Goes like this: Frankie's and Woolies meet to discuss a distribution arrangement for their successful Frankie's range of products. After being "declined" by Woolies, Frankie's notice the launch of Woolies' own range of beverages sharing similarities in the retro packaging, range of flavours, descriptions and tag lines. They launch an immediate media attack and an ASA complaint against Woolies. Click here and here for more background information and thanks to Jeremy Speres for the link.
Unlawful - does it matter?
As interesting as the legal aspects are (and they are - you can indulge in the poll alongside if you like) the greater force at play here must be the media. For that reason and for the time being, we'll let the adjudicators and the lawyers (and you, if you wish) settle out the finer aspects of whether this is passing off, unlawful competition, misuse of advertising goodwill and/or breach of confidence by Woolies or defamation by Frankie's (you will note that the youtube video has been removed from the Timeslive site). This post will concentrate on reputation management, media and their place in IP disputes.
Frankie's did not need to go to Hollywood, they simply went to the press. And, in just a few days, social media has done the rest in creating what is no doubt a big headache for Woolies. Consumers appear to be up in arms regardless of whether Woolies are legally in the clear, and there are greater risks if they are found to be in breach of the law. Woolies, though, have handled this type of situation effectively in the past (see here for example) but this seems a steeper challenge to overcome and turn to its advantage?
Zuckerberg has heard this before
There is an irony and lesson that Facebook, itself the subject of a idea theft dispute, has been used as a platform to garner a petition and aire public views (see link above) as it illustrates just how common these types of allegations (theft of an idea shared with a possible business partner) are and also the viral effect of social media . Whether by design, intuition or luck, Frankie's reaction has enabled them to very quickly exploit several advantages open to a popular home grown niche brand and in doing so they have won further publicity (eg #frankies was apparently trending on Twitter). Before social media existed this would not have been possible or, at least not possible at the lightning speed at which it has occurred.
The relationship between media and IP is also illustrated in ambush marketing disputes where an arrest (which, by nature, attracts media attention) has been made, bringing into question the effectiveness of an arrest to curb ambush marketing (which feeds off media attention). It can have quite the opposite result.
It is palpably clear that anyone involved in IP litigation is required, now more than ever before, to be aware of the media (and in particular, social media) as an influencer in the resolution of a dispute. The Coca-Cola Company's handling of an "infringing fan site" is an example of such sensitivity and anyone who has had their cease and desist letter posted on a site for ridicule will also know only too well. Even, a run-of-the-mill trade mark opposition may require PR input before, during and after the decision as Virgin Enterprises found out.
Here's a thought
Social media is also not just open to the small guy. A colleague, Craig Shapiro, recently mooted the idea of using it as a tool to positively influence known infringers - what are the possiblities of a brand using its followers to help others respect their trade mark rights by spurring support and ostracising an infringer. Clearly cheaper than litigating, educational and properly done could deepen brand loyalty.