Someone’s poking fun at your brand on the Internet. What do you do?
Clothing retailer Forever 21 opted to issue a legal challenge to satire blog WTForever21 . In the company’s cease-and-desist letter to blogger Rachel Kane, attorney Jerry Noh wrote that the blog “constitutes trademark infringement, copyright infringement, unfair competition and dilution.” The letter also notes that the website’s name “refers to an abbreviation for colloquial expression that the general public may find offensive.”
Kane is reportedly holding her ground. After first saying she would take the blog down, she issued a statement saying she would keep it going. “If the company continues to makes threats that have no basis in law, my attorneys are prepared to vigorously defend me and seek all available legal redress against Forever 21,” she wrote.
Forever 21’s reaction to the ridicule was a “huge marketing, PR and social media miss,” Jonathan Tavss, head of Scarlet Strategic, wrote on his blog. Other observers agreed.
Why it’s a miss
Shel Holtz of Holtz Communication + Technology says he’s not sure what steps Forever 21 took before reaching out to its legal team. In most cases, companies to turn to legal measures as a last resort, he says. In this case, they shouldn’t have done so at all.
“Nobody among Forever 21′s customer base, the media and the consumer population will be able to see this as anything but a David and Goliath story—the big company with the deep pockets going after the little guy with no resources to defend herself, regardless of whether she’s right or wrong,” he says.
Bloggers such as Chris Lam have characterized the situation as exactly that. “Sure, no one likes to get made fun of,” Lam wrote. “I know I don’t. However, she is not doing it maliciously, nor is she telling consumers to not buy product.”
Holtz notes that the blog is satire, which should be protected under fair-use laws. Legal experts such as University of North Dakota School of Law Professor Eric E. Johnson have concurred. Johnson wrote in his blog that it would be “preposterous” to think the WTForever 21 blog was affiliated with or endorsed by the retailer.
However, Michelle Fabio at LegalZoom.com wrote that the company could continue pursuing its suit even if it faces what seems to be an uphill battle. “The deep pockets of companies that engage in legal bullying tactics often outweigh an individual’s meritorious defenses,” she wrote. “Like it or not, the almighty dollar often trumps the rule of law.”
Alternative approaches
In Forever 21’s letter to Kane, Noh thanked the blogger for being a customer. On the “about” page on the WTForever21 blog, she wrote, “I LOVE Forever 21. Most of my closet is comprised of their tasteful, trendy and totally awesome selections. But every now and then, something goes horribly awry.” In an interview with Ragan.com, Lam says the company should have been more aware of that. “We know that even major designers have their lemons,” she says. “Kane’s just pointing them out in a tongue-in-cheek manner.”
Holtz compares Forever 21’s legal action to that of the Recording Industry Association of America’s suits against people downloading songs: “They’re emulating the recording industry and suing their best customers.”
Ultimately, Forever 21 should have simply left the blog alone, Lam suggests.
Tavss says the company would more wisely have absorbed Kane’s tongue-in-cheek voice into its own communications. “It works perfectly with their intended audience,” he says. “They really could have brought her on as an ambassador.” That move would be similar to when movie studios bring critical bloggers onto the sets of their films, he says.
Holtz says the company could have taken a third tack, responding to the site as customer feedback. “I would have loved to have seen a Forever 21 buyer leave comments in response to the posts—why they picked this shoe or that necklace, how it’s selling, etc.,” he says. “Have a conversation with the customer.”
What now?
Lam and Tavss suggest that Forever 21 should drop its lawsuit. But can it do anything to wipe away the PR black eye that came from threatening Kane with litigation?
Lam says she wonders if the company’s PR team is under orders to keep quiet. “I bet there were people just like me who didn’t know about her blog until now,” she says. “This case has just increased her Web traffic.”
Tavss says keeping mum and giving the issue some time to breathe is really all Forever 21 can do to repair its reputation. “The damage is done,” he says.
