Call Off the Wolves, Jack!

Jack Wolfskin, a British maker of outdoor equipment, owns a trademark on its logo, a wolf-paw print. It arrogantly thought that it could have absolute, exclusive control over an image that has been known to humankind for millennia. And now it is reaping the whirlwind for its hubris.

Knowing that the law is on its side, Jack Wolfskin decided to sue 60 hobbyists and housewives who make and sell homemade items on a German crafts website, DaWanda, The ladies’ offense? Sewing paw prints on t-shirts, pillows, and other hand-sown crafts items. Jack Wolfskin didn’t even stop to consider that its fierce wolf-paws are not the same as the tame pussy-paw prints that are on most of the crafters’ products. (Press accounts have mentioned that Jack Wolfskin is asserting a copyright claim in “its” paw prints, but I suspect it is actually a trademark claim.)

I got wind of this whole controversy when Jolyon Yates a solo designer who lives in Newcastle upon Tyne, England, alerted me to Jack Wolfskin’s outrageous bullying, presumably after reading my book, Brand Name Bullies.

Yates explained why he was upset:

The problem, to be precise .. is that one of the products I make is a small decal (sticker) – that I sell for very modest sums of money, usually to cat-loving housewives through harmless craft websites like Dawanda.com. I’ve only sold three sets so far .. I realise that’s at least 30 .. but hell – 30 doesn’t get me far in my 300 tonne luxury Superyacht : )

Joking aside, these little decals are about 2/3 of an inch across and are in the shape of a domestic cat’s footprint .. actually they are based on the pesky little marks that Princess leaves on the kitchen floor when she comes in from the muddy garden!

Jack Wolfskin’s legal bullying has caused quite a publicity splash in Germany, where the press has made it into a national outrage. The German magazine, Der Spiegel has publicized it, as have many newspapers. (For those of you who can read German, here are links to the German advertising blog Werbeblogger and a DaWanda reader forum.)

Even Advertising Age, the trade publication, has checked into the fray with a column by Gunnar Brune, "Taking Your Brand From David to Goliath the German Way." Brune notes how Jack Wolfskin’s legal strategy backfired once bloggers publicized it:

Within hours the server broke down, the post was mirrored by other bloggers and discussions about it exploded on Twitter and Facebook over the weekend. The national press, including weekly magazine Der Spiegel, started to take notice, and the outcome of the story of David vs. Goliath became somewhat predictable. It’s worth remembering that outdoor clothing is a favorite among many digital natives, including some who responded, and the brand really hurt the feelings of many customers by taking legal action against the women — whether it was legally right or not.

It’s evident that lawyers and marketing and communication pros alike need a finer sense of when to deploy a legal action on behalf of a brand. What can be a strategic move in corporate competition can lead to victories that are Pyrrhic at best. What is a blog with 400 readers in comparison to a story covered by national press?

This whole episode resembles the legal bullying that ASCAP, the music performance collecting society, used against the Girl Scouts and scores of other other summer camps in 1996. Their offense was singing copyrighted songs around around the campfire without having paid a performance fee. Seriously. What this logic ignores is that most of the songs sung around campfires would have faded into oblivion, and have no commercial value whatsoever, if people were not free to sing them in summer camp.

Here’s the lesson that I draw from all of this: Companies that have the hubris to think that they can buy and own and litigate to protect a reputation will be punished. Reputation-building is a prerogative belongs to us, the commoners. We confer reputation. Brands are commercial symbols that acquire public meanings (and thus commercial value) only because we choose to use the products, integrate them into their lives and talk about them with friends. Do trademark owners really think that the law entitles them to own public meaning?

The corporate world needs to wake up to the social realities that make "property" valuable. We commoners create the value that inheres in your trademarks — so show a little respect, or we will simply withdraw our allegiance to your brand and change the "meaning" of your brand. Fortunately, the Internet now gives us powerful new tools to do just that. Get used to it.

Below, some of the contraband images of paw prints:

 

Originally published by David Bollier at Onthecommons.org under a Creative Commons Attribution license.