Think for a moment about how profoundly technology has changed the brand landscape. Just a couple of decades ago, companies looking to reach a national audience would have to spend millions on television and print advertising, direct mail or catalogues. Reaching a global audience was unthinkable for all but the largest multinational brands.
All that has changed. Today, virtually any brand owner, large or small, can reach customers and prospects around the world with minimal investment. The barriers to market entry have not merely been lowered – they have been obliterated.
The Internet, social media, digital streaming media and mobile broadband networks and smart devices have ushered in a new era of real-time, unfiltered, highly personalised, multi-channel communications that are literally rewriting the rules of brand management and marketing. They have also given rise to new threats that are forcing brand owners and their IP counsel to rethink how they view the challenge of protecting their brands. Fortunately, these same technologies have given brand owners and IP professionals new tools for managing these risks.
A double-edged sword
Just as technology has made it easier for brand owners to reach global audiences, it has also made it possible for those with criminal intent to create a convincing online storefront, posing as a well-known brand site. Whether the intention is to sell counterfeit goods or to steal personal information, consumers may have difficulty recognising that such a site is not authentic – and law enforcement may also struggle in identifying and prosecuting the offender. Technology has made anonymous crime on the Internet extremely easy.
Social media has brought its own transformation to brand managers and marketers and the impact has been immense. As one example, consider the statistics from the 2015 Super Bowl football game – perhaps the largest single advertising event in the US media calendar. According to AdWeek, there were more than 9.4 million social media engagements and more than 4 million unique users during Super Bowl XLIX, with spikes in engagement during key plays and during the most popular television commercials. That is a lot of brand impressions – and a lot of potential risk for brand owners.
The risk arises because user-generated content – the coin of the realm in social media – often contains references to brands. While any tweet, Instagram or Facebook post could serve as a free endorsement, it could just as easily involve brand misuse or abuse. Worse still, someone could grab social media handles or hashtags that impersonate brands to give the impression that the comment is generated by the brand owner. With new social media platforms coming online all the time, this is an expanding area of brand risk.
Counterfeiting on the rise
Another area of growing risk for brands is counterfeiting. According to the International Anti-Counterfeiting Coalition, counterfeiting has increased by more than 10,000% over the past 20 years, from an estimated $5 billion in annual revenues in the early 1980s to $600 billion in 2012. The Internet, social media and other online channels have played a major role is this growth. Instead of selling fake goods on a street corner, counterfeiters today are sophisticated, marketing their wares via online auction sites or websites that look like established companies selling authentic brands. Counterfeiters particularly target luxury goods and pose real risk to some of the world’s best-known brands.
Counterfeiting may become even more pervasive thanks to the emergence of three-dimensional (3D) printing technologies. As the cost of this technology drops and availability increases, virtually anyone with a desktop 3D printer will be able to produce all kinds of convincing counterfeit goods quickly and cheaply. This technology can also be used to ‘knock off’ a product’s distinctive 3D packaging or trade dress to deceive consumers.
The mobile revolution
Another dimension of technology that affects brand owners is the ubiquity of mobile smart devices and the accompanying app explosion. This has been a boon for brand owners, giving them an effective way to engage with customers. But it has also created tremendous opportunities for criminals. For those with the right programming skills, creating an app that infringes on a brand can be even easier than creating a website. This is driving a rapid rise in apps that use trademarks without authorisation, that pretend to be related to branded products or services or that enable sales of counterfeit merchandise – as well as phishing apps designed to steal personal information and brand abuse in other forms.
The need for vigilance
So what is a brand owner to do? Like it or not, today’s technological landscape demands increased vigilance on the part of brand owners and their legal advisers – and this vigilance has both external and internal dimensions.
Externally, brand owners need to be aware of what is happening to their brands across the media spectrum, both online and offline. Waiting passively until an infringement comes to their attention is simply not an option – the speed at which online communications proliferate means that one infringement could be multiplied many times in just hours, or even minutes. This necessitates a proactive strategy with the goal of identifying potential threats before they are repeated throughout cyberspace.
Internally, companies must be just as vigilant about their own use of social media and other online channels, as these platforms become increasingly important to their own marketing strategies. There have been some notable social media marketing coups, such as the now-famous tweet by Arby’s during the 2015 Grammy Awards having some fun with Pharrell Williams’s signature hat, which resembled the Arby’s logo. It reportedly generated 75,000 retweets and more than 40,000 favourites by the next morning, not to mention all the news coverage of the exchange.
But there have also been some equally well-publicised social media disasters that caused major public relations headaches for companies. Understanding the context of an online discussion and making sure that any message or image posted is appropriate to the situation are crucial. Get it wrong and it can do real damage to your brand – exactly the opposite of what was intended.
Changing the game
This reality is changing the way marketers and IP counsel work together in some surprising ways. One example is companies using social media to promote their brands by posting comments during key sporting or media events. In some cases, their in-house or outside legal teams are setting up on-site teams during the event where attorneys review outgoing social media content in real time, to ensure that messages are appropriate and brand compliant and do not infringe the intellectual property of others.
In the global online marketplace, it is not just major brands that need to be vigilant. Even relatively small companies are now using the Internet, social media and mobile platforms to extend the reach of their brands nationally and even internationally. Making sure that trademarks or company names do not infringe those of others is more critical than ever as they move beyond their local or regional market and enter the global arena. Clearing a mark before it goes live can help to avoid a potentially costly and frustrating conflict.
While technology has fundamentally changed the brand landscape, the old rules still apply. Social media and other online or mobile technology interactions must respect the rights of individuals and brand owners, just like any other commercial communication.
Consider the recent case of a New York drug store chain that posted on social media a photo of actress Katherine Heigl carrying shopping bags from the store. Heigl sued, claiming that the chain had violated the false advertising provision of the Lanham Act and civil rights statutes regarding protection of her likeness for commercial purposes. The multimillion-dollar suit was settled out of court on undisclosed terms.
Since it is virtually impossible for senior management or the legal team to review every social media post, some companies have developed clear social media guidelines to complement existing brand guidelines. These spell out to marketers and other company spokespeople what they can and cannot say about their brands and about other parties, with the intention of mitigating the risks of infringement and public relations fiascos.
Technology to the rescue
So technology is creating a host of new challenges for brand owners and their legal counsel. But it is also providing new tools for meeting these challenges.
Perhaps the greatest challenge posed by the Internet is one of volume. With literally thousands or even millions of potential infringements occurring in cyberspace at any moment, how can the owner of a major brand chase them all down and respond rapidly and appropriately?
Advanced search technologies may provide the answer, enabling users to sort and filter through thousands or even millions of ‘hits’ to identify those that match a specified risk profile. Image matching technology is now mature and effective, sifting through results to identify instances of unauthorised use of logos, product images or other visual intellectual property – including uses that may indicate counterfeit activity. Similar search technologies are also available for other types of media – including mobile apps, a rapidly growing area of content delivery. The results of these searches can be valuable evidence, should the case lead to civil litigation or law enforcement proceedings.
Technology also provides new tools for responding to cases of suspected infringement. Brand owners and legal counsel can now automate the process of sending very high volumes – even millions – of enforcement notifications quickly and cost effectively. Alerting infringers that you are aware of unauthorised use is a crucial step, not just to encourage them to cease and desist, but also to provide evidence that you are proactively defending your brand in the event of a legal challenge. While the most serious infringements will still demand a more focused and costly response, technology can help to winnow down the number of such cases by enabling brand owners to make informed judgements about relative risk quickly and cost effectively.
Similar search technology is also available to streamline the clearing of new brands. With the explosion in brand communications fuelled by the Internet, mobile technology and social media, trademark clearance is more challenging than ever before. New automated search technologies enable IP professionals to perform their own trademark searches for word and design marks, covering both trademark registries and common law sources, in a fraction of the time required for a traditional ‘human’ trademark search. This can dramatically accelerate the process of clearing a new brand, enabling the brand owner to get to market faster while still effectively managing risk.
Technology is also changing the way that brand owners and IP professionals work together to defend trademarks. New collaboration platforms, integrated with trademark searching and watching systems, enable rapid and efficient decision making from any location at any time. Given the speed with which content proliferates over the Internet, responding quickly to serious cases of infringement is crucial.
Meeting the challenge
Technology has transformed the way that we live, work, shop and play. This presents tremendous opportunities to brand owners, but it also requires heightened vigilance and agility. Fortunately, technology can help to facilitate and accelerate the protection of valuable brands across the full spectrum of channels.
New and emerging technologies for detecting, assessing and responding to suspected brand misuse and infringement can help brand owners to manage today’s complex risks. However, like the threats themselves, these technologies and the strategies behind them must continually evolve to keep pace with the infringers and counterfeiters – who continue to prove themselves innovative and resourceful.
To meet the challenge, brand owners must be more vigilant, better informed, better advised and more proactive than ever before. In the face of expanding threats and tight budgets, technology will become an increasingly valuable ally for protecting brands in the digital age.
This article first appeared in World Trademark Review. For further information please visit www.worldtrademarkreview.com.