Managing reputations in the world of IP
Whether you are protecting a famous caterpillar-shaped cake from imitators or defending a family firm’s trade marks against a multinational brand, litigation attracts a much broader audience beyond those directly involved.
From company shareholders, employees and customers to regulators, policy makers and the court of social media, brands have a multitude of communities of interest and influence that may need to be managed in the course of a trade mark dispute.
In some instances, their influence can have a material effect on both the outcome of the case and the future success of the brand.
In a fascinating, information-packed session at our Autumn Conference, Claire Davidson of litigation communication specialists DRD Partnership emphasised the importance of preparing a strong communication strategy to support the litigation process.
A good strategic communications approach touches multiple strands including establishing brand credibility; exploring the principles of good and/or bad faith; clarifying consumer confusion; developing messages that support the claims to be made in court and anticipating detractor comments; and devising a wider narrative to bolster ongoing public and investor confidence in the brand.
This work should start at the pre-trial stage and ideally comprises identification and full exploration of each audience, establishing the messages that are important to them and the context in which the case will play out.
Claire emphasised that cases do not take place in a vacuum and teams should aim to anticipate issues that might arise, including those outside the immediate geography in which the case is being heard.
The result of pre-trial work should be a playbook – authorised by the client and legal team - setting out the audiences, messages and potential issues and risks that might arise during the course of the trial, and the recommended approach to each.
Claire also underlined the value of building alliances with members of each audience group outside of the period of litigation, noting that these contacts can be invaluable when the client comes to court.
What kinds of stories pique media interest?
Claire outlined the key types of trade mark litigation story that draw media interest. These include cases that set legal precedent; high profile cases, especially those involving a celebrity where associated pictures are striking; public interest cases involving issues of safety and/or consumer rights; and ‘David vs Goliath’ cases, where the media and public’s affinity for an underdog comes into play.
Pointing to the cases of M&S vs ALDI and BENTLEY MOTORS vs BENTLEY CLOTHING, Claire illustrated how social media use and careful storytelling can help brands win the battle of public opinion, which can potentially have greater long-term impact on the brand than the ultimate legal outcome of the case.
Checklist for communications around litigation
Claire concluded by providing a useful checklist highlighting key considerations in today’s media environment and related strategic tips:
Legal stories are now mainstream news, therefore teams should think about how their claim and messages will be received by audiences beyond the immediate legal sphere.
Social media increases the speed and breadth of reporting, meaning a small moment in court can rapidly be shared and amplified into a bigger story. Robust social media monitoring is therefore an essential tool.
Legal documents are now widely available to non-legal audiences. Claire recommends reading your documents from a lay perspective to ensure they are accessible and even considering making claim text more pithy, so it resonates with wider audiences such as investors, employees, partners and customers.
The legal timeline does not lend itself to fair reporting, therefore it is important to work closely with journalists to ensure they have a fair understanding of the background and motivations for the case. It is important to rebut any inaccuracies as quickly as possible, wherever they appear. Having a strong spokesperson ready to take on this task is a key advantage.