Darned If You Do…

There’s an interesting story that cropped up this week on the Technology page of the New York Times which I think illustrates the inherent dangers of painting yourself into a corner through the over-use of legal actions – or, possibly, of not having a sense of humor. There’s no question that suing everybody and everything under the sun just because you can – or because you think there might be some potential strategic advantage in doing so – is going to be problematic after a while. By the same token, believing your own hype – and getting angry with people for not showing enough “respect” for your presumed greatness – is going to get you into trouble even faster. But when you start sending the competition cease and desist letters for ad spots that parody your company, you’re definitely a disaster looking for a place to happen…

I case you’ve missed it, the online retailer Newegg has been running a television commercial where a sales clerk in a blue shirt and khakis is asked to explain the difference between to laptop computers and ends up having nothing to say. Unfortunately, the sales clerks at Best Buy (who represent Newegg’s primary real-world competition) wear uniforms consisting of a blue short-sleeved shirt and khaki pants very much like the ones worn by the actor in the parody ad, and the tag line (“Take it from a Geek”) can be construed as reminiscent of the “Geek Squad” service trademarked by Best Buy. Accordingly, the real-world retail giant is demanding that Newegg stand down the ads and stop suggesting that Best Buy’s sales associates are “slovenly and uninformed about computer products” and also stop using the tag line…

Now, I don’t claim to be any sort of legal expert, especially not a Constitutional Law expert, but it struck me that given some of the nutty things we’ve seen defended as free speech over the past few decades, a parody of a competitor’s operations (which are considered protected speech) shouldn’t be that hard to defend. However, the legal analysts at the Times point out that it’s actually worse than that in this case: if Best Buy claims that their customer service is actually excellent, then this Newegg commercial is clearly a parody, and can’t be attacked by conventional lawsuit. If Best Buy argues that the commercials are an accurate depiction of their operations, they would have legal grounds to sue – but they’d also be publically admitting that their sales associates are incompetent (and possibly slovenly), which doesn’t seem like a good strategy either…

From where I’m sitting, it would make much more sense for Best Buy to counter-attack with their own advertising parody – which wouldn’t be all that hard; Newegg’s business model relies on user reviews full of jargon and technobabble that really only appeal to hard-core tech geeks. Producing and running an ad about everyday users who just want to talk to a live person and take their purchases home the same day would not only refute the attacks, but also hit the competition in their own weak point. In fact, if you did it correctly, such an ad would also position Best Buy to compete with Dell, Amazon, and every other on-line retailer who sells computers, since all of them are vulnerable to the same point (e.g. that you have to rely on user reviews and self-taught knowledge of the product if you are purchasing on-line, and there will be no one to help you)…

Of course, such an approach would require at least a minute or two of planning, as well as an intelligent appraisal of the competition and a moment of thought as to how to counter an attack without simply picking up a big legal club and bludgeoning your opponent with it. Failing to do so, however, can leave you in the sort of no-win situation where you’re being mocked by competitors, customers, and scruffy bloggers everywhere – as well as the New York Times Technology Page…