Brands’ first resort is not to the courts

I find it surprising that Sean Brierley (MW November 21) appears to believe that all marketers intentionally use the legal process as “a weapon in marketing brands’ reputations”. As an intellectual property lawyer, I have seen what happens when one or both sides think litigation can be used primarily as a marketing tool and when that has backfired. I’m glad to say that our clients have consistently been too wise to fall into that trap.

I doubt very much that the decision to use such tactics is supported by lawyers. How many times do lawyers say an unqualified “yes” to “will I win?” They don’t, because litigation is too risky and unpredictable. On the other hand, many lawyers always say “yes” to “did I win?” In most commercial disputes, things are complex enough that a creative lawyer will find some success in any outcome.

As a result, litigation is not a promising start to a marketing campaign. In most commercial litigation, both sides are likely to come out a little tarnished, but with some sort of victory. There are exceptions – say, anti-counterfeiting litigation – where it is vital to co-ordinate marketing and litigation. Even then, if the marketing takes over the litigation, you have to question whether the litigation is misguided.

It should also be mentioned that most companies do not go to law primarily as a marketing tool. Of course, companies defend their brands – because the brand, more often than not, is the company’s most valuable asset. Any company which has spent time and money developing the particular look, feel and design of its product, would go to great lengths to protect it. Did Tesco and Levi-Strauss “have marketing at their core” when embarking on a huge legal case? No! Both sides were trying to protect their businesses, and the outcome depended on a question about the law’s meaning, that only the court could answer.

Justin Watts

Partner

Bristows

London WC2