The court of public opinion doesn't care about your trademark
"They waited until I was successful to try and take it all away."
A small cookie business, Chloe’s Cookies, is currently suing another one, Chloe’s Giant Cookies, for trademark infringement. Chloe’s Giant Cookies has a strong online presence and has been sharing the story from their perspective: another business trying to take theirs away. Commenters are adding to the narrative. “The ‘Chloe’s Cookies’ founder isn’t even called Chloe, it’s named after a dog”. OK... that doesn’t matter in trademark law. Chloe’s Cookies would still have the right to defend that trademark if the company were named after absolutely nobody.
Most of the online narrative I’ve seen surrounds how Chloe’s Giant Cookies can contest this and shut down the lawsuit. I’m interested in the other side and what YOU need to consider if you’re thinking about filing a trademark infringement lawsuit against an influencer-run brand.
You think the biggest risk to you is their use of your trademark. Your lawyer has probably told you you’ll win the case, they’ll have to change their name, you’ll get damages… and if it is IP infringement, you probably will. That’s what matters from your lawyer’s perspective. They’re there for the outcome of the case. You win, risk over, right?
Wrong.
Because while you’re in court, the case is also being tried in the court of public opinion. That influencer brand is making videos about it, painting you as the bad guy threatening their livelihood and all they’ve put into building their business…
You’re taking it away from them.
They’re the victim.
And they have a following. People jump on the online outrage and start coming after you as if you’ve done something wrong.
Defending your trademark isn’t wrong. There’s no point in having one if you’re not going to use it. That’s the objective reality. But reality doesn’t matter. Perception does. And when the brand you’re suing has the audience and influence to turn public perception against you, it doesn’t matter that you’re in the right. You won’t be perceived that way. Your lawyer might tell you to say nothing and let everything play out in court, as if the lawsuit itself and winning it will do all the work you need done. It just won’t. Because the cost of reputational damage from the other side completely controlling the narrative and building public perception against you does more damage to your brand than the original IP infringement did.
If you’re filing that lawsuit, YOU have to publicly and strategically tell your side too, to guide public perception toward reality rather than letting the other side have all of the narrative control. Get a crisis PR person to help if you don’t know how to do this. Lawyers are there for the case; PR helps protect your reputation during it so that the case doesn’t leave your brand in a worse position than it ever would have been if the trademark infringement had just been left alone.
Don’t underestimate how much taking a ‘right action’ can be turned against you in the court of public opinion.
If people like the influencer brand and buy into the victim narrative, they don’t care if you’re not actually in the wrong. And if you think they’re wrong for twisting things against you… that doesn’t stop the reality of them doing it. Knowing or saying that something shouldn’t be the way it is has never stopped it from being that way.
A legal victory won’t help you if you lose your reputation in the process, so get your comms figured out before filing anything.
The biggest mistake is to see a lawsuit as just a legal process. When you’re up against someone with a large social media following attached to their brand, filing a lawsuit against them creates a content opportunity for them. Social media runs on algorithms that respond to engagement. The influencer brand can take that lawsuit and rally their community around their defense regardless of whether that defense will actually stand up in court; it will get picked up by the algorithm because people are extremely responsive to situations that fuel outrage and appear to provide an opportunity to protect the victim of another company ‘bullying’ the creators they have parasocial relationships with (I’m saying that as objective fact, not with judgment).
The influencer’s followers feel like they know them, and they trust them, so when they post a tearful video about how some other company is trying to take away the name they worked so hard to build, that audience doesn’t care about the nuances of trademark law or the necessity of defending a trademark to avoid losing it. All they see and care about is that their favorite creator is being attacked. The influencer knows how to communicate with their audience and frame the lawsuit as an aggressive, unprovoked attack.
The law is on your side, but public opinion isn’t. And it’s public opinion, more than the outcome of the case, that will determine your brand’s future success. The victim narrative in situations like this is powerful because it connects emotionally with an audience. Once this chain of outrage is ‘activated’, it’s very difficult to stop it, even if you come in later with an extremely well-crafted response. The influencer’s followers may flood your pages and Google reviews with negative comments, call for boycotts, call out your brand partners and demand they stop working with you.
Your lawyer might tell you to say nothing.
Lawyers are trained to minimize legal risk, and from their perspective, it’s often safest to say nothing at all because anything you do say can (and will) be used in court. So they’ll want to let the legal process play out and avoid public statements. To a lawyer, ‘no comment’ is neutral and protective.
The court of public opinion sees ‘no comment’ as an indication that the other side is right. If you don’t tell your side, the other side will tell it for you, and ceding the narrative to them is letting them define the terms of the conflict. The reputational damage inflicted while you’re in ‘no comment’ mode leave public perception of your brand irreparably harmed, even if you win the lawsuit. Consumers may associate your brand with bullying, aggression, and unfairness even if you were not doing anything wrong.
The cost of this reputational damage can far exceed the cost of the original trademark infringement. Trademark infringement can cause consumer confusion and dilute the value of your trademark, and that is a real harm, but it doesn’t compare with a full-blown PR crisis that destroys consumer trust in ways that are difficult to quantify and hard to repair. Is it unfair, given that you are just trying to protect your own brand? Yes. But if we get caught up in the unfairness of situations, we get trapped in an emotional state that isn’t conducive to taking action. If an influencer’s audience decides to boycott your brand, you’ll lose sales immediately, and in the long term, you can lose the ability to maintain your position in the market.
Before filing, consider the lifetime value of a customer lost to a viral boycott versus the actual financial damage caused by the influencer’s infringing use of your mark.
If the reputational damage from filing is severe, you’re essentially paying to protect the name of a brand that people now actively dislike.
If you do decide to file, you MUST have a strategic communication plan in place beforehand and plan for the worst-case scenario in the court of public opinion, just as your lawyers plan for the worst-case scenario in the courtroom. You’re not going to get a good comms plan from your lawyer. Your lawyer’s job is to win the case. Your PR job is to win the public. Those aren’t the same thing, and pretending they are is how you end up legally vindicated and reputationally destroyed. If you don’t have experience in this area, hire a crisis PR who can help and knows how to communicate with your lawyer as well to align public statements and ensure they don’t compromise your legal position.
A good approach will anticipate the other side’s narrative, considering their audience and likely responses, and involve messaging that explains your position and counters the other side’s narrative without coming across as defensive or aggressive. You have to assume they’ll take the issue to social media and try to weaponize their audience against you. Your response should not get into a viral back-and-forth debate with them or engage with their audience or comments section. Sometimes we default to defensiveness in ways that make us look worse.
Defensive: We take our IP seriously and have every right to protect it. [Brand] is using a confusingly similar name that violates our trademark, and we are pursuing legal action to enforce our rights.
Strategic: We started [Brand] because we wanted to create something our customers could trust. Our name is part of that promise. When another company uses a similar name, it creates confusion about where the product comes from and what they’re getting. We’re taking this step because we care about making sure you know exactly what you’re buying, and that you’re not accidentally getting something that isn’t ours. Maintaining trust with our customers is a core value of [Brand].
A strategic comms approach here is calmly and clearly sharing your position publicly in a way that resonates with your audience’s values (recognizing that your audience and the influencer’s audience may be different but with substantially overlapping subsets; you need to understand both). Your framing needs to explain the why behind the action in a way that makes sense to someone who knows nothing about trademark law, which is most of us, and taps into some of that emotional connection that the other side will also use, essentially humanizing your brand before the other side dehumanizes it. Maybe you’re protecting your audience from being misled or making sure they know they’re getting a genuine product. Framing it as protecting them rather than going after the other person’s business is more likely to be well-received.
To craft your comms effectively, the one thing you need to let go of is the idea that being right is enough.
You can have the law entirely on your side and an airtight case for trademark infringement with all the evidence you need to prove the other side is using your IP, but if the public decides you’re the bad guy, none of that matters. Imagine losing not just individual customers, but your ability to partner with retailers, distributors, and collaborators. Those downstream effects are expensive.
If people like the influencer brand and buy into the victim narrative, they do not care if you are actually in the wrong. They will ignore the facts. They will dismiss the legal arguments as corporate double-speak. They will focus entirely on the emotional narrative that the influencer has constructed and see you as a powerful entity crushing a vulnerable one. As I said above, focusing on the unfairness of that won’t save your brand’s reputation, and focusing on the ‘rightness’ of your action won’t change public perception. The court of public opinion operates from emotion, not evidence, so your messaging needs to speak to your audience on a human level. It can help to create ‘personas’ from your audience’s characteristics and think as though you are speaking directly to that person in a 1-1 conversation when you’re crafting your messaging to make it feel more personal and human and less shouting into the void.
You need one clear, thoughtful statement about why you’re protecting your trademark, framed around what matters to your audience, clearly showing that it is NOT about attacking the other business.
Sometimes, the smarter move is to let the trademark infringement go and focus on what actually builds your business, but where protecting it is essential and you need to file, you have to get your comms figured out first, especially when dealing with an entity that has easy influence over public opinion.
Don’t fight for the right to your name and make it a name that’s no longer worth having in the process.