Reputation and social marketing: the legal stuff

I spoke at the Marketing Legislation Seminar in Rosebank this morning. My topic was basically online reputation management and related legal principles and issues. This area seems like something of a fuzzy marketing thing but the more I look into it the more it becomes an organisational imperative with serious legal ramifications. I've mentioned the King 3 ramifications previously and that is just the beginning.

Its a fascinating area of the law and many of the issues and strategies are still being developed. Here are my slides to give you a glimpse into my thinking:

Converting angry customers into happy ones

This week has been a fairly light week from a blog post perspective and I thought I would end off the week with something a little different and which is pretty relevant to most of my clients. This video is of a talk given by Rob La Gesse from Rackspace. La Gesse is pretty forthright about how he believes companies should approach customer service on the social Web.

I enjoyed this talk. A number of agencies have fairly convoluted approaches to customer service. I particularly enjoyed his comments about working with Rackspace's legal department. I encourage my clients to incorporate a legal component into their planning and development but doing that only really works if the legal person has an appropriate approach to what the business and creative people are doing.

The blogger, the taxi company and the Streisand Effect

The Streisand effect is a primarily online phenomenon in which an attempt to censor or remove a piece of information has the unintended consequence of causing the information to be publicized widely and to a greater extent than would have occurred if no censorship had been attempted. It is named after American entertainer Barbra Streisand, following a 2003 incident in which her attempts to suppress photographs of her residence inadvertently generated further publicity.

(Source: Wikipedia)

One of the phenomena on the social Web which I highlight in discussions about how the social Web defies traditional legal paradigms is the Streisand Effect. It is a fascinating dynamic which occurs from time to time online. This evening I read a post on a local blog, shaunoakes.com, where this phenomenon is currently recurring. The post is titled "Marine Taxis And The Bizarre Way They Deal With Consumers" and is a follow up, in a fashion, to a 2008 blog post titled "Marine Taxis".

The original, 2008, post was a somewhat tongue-in-cheek post about Oakes' experience with a Marine Taxis driver after a night out. The post published earlier today includes an email conversation between Oakes and Marine Taxis' representative, Ursula Brown, who appears to be Marine Taxis' public relations and/or marketing person. Brown appears to have emailed Oakes to express her concerns about his 2008 post and insisted that he remove his post. Oakes replied, making reference to his "advertisement" of Marine Taxis' services and asked why he should remove the post. The conversation deteriorated from there and culminated in today's post both setting out the email conversation between Oakes and Brown and Oakes dismissing the demand that he take the 2008 post down.

This developing story is a fascinating reputation management and expression case study. On the one hand there is a blogger publishing a story about his experiences with a service provider (a common type of blog post) and on the other hand you have feedback from the service provider which is not terribly constructive. Already there is scope for this to become an informative case study on the underlying dynamics of the social Web and how to (or not to) respond to customer feedback in such a public and connected forum. What makes this story even more interesting is the basis of the service provider's complaint - a post roughly 2 years old. In Web terms that is practically an eternity.

What I found interesting is what a Google search on "Marine Taxis" reveals:

Notice the 7th result? I don't know how often Google's database is updated but I do have to wonder how much traffic Oakes' post has attracted in the last 2 years and whether his post has been on the front page of Google's search results all this time? What does appear to be a little clearer is the sudden surge in interest in Marine Taxis, largely due to Oakes' post (I did contribute a little by retweeting a tweet with the link to Oakes' post):

Pundits talking about this post will likely comment on two aspects. The first is the poor manner in which Brown addressed Oakes' somewhat negative experience of her company's service, albeit it 2 years ago. She could have approached the issue more constructively given that it was important enough to raise this issue so long after the original publication date and seemingly due to concerns about the post's reputational impact on Marine Taxis. The second aspect of the story is the fact that she took issue with the post so long after it was published and when it could well have been largely forgotten by anyone who read it in the first place or who may be interested in learning more about the company (that said, if this story has been coming up in the first few search results for searches conducted on the company's name, it may well be as current now as it was back in 2008).

What is clear is how Brown has stirred up even more interest in Oakes' original experience and in a questionable approach to it on Brown's part. Regardless of the legalities involved, Brown's approach to the 2008 post and Oakes' reaction have probably had the opposite effect to what may have been Brown's intended result. I wouldn't be surprised to see this story picked up on Twitter and other social sites and Marine Taxis criticized for its approach to this issue. The result could be reputational harm which could have been avoided had Brown either not taken issue with the 2008 post in the first place or had taken a more constructive approach with Oakes. Just as there are a number of examples of the Streisand Effect in action, there are a number of examples of how a constructive approach to issues like this have lead to very positive feedback and a reputational and public relations coup for the company which was initially criticized.

This story could take on a legal component should Marine Taxis pursue its demand for Oakes to remove his posts but that is probably not the best approach in the circumstances.

Cell C and its new logo: trade marks and copyright

Cell C recently revealed its new logo at a press conference in Johannesburg. According to its press release:

At a press conference in Johannesburg yesterday, Cell C which for the past nine years has been associated with a red logo and spotted “C”, revealed a refreshing new black and white logo with the “C” in the latter part of Cell C, placed within a solid circle.

The new corporate identity, according to Cell C CEO, Lars P Reichelt, reflects the company’s vision of understanding its customers’ way of life better than anybody else and tailoring solutions around them to enhance lifestyles and improve livelihoods.

The new brand identity also consists of a six-colour bar which represents the colours of the South African flag as a symbol that Cell C cares about South Africa, and South Africa only. Cell C intends to cater to all customers and not just those within specific LSMs.

Looking at the new logo you would be forgiven for being a little confused. The circled "C" bears an uncanny resemblance to the symbol we have become pretty familiar with for another reason. That symbol, depicted below, is the universal symbol for copyright:

The Cell C logo appears to be a registered is being used as a trade mark and its choice to include the copyright logo could have some interesting consequences for the trade mark itself. While I don't profess to be an expert in trade marks, using such a well known symbol in its logo may open the door to challenges to the trade mark's registration where reliance is placed on the circled "C" itself on a couple grounds including:

• Cell C has no claim to own the circled "C" symbol;
• the circled "C" symbol is a well known symbol internationally in a very different context;
• the circled "C" symbol is already in widespread use in South Africa, including by Cell C's own competitors, in copyright notices; or
• the symbol may even cause confusion to a degree.

The new logo, as a whole, may be registrable as a trade mark but the prevalence of the copyright symbol may have the effect of diluting the trade mark to the point where it has far less value as a trade mark than if Cell C came up with an original logo that didn't incorporate such a well known symbol.

Another problem with the new logo is that Cell C's competitors may immediately be infringing the trade mark where their copyright notices are prominent relative to their promotional materials on their websites and elsewhere. MTN and Vodacom have copyright notices with the copyright symbol on their websites and have done so for some time now:

and

Cell C has probably opened itself up to a number of challenges both to its trade mark registration and to the brand itself largely due to its decision to use this well known symbol.

Another concern is the impact this logo choice may have on general awareness of the copyright symbol and its meaning generally speaking. The new Cell C logo dilutes the value of the copyright symbol as a distinctive symbol for copyright and content protection generally, particularly where there is relatively little understanding on the value of respecting copyright and content owners' rights. This may seem like a fairly abstract concern but I have found that while most people I speak to when I present on copyright issues recognise the copyright symbol, many people have an appreciation for what that symbol stands for and Cell C's decision to incorporate this symbol could only hamper copyright education efforts despite creating a very interesting case study in trade mark selection and registration.

Update: I was taking another look at the Cell C website and noticed this representation of the logo at the bottom of the page:

This representation suggests that Cell C regards the circled "C" as a prominent feature of its trade mark and it even suggests that Cell C has trademarked the copyright symbol itself. This seems to be somewhat reckless and invites a challenge in some form or another. That challenge may not be a legal challenge, at least not initially, but it would well be a reputational or brand-related challenge down the line.

On that note be sure to read Mandy de Waal's article about Cell C's campaign featuring Trevor Noah. There are a growing number of questions being asked about the campaign itself.

Update 2: Cell C just doesn't seem to be getting a break with its logo choice. I just noticed an article in BizCommunity about the similarities between the Cell C logo and Athletics South Africa's logo. These similarities may not affect Cell C's ability to register its logo as a trade mark if the trade marks are registered in different classes but the resemblance is striking.