Business

Miami publicist says Café Bustelo ripped off her #305cafecito campaign

JennyLee Molina stands with Miami Mayor Tomás Regalado after he proclaimed 3:05 p.m. Miami’s official coffee hour.
JennyLee Molina stands with Miami Mayor Tomás Regalado after he proclaimed 3:05 p.m. Miami’s official coffee hour. Courtesy

A dispute over cafecito between a local publicist and java giant Café Bustelo is brewing into a real fight.

JennyLee Molina, who runs a Miami public-relations firm, led an internet campaign that in 2013 saw Miami Mayor Tomás Regalado declare 3:05 p.m. as the city’s official coffee time. In a proclamation, Regalado called the idea Molina’s “brainchild.”

The Miami Herald, WLRN and other media outlets covered the announcement. Ever since, adherents have been posting social media photos of themselves sipping the sweet brew with the hashtag #305cafecito.

But this fall Café Bustelo — now owned by food conglomerate J.M. Smucker Company (of peanut butter and jelly fame) — debuted its own version of the campaign. The Miami-based company offered complimentary Cuban-style coffee at pop-up cafes in New York, Chicago and Los Angeles, with a special “Cafecito Time” event held at 3:05 p.m.

Molina, whose firm JLPR works mainly for food and beverage companies, says that amounts to a theft of her idea. It’s a bitter pill for her to swallow. She holds a federal trademark on the phrase “3:05 cafecito” for use on clothing, dishware and paper goods.

This is a business for me. It’s my brand.

JennyLee Molina

“A former intern texted me to congratulate me on the Bustelo campaign,” Molina said. “I was confused. I said ‘What do you mean?’ And then other people started calling me. They all thought we were associated with this campaign. .... This is a business for me. It’s my brand. We’ve been monetizing this for events.”

She wrote to Café Bustelo in October asking for credit but was told “Cafecito Time” was a free and fair use.

“Our research shows that 3:05 p.m. has been recognized as ‘Miami’s official cafecito time’ following the mayor’s proclamation in 2013,” Courtni Moorman, senior corporate counsel at Smucker’s, told Molina in an email. “We do not believe that anyone has exclusive rights in celebrating a coffee moment at 3:05 p.m. To claim otherwise seems contrary to the idea of sharing pride in the afternoon cafecito ritual as a way to honor the Latin culture in Miami.”

While the dispute plays out, Molina is calling for a boycott of Café Bustelo products. That could be a tall order in a city that loves its coffee. At Publix and other supermarkets, Café Bustelo products are often stacked to eye-level. But some social media users are backing her stand. A post about the dispute on 3:05 Cafecito’s Facebook page has 153 shares and 78 comments, almost of all them supportive.

“I hope they do what is right!!!!!” a user named Olga Arias wrote. “You guys deserve the credit!!!!! You worked too hard!!!! Best of luck!!!!”

‘Gray area’

Joseph Englander, an attorney at Peretz Chesal & Herrmann who specializes in intellectual property law, called the issue a legal “gray area.”

“It’s as murky as the foam on top of a cafecito,” he said. “If [Café Bustelo] is associating the time 3:05 p.m. with cafecito, then they are getting close to the line of this trademark.”

We do not believe that anyone has exclusive rights in celebrating a coffee moment at 3:05 p.m.

Smucker’s

Trademark law developed as a way to protect consumers and ensure they understood who was manufacturing and selling products, said Steven Naclerio, an attorney at Richman Greer.

“If there’s no possible consumer confusion, then you can use things that are similar to someone else’s idea and not incur liability,” said Naclerio, giving as an example two non-overlapping brands such as Cadillac cars and Cadillac dog food. “But if you can show that consumers are likely to be confused, then that’s a point in the plaintiff’s favor.”

In response to a request for comment from the Herald, Smucker’s said its actions are beyond reproach. “As a coffee brand with strong roots in Miami and loyal coffee enthusiasts across the country, Café Bustelo appreciates the long-standing tradition of the afternoon coffee break and we celebrate Miami’s officially designated 3:05 break time like many coffee devotees,” spokeswoman Maribeth Burns wrote in an email.

Molina hasn’t hired an attorney yet, but she’s planning to.

“I didn’t think it would get to this,” Molina said. “We may have to send them a cease-and-desist letter.”

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