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Ok, but first reputation.

Jess Alden

When does litigation to protect your intangible assets do more harm to the brand than good? Jess Alden explores the reputation cost of trademark disputes.

Last week, it was widely reported that Oatly, the vegan milk brand had sought an injunction to prevent a family farm based in Cambridgeshire, Glebe Farm, who product an oat based alternative milk branded “Pure Oaty” – in order to protect its reputation and to prevent a rival brand from infringing its intellectual property rights - exercising its legal rights to the fullest.

Was this a reputational misstep? There was a substantial social media backlash with a petition being launched to call on Oatly to drop their legal action. The optics of a large brand pursuing a smaller company isn’t necessarily favourable. This coverage was coupled with social media users resurfacing inaccurate allegations against Oatly’s investors, Blackstone Group that linked them to contributing to deforestation in the Amazon (it isn’t too long ago where activists criticised Oatly for accepting such an investment).

We talk a lot about how environmentally friendly brands are going to stand the test of time – Oatly being a prime example of such a brand – producing dairy free milk alternatives – a vegan’s staple for many years now. However, allegations surrounding their investors, coupled with aggressive litigation tactics don’t necessarily fit the outwardly facing ethos of being green and eco-friendly. Pursuing family run farms for passing-off is far from the branding of an originally small Swedish farm when they started out many years ago.

We will all be aware of the drama that surrounding Colin the Caterpillar earlier on this year – when Marks and Spencer decided to issue proceedings against Aldi for infringing their copyright. It’s a common mistake to make – pursuing brand protection endlessly, ironically, damaging reputation in the process.

Again, the comedian Joe Lycett changed his name to “Hugo Boss” to mock the fashion house for sending cease and desist letters to small businesses who had purportedly infringed their trademark rights. Often the consumer has reacted in a comical way – Aldi’s social media team mocking the fact of the proceedings publicly and other users joining in with the trend.

Big brands find it difficult to establish and maintain their brand presence and protect their trademarks without litigation becoming a PR nightmare. It appears that litigation in all circumstances needs to be considered –it’s very easy to say that reputation should be protected, but does litigation necessarily always protect your brand in the best way, or do you risk damaging it further? Just because you can enforce your legal rights, doesn’t necessarily mean that the outcome will be favourable in the court of public opinion.

The question remains – how should brands deal with brand protection and the commercial imperative to enforce their rights without having any reputational issues? Collaboration is one – Brewdog and Aldi partnered last year to create a beer – seemingly mocking drawn out litigation, turning a potential passing off claim into a PR success. Reputation management is a holistic concept – if your brand is known for being aggressively asserting your rights, then issuing of proceedings won’t affect your reputation substantially. However, what if your branding is more of the ESG friendly, promoting social good, how is pursuing small businesses for intellectual property infringement in your best interests? The juxtaposition of aggressive litigation vs a holistic, “green” and ESG friendly business model is stark – should the combination of the two should perhaps be mutually exclusive?