The MARQUES annual conference is gathering almost 1,000 intellectual property enthusiasts from around the world.
One of the most engaging panels discussed the "court of public opinion" and how it influences IP disputes. Here are some key takeaways that I found particularly insightful. This can be a significant issue which adds an unpredictable dimension to disputes. It tends to be a particular issue in Common Law countries such as the UK and USA.
David v Goliath: Winning Hearts and Minds
Rob Mindell from FTI posed an intriguing question: How can Goliath win in the court of public opinion? The public often sympathises with the underdog (David), so it's crucial for big brands to handle disputes thoughtfully. High-profile news stories about how a company has handled an IP dispute can be incredibly disruptive to a company's reputation, especially for larger corporations with significant revenue streams.
To win over the public, a larger business must:
Ensure actions are consistent with brand values. Aggressive legal tactics can tarnish a brand's image. As David Gooder from Jack Daniel's highlighted, the conduct of litigation should match the brand identity
Treat David with kindness and respect. Engaging respectfully with smaller entities can mitigate negative perceptions. If events end up online, the brand's considerate approach can turn a potential PR crisis into a win.
The Power of a Thoughtful Approach: Jack Daniel's Example
David Gooder shared Jack Daniel's experience with a trade mark infringement case involving a fan from their hometown. Instead of sending an aggressive cease and desist letter, they opted to send what has become known as the "rockstar knockoff letter" that thanked the individual for their support and kindly requested compliance. This approach not only resolved the issue but also enhanced the brand's reputation.
Key strategies from Jack Daniel's approach include:
Speaking and acting in the same voice. Ensure that all communications reflect the brand's identity.
Articulating the harm. Be clear about why the infringement matters to the business.
Thinking about the end goal. Determine what a win looks like—be it stopping the infringement or removing products from shelves—and be realistic about expectations.
Early Case Assessment and Reputational Risk
Representatives from Nestlé emphasized the importance of early case assessment, which involves:
Reputational risk assessment. Evaluating how litigation could impact brand equity, trust, sales, and brand associations.
Aligning stakeholders. Ensuring that legal and communications teams work together to consider all issues holistically.
Balancing interests. Weighing business goals, legal imperatives, public perception, and the opponent's profile before proceeding.
Case Study: Oatly v Glebe Farm
Jeremy Blum discussed the Oatly v Glebe Farm case, illustrating how public perception can overshadow legal merits. Oatly, a well-known brand, sued Glebe Farm, a lesser-known family business. The media framed it as a classic David vs. Goliath story, which led to a petition with over 131,000 signatures supporting Glebe Farm. Despite the legal outcome, Oatly faced negative publicity, proving that public sentiment can significantly impact brand perception.
Key Takeaways
Proactive Litigation Assessment. Before taking legal action, consider the potential PR ramifications.
Collaborate with PR Teams. Legal and communications departments should work together to manage public opinion effectively.
Understand Your Opponent. Conduct due diligence on who you're up against to inform your strategy.
Communicate with Empathy. Craft messages that resonate with the public, focusing on shared values rather than legal jargon.
In the age of social media, the court of public opinion can be just as influential as a legal court. Brands must navigate IP disputes carefully, balancing enforcement of their rights with the potential impact on their reputation. As the MARQUES panel demonstrated, thoughtful strategies and open communication can make all the difference.
To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com