1 1 AIPLA Firm Logo American Intellectual Property Law Association Social Media: Risk/Reward for Brands (and Lawyers!) Neil Henderson Partner Gowling Lafleur Henderson LLP

2 2 AIPLA Firm Logo 2 Examples of social media websites

3 3 AIPLA Firm Logo 3 Rewards Create Brand Awareness Consumer Engagement Customer support and customer service –Immediate interaction with customer Product Research and feedback –Target specific set of like minded people

4 4 AIPLA Firm Logo Rewards Promotions, challenges, contests, etc Commercials “Crowdsource” Recruitment, careers, etc.

5 5 AIPLA Firm Logo Risk: Know your Target ThinkGeek Inc. offered the following product for sale: “The other white meat”

6 6 AIPLA Firm Logo 6 Risk: Know your Target The National Pork Board sent a 12-page cease and desist letter to ThinkGeek Inc., complaining about its use of the phrase "the other white meat".letter ThinkGeek Inc. published the letter and offered the following public apology: “It was never our intention to cause a national crisis and misguide American citizens regarding the differences between the pig and the unicorn. In fact, ThinkGeek's canned unicorn meat is sparkly, a bit red, and not approved by any government entity."

7 7 AIPLA Firm Logo 7 The Letter from the National Pork Board

8 8 AIPLA Firm Logo Risk: Overzealous Policing In December 2013, global coffee giant, Starbucks, sent a small brewpub in Missouri a cease and desist letter, because 11 months prior, a few of its customers referred to its drink as “Frappicino” on a beer review site.letter Owner’s sarcastic response and a $6.00 check went viral overnight. A portion of it read: “Exit 6 has proudly sold at least 38 drinks in Cottleville MO and has a strong presence in St Charles county, a suburb 40 miles outside the St Louis metropolis. It has recently come to Exit 6 Pub and Brewerys attention that there were 3 check ins to the beer with a very similar name to the “F Word”. Unfortunately it was only similar to the F Word because we meant to call it the same thing. Lucky for us, we’re poor spelers.”

9 9 AIPLA Firm Logo Starbucks’ Letter

10 AIPLA Firm Logo Pub Owner’s Response

11 AIPLA Firm Logo Socially Aware Cease & Desist Letter Jack Daniel's sent a Louisville-based author of a satirical novel, a cease and desist letter, politely asking him to refrain from using the Jack Daniel’s trademark on his book cover.letter The letter gained overnight fame for being the nicest C&D letter ever. A portion of the letter reads: “We are certainly flattered by your affection for the brand, but while we appreciate the pop culture appeal of Jack Daniel’s we also have to be diligent to ensure that Jack Daniel’s trademarks are used correctly… As an author you can certainly understand our position and the need to contact you. You may even have run into similar problems with your own intellectual property.”

12 AIPLA Firm Logo Jack Daniel’s Letter

13 AIPLA Firm Logo Risk: Protest “Brands”

14 AIPLA Firm Logo Response – Practical Considerations Initial approach – delete comments: “To repeat: we welcome your comments, but please don't post using an altered version of any of our logos as your profile pic--they will be deleted.” Subsequent approach: “This was one in a series of mistakes for which I would like to apologize. And for being rude. We've stopped deleting posts, and I have stopped being rude.”

15 AIPLA Firm Logo Risk: Comments about Future Client Canadian radio personality Jian Ghomeshi went public with unusual sexual preferences Criminal defence attorney, Marie Henein, made a joke at a gala dinner for the Criminal Lawyers Association: “As criminal lawyers we represent people who have committed heinous acts. Acts of violence. Acts of depravity. Acts of cruelty. Or as Jian Ghomeshi likes to call it, foreplay.” Ghomeshi then charged with various criminal charges and Henein was retained by Ghomeshi

16 AIPLA Firm Logo Risk: Patent Litigation Amplification Effect Crowd Sourcing of Prior Art Positive/Negative Publicity

17 AIPLA Firm Logo Response Find it Response warranted? What level of response? Act quickly or be public about process Show that you are a human and speak like one Offer a real apology or don’t apologize Involve the critic(s)/fans in the fix/process Keep the discussion open – be public about your fix Any opportunities for “good” press

18 AIPLA Firm Logo Response – Practical considerations

19 AIPLA Firm Logo Thank you! ありがとうございます！ 19