Why lawyers make bad marketers

  • Marketing
  • January 29, 2014
  • Jennifer Duval-Smith
Why lawyers make bad marketers

As far as I'm aware, my blog has around four readers, most of them closely related to me. But I recently gained another! An intellectual property legal firm called AJ Park. They're very good, and I've used them in a professional capacity myself.

It turns out that I referred once to a certain type of recloseable plastic bag you may well have in your own kitchen. AJ Park representing Clorox New Zealand Limited sent me a letter, asking me to change the way I have referred to their client's product, suggesting ways I could 'help' their client to 'safeguard their rights'. Thoughtfully they attached a highlighted photocopy of my blogpost and a list of suggested alternatives.

Honestly? Kudos! I'm impressed that anyone made it that far through my lemon cordial recipe, let alone an IP lawyer's clerk clutching a highlighter. I suspect a little help from Google Alerts or a special lawyerly search tool.

Confession #1: I was once admitted to the bar in an excruciatingly silly horsehair wig. So, as a reformed lawyer, I do understand why companies want to be able to protect their property. If their brand name becomes the generic name for the product (which, actually, some might argue it has), it may be able to be removed as a trademark, and they lose the investment they've made in the product.

Confession #2: I also acted as a professional marketer for many more years than I care to admit or recall. So I know that while Clorox via AJ Park are probably doing what they feel they have to do to defend their brand, it is also just plain stupid in terms of brand perception and word of mouth marketing. Also, at $300+ per hour for a law firm partner's time, it is also represents a very poor allocation of resource.

First, there's the negative frisson in receiving an unexpected letter from a lawyer. Apologies to my many lovely lawyer friends, but joyful anticipation is not uppermost. A lawyer's letterhead ups the ante in a heavy-handed way, no matter how anodyne the content. Not a feeling I'd want associated with my brand, especially smack bang in the middle of the target market. Let alone in the hands of a gobby blogger.

Secondly, however much Clorox may be in the right, actually nobody likes to be told what to do. As a marketer defending your legal rights, you need to keep this in mind in order to ensure the situation is managed to the product's best overall advantage.

Now, I'm a fan of the product in question. I have snack sized, sandwich sized and storage sized bags in my kitchen drawer at all times, despite the fact that they are the most expensive and patently unsustainable. I have more money than sense, clearly. They just happen to be terribly useful. Until now, I haven't seriously questioned this. And as a keen cook/baker with three kids, my future purchase potential is shamefully large.

But now, guess what I'm going to think about next time I'm in the kitchen consumables aisle? How seriously, do you think I'm going to be considering the alternatives. Quite seriously, I'd say.

When a company sees someone using its product name, correctly or incorrectly, it is a great opportunity to recruit that person as an advocate, along with their potentially extensive social network. The last thing you'd want to do is shut down that conversation.  

So, how could Clorox approach this differently? How might they ensure that fans who inadvertently use the wrong nomenclature continue to feel good about buying, using and recommending their product?

  • The message comes from the company—a product manager, or a marketer, a community manager or leader, not the lawyer.
  • It uses an appropriate medium. Unless there is a specific legal reason why the communication should be in a formal letter, it should take the form of a blog comment or email.
  • It is friendly.
  • It refers directly to the use of the product.
  • It finds some common ground.
  • It presents the client's argument in the context of a benefit to the user, not to the brand owner.

With less effort, and considerably less expense, Clorox could have commented/emailed the following:

"Hi Jennifer, We love your blog (a little flattery never hurts, right?), and we are delighted you are finding our products so useful. We have an online community you might enjoy here, where keen cooks share ideas and recipes. We're really flattered that you have mentioned our product by name and hope you will continue to recommend us. When you do, we would ask if you would please use our trademark*. The reason for this is that it helps us to fight bad copies of our product and ensure you are able to keep buying the quality product you've come to expect."

A smart marketer who respects their target purchaser could choose to use any of the following tools in order to encourage a customer to become an advocate for their products, while correcting any misuse of trademarks:

  • Give a compliment.
  • Generate a conversation.
  • Provide sample products.
  • Offer discounts.
  • Incentivise friend get friend bonuses.
  • Ask them to like your Facebook page or join your online forum.
  • Invite to join your customer panel.

It's just not that hard to be nice to your customers.

*For those who are interested in helping to safeguard Clorox New Zealand Limited's valuable trademark rights, you may refer to a recloseable plastic bag as a 'Snap Lock (R) bag", a "SNAP LOCK (R) bag" or a "Snap Lock (R) bag". If you're feeling all relaxed and informal, you may apparently use the catchy phrase "SNAP LOCK resealable bag".

  • Jennifer Duval-Smith was co-founder and director of Bullet PR and the executive director of Social@Ogilvy. She and her partner Nicholas O'Flaherty recently departed Ogilvy and set up a new comms agency called Camino

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