Lawyer Monthly - November 2021 Edition

59 NOV 2021 | WWW.LAWYER-MONTHLY.COM INTELLECTUAL PROPERTY - IP DISPUTES IN A PR-LED WORLD approach: some will have seen letters before action that declare in 18-point bold that the correspondence is not for republication. Which is fabulous, except when it is going to an unrepresented party who has no idea what that means and proceeds to breach that requirement almost immediately. The next (and perhaps optimal) step is to write a cease and desist which really aims at convincing: not just setting out what rights the client has and informing the recipient that they are – in the august and objective views of the writer – an infringement, but to explain in slightly more expressive terms why the behaviour is objectionable. For some brands an even more extreme solution appeals. Brands like Netflix have crafted humorous letters to infringers which have not just diffused the risk of being seen as being overbearing, but have turned the tide in their favour against what would otherwise be a sympathetic infringer. In the case of Netflix, they have needed to combat a range of events and bars which “celebrate” the shows that have been particularly successful. Strangely, the public has tended to see such third-party activity as beneficial to the brand owner and seen the brand owner as being unfair if they sought to prevent others from doing so and getting the economic advantages. The correspondence Netflix sent on some of these cases has now passed into legal folklore as to how you can get it right, but it remains a difficult balance: get it wrong and you become the equivalent of a schoolteacher trying to buddy up to the students by using 80s street slang. Of course, even within the UK legal system there are multiple opportunities to present the case in such a way as to garner sympathy from the judge and the surrounding public. Whilst pleadings before the UK Courts generally contain fewer dramatic flourishes and expressions of outrage than their US counterparts, there is always room for more august expressions which can be seized upon. One of the earliest things a litigator can learn is the importance of placing the “black hat” on the other side and portraying them as the wrongdoer, even in the tightest of legal arguments. the real strategy Is to have a strategy; to know in real terms why you are contesting a third-party trademark or writing that cease and desist. A recent example of where perhaps that could have changed perceptions is the OATLY / PUREOATY case, which was decided in the UK Courts and pitched these two brands from the oat milk market at one another. OATLY is one of the leaders in the sector and had a blue-tinged carton; PUREOATY was a later entrant into the market and used… a blue carton. Blue is not a common colour for food products (perhaps saved for the top of full-fat milk cartons) and reading through the case at one point the defendant sought to change the colour of their packaging to adopt a colour and style even more reminiscent of OATLY. The preponderant story which the press ran with, however, was that this was a ridiculous claim by a big brand trying to squash a small business. When the decision went the way of PUREOATY the press picked