It was April 2012. Miami publicist JennyLee Molina was sitting at David’s Café on Lincoln Road (R.I.P.) with a client. The clock hit 3:05 p.m., and with the Miami love flowing through her hyper-caffeinated veins, Molina snapped a pic of her cafecito and tweeted it.
Between the Miami pride and the afternoon coffee as routine as brushing your teeth in the morning among Miami’s Cuban community, the 3:05 cafecito break started to catch on. Being the publicist she is, Molina ran with it.
Soon she was building a movement to make 3:05 p.m. the official time for a coffee break in Miami.
“The idea came about to unify the Cuban coffee culture and create an online community of devotees who enjoy sharing their mutual love for Miami’s nectar through social media. At 3:05, Miami pauses to stop and smell the cafecito,” her website reads.
Over the next year Molina built a website, created @305Cafecito Instagram and Twitter profiles, and registered for a trademark for the phrase 3:05 Cafecito. (Funny aside: Peanut Butter Jelly Time is also a trademark, so don’t try to snag it. Where they at? Where they at?)
She drank at 3:05 p.m. on the daily and posted about it with her hashtag, and others started joining in too.
She filed the trademark on Aug. 31, 2013, which gave her the advertising rights to 3:05 Cafecito. She built a website and made stickers and pamphlets. And she got #305cafecito going all over social media. That year, Miami Mayor Tomás Regalado declared 3:05 p.m. Miami’s official cafecito time.
Fight for your right
So when one of her former interns texted her a few weeks ago congratulating her on her partnership with Café Bustelo it hit her like a cafecito oscuro, sin azúcar. Dark. No sugar.
Smuckers-owned Café Bustelo had started using 3:05 Cafecito in marketing campaigns across the country, including in New York, Chicago, and Los Angeles. They’d hand out free coffees and empanadas, holding signs that say “3:05 Cafecito Time!” and using the #305cafecito tag on social media at 3:05 p.m.
And they gave no mention of Molina or the 305 Cafecito brand she owned and trademarked.
When Molina sent an e-mail to Bustelo asking that they credit her and make it clear that this is a national campaign using the idea from her local movement — Bustelo basically said “nope.”
Here’s their full response:
Initially, please note that our uses of “3:05” and “Cafecito Time” at our events are not trademark uses—these terms are being used merely descriptively to communicate information to consumers about the time of day that free cafecito will be offered.
Our research shows that 3:05 p.m. has been recognized as “Miami’s official cafecito time” following the mayor’s proclamation in 2013. 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.
Additionally, many third parties are also using “3:05” or “305” either descriptively or as part of other trademarks. This means there is already a crowded field of 305 marks coexisting with each other in the marketplace and on the federal register, and consumers are able to distinguish between them without confusion. Thus, our non-trademark use of “3:05” is not likely to cause confusion among consumers.
Finally, “cafecito” and “cafecito time” are generic terms that are not subject to trademark protection, and 305 is geographically descriptive as a reference to the telephone area code of Miami, Florida, and also not protectable. In fact, the USPTO has required a disclaimer of exclusive rights to the terms “cafecito” and “305” in numerous third party registrations.
In conclusion, we are unaware of any instances of confusion resulting from our use of “3:05” or “Cafecito Time,” nor do we believe that any confusion is likely to occur. If you have additional information that you would like to provide, please let me know.
“I’m so disappointed because it’s such a nostalgic brand for so many of us. I didn’t want to out [Bustelo] immediately,” Molina said. Brands like Bustelo and Pilon are loved among Miami’s Cuban coffee drinking community.
“It would [have been] great for 305 Cafecito to partner with them … but now I want them to publicly apologize and credit us with it or stop using it.”
Café Bustelo did not respond to a request for comment.
After hearing the news, Molina’s social media followers vowed to stop drinking Bustelo until justice is served. (The 3:05 cafecito Facebook page has more than 4,336 likes and its Instagram has more than 12,000 followers.)
Molina herself posted a call to #BoycottBustelo on her Instagram and Facebook account and others followed suit.
Not the first time
Molina’s case has some legs. This isn’t the first time a local movement has been co-opted by a national brand.
In 2014, American Eagle Outfitters used local street artist Aholsniffsglue’s prolific eyeball artwork in a worldwide marketing campaign without compensating the artist. AEO ended up settling with the artist and paying him for his intellectual property.
This isn’t even the first time someone has used the 305 Cafecito trademark. This past summer the South Beach restaurant The Bazaar by Chef José Andrés began a “3:05 colada” campaign.
She simply asked them them to change it to 305 Cafecito, add a hyperlink to their campaign, and give them credit.
“They were nice and made it right, so I have enforced my trademark before… I’ve invested too much into it and I have big plans for it,” she added.
Now she’s prepared to lawyer up.
“They’re throwing around their corporate weight thinking they’re going to intimidate me. At first, I didn’t know how to vent. I was losing sleep and couldn’t believe that something I built was slipping through my hands,” she said.
“I don’t want the drama, I just want them to do whats right.”