Smith & Wesson’s trademarks, but present significant safety and quality concerns. Indeed, these modifications void the Smith & Wesson factory warranty on these products. Your advertisement and display of the Infringing Product to promote your gunsmithing services, and other products and services, constitutes misuse of Smith & Wesson’s trademarks and must cease.
But that wasn’t all. They went on to make some rather serious demands.
These intellectual property and safety and quality concerns are extremely serious and demand your immediate attention. Accordingly, we demand that you:
1. Confirm in writing that neither you nor any third party will display the Infringing Product, or any similar product, at the 2016 SHOT Show or make any other commercial display or promotion of such Infringing Product;
2. Cease the sale of any firearm modified by you or any other third party that bears any Smith & Wesson trademark, including, but not limited to the S&W® Marks or the M&P® Marks;
and3. Turn over to Smith & Wesson your inventory of the Infringing Product, or any Smith & Wesson product modified by you in the first instance that bears any mark owned by Smith & Wesson.
If we do not hear from you by January 5, 2015, Smith & Wesson will pursue its rights and remedies to the fullest extent permitted by law without further notice to you.
Naturally, these letters hit the internet and the backlash was swift. Fortunately for S&W they jumped on the grenade and have released a joint statement with Brownell’s.
Smith & Wesson, Brownells Clarify Brownells/Apex Dream Gun Issue James Debney, President and CEO of Smith & Wesson, said, “I would like to clarify that we fully support the Brownells Dream Guns Project and we appreciate that it showcases the many ways in which our customers – loyal fans of our M&P brand – can choose to customize their M&P firearms. Our decision to contact the companies that worked on the project was intended to protect the trademarks that support the M&P brand. When a product bears the Smith & Wesson and M&P trademarks and is purchased new with our lifetime service policy, we want to be sure that the consumer knows it has passed our demanding quality standards. In our efforts to protect that promise and to preserve the brand that we and our customers cherish, we did not fully understand the intent of the Dream Guns® Project and we overlooked the opportunity to convey our enthusiasm for the creativity and innovation that Brownells and all of the companies involved have demonstrated. We look forward to seeing the firearm on display at the upcoming SHOT Show in January and at the NRA in May.”
“Yesterday I spoke with James Debney, President of Smith & Wesson, who called me regarding the M&P Brownells/Apex Dream Gun®,” said Matt Buckingham, Brownells President. “It was a simple misunderstanding about the intention of the project. He made it clear that Smith & Wesson is excited to have their product featured in this fun and unique way. For our part, we are honored to include it in our Dream Gun lineup. Smith & Wesson is a legendary brand in this industry and we continue to be proud partners with them.”
Brownells Dream Guns are inspirational firearm builds to provide customization options and ideas for customers who may wish to personalize their own firearms. The guns are not sold as is, and are used on Brownells’ website and at tradeshows to display Brownells’ wide selection of items available to customize firearms.
To view Brownells’ full listing of Brownells Dream Guns, visit the Dream Gun Page at Brownells.com.
What’s so ridiculous about this entire “misunderstanding” is that it could have been prevented with a simple phone call. S&W needs to seriously reconsider its relationship with its current legal counsel. These boneheaded C&D letters have cost them immeasurably in customer goodwill and made them look like buffoons. Other brands take note. Don’t pull a Smith & Wesson; especially right before SHOT Show.
Tags: Smith & Wesson
Refer to “Special kind of stupid.”
I wonder how many hours their legal counsel billed to send out those letters. This is a good example of why blindly hiring big law firms to represent you is a bad idea. Their goal is to milk you for as many billable hours as they can.
The kicker will be when the law firm bills them in regard to actions taken in response to this mess. No lie, a lawyer once billed me to correct and refile property documents that he incorrectly wrote and filed for me the first time around. They have no shame, they take that from them in law school.
This borders on malpractice by the Smith & Wesson legal team. Although difficult to sue an attorney and win, I do know some firms that specialize in attorney malpractice lawsuits. If Smith & Wesson is interested in potentially recovering a few years worth of legal retainer fees and billable hours they should contact one of these firms.
Yep, this will be a shot across the bow for the whole legal industry to take note…. liability for their actions and art they are us to having others atone for.
S&W should recover at least the hours billed for this fiasco, then hire another firm that wasn’t spawned from leftist, liberal institutions, some of which Mike Bloomturd actively funds.
“an art they are used to having others atone for” Sorry didn’t catch that and don’t see an edit function.
Legal counsel, inside or outside, doesn’t take it upon themselves to just send out cease and desist letters (nor may they do so under the rules of ethics that attorneys are required to follow). They do so in response to a request from a business person within the organization. Thus, there is obviously some manager/director/VP within S&W that requested the letter, only to realize post-backlash that they’d make a huge mistake. I suspect that person is or has been fired by now, or at a minimum will get a rather nasty annual review.
Not necessarily. It’s fairly common for large companies to let them seek out infringement claims on their own. Sending out cease and desist letters are pretty routine. No one in management wants to be bothered with something that trivial unless it blows it up like happened here.
In that scenario they are doing so with advance permission/request from the relevant S&W person. In your twist, the relevant S&W employee gets hit for having given the attorneys too much discretion at the start of the project. Again, lawyers can’t just send out correspondence on a client’s behalf without authority from the client to do so (whether that authority is specific or blanket for a given matter or category of matters).
It does however so that it’s entirely possible (in my view highly likely) that no one in management had any idea this happened until they got angry calls. I don’t think it’s a bad business move to let attorney’s take initiative on like this. But you have to hire good attorneys. Good attorneys would have advised management not to do this even if management brought it up.
They never learn!
Who here remembers their collusion with the Clinton administration which cost them dearly? From Wikipedia:
“Clinton agreement
On March 17, 2000, Smith & Wesson made an agreement with US President Bill Clinton under which it would implement changes in the design and distribution of its firearms in return for “preferred buying program” to offset the loss of revenue as a result of anticipated boycott.[7] The agreement stated that all authorized dealers and distributors of Smith & Wesson’s products had to abide by a “code of conduct” to eliminate the sale of firearms to prohibited persons, dealers had to agree to not allow children under 18 access, without an adult, to gun shops or sections of stores that contained firearms.[7]
As expected, thousands of retailers and tens of thousands of firearms consumers boycotted Smith & Wesson.”
Thank you, haven’t bought a Smith since then!
Don’t own a S&W product and I’m seeing less and less of a reason to.
Did you notice that they put the wrong date on the demand. January 2015 has already passed.
Thank you! (Didn’t see your comment until after I posted the same.)
I received a phone call from James Deabney earlier today. He was embarrassed and offered a sincere apology. I have respect for him as well as S&W, not so much their legal department.
well that is a nice gesture of goodwill. returns some of my faith in the company
It’s sort of a balancing act with brand protection. Any time a company uses your brand logo, they are representing you, and you have a right to protect it. Sometimes it comes down to liability. There are whole branding departments who protect this type of thing, and they can be a real pain when you want to do a special project.
An overzealous lawyer doesn’t make me want to jump on the anti S&W bandwagon.
I have had nothing but good results with my S&W products, and their customer service is top notch..at least in my experience.
I don’t see this as a call to boycott S&W but rather as a cautionary tail lest a company let its lawyers defend itself out of existence.
It sounds like they listened.
Never Go Full S&W. Never Go Full Remington.
Who do they think they are, APPLE ?
Hahaha. I get it.
Am I the only one who saw the C&D responce date of Jan. 2015? Hard to hit a date that’s already passed…
If that was an error in transcription I can understand. But if that was a copy and paste from the original text, that legal counsel isn’t worth much…
The worst example I’ve seen in my career as an IP attorney is Harley-Davidson.
I’m sure that they were very quick to thank their counsel and tell them what a great job they’re doing and how appreciative they are of the work they’re doing to protect their brand before they asked them to from now on submit all correspondence to the their PR department for approval before post.
It strikes me as strange that most common folks understand that lawyers are scout sucking demons, but fail to realize that 90% of the time Politicians are lawyers before they become politicians. Then the common folk wonder why our country is literally in the crapper. It’s so obvious it’s sad.
Top Three Biggest Changes That Happen At The Next Constitutional Convention:
1) Do away with politicians.
2) Do away with lawyers.
3) Makes the laws and courts navigatable by the common man, after all you are judged by a group of your peers, you should be helped by your peers also.
Add those three changes up, and liberals will become the Dodo Bird and will have a better Union.
Soul not scout.
But the liberals will put lawyers in places to try to trump no pun intended. The conservative group. They are sneaky little bastards. Also lets throw a clause in there. All who want to serve in a political office position must first serve in the military. That way bean counters and DUMB ASS ROE! Won’t ever happen again. Why hinder a warfighter. Make his job easier. Not harder.
I get ya. lol I agree
Well time to get rid of my m&p lineup after that
There is no forgiveness for this debacle as far as I’m concerned. The apology was a joke. Smith was very careful not to admit to any wrongdoing. I can’t stand apologies like that. Can we even call that an apology? In this day and age there is no excuse and no second chances. Mods to polymer guns has become the standard rather than the exception. If you don’t know that then maybe you don’t know anything. I’m done with these idiots.
Good lord! Junior administration at Smith made an error in judgement – upper management was made aware and immediately resolved the issue by apologizing, explaining and apologizing again. Obviously it was an MISUNDERSTANDING and all parties involved are back to the level of friendship that existed before the entire mess started.
It is too bad that the ‘commandos’ I see making comments here don’t have the same level of understanding. They WANT to look for the worst and then make foolish comments as if they were privy to the way Smith handled the issue.
The CLINTON SELLOUT had ZERO to do with the letter; yet the commandos bring it back up and announce to the world that they have “…not bought a S&W since…” —- “…will NEVER buy another” —- demand that the firstborn of all involved be sacrificed on the 2 x 4 alter at ‘Commando HQ’! Hogwash.
Some comments made me seriously wonder if the authors should have guns at all! If common sense can’t be applied to this RESOLVED ISSUE i have to wonder if faced with a situation requiring a decision to ‘shoot or scoot’ if these same individuals would be capable of deciding.
An example of ridiculous inability to comprehend. “Smith was very careful not to admit to any wrongdoing. I can’t stand apologies like that.” FINALLY, this one: ——> “I’m done with these idiots.”
They ADMITTED it was a MISUNDERSTANDING! It was obviously WRONG and the admission is within the damn APOLOGY. What more would you have them do? And THIS crack ——> “I can’t stand apologies like that.” NO DOUBT and SO WHAT!? BFD!
I am certain the administrators at S&W would be overjoyed to know, “I’m done with these idiots.” They would NO doubt celebrate you severing doing business with them; rightfully so!
Where in Smith’s statement do you see anything resembling comments to the effect of “we apologize” or “we retract the allegations of unlawful behavior and trademark infringement” or even “we retract our previous demands regarding the item in question”?