On the morning of July 16, my bros on Twitter noticed something totally un-chill: BrosIcingBros.com, the epicenter of the icing phenomenon, had been taken down. Instead of user-submitted photos of young brosephs and bro-ettes, on their knees drinking bottles of Smirnoff Ice, the website displayed an unceremonious, one-sentence farewell: "We had a good run Bros..."
At NewMediaRights, our pro-bono IP attorney Art Neill regularly deals with individuals being bullied by large copyright/trademark owners into taking down their sites, even when those sites don't actually violate copyright and trademark law. To bring this practice to light, we wanted to publicly discuss how strong/weak Smirnoff's legal arguments to take down BrosIcingBros.com really are, and whether Smirnoff had good faith when chose to take the site down.
By the end of our analysis, we’ll conclude that
(A) Smirnoff’s arguments for both copyright and trademark infringement are weak at best;
(B) Even though Smirnoff did have good faith to send a cease and desist letter to BrosIcingBros for some instances of infringement, it was not within reason for Smirnoff to require that the entire site to get taken down.
(C) If BrosIcingBros was, in fact, taken down because of legal problems with Smirnoff, then this is a classic example of a large brand’s legal department overreaching with cease and desist letters and bullying individuals into compliance without sufficient legal arguments to back their claims up.