Dr. P and the Roses

Be careful what you wish for, because you just may get it. And be careful whose intellectual property you’re wishing on, because if things turn bad, you may get it in court.

Those are two of the primary lessons to be learned from the buzz-marketing blow-up surrounding the giveaway stunt that beverage maker Dr Pepper attempted to pull off around the delayed release of the latest Guns N’ Roses album early last month.

Back in March 2008, Dr Pepper, now owned by the Dr Pepper Snapple Group, made a promise that it would give a free soda to every man, woman and child in America who wanted one if Axl Rose’s onetime super group finally released its long-awaited album “Chinese Democracy” from 14 years of studio captivity.

An unbranded blog on the subject appeared to build the buzz about the album. When Geffen Records announced in October that the album would indeed appear, Dr Pepper spelled out the redemption details: Fans would have 24 hours on Sunday, Nov. 23, to enter their contact information at www.DrPepper.com. They would then be mailed a paper coupon for a free 20-ounce Dr Pepper, redeemable until February 28.

But reality intervened, first in the form of a server breakdown pretty early on the day of the coupon promotion. Reports said visitors were unable to log on to the Web site itself and, once they did get in, were not able to fill out the forms needed to receive the coupon. The company extended the online offer until midday Monday, Nov. 24, and added a toll-free number. But that, too, was quickly jammed with callers.

The second plague descended on Dr Pepper’s head within days: a letter from Beverly Hills attorney Alan Gutman representing Axl Rose and his band accusing the company of unlawfully using the band’s name in a promotion and then botching that promotion, tarnishing their image in the eyes of their public.

He may have a point, although chances are it would have gone unmade had Dr Pepper been able to keep its servers running and its promise to GNR fans fulfilled.

For one thing, Dr Pepper could have avoided the problem by more thoroughly load-testing its servers before the launch. “The big mistake that causes problems like the Dr Pepper fiasco is that marketing departments don’t spend time in advance to fully vet the impact with the operations and engineering people,” says Peter Kirwan, chief strategy officer for Web performance monitoring company WebMetrics. “Marketing needs to come up with several ‘what-if’ scenarios, including a large number of users.”

They also need to inform their Webmasters what most of that traffic will be doing once it gets to the site. “Will they all be hitting the same Web page at the same time?” Kirwan asks. “Will they be browsing, or will they be completing a transaction or submitting a form? The latter takes more processing power, but the former may be more bandwidth intensive.”

Once the servers crashed, Dr Pepper could probably have shielded itself from legal action with a clear, formal promotional relationship with Guns N’ Roses. It’s less rock ‘n’ roll to spell out liabilities in a legal document, but substantially safer.

Discussing a similar but hypothetical case at last November’s Promotion Marketing Association legal conference in Chicago, Po Yi, vice president and chief advertising counsel for American Express Travel Related Services, pointed out that mentioning such a piggyback promo in a press release could wrongly imply an endorsement by the celebrity or figure. Since that release is commercial speech and thus not protected by the First Amendment, the marketing brand could be held at fault.

“I would counsel my clients to get some kind of release from the individual members” before issuing a release, she said. Still speaking in theory, she added that using a trademark name in the promotion could also open the marketer up to infringement claims. Guns N’ Roses is a trademarked name.

Time will tell how the lawsuit plays out. But the good Dr P may soon get another chance to stress-test those servers. Some visitors who complained online about being unable to sign up for their coupons say they received e-mail from the company’s customer relations department promising free coupons for Diet Dr Pepper starting Jan. 1.