How far can you go with special offers and products that hint towards well-known brands/events?
I’ve seen a few good examples from the Olympics where the small business didn’t get into trouble, but then you hear about ‘cease and desist’ letters being sent out all the time. What is the general rule?
This is an excellent question. But unfortunately it is a bit like an open-ended university exam question, as everything will come down to the facts – and particularly how litigious is the well-known brand or event you are sailing close to.
For example, the lawyer at Jack Daniels has been widely lauded for sending the nicest ‘cease and desist’ letter ever written to an indie publisher who used the look and feel of the JD label as a book cover.
On the other hand, you might come up against someone like Nerf’s lawyers, who sent such a withering stream of correspondence to a poor blogger that a boycott of Hasbro products was mounted online (see details of both letters here).
Of course, there are esoteric and complex areas of law involved. But the worst thing you can hear from a lawyer is that your legal issue “raises interesting legal questions”, as this means it will cost a fortune to litigate, and they have no idea whether you have a strong case or not, let alone your chances of winning. (It’s even worse if it is a “fascinating legal question”.)
Questions about whether “satire” is a permitted use of other people’s intellectual property has seen Australian cases go all the way to the High Court, with still not a great deal of help in assessing who can do what at the coalface.
But even with a good case, you won’t have deep enough pockets to get your day in court. Most businesses can’t even afford an hour in court.
So what to do? Well, it comes down to a cost-benefit analysis. You need to estimate how much benefit you are likely to get versus the cost if you have to cease your promotion, destroy all of your promotional materials, etc, discounted by the likelihood of the big bad multinational taking action against you.
On this last point, it is worthwhile doing some internet research to see if the brand/event owner has a history of litigating far and wide. I can tell you from experience that Google, the AFL and Red Bull certainly do, and from the press you should all know that Apple does as well.
Bear in mind that the above relates to the specific question, i.e. how close can you go to established brands and events with your marketing and promotion.
If it is a matter of comparative advertising, this is a (relatively) simpler exercise as it comes down to whether the claims you make are able to be substantiated or are clearly “mere puffery”, e.g. a claim to be “the best product in the entire universe”.
I hope this helps with your next outrageous promotion.