• Public backlash in New Zealand following Coca-Cola trademark dispute
  • Attorney’s blunt response to Kiwis' “unsophisticated and naive" attitude to IP
  • Approach could be effective following negative reactions to trademark disputes

After public outrage over a trademark infringement dispute, an attorney based in New Zealand has penned a column claiming Kiwis are “unsophisticated and naive” in their attitude towards intellectual property rights. The move is unique in its blunt tone to readers, but it may prove to be an effective approach to educating the public when misleading or hyperbolic trademark stories go viral.

There have been numerous articles this week about a small café located in Wellington receiving a cease-and-desist letter by a company owned by Coca-Cola. The issue is related to the café’s name, Innocent Foods, which is also the name of an international smoothie and juice brand owned by the beverage giant. The café opened four months ago, while the Innocent juice company – which currently sells products in 15 countries – began trading in the UK in 1999 and has registered trademark rights in New Zealand for various food and drink goods (via an international registration). In the letter, Coca-Cola asked the café’s owners to rebrand, including changing their signage and product packaging. It did, however, say the owners could sell existing stock and gave them a deadline of November 16 to make the changes.

The media has framed the story as a ‘David versus Goliath’ legal battle, suggesting Coca-Cola was bullying a small business, with the owners speaking out about the expense of a rebrand. For example, both the New Zealand Herald and the Daily Mail accused Coca-Cola of “corporate bullying”. In turn, public comments have been negative towards Coca-Cola. “Whatever they end up naming their cafe, I hope that all the publicity will work in these poor innocent people’s favour (no pun intended) and their newly named establishment will enjoy a huge surge in custom,” said one social media post, with another going even further: “It’s an attack on Kiwis. We need to start doing that most un-Kiwi of things, and standing up and challenging those that attack us. Don't buy products from these overseas companies. Don't put up with it, or Kiwi values will continue to erode away till we a [sic] indistinguishable from many US states.”

Following the public backlash, a candid column was published on Stuff.co.nz yesterday written by Ceri Wells, a founding partner of James & Wells. The article is blunt out of the gate, with the headline “Kiwis 'unsophisticated and naive' attitude toward intellectual property rights” – and Wells doesn’t let up as he goes on. “The public reaction [to the dispute] has largely been one of surprise and outrage that Coca-Cola would force the cafe owner to change its name,” the column reads. “Nothing demonstrates more, New Zealand's quaint attitude to intellectual property rights compared to the attitudes prevailing in more advanced economies. Kiwi businesses think IP rights don't matter, whereas businesses in most developed countries consider their IP rights to be their most important asset.”

As the column goes on, however, Wells shifts to laying out facts and statistics, explaining that the dispute highlights the need to conduct trademark searches and that, in the global environment, IP is of increasing importance. “New Zealand businesses need to shake off bucolic attitudes to intellectual property,” he states. “Sadly, it reflects our country's lack of focus on building a more productive high-wage economy based on innovation and value-added products, as opposed to our current economy which seems to be focussed on collecting and selling anything we can grow, chop down, dig-up or collect from the rear-end of a lactating farm animal in its least processed form.”

Ultimately, Wells concludes that more needs to be done in New Zealand to encourage businesses to protect their IP rights both domestically and abroad (including suggesting the government offer more grants and sizeable tax deductions for those that do). For most trademark practitioners, his message is an obvious one, but for the general public, it may have explained the nuances of the Innocent dispute and what it practically means for them. The tactic to do that, though, was to hook in the reader with a headline that – on the face of it – calls the local population naive; a risky move, perhaps?

Talking to World Trademark Review, Wells dismisses the suggestion that a blunt approach has risk when it can be backed up by facts. “My aim is to educate, so I’m not too concerned about personal risk,” he explains. “When trying to educate and fight for media attention I use the strategy of saying attention-grabbing things – even at the risk of denting the readers’ self-perceptions. It’s a good way of getting people to think. If you receive pushback from expressing an opinion that is uncomfortable for some, then you have an opportunity to prove your argument with some cold hard facts.”

This approach could, then, be an effective way for some IP attorneys to respond to trademark articles that are misleading or hyperbolic. Another advantage is that mainstream media outlets are more likely to publish a column if it has a catchy headline, and being outrageously blunt could be a good tactic in that regard. Of course, the rest of the column needs to justify such a headline, with anecdotes and facts that the general public can understand and respond positively to. Attorneys should also be prepared for more of a reaction than a standard legal analysis (especially because, according to research, up to 60% of readers only read the headline). But as Wells – who made clear that his column’s text was originally given to a reporter and reorganised into a standalone piece – tells us, “there is no point pandering to misunderstanding” because, as an attorney, it can “make you look weak and equivocal” and it also “perpetuates the view that it is not so bad for people to be ignorant about how trademarks work”.

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