Nutty News: Dear Biggest Fan, Here’s a Cease-and-Desist Letter

by Winthrop & Weinstine, P.A.
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You have to be one big fan of a company or product to establish a World {What-You-Cannot-Live-Without} Day.  Well, a sticky situation with the well-known hazelnut spread Nutella may have you rethinking your public affection.

Back in 2007, Sarah Rosso (Nutella Fan) established World Nutella Day to celebrate her affection for Nutella.  Within the past week, she announced on her World Nutella Day Facebook page, Twitter feed and blog that she received the dreaded cease-and-desist letter from the product’s maker, Ferrero S.p.A.  Those bastards!  Although she did not post the letter, Nutella Fan went to her followers and indicated that she would be shuttering the website, the Facebook page and the Twitter feed as a result of the letter.  By sending the cease-and-desist letter to a fan who has a significant public voice amongst other fans and essentially silence from Ferrero, the Nutella Fan drove the narrative of this story.  That narrative from the news headlines is telling:  Has Nutella-Maker Ferrero Put an End to World Nutella Day? (Businessweek), World Nutella Day to Cease and Desist (Time), Nutella Makers Spread Sadness By Nixing Popular Fan Site, Holiday (MSN).

Happily for all parties, in the interim Ferrero and the Nutella Fan apparently reached an agreement so that she did not have to shut down these sites and could continue to promote her love for the product.  Ferraro also issued a generally glowing statement, which the Nutella Fan reposted on her blog.  Although these parties seemed to have reached an amicable agreement, damage was done.  A Huffington Post article on the subject quotes one fan’s comment: “And I actually lost respect and love for Ferrero. You’ve [done] nothing but promote Nutella. They should thank you and send you Nutella for a life time. And not send cease and desist letters.”

I have been talking with several marketing and public relations sages about print media versus digital or social media over the last week.  Companies need to adapt to a lack of control in digital or social media and accept that there will inevitably be some negative feedback.  As I will paraphrase from one of these sages, the social media posts “are just saying to your face what they normally would say behind your back.”  Ferrero seems to have recovered from the negative publicity, but certainly an understanding of the power of the Nutella Fan may have modified the strategy employed to defend those rights.

Speaking of that strategy, amongst the glowing and flowery language in the Ferrero statement was one stoic sentence relating to their reasoning behind the letter:

The case arose from a routine brand defense procedure that was activated as a result of some misuse of the Nutella brand on the fan page.

Let’s dissect this sentence into a couple of points.  First, with this posted on the Nutella Fan’s own website, the latter half of the sentence almost reads like an admission that there was some misuse of the mark, even if a fair use or laches defense could be applicable.  The second point relates to the robotic reference to “a routine brand defense procedure.”   Yep those darn attorneys are at it again; they are such sticklers!  In my opinion, a defense strategy should be fluid rather than rigid.  It should consider your goals (including legal goals and public relations goals) and the facts of the particular situation.  There are certainly situations where an aggressive, detached approach to asking someone to stop using your mark is warranted to achieve your goals, and there are situations where a more delicate, “Minnesota Nice” approach (maybe even through B2B contact rather than directly from an attorney) can also achieve all of your goals.

What are your thoughts on Ferrero’s sticky situation?  How do you diffuse negative feedback through social media?

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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