The proliferation of social media means companies must act fast over cases of false endorsement, says Jeremy Dickerson
Last week the British National Party found itself in a sticky situation when a promotional video featuring leader Nick Griffin used Marmite's Love it or Hate it slogan and an image of the trademark jar was posted on the party's website and YouTube.
At the time of writing Unilever, with which the Marmite brand is registered, had launched an injunction to prevent the BNP from using its image or slogan in the future. The BNP claimed it did not generate the video, although this claim has been widely discredited.
Unilever has demonstrated best practice in this case by issuing an injunction against the party using its brand in the future, and is no doubt still working to get the video pulled from YouTube. As Marmite is a registered brand, Unilever has a right to seek damages for false endorsement and in this case defamation by association could be very damaging for the brand.
Evidence of this could be found on YouTube, where one user 'BNPnews' commented '[t]hank you to Marmite for lending us your support. You scratch our backs, we don't forget'. However, most comments from other users were negative towards the party.
Although Unilever has registered the brand so no one else can use it, the right alone does not protect them. It is the injunction it has sought against the BNP that enforces its right to exclusive use of the Marmite logo and slogan. In this case the company's marketing and legal firms have demonstrated excellent joined-up thinking not always the case for large organisations.
Traditionally, in such cases, marketing teams would approach their legal department with a complaint for false endorsement, which would be pursued by the lawyers. However, today's landscape is dominated by 24-hour news and the presence of millions of websites, blogs and social media platforms, so companies should prepare for such a crisis in advance.
The rise and prevalence of social media today means videos such as this spread like wildfire and often make national news. Unilever has acted quickly and has made clear in media reports that it did not approve the brand's use.
Prevention is better than cure but, essentially, there is nothing that companies can do to protect themselves from false endorsement and defamation. Each case, however, must be judged on its own merits, as legal action risks a reputation crisis.
The 10-year 'McLibel' campaign is a good example of how a PR disaster can overshadow a legal triumph. For McDonald's, winning the libel case against campaigners Helen Steel and David Morris was a disaster for the company's image as it came across as deceptive and unnecessarily litigious.
Other organisations involved in the BNP video scandal should also be cautious. I have done considerable work with companies keen to shut down viral videos, blogs and micro sites that are incorrect or defamatory. Continuing to host the controversial material after written notice has been given could make the site vulnerable to legal action as it will be seen as sharing responsibility in distributing this material.
In my experience, social media organisations are responsive and happy to remove contentious material. The nature of the beast, however, is that so many people have seen the video that the damage has been done.
Jeremy Dickerson is a partner at commercial law firm Burges Salmon.
Last week the British National Party found itself in a sticky situation when a promotional video featuring leader Nick Griffin used Marmite's Love it or Hate it slogan and an image of the trademark jar was posted on the party's website and YouTube.
At the time of writing Unilever, with which the Marmite brand is registered, had launched an injunction to prevent the BNP from using its image or slogan in the future. The BNP claimed it did not generate the video, although this claim has been widely discredited.
Unilever has demonstrated best practice in this case by issuing an injunction against the party using its brand in the future, and is no doubt still working to get the video pulled from YouTube. As Marmite is a registered brand, Unilever has a right to seek damages for false endorsement and in this case defamation by association could be very damaging for the brand.
Evidence of this could be found on YouTube, where one user 'BNPnews' commented '[t]hank you to Marmite for lending us your support. You scratch our backs, we don't forget'. However, most comments from other users were negative towards the party.
Although Unilever has registered the brand so no one else can use it, the right alone does not protect them. It is the injunction it has sought against the BNP that enforces its right to exclusive use of the Marmite logo and slogan. In this case the company's marketing and legal firms have demonstrated excellent joined-up thinking not always the case for large organisations.
Traditionally, in such cases, marketing teams would approach their legal department with a complaint for false endorsement, which would be pursued by the lawyers. However, today's landscape is dominated by 24-hour news and the presence of millions of websites, blogs and social media platforms, so companies should prepare for such a crisis in advance.
The rise and prevalence of social media today means videos such as this spread like wildfire and often make national news. Unilever has acted quickly and has made clear in media reports that it did not approve the brand's use.
Prevention is better than cure but, essentially, there is nothing that companies can do to protect themselves from false endorsement and defamation. Each case, however, must be judged on its own merits, as legal action risks a reputation crisis.
The 10-year 'McLibel' campaign is a good example of how a PR disaster can overshadow a legal triumph. For McDonald's, winning the libel case against campaigners Helen Steel and David Morris was a disaster for the company's image as it came across as deceptive and unnecessarily litigious.
Other organisations involved in the BNP video scandal should also be cautious. I have done considerable work with companies keen to shut down viral videos, blogs and micro sites that are incorrect or defamatory. Continuing to host the controversial material after written notice has been given could make the site vulnerable to legal action as it will be seen as sharing responsibility in distributing this material.
In my experience, social media organisations are responsive and happy to remove contentious material. The nature of the beast, however, is that so many people have seen the video that the damage has been done.
Jeremy Dickerson is a partner at commercial law firm Burges Salmon.
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