Back in the day, a legal dispute was unlikely to make it to the public domain unless it was sufficiently newsworthy. Unless a media release was sent to the media, or a reporter had a keen eye on a case, litigation tended to be kept between the parties to the dispute. However, in this age of social media, parties to a proceeding have the power to bring it to the attention of the public with only a few key strokes. But is it a wise move to do so? Or is it too much of a reputational risk?
On 3 September 2012, Mr Whippy Pty Ltd (“Mr Whippy”) filed a claim in the Federal Magistrates Court of Victoria against MasterChef judge George Calombaris’ restaurant St. Katherine’s, for using the name “Mr Whippy” in its dessert menu.
Mr Whippy alleges the following causes of action against St. Katherine’s:
- trade mark infringement;
- misleading or deceptive conduct (in contravention of section 18 of the Australian Consumer Law (ACL));
- false representation that its dessert had the sponsorship of, approval of, or some affiliation with Mr Whippy, when it did not (in contravention of section 29 of the ACL); and
- passing off.
Where it starts to get interesting
What once was a private dispute escalated publicly, although it is unclear who went public first.
Around 5 September 2012, present owner of Mr Whippy, Stan Gordon, made public selective extracts of the faxed letter from Calombaris’ lawyers (dated 3 September 2012) that stated "Your client has never sold its desserts in restaurants – and especially not in high profile restaurants operated by 'celebrity chefs'. It has no relevant reputation in this market". He did so because he said the letter was "the most arrogant piece of correspondence I’ve ever read. It basically said you are not a celebrity and we we’ll [sic] do whatever we want".
Calombaris vented his annoyance on Twitter with the following tweets:
Click here to view tweets.
Of course, readers then decided to comment on who they felt was right or wrong, which led to a level of invective capable of making both parties feel somewhat uncomfortable. Terms such as "pathetic" and "opportunistic" were used in this context.
It follows that a dispute capable of being settled quietly in an "old world" context is now in the public eye. Do the parties regret it? Or has this been a cathartic experience for them? Only they can answer, of course. But, it must be said, this is not a course we would normally recommend. One must reasonably consider that the prospect of a dispute resolving itself amicably will decrease if the goodwill between the parties is destroyed by public name-calling. Maintaining lines of communication between the parties (which is where the lawyers often come in) is pivotal in exploring whether a settlement is possible. The first principle of public relations has also traditionally been to control one’s public utterances, or they might end up with an outcome neither predicted nor intended.
Social media does now have the potential to up-end these traditional methods of managing reputational issues, and resolving disputes. That said, we see continuing benefit in old fashioned notions such as: "Look before you leap".
To counter our old fashioned approach, others might suggest that: "All publicity is good publicity". George Calombaris and Mr Whippy are best placed to assess whether this will ultimately be the case for them. From our perspective, we merely suggest that potential litigants keep in mind that one party now has the choice to escalate a dispute via social media, and it’s worth anticipating this when thinking through one’s legal and communications strategy.