What happens when Goliath maneuvers you into court?
I’ve spoken to a good number of entrepreneurial groups since Killing Giants: 10 Strategies to Topple the Goliath In Your Industry launched in March, and this question has come up a few times.
Giants have more lawyers than you do, can afford to spend more legal fees than you can, and probably can afford to tie you in knots for longer than you want. This seems like a death trap for most Davids. What can you do?
I spoke to Method co-founder Eric Ryan about this yesterday as I recalled that he had gone down this rat hole with his local Goliath, Clorox, not too long ago. If you recall the story, one fine San Francisco morning the company awoke to find a cease and desist letter awaiting it over the use of the daisy on its packaging. Apparently, Clorox owned the daisy and Method’s use of it was violating both the giant’s trademarks and its sense of propriety.
Method’s response gives us an interesting case study in reversing the relative strengths in an unequal fight.
“We were willing to say anything… that was the advantage that we had over them,” Eric told me, “And as a corporation, they weren’t. But they had a lot of lawyers and they tried to take advantage of that situation. I don’t think there was some big evil deliberate plan to come after us, I think it was just part of the machine doing its job.”
Instead of being resigned to the fate of having to fight this absurd fight through the legal system, the company decided to try it in a different court: the court of public opinion, where the rules are slightly different. “When this happened, I thought this was an opportunity to take advantage of it, rather than having to fight it legally. We were never going to back down. We were in the right. We were very careful – we had a lot of lawyers look over it – so we sent a letter back saying let’s let the public decide.”
Method launched a microsite and campaign called “Vote Daisy” around letting the public decide if Clorox, Method or Mother Nature should own the much fought over flower. Method’s vote was cast for Mother Nature. The rest was up to the public.
“When the video went up, the NY Times online posted it… Fast Company and a lot of others picked it up, too,” Eric continued. “The only thing we saw from Clorox was a Facebook posting saying something like, ‘Hey, there’s been a lot of talk about Daisys today, and here’s what so great about Green Works’ and stuff. We heard nothing back to them to this day on the subject. So it worked.”
1. Get people on your side. Don’t try to make this an us-versus-our enemy, but us-versus-evil. You can paint all enemies with the same broad brush if you’re smart and careful. But as Eric said, if he had tried to make this Method versus Clorox, it would have devolved into a shoving match. Evil companies versus Mother Nature? That’s different, fun and easy to win.
2. Remember that risk tolerance isn’t spread evenly in the world. And the bigger the competitor, the smaller the tolerance for crazy things happening outside their control.
3. They have more lawyers? You have more crazy. “If you come after us, we’re not going to be afraid to throw it to the court of public opinion,” Eric told me. “We’re crazy enough to do that.”
* * *
Think back to Bob Hamman’s quote in the beginning of the chapter called, “Eat the Bug.” Bob, who is not only the CEO of promotional insurance company SCA but also the world’s top ranked bridge player, knows a thing or two about risk.
“There’s a bias toward deferring to the most conservative course of action in an organization when you’re looking to get authorization for something—that’s just the way it is, not good, not bad,” Bob told me. “Even if you get the multiple sign-offs required and something goes sideways, human nature comes to the fore and memories get short. We like to assign responsibility for what went wrong instead of chalking it up to bad luck. And bad luck is out there.”
The next time you’re faced with a Goliath and his lawyers breathing down your neck trying to drag you into court, remember what Method did. Goliath hates it when you change the rules – and the venue – on their court date.