Courting criticism: using the law to fight PR fires

  • Marketing
  • September 19, 2011
  • Jason Rudkin-Binks and Tom Turton
Courting criticism: using the law to fight PR fires

There are various ways you can deal with harsh public criticism and while managers will generally look to use practical public relations tools when they respond to protests, they should also consider legal options that might help close down unhelpful attacks.

Options include a claim for copyright infringement to stop protestors who have hijacked your brand design, or who have copied documents in which you own the copyright. You might also be able to sue for trademark infringement if protestors have used your registered trademark in trade. Both of these actions are useful because you can make them without needing to confront the accuracy of the protestor’s arguments head on.

If untrue and especially damaging allegations have been made about your business, a defamation action can help force a protestor to stop, apologise, and/or publish a correction.

Copyright infringement

Businesses should own the copyright in their logo, and so will be able to obtain an injunction to prevent others from reproducing it. Unfortunately, the mere words in company names or slogans generally don’t attract copyright, which means that protestors cannot be stopped from using the words alone, only their graphic or artistic representations.

Most businesses will also own the copyright in documents their employees have created (depending on their employees’ terms of employment), so if an ‘unhelpful’ document falls into a protestors’ hands, you can also use copyright to prevent them from reproducing it.

Where a protester has defaced or varied a business’ logo it is still an infringement of copyright if the protestor has copied a substantial part of the logo or design.

Although an injunction preventing use is likely to be most useful, a business can also sue for damages or an account of profits (although in the latter case it may be questionable whether a protestor will have profited to any material extent).

Trademark infringement

Broadly speaking, protestors will only infringe your registered trademark if they use an identical or similar mark 'in trade’ in respect of the same or similar goods or services.

So while a trademark can be an invaluable tool to protect an organisation against competitors who seek to trade off your goodwill, it will be less useful against non-trading protestors who are using your trademark to make a point, rather than in trade.

Nevertheless, there may be occasions where a protestor infringes your trademark, and action may be taken based upon both word and logo trade marks. Otherwise for devices or logos, you can always sue for breach of the underlying copyright (which does not require use in trade). Unfortunately where the protestors are not trading, then those businesses that have only registered a word mark will not be able to stop them.

As with actions for copyright infringement, injunctions and/or monetary sanctions may be sought.

Defamation

When a protestor has published damaging and untrue allegations about your business, there may be scope to sue for defamation.Businesses do need to be reasonably thick-skinned, and the threshold of what is defamatory is pitched higher for organisations than it is for individuals. Businesses need to show that the allegation has caused or is likely to cause financial loss. Untrue allegations of illegal or criminal behaviour or financial impropriety would usually be defamatory. Cases where the protestors are merely mocking or ridiculing the business probably won’t go far enough.

If your business has been defamed, you can claim damages, and can also demand the publication of a retraction, a reply, or an apology (although practically speaking, some protestors will do all they can to avoid having to apologise).

Of course, before picking any fights, it’s worth remembering that truth is a defence to a defamation claim, and claiming that your business has been defamed could do more harm than good and expose you to further damage if there’s even a hint of truth in the protestors’ claims.

Finally, it is worth bearing in mind that whatever you send to a protestor (including a legal letter) might be published online. That would be a further breach of copyright, but could also open a new line of attack on your business. Threats of legal action are often portrayed as bullying, so businesses should take advice about their options, and be careful when making their choices.

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