How to bust the adbusters?

As a medium for subjecting brands to direct attacks, adbusting – also known as culture jamming – is a clear and present danger to owners of well known marks, and something that intellectual property (IP) managers should be aware of as they try to protect their assets.

The practice emerged in 1989 with the birth of the Adbusters Media Foundation, set up by Canadian anti-consumerism activist Kalle Lasn. Working with a group of fellow activists, Lasn launched the bi-monthly magazine Adbusters – a journal that went on to attack high-end ad campaigns as a matter of routine. Since then, the Foundation has generated spurts of publicity with the annual Buy Nothing Day. But adbusting activity is not restricted solely to the Foundation’s members.

In one incident this year, an independent adbuster in Hamburg printed out blowups of PhotoShop’s toolbar and pasted them to billboards advertising the clothing chain H&M – a stunt designed to criticise the look of the featured models. Confined to the German city, the case amounted to little more than a prank. But, when adbusting migrates to the internet, the results are far more serious, with the potential to cause enormous brand damage.

Out of the blue

That was highlighted in July, when protesters hijacked the online branding of major oil and gas corporation Shell in an advertising and social media hoax. Working alongside Greenpeace, activist group the Yes Men set up a website with the URL arcticready.com, which looked to the uninitiated like a branch of Shell’s official site. The material gave the impression that Shell was running a special contest to involve visitors in its marketing, by inviting them to come up with alternative ad copy.

A series of still photographs similar to those used in real Shell posters were presented with subversive captions, typed in the company’s official font. Each caption ended with Shell’s current tagline, ‘Let’s go.’ In addition, the Yes Men launched Twitter alias @ShellIsPrepared, which made it look like the corporation was panicking about the arcticready.com website. Tweets such as ‘Please, please, please stop sharing inflammatory ads’ emerged from the feed, which used Shell’s imagery and logo in such a way that it was hard to distinguish from the company’s real Twitter presence, @Shell. This only heightened curiosity over arcticready.com and drove traffic to the fake ads.

Reacting to the hoax, University of Minnesota law professor William McGeveran told Forbes that companies such as Shell ‘are smart enough to know that legal action will only draw attention to the hoax’ and open the way for the brand damage to deepen, as media coverage of the case recycles the antagonists’ message. ‘It’s similar to how defamation lawsuits often do more harm than good by dragging out the original story all over again,’ he added.

Sure enough, Shell issued only a brief statement about the adbust before it dropped the matter. ‘The advertising contest is not associated with Shell,’ it said, ‘and neither is the site it’s on. Shell did not file legal action in this matter. Our focus is on safely executing our operations.’

Scope of infringement

However, that doesn’t rule out the possibility that some companies would prefer to take a more aggressive stance and seek legal remedies against adbusters. With that in mind, NewLegal Review asked Kilburn & Strode trademark associate Ryan Pixton what affected parties should know before initiating proceedings. Would an adbust-related lawsuit be carried out in much the same way to an infringement case against another company? Or would it be non-standard, given that adbusters do not appropriate brands for use in the course of trade?

‘That is a good point,’ he said. ‘In Association Greenpeace France v SA Société ESSO [Cour d’Appel de Paris, 2003] it was held that Greenpeace was not commercialising its own goods and services while reproducing Esso’s trade mark as “E££0” on its website. If the use of the sign complained of is not trademark use – as in, to guarantee the origin of goods and services – then it is unlikely to fall within the scope of trademark infringement.’ Pixton thinks that an alternative route for target of adbusting would be to pursue their opponents on grounds of copyright infringement, although the criteria differ from territory to territory.

‘In the UK,’ he added, ‘passing off may be an available course of action for businesses in this situation. They would have to demonstrate goodwill in the UK, as symbolised by the sign in question, and that there has been a misrepresentation by the defendant leading to damage – or likely damage. It is a pure question of fact whether the use made of the badge is deceptive or not. An injunction may be granted against the particular mischief that has occurred. Thus, in the case of the fake tweets, it is possible that a passing-off action might be successful.’

So, there are clearly legal avenues open to companies that are prepared to overcome the potential PR hurdles. But perhaps what companies would prefer – and what cyberspace has not yet delivered – is an early-warning system that would safeguard them from the instant damage of adbusting.