Ruth Mortimer: How to tackle brand terrorists

How would you feel if someone went about linking your brand name to one of the last century’s worst crimes against humanity or one of the biggest threats to modern Western society? You’d probably be pretty damn angry.

So imagine how US retailer Wal-Mart feels about the man who sells T-shirts emblazoned with the words “Wal-ocaust” and “Wal-Qaeda”.

Wal-Mart, which spends about $1.1bn (£560m) each year on advertising in the US, took Georgia resident Charles Smith to court earlier this year to try to stop him printing his wares. The retailer argued that in creating his products, Smith was infringing its trademark.

As well as the examples above, visitors to Smith’s webpage might see a design showing a bird resembling a Nazi eagle gripping a yellow smiley face, similar to the logo used by Wal-Mart. His tongue-in-cheek slogans shout: “I [heart] Wal-ocaust. They have family values and their alcohol, tobacco and firearms are 20% off”.

But a judge has ruled that Smith is not guilty of infringement. Judge Timothy Batten rejected claims that Smith, a computer-store owner, was violating the company’s trademark.

Batten produced an 87-page judgment concluding that Smith’s products were unlikely to confuse consumers. Furthermore, he said that Smith’s goods qualified as non-commercial speech because his aim was to criticise the retailer rather than make a substantial profit. He did not substantially advertise or market his goods; nor did he claim exclusive rights to his designs, offering free copies for people to download.

The result must have come as a shock for Wal-Mart, which had hired consumer research expert Dr Jacob Jacoby to conduct two studies on the situation for the lawsuit. Talking to shoppers at malls around the US, Jacoby concluded that 48% of respondents suffered point-of-sale confusion with Smith’s designs, while 41% indicated website confusion.

But Judge Batten dismissed Jacoby’s findings as having “dubious value”. He not only vindicated Smith but struck a further blow by suggesting that Wal-Mart may have further unrelated legal problems protecting its smiley face logo in future, as it is apparently not entitled to common-law trademark protection.

So is this a case of Wal-Mart needing to accept a healthy amount of criticism and free speech? Or is it a sign of a worrying trend, where brand owners are losing the powers to protect their names, designs and identities from those seeking to abuse them? How should brands cope with this issue? Below are three strategies for dealing with the protest or parody brand.

First, you could try ignoring it. There have always been protests against companies. You can’t force people to like your brand and you shouldn’t even try in some cases; it comes across as heavy-handed and sinister.

If someone dislikes Wal-Mart enough to spend money on a T-shirt saying “Wal-ocaust”, nothing the company does will ever be enough to turn them into an advocate. Better to simply take the high ground; most of these brand attacks are small-scale and the average consumer doesn’t have the time or motivation to take notice.

Second, try engaging your critics. Recent research by social psychologist E Allan Lind at Duke University suggests that it is whether people feel they have been treated fairly or not that makes up a large part of what is often called “brand loyalty”. Lind suggests that if people believe they are treated with respect, they will commit themselves to something, even if the outcome is not the most favourable one for them. Conversely, if people feel at all disrespected, they will eschew brands even if using them would have a favourable result.

Lind suggests that these “justice judgements” made by consumers are three to six times more important than economic considerations over whether people accept or reject certain outcomes.

So perhaps Wal-Mart would have been better off holding back on the legal letters and asking Smith to explain his objections so it could work on them. It is notable that the campaign against Nike over factories employing child labour has fallen away since the company began openly publishing details of all its manufacturing sites. As the brand has admitted that it has sometimes made mistakes, criticism has diminished.

The third option is the route that Wal-Mart has taken with Smith. Get legal. However, your success along this route relies on courts, judgments and appeals. It might be a more absolute way to deal with criticism but it risks giving media exposure to those seeking to damage your brand.

So if your company has ever found itself the victim of a parody, you may well sympathise with Wal-Mart and its actions. But I can’t help thinking that rather than failing to see the funny side, the company could have done something a bit more innovative. Where, for example, are its T-shirts complaining about Smith’s computer store?

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