Considering Brandter? Some things to think about

There has been a significant increase in the number of brands engaging in banter with their customers and competitors on social media. Here are some things to think about from a legal and practical perspective before you get involved.

Carter Wilkerson is approaching national hero status in the US after tweeting fast-food chain Wendy's asking how many re-tweets he would need to win free chicken nuggets for a year. 18 million was the answer and when Carter's tweet broke the re-tweeting record of 3.2 million (set by Ellen DeGeneres with her 2014 Oscar selfie) Wendy's donated £100,000 to charity in Carter's honour. Despite not hitting the 18 million threshold Wendy's decided that this record breaking feat was deserving of free nuggets replying, just five days after the original tweet, 'He gets them nuggs'.

The positive PR for Wendy's in this case is unquantifiable but what is also interesting are the other brands seeking to feast on these winnings by engaging with Carter and his nugget phenomenon. United Airlines has offered free flights to take him to any Wendy's in the US, Coca Cola has offered him an 'Ice Cold Coke' branded 'Nugget Boy' to accompany his nuggets and Martha Hunt (the Victoria's Secret model) has offered him a 'Frosty' to accompany his nuggets if he ever finds himself in New York. This sort of activity has been described as 'brand jacking' and 'brandter' and is certainly not unfamiliar territory for Wendy's.

The brandter following the #NuggsforCarter campaign has been almost entirely collaborative, especially following the inclusion of a charitable angle but this is not always the case. Wendy's recently suggested to a Twitter follower that the nearest McDonalds can be found in a rubbish bin and informing another that the cost of a Big Mac is 'Your Dignity'. KitKat challenged Oreo to a noughts and crosses game to win the affection of a Twitter fan – Oreo ate the KitKat. Branter is on the increase and brands need to consider carefully whether or not to engage.

Engagement comes in two forms:

• responsive – if another brand or an individual targets your brand will you respond with brandter?
• active – will you actively seek opportunities to instigate brandter if an appropriate situation presents itself?

Should you take the decision to engage in brandter we have suggested below some of the key issues you should look out for and consider in advance so that you are ready to engage when the moment strikes:

• Control: Are you willing to give up a degree of control of your social media channel to another brand? It will be hard to wind back a brandter campaign that has sparked the interest of the public but which could leave your brand open, at the very least, to mockery and, in a worst case scenario, to a defamation suit.
• Speed: Don't get involved if you aren't ready to respond quickly and effectively. Much like ambush marketing, brandter needs to happen in the moment and it needs to move quickly to stay interesting. The business (including the directors) needs to be on board with this concept – there may not be time to get the usual copy clearance or approval.
• Access: Make sure that whoever has control of the social media account (and fundamentally whoever knows the log-on details) is available on short notice just in case things start to escalate and you need to pull down the content at short notice.
• Intellectual Property: Consider whether you need any intellectual property licences before you post anything relating to another brand – using a picture, logo or slogan without permission could land you in hot water. Make sure you have the right to do what you want to do.
• Message: Ensure that those involved in responding to or creating brandter are pushing the business' agenda and not their own. As above, there may not be time for the normal approval or clearance process so those with access to the accounts must be on message. Make sure the boundaries are clear and that someone with an understanding of IP, discrimination law and libel/defamation are available on short notice to quickly check any copy.
• Risk: Think about the other brand – are they litigious or aggressive? Are they someone you want to be associated with even in a light-hearted context?

Engaging in brandter can be a cheap and effective way to gain incredible publicity (how cheap this stunt was for Wendy's will depend on Carter Wilkinson's propensity for nuggets – presumably he will tire of them at some point). The key to a successful campaign has to be ensuring that those responsible are fully briefed on their parameters but also given sufficient freedom to make a splash.

This article was written by Caroline Swain.

For more information, please contact Caroline on +44 (0)20 7203 5158 or at caroline.swain@crsblaw.com.