« Naughty or Nice? | Main | Intelligent Design »

The Case of the Brown Paddington

Kudos to The Bag Snob for calling attention to intellectual property law's nasty little secret -- the power of the cease and desist letter.

Apparently the intrepid handbag blog was at the epicenter of a dispute regarding whether online merchant Sophisticated Spirit sells fakes, in particular one chocolate Chloe Paddington bag much desired by Bag Snob reader "X." 

chocolate Chloe Paddington bag

After seeing photos, Bag Snob concluded that the bag was not genuine.  Sophisticated Spirit's lawyer responded with a C&D letter requesting that Bag Snob

1) immediately remove all statements and references to "not allowed to say" from your website, (2) cease posting or allowing others to post statements or making any references to our client whatsoever, and (3) remove the Chloe photos that were taken from "not allowed to say" from your website.

As evident from the edited C&D, Bag Snob complied to avoid an expensive legal defense, but not before the original exchange was repeated (with much commentary) on The Purse Forum

I don't know whether the lust-inducing bag that launched a thousand messages was counterfeit or not, but I do have questions about the lawyer who sent the letter.

C&D letters are a useful legal tool, a first warning to alleged wrongdoers before additional legal action.  Chloe might send one to alleged counterfeit resellers, for example.  However, C&Ds can also have a chilling effect on legitimate and socially beneficial discussion, especially when the recipient doesn't have the money or time to defend against a lawsuit.  As Bag Snob put it, such actions can be "a disservice to the shopping community."  A responsible lawyer should be not only a zealous advocate for her client, but a guardian of the law itself -- and should thus refrain from overbroad demands or inappropriate threats.  (Check out the Chilling Effects Clearinghouse for an advocacy project on this issue.)

Beyond the question of misuse of C&Ds, it's not clear that sending the letter was good strategy.  Even if we assume that Sophisticated Spirit was NOT selling counterfeits, what has she gained?  Sending a C&D letter to an internet site can be like trying to put out a fire with gasoline.  There are probably more references to the Paddington dispute out there, including this post, than there would have been without a C&D.  Social groups react badly to being told to shut up.  Lawyers in the age of open internet communication should consider this when advising clients, even if it means saying, "No, I won't take your money and write a letter -- it would be bad for your business in the long run."

So, what could a good faith seller do?  First, realize that goodwill is the most valuable asset of almost any business, and work to build it.  The web is a locus of social networks that can create trust -- or the opposite.  Become part of the community and give potential buyers reason to trust (what was the seller's fashion background prior to retail?  why is the seller not likely to be fooled by shady suppliers?  how does the seller have access to scarce commodities like the latest "it" bag?  is the seller part of a trade organization with an anti-countefeiting policy?  does the seller have an open forum for feedback from buyers?).  Next, handle any disagreements quickly, professionally, and as quietly as possible. 

At the end of the day, the law can be a very blunt instrument.  (Think clubs and baby harp seals.)  Never underestimate the power of social networks and social controls, or the benefits of harnessing them.