International report - Where’s my Oasis? Juice company wins in court, but loses social media battle 16 May 12
Fasken Martineau DuMoulin LLP - Canada
A Lassonde Inc has been selling fruit and vegetable juices throughout Canada under the Oasis brand for more than 45 years. The juices do exceptionally well in Lassonde’s home province of Quebec.
Like any company that wishes to protect its brand, Lassonde has been vigilant in monitoring use by others of the word "Oasis" in their trademarks or corporate names. In 2005 Lassonde came across a small outfit, L’Oasis d’Olivia Inc, importing high-end beauty products under the Olivia’s Oasis brand, which it applied to register in Canada. Lassonde opposed the application and then sued for trademark infringement, seeking an injunction and damages. In September 2010 Lassonde’s lawsuit was dismissed based on an absence of confusion between the two marks. More importantly, the trial judge inoked Quebec’s anti-SLAPP (strategic lawsuit against public participation) legislation to find that Lassonde’s lawsuit was abusive and represented untoward use of: “their economic power and experience…in a shotgun approach… to intimidate and thwart Defendant from its legitimate use of its trade name and trade-mark.”
The judge went on to award the defendant C$100,000 in costs and C$25,000 in punitive damages.
Lassonde appealed, and on 30th March 2012 the Quebec Court of Appeal reversed the lower court's finding. It held that Lassonde’s behaviour was in no way abusive and reflected perfectly acceptable corporate behaviour carried out in the legitimate interest of protecting its brand. It quashed the lower court’s award of costs and punitive damages.
The story appeared in the following Saturday’s edition of La Presse, the largest French daily in the country. The defendant was portrayed as an innocent victim which had won in court but had been saddled with enormous legal fees which threatened its existence. The public reaction was instantaneous. Lassonde’s Facebook page was inundated with messages criticising the company’s actions. By Monday morning, more than 900 messages had been posted on the official Oasis Facebook page, most of them critical of Lassonde. A well-known talkshow host tweeted, “That’s it, I’m not drinking Oasis juice any more. My way to protest!” to his 105,000 followers.
Faced with this onslaught, Lassonde quickly backed down. By Saturday evening the company had announced on its Facebook page that it would seek to come to an arrangement with the defendant, but the negative messages continued. On Sunday afternoon, Lassonde's top executives were at the house of the principal of the defendant company negotiating a settlement. On Monday morning, Lassonde issued a press release announcing that the parties had reached a deal to the satisfaction of all concerned. It appears that the company ended up reimbursing the defendant’s legal fees. But the damage to its brand and corporate image may be far greater and more difficult to repair.
Lassonde has learned the hard way that the power of social media knows no bounds. Good branding strategies can no longer rest on classic formulae of trademark registration, oppositions and enforcement. Brand owners must gauge the impact of their actions and anticipate public sentiment: a large corporation protecting its legitimate interests can easily be portrayed unfavourably in the media, particularly if it chooses to take on the "little guy". When this theme is taken up in the social media, it can quickly spiral out of control and send executives scrambling for cover.
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