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A Weathering a social media s*** storm that party's legal bills. But that is just what happened after the power of social media intervened and changed the out- come of a trademark battle launched by Lassonde Industries Inc. — the major Quebec manufacturer that markets fruit and vegetable juices and drinks under the Oasis brand — against Olivia's Oasis Inc., essentially a one-woman opera- tion founded by Montreal entrepre- neur Deborah Kudzman to offer a line of skincare products made from pure Turkish olive oil. Some intellectual property lawyers are now suggesting that what happened out- side the courtroom in the Quebec case provides an example of why Canadian companies and their legal counsel may want legal strategies for trademark protection and enforcement. "Lassonde has learned the hard way that in today's world, the power of social media knows no bounds. Good branding strategies can no longer rest on classic formulae of to rethink traditional aggressive registration, oppositions, and enforce- ment," says Marek Nitoslawski, a trade- mark lawyer with the Montreal office of Fasken Martineau DuMoulin LLP. "Brand owners must gauge the impact trademark of their actions and anticipate the pub- lic's sentiment: a large modern corpora- tion protecting its legitimate interests can easily be unfavourably portrayed in the media, particularly if it chooses to take on the little guy, company that takes another to court usually doesn't turn around and volunteer to pay CENTRAL Success in the court- room didn't mean much in the court of public opinion for juice maker Lassonde Industries. tweeted to his more than 105,000 Twitter followers that he intended to boycott Lassonde in protest and hundreds of Quebeckers began tweeting their dis- satisfaction and writing negative reactive comments on the company's Facebook page. The social media storm happened the same day a story appeared in the Saturday La Presse newspaper detail- ing Kudzman's seven-year legal fight to maintain her brand name and the resulting $80,000 of debt she faced even though a Quebec judge had found the trademark infringement case argued by Lassonde to be groundless given the "glaring dissimilarity" between the two products and no chance of confusion by the public. The next day, company executives fol- letin about the case that burst onto the public radar in late March. "When this theme is taken up in the social media, it can quickly run out of control and be explosive, sending executives scrambling for cover. " he writes in a bul- Lassonde executives scrambled after popular Quebec TV host Guy A. Lepage " lowed up with a meeting with Kudzman and a press release announcing that Lassonde had reached an agreement with her under which it would pay "the entirety of her legal fees" related to the case. Lassonde wanted to show it was lis- tening to consumers. "Our intention was never to hurt another Quebec company, Lassonde stated in the release. "As recog- nized by the (Quebec) Court of Appeal, it is essential to protect our trademarks to avoid creating any precedents." " ting was a ruling by the trial judge, Quebec Superior Court Justice Dionysia Zerbisias, in 2010 ordering the juice- maker to pay Kudzman $125,000, including $100,000 to cover her legal fees, and $25,000 in punitive damages for its "menacing and abusive conduct" in defending its trademark even though it knew "it had no exclusive rights to the word oasis." (At the time some 46 trade- mark applications using the word were pending and out of 67 corporate names using the word in Canada, 37 of those were in Quebec.) Zerbisias, while recognizing that What had been precedent-set- Lassonde has an obligation to be vigilant in the protection of its trademark in use since 1965, concluded that the company "using their economic power and experi- ence used a shotgun approach to attack [Olivia's Oasis] on several fronts with their full might, attempting by the pres- ent proceedings to intimidate and thwart Defendant from its legitimate use of its trade name and trade-mark." What were watching for was how the Quebec Court of Appeal would rule on Zerbisias' invocation of the relatively new (since 2009) anti-SLAPP (strategic lawsuit intellectual property lawyers Continued on page 10 www.CANADIAN Lawyermag.com JUNE 2012 9