Social media presents brand owners with both opportunities and risks that must be carefully navigated if a brand is to succeed in the 21st century.
With internet users spending an average of 2 hours 25 minutes a day on social media it is fertile ground for brands looking to increase their visibility, engage in 'trending' issues and topics, and connect with consumers.
The relatively low-cost nature of social media advertising has also led to a shift away from marketing strategies focused primarily on increasing sales (previously essential to ensure a return on the expense of, for example, a large-scale billboard campaign) to those aimed at promoting brand awareness.
One social media management company found that 70% of the marketeers it asked considered increased brand awareness to be their biggest goal for social media, with sales/lead generation coming in second place.
However, the 24/7 exposure brought about by social media also increases brand owners' vulnerability to bad publicity.
For example, since working as a Chartered
I have previously written an article on this topic in relation to
This vulnerability was further highlighted earlier this year when Marks & Spencer initiated proceedings against competitor supermarket
When making decisions on trade mark enforcement, brand owners would thus be mistaken to believe that judgement is limited to the traditional courts. Social media allows anyone to have an opinion, and to share it in an instant. Legal strategies should therefore no longer exclusively concern issues of confusion, dilution, and free-riding, but also the perception of any action by consumers.
Colin v Cuthbert: a case study
In
Despite the case being in its infancy and the available details being limited, what followed was a media frenzy, orchestrated by
Rather than issue an official statement on the situation,
That same day, the hashtag #FreeCuthbert was trending on the platform, and within a week had amassed many tens of thousands of tweets from consumers.
Meanwhile, the Twitter feed of M&S remained notably silent until 19th April, when they shared the following meme:-
Whilst on the face of it this situation may seem fairly trivial, it demonstrates a number of issues that need to be unpacked.
How each company handled the situation on social media
This case displays two contrasting approaches, one of which was highly successful in engaging consumers, enhancing the perception of their brand online, and generating favourable publicity.
Notably,
After the initial mic-drop comment,
The nature of these posts varied from direct critiques of M&S ("Marks & Snitches more like. #FreeCuthbert", retweeted over 31,000 times), building up rapport with other competitors against M&S ("Cecil, Wiggles, Curly, Clyde. We got you. @Waitrose @Sainsburys @Tesco @Asda #FreeCuthbert", being a reference to the caterpillar cakes of these parties), and creating humorous content around the 'Cuthbert' character:-
However, rather than continuing their strategy of silence, M&S put out the following response which misjudged the public mood and led to considerable criticism:-
M&S found themselves accused of being uncharitable, despite Colin the
The companies' handling of the matter on social media has had implications for consumer perceptions of the brands and their reputations. In particular, whilst consumers loved
Why this case captured public attention
This dispute raises the question of why the reaction amongst consumers was so strong in this case compared to others (after all, it's not the first time
Firstly, the publicity risks in this matter are likely to have been greater because the disputed product, a cake in the shape of a caterpillar, is far more conspicuous than a packet of salmon or a bottle of hair oil.
Secondly,
This allowed
Considerations for brand owners looking to enforce IP rights
Wearing my trade mark attorney hat, I must admit to finding myself becoming slightly jaded when scrolling through the social media comments - not only in the Colin v Cuthbert matter, but also those of
As much as I appreciate the importance of brand protection, it seems an inescapable reality that 'lookalike' and 'copycat' products are popular with consumers.
This is evidenced not only by
A
In particular,
In fact, having regard to
So, does all this mean that brand owners should be fearful of taking legal action against imitation products?
Social media provides so much opportunity for brand creation, that protecting IP rights in order to distinguish your goods/services remains as important as ever.
Fundamentally, trade mark law exists to protect businesses and their assets, and parties should not be afraid to seek redress where they believe that their rights are being compromised.
That said, how such a dispute might play out on social media or be perceived by consumers should not be overlooked, and businesses should therefore be mindful of PR considerations when initiating legal action.
For instance, is the nature of the product such that the dispute might prove particularly controversial? If the other party turns to social media to publicise the claim, how are consumers likely to respond? Does the other party have equivalent resources, or might your action be perceived as being heavy-handed? Synergy between legal and PR decision-making is therefore essential.
The future for trade mark disputes
In many ways, Colin v Cuthbert seems a unique case since it constitutes a 'perfect storm' of
However, whilst social media risks should not, in themselves, deter brand owners from seeking to prevent unlawful acts by others, they should always be taken into account to guide and inform the battles a business chooses to fight.
Nevertheless, it is also worth remembering that the fast-paced nature of social media means that it can be a fickle environment, and brands often have the potential to recover almost as quickly as they were harmed. Businesses should therefore weigh up the potential value of the infringement claim against the likely only temporary reputational damage.
This article was first published on the CITMA website on
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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