Rebranding David v Goliath
The biblical term ‘David vs Goliath’ is commonly cited in regards to companies policing their intellectual property rights, but this post argues that in fact the Goliath of the Brand-verse is the rise in consumer call out culture that can make or break a company’s reputation with the rise of social media. In 2010, Forbes found that a company’s most valuable assets are the intangible concepts of a brand, including its good name and reputation. Trademarks are a tool used to not only serve its primary function as a signpost of origin, but as a means of expressing a brand’s corporate social values and responsibilities, and encompass the corporate reputation.
The advancement of the internet and social media has increased the presence of companies’ in the social spaces of their consumers, never out of sight so never quite out of mind. In the recent years there has been an increase in ability for individuals to communicate directly with branded companies; this, alongside an increase in corporate visibility generates a new expanded value in reputation that had not been previously applicable.
The question now arises in legal practicality; how best to balance the scales between protecting a companies’ asset and yet maintain a reputation that consumers find fair, just and reasonable?
This balancing act made the papers last spring with the news of BrewDog’s legal team ferociously protecting the rights of the brewery and their marks, much to the outrage of their consumers. BrewDog’s ethos can almost be described as an OpenSource brewery- their recipes are available within the public domain and they encourage individuals to make use of them. Their reputation as a down to earth corporation that are ‘down with the people’ is part of BrewDog’s USP, and therefore their attitude towards policing intellectual property should reflect this. However, this was not the attitude taken by the company’s legal department. And is it even fair or just to expect this?
A family run pub in Birmingham attempted to sell themselves as ‘Lone Wolf’, a mark owned by BrewDog for their artisan vodka faced threats in mid-March for trademark infringement. Further to this, plans were made to open a bar in Leeds titled ‘Draft Punk’, a tongue-in-cheek reference to the musical act, yet BrewDog owned the term ‘punk’ in relation to beers (Under Class 32). For both marks, the other parties should have performed adequate due diligence research and would have easily avoided using the contested marks, and yet the public cast its disapproval towards the company itself. In the first instance, BrewDog withdrew their complaint from Lone Wolf after the public backlash over social media, tagging the company as a corporate machine, and after the brother and sister duo rebranded as Wolf’. Similarly, BrewDog were criticised for attempting to monetise or own the concept of ‘punk’ through trademark, however BrewDog bit back that the only reason this arose was because another individual was attempting to register ‘Punk’ in similar fields themselves.
This bad press raises the question legal teams everywhere must now consider; against the Goliath of social media and public backlash when it comes to brands enforcing their rights, what is the true cost of trade mark protection? By not enforcing the rights granted by trademark registration, companies are set to lose their most important intangible asset. Inversely, protecting their intangible assets including marks, could cost companies’ their reputation, consumer base, and in some cases, their USP.