The last year was certainly memorable from an IP perspective. In particular, we saw several ‘David v Goliath’ type trade mark clashes.
Marks & Spencer and Aldi finally settled their bust up over Cuthbert the Caterpillar to ultimately #freeCuthbert. Marks & Spencer also had to ‘do the right thing’ over their Valentines’ take on a product launched by small family business ‘Choc on Choc’. Zara ultimately failed to take down ‘House of Zana’, on the basis that the link between the two marks was considered by the UKIPO to be “too insubstantial and fleeting”.
It is noteworthy that there appears to be increasing interest in these trade mark disputes on social media and in mainstream news – which has likely had a bearing on their outcome. Well-known brands have attracted publicity and debate as a result of not only using heavy-handed approaches to ‘defend’ IP rights against smaller businesses, but also cries of hypocrisy when they then get it wrong and infringe others. It certainly appears to be the case that where brands have used their IP rights as swords to protect their products and have championed the need to protect innovation, should they be careless and infringe another brand’s rights, the sword will turn on them quickly. The court of public opinion does actually appear to have some collective memory….
It will be interesting (and seemingly not just for IP lawyers…!) to see what disputes will hit the headlines in 2023. Ultimately, it seems that the ‘Goliath’ characters should enter the field of battle cautiously – whatever side they find themselves on. Of course, we can never know how many ‘behind the scenes’ discussions have taken place regarding the assertion of rights by well-known brands, but it is no doubt a significant number. Questions have definitely been asked as to why well-known brands (who arguably should know better…) have thought it worthwhile to attack certain infringers or have not carried out appropriate due diligence when launching new products. As with any legal dispute, these issues are not cheap to solve and, in most cases, resources could likely be better used elsewhere.
This is not to mention the impact of the court of public opinion siding against ‘bully’ brands – but maybe some businesses do truly embrace the motto that all publicity is good publicity? It seems a shame that, whilst we hear the outcome of the tribunal decision or news that a case has been settled confidentially, we cannot be privy to those commercial discussions prior to a plan of action being settled upon.
The last few years have definitely shown us that if you are a well-known brand throwing that metaphorical legal grenade, social media is playing an ever-present role in how it lands. The likelihood of losing control of the narrative, particularly if an opponent is media savvy, appear to be high. Now more than ever, consideration of the PR position alongside the legal position is crucial in any brand strategy.
We will keep you updated on who decides (in light of all that) to say “bring it on!” Stay tuned in 2023…
This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.