Wednesday, October 27, 2010

Viral Marketing - the boring legal answer is ....

There are lots of reasons why viral marketing campaigns do not pass go when it comes to legal.  It could be
copyright and trade mark infringement, passing off, defamation or any number of other reasons why the campaign would not get legal sign off.

From March there will be even more reasons for UK legal teams to say no to viral campaigns with the application of the CAP code to online space controlled by a brand including social media communities.  At the cornerstone of the code is the requirement that the advertising must be legal, decent and honest.  It also states that an advertisement must not mislead or offend.

Can anyone say that some of the more "edgy" viral marketing campaigns would comply with the code?

Obviously every campaign has to be looked at on a case by case basis and if the legal answer is "no" or "don't do it" then this is likely to be technically correct, but is it the commercial answer?

I am not advocating ignoring sound legal advice or breaking laws but there is a bigger commercial picture when it comes to viral and what is needed is participation, understanding and communication between legal and creative from concept on.  This will help guide the creative process but also allow the account teams to manage the client's expectations.

Friday, October 01, 2010

Online Brand Protection determined by Return on Investment?

This week I attended a conference concerning Online Brand Protection. The speakers and panelists where in-house lawyers from some of the biggest brands in the worlds including Coca-Cola, Mars and Cisco.

Image: Boaz Yiftach /

It was fascinating to hear how some of the most valuable brands in the world protect their assets in the ever expanding digital and online spheres.

One of the main themes I distilled is that most of these brand guardians appreciated that there was, in part, a loss of brand control created by the internet revolution and that there is no way to stop all abuse.  I believe this is a shift in attitude concerning how online brand abuse is approached.

The focus for many at the conference was to identify and remedy the brand abuse that is causing damage to the company's bottom line.   In effect calculating the return on investment for taking action to remedy online brand abuse as a means of justification and prioritisation.  The speaker from MarkMonitor provided some simple equations for calculating lost sales which can be used to show what the financial benefit would be from a successful remedy.   If legal action or advice does not add value to a business why is the contract being negotiated or legal action being taken?  This is a question I always ask.  The calculation of return on investment also allows a business to match the remedy to the damage being done allowing it to take a considered and proportionate action. 

The traditional remedies for brand abuse were discussed at length but there were some interesting alternatives being thrown into the frying pan of options.  One of the most interesting approaches is being taken by GHD (the hair straightener company) who are attempting to educate consumers about brand abuse and counterfeits via their website and digital presence.  They have a counterfeit information page on their website which includes a list of websites selling fakes!

I don't know if this shift in attitude towards online brand abuse and the focus on return is being driven by austerity measures and budget cuts but innovation in technological and PR solutions rather than traditional legal solutions should be encouraged as an extra string to the bow.

One question that does spring to mind is whether it will be easier or more difficult to monitor and remedy brand abuse as we move away from traditional web pages to "Apps"?  Will a brand have to participate and use all relevant Apps to monitor abuse?