Regular readers of our blog will be familiar with the risk of negative PR and criticism that brand owners face if their cease-and-desist (‘C&D’) letters are posted and shared on social media platforms by their disgruntled recipients – Nutella being a prime example. Frequently, the online backlash received by brand owners includes allegations that they are ‘bullying’ a smaller business, with the infringer often portrayed, and even pitied, as the woeful underdog. In our recent post, we shared how one such recipient’s plea had gone viral, resulting in him succeeding in securing crowdfunding to pay for legal advice on the merits of the claim against him. Admittedly, some brand owners may take the view that “all PR is good PR”, but many others find it harder to weather the online witch-hunt, often resulting in them taking a more lenient approach towards resolving the infringement, or even turning a blind-eye to it altogether – see for example: Singhsbury’s and Morrisinghs.
However, brand owners may have found a way to fight back! The trick essentially seems to be to try to transform sharply-worded, severe legal warnings into accessible, creative missives that are, dare we say it, even “fun” (not a word commonly associated with lawyers). A great example comes from the in-house legal department of Netflix, who were recently widely praised by the media for sending “the best” and “quite adorable” C&D letter to a newly-launched venture which infringed their IP.
Lawyers take note! It’s not just a matter of ditching the tedious legal jargon– this is a whole new level. Forget “Dear Sirs”; their letter began: “Danny and Doug”. Forget “We write to put you on notice”; their letter said: “My walkie talkie is busted so I had to write this note instead.” And no more signing off with “We look forward to receiving your earliest response”; their letter ends: “please don’t make me call your mom”. Click here for a full copy of the letter.
The originality of Netflix’s savvy, on-brand approach has to be admired. Not only did their letter achieve the fundamental legal and commercial objectives of quickly shutting down the offending venture, but Netflix also succeeded in attracting glowing reviews and a heap of positive PR to boot. Not a bad day at the office for Netflix’s legal team and a useful lesson for all brand owners and their lawyers.