What's In a Name? How About a Big Fat Lawsuit
A recent court case illustrates the risks -- and the potential costs -- of making hasty or ill-informed product naming decisions.
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PrintSmall business owners wear many hats and juggle lots of responsibilities. The last thing they need is a legal headache.
But when the name of your fledgling skin care products sound a lot like a famous hair care line owned by a very large consumer products company, a legal headache is what you’ll get.
The Curious Case of Willa Versus Wella
That’s what’s going on now between Willa and Wella. Willa is a line of skin care products targeting the preteen girls market and is named for the owner’s preteen daughter.
Wella, owned by Product & Gamble, is . . . well . . . Wella.
P&G claims the similar sounding names could cause confusion in the marketplace, and it is taking Willa to task. It started with a classic cease-and-desist letter and is now purusing a lawsuit headed for trial in New York next week.
Willa's legal costs are already reportedly $750,000. Let’s face it, that’s a lot of moisturizer.
Unless the case settles, it will be up to the court to decide whether Willa causes a reasonable likelihood of confusion with Wella. It will look at the package designs and product distribution channels, judge how similar they are, and evaluate whether a customer could mistakenly pick up one product thinking it was the other.
The court will also look at the spelling and phonetic similarities and product categories. Is it the narrow niche of skin care versus hair care? Or will it consider both product lines part of the broader beauty category? Only the court knows for sure. There are lots of nuances to consider.
How to Keep Your Business Out of Willa's Shoes
Regardless of the result, the Willa/Wella case holds some interesting lessons for startup companies:
- Don’t be blinded by sentimental attachments when choosing a company or product name. Honoring a family member is admirable. It shows Willa didn’t intentionally try to play off Wella with a minor spelling change. But good intentions are not enough to keep your business out of the crosshairs. If left unmanaged, good intentions create dangerous legal blind spots.
- Do be proactive and look beyond your good intentions. Try to put yourself in the shoes of a competitor. Anticipate how they might look at it, particularly if trademarks are involved. That’s something your local business or trademark attorney can help you with. They can provide that impartial perspective that you can’t. You’re simply too close to the decision to be objective.
- If you move forward with your original plans and take the risk, remember it can get real expensive real fast. Not every startup business can afford to sustain $750,000 in legal costs. That’s a big piece of change and doesn’t include your time in depositions and preparing for trial, plus the physical and emotional toll it all takes. It’s an exercise that’s definitely not for the faint of heart; no matter how strongly you feel about your case, there will be times you’ll wish you had never unleashed the genie from the bottle. Precious time spent defending your business is time stolen from building your business instead.
None of this means I’m saying, “Don’t do it.” No, not at all.
Instead, all I’m saying is, “Go in with your eyes wide open.” Understand why the big company just might have a case, how and why you could lose, and how much it could cost you. Don’t let your passion blind your objectivity. Then you can decide whether you can afford to take on Goliath.
Hanna Hasl-Kelchner is a business legal strategist, author, speaker and trainer who teaches and coaches business people on how to avoid lawsuits. She is the author of The Business Guide to Legal Literacy: What Every Manager Should Know About the Law and forthcoming Champions: Knock out strategies for health, wealth and success from today’s leading experts. Follow Hanna on Twitter @nononsenselawyr. Subscribe to this blog’s RSS feed to get the latest updates.
