By Jack Ellis
July 09 2012
As reported by AdAge, a video surfaced recently purporting to show an event organised by Shell in celebration of the expansion of its Arctic drilling operations. Though it may appear genuine at first, the video is in fact the handiwork of a group of anti-consumerism activists. The spoof or parody of mainstream institutions – such as corporate communications – for political or satirical effect is known as ‘culture jamming’ or ‘subvertising’. Although Shell soon confirmed the video to be staged, viewers could be easily convinced that it was authentic – not least because it featured Shell trademarks.
Where hoaxes use trademarks and other intellectual property in an effort to appear realistic, consumers could easily be led to believe that such materials are genuine brand communications. Shell is not the only oil company to fall victim to culture jamming in the recent past. After the Deepwater Horizon disaster, a US comedian created a fake BP Twitter feed to satirise the company’s public relations efforts. As WTR has reported previously, BP was also the target when developers released a smartphone app that used augmented reality to turn the company’s logo into an oil spill.
In late 2010 Chevron launched its ‘We Agree’ ad campaign, which was intended to highlight the petroleum supermajor’s ethical credentials. At around the same time, unidentified tricksters launched a fake website and circulated fake press releases which were virtually indistinguishable in visual terms from Chevron’s real online communications. The incident makes Chevron well-placed to offer advice on how to respond to the threat.
Christopher Chaudoir, senior counsel at Chevron responsible for trademark matters, told WTR that the company considered a range of possible technological, legal and communications-based responses when faced with such circumstances: “The fact patterns are unique and complex in each situation but these actions raise several issues, including parody, false statements, political free speech, fraud, and infringement of intellectual property and publicity rights.” Depending on which of these issues are involved, plus the timing and widespread nature of the activity, Chevron’s trademarks team make a reasoned legal assessment: “Our leadership then takes this assessment, as well as views from other relevant corporate departments, into consideration in making a final decision on a proper response.”
Although initially remaining anonymous, the perpetrators of the Shell hoax revealed themselves in a later video. However, in the Chevron case, those responsible were not immediately identifiable. That makes the pursuit of infringement claims a lot harder for trademark counsel. Chaudoir accepts that this is always a potential issue, but he notes that if the activities in question do overstep the well-defined lines of acceptable conduct in the internet stakeholder community, then registrars are likely to cooperate to stop the dissemination of content that is considered out of bounds: “This is particularly true when fraudulent activity, such as phishing, is involved. Even if you don’t identify them, those responsible often don’t come back once you’ve shown them that you’re vigilant and prepared to act quickly.”
Nonetheless, implementing such takedowns can take time, and counsel will want to be able to take action in the meantime to limit damage to the brand and to protect reputation. In addition to seeking emergency legal relief, Chaudoir suggests that a communications counter-offensive can attenuate any potential ill-effects from subvertisements. “Consumers are very sophisticated,” he argues. “A quick and definitive response by the company with an explanation of the unwarranted attack can lessen the impact of these types of campaigns.”
But while Chaudoir believes that parodies of this type are soon understood and appreciated for what they are, he underlines the potentially serious implications of fraudulent communications: the potential for identity theft, monetary loss and counterfeits being purchased by consumers on the basis of false recommendations. “It is these activities that concern us the most,” he expands. “Often, actions to stop them are just as fast and more direct and effective than separate communications of warnings to the potentially impacted consumers.”
While the examples discussed here have referred to activist campaigns aimed at discrediting brands, there are other situations where trademarks and publicity rights could be misused by third parties. For example, fans might choose to create imitations of adverts with an intention to pay tribute and show their appreciation for the brand. But however welcome the praise may be, the lack of control over such communications means that counsel will need to monitor such uses carefully to ensure the brand’s trademarks are used in an appropriate way. “As a major company in the energy field, our name and our brands are often the subject of impassioned attention,” concludes Chaudoir. “We have iconic brands and, as a result, many very loyal customers who sometimes speak out publicly about them. Also, we have licensees and distributors worldwide, all of whom seek to promote their businesses and our brands in the process and, when necessary, we will seek to amend their uses in as minimalist a manner as possible.”
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