Trademark and copyright claims regularly hit the news headlines, particularly regarding high profile companies and individuals. But are lawsuits and threats of litigation the best way to approach these disputes?
A significant part of a brand is goodwill, which can easily be lost when a trademark dispute is put in the context of David versus Goliath, particularly when the defendant is a small business and naturally this plays well in public discourse.
Last week the BBC looked at a number of trademark interventions by the University of Cambridge over the use of the word ‘Cambridge’. Tesco and Lidl have long been in a protracted dispute around the use of Tesco’s Clubcard prices logo which has a resemblance to Lidl’s branding. and back in 2020, Hugo Boss had a legal campaign backfire after comedian Joe Lycett embarrassed the company for threatening legal action against a Swansea business, Boss Brewery. Controversially, EasyJet brand owners, EasyGroup also sued indie music band Easy Life for being ‘Brand Thieves’ in another of their many cases against small and often local businesses using ‘Easy’ in their name, such as charity EasyFundraising, currently in fighting a suit in the High Court.
However, some big companies seem to use flirting with trademark disputes for PR purposes… For example, Marks & Spencer’s dispute with Aldi over variants of Colin the Caterpillar eventually settled out of court but ended with Aldi’s copycat (copy-cake?) being more well-known than before. Businesses are even partnering with others on products that play on these disputes. Brewdog executed this well by creating an exclusive collaboration beer with Aldi after making fun of Aldi’s version of their Punk IPA. What could have resulted in mounting legal costs for both Brewdog and Aldi resulted in both positive marketing headlines and a new revenue stream.
Big companies playing around with each other and an individual business striking down another with legal threats are two very different tactics that will create different responses in the media. The first may create more goodwill towards the companies involved. However, these two come with risks, as brand synergy should be taken into account a naff or cheesy campaign could become a source of embarrassment.
On the flip side, when legal intervention or litigation is necessary, getting your media messaging and communications right will be paramount and is an important part of a successful litigation strategy that will take time. The key to this is mapping out sources of risk, focusing beyond your immediate stakeholders and audience and also considering the stakeholders and audience on the other side to help understand potential risks and reactions.
Brand reputation is hard-fought, and owners have a right to protect it, but when these claims have a tendency to hit the headlines, legal teams will need to carefully consider the risks of potential backlash and damage to the business’s reputation.
It has been interesting to see the development of corporates using quasi-disputes for PR purposes… However, these big companies using litigation to impact genuinely small businesses that pose no commercial threat risk undermining their brand equity.
Marrying up reputation management and legal strategies to protect trademarks is vital for companies to find the right line between brand protection and equity.
