Eyes on the market
Eleni Lappa
Greece
Eleni Lappa of IP Work puts forward ideas on cost-efficient ways to protect brands more efficiently in Greece
State of play in brand monitoring
With the establishment of social media as a way of modern life
globally, even in jurisdictions less financially or technologically
advanced than others, such as Greece, brand protection has advanced to a
whole new level of brand monitoring via social networks that now seem
to act as advertising tools. Monitoring social media, however, still has
its limitations in some situations due to freedom of speech
considerations. Whenever brand infringement is blatant and for unfair
commercial gain such considerations are often superseded by the
protection of the core mark, as dilution, confusion and unfair financial
gain, weigh more than any shielded form of personal expression.
What happens, however, in the actual market in financially turbulent
Greece is less easy to monitor or protect against. This is due to the
focus on an online presence, and the frequent lack of local mechanisms
for measuring brand growth (aside from pure sales statistics) and
therefore brand awareness and brand loyalty – the factors that really
make a difference over a brand's lifetime. In relation to potential
infringement, often brands are infringed without the knowledge of the
mother company that is usually located in another jurisdiction and
manages the corporate IP portfolio centrally. Are there ways to fend
against this? Before looking into that the proper question to ask is in
relation to real presence, what makes the brand distinct in the eyes of
the consumer, and how to safeguard it.
Real presence
Today's average Greek consumer is easier to describe and possibly has
a global profile to some extent, precisely due to the influence of the
internet, cross-border transactions and, of course, globalisation. The
alertness of the average consumer is on the one hand heightened due to
the constant, direct or indirect, exposure to brands over the internet
through various channels such as favourite websites and of course social
media. On the other hand however, such influx of information is likely
to at times mix the messages and reduce the consumer's ability to retain
a distinguishable feature for each promoted brand online. Moreover the
pure focus on the online presence of a brand sometimes overlooks what is
perhaps the important criterion in terms of evaluating brands, namely
assessing the appreciation of quality of the branded goods by the
consumer, as opposed to for example, pricing considerations which are of
major practical importance but will not be as long-lived as financial
circumstances will change. In the stock market of brands out there,
covering both the online and the actual market, a basic tool for
securing the distinctiveness of a brand is fending against its
infringement, falsification or unlawful alteration wherever feasible to
do so. Brand protection, even at times of financial turbulence, never
looses its importance, as it inherently highlights the quality of the
branded product and safeguards the consumer's appreciation of the
branded product's quality, which in turn translates to brand awareness,
brand growth and sooner rather than later brand loyalty. Especially when
financial circumstances are harsh in a country like Greece, brand
protection should be more meticulous: over the last few years, in a
financial instability, Greece has seen a rise in infringement. As the
war of brands is now fought with less visibility but with more effective
means than in the past (not simply shelving products next to each other
and trying to target the consumer's attention in the actual stores),
brand owners need to apply a proactive stance in terms of brand
protection and awareness which will itself translate to a higher value
of the brand in the eyes of the consumer. This will itself make the
brand distinctive and foster acceptance of the brand.
Staying in touch
The simple truth is that the local branch or subsidiary of a company
is not always fully aware of the mother company's full IP portfolio
(which is more often than not managed and maintained by the mother
company overseas) and therefore often times there are incidents of
infringement or brand dilution that go unnoticed for years, with the
result of surrendering rights due to prescription. Moreover, the IP
strategies of a company are not always shared with the local networks in
each jurisdiction it operates in and this may also create hit and miss
opportunities for securing the brand's better establishment locally. It
is therefore of utmost importance to ensure there are intra-company
meetings and seminars for the company's brand portfolio and specific IP
needs concerning distinguishing features of origin due to use, any
unregistered rights or other particular issues. Moreover, a full and
thorough listing and familiarisation of the company's brand portfolio
and examples of past infringements in other countries must be in place.
This may be geared towards identifying and bringing up any questionable
issues in the local market, a modus operandi that creates a systematic
and not just ad hoc monitoring channel for the mother company's brand
portfolio.
Another simple yet often unexplored route is to create a forum for
the local IP counsels of a company in which information on encountered
infringements, issued court decisions or other actions taken to fend
against infringement and the related results, may be confidentially
shared. This channel of communication under the auspices of the IP
department of a company would not only ensure the immediate availability
of useful tools for acting against infringements, but also the
uniformity of approach in similar matters, and therefore the company's
stable and consistent stance in similar issues worldwide.
Last but not least, in order to achieve greater efficiency in every
day operations a systematic online monitoring of the main brand
portfolio on a global scale needs to be put in place, both via
internationally known and used sites as well as through local
high-traffic websites (which will probably be easier identified with the
assistance of local counsel). It is not unusual for online infringement
to go hand-in-hand with actual market infringement from the same or
through related sources, therefore such systematic online monitoring may
help fend against various issues before they come up in full force, and
even at earlier stages where litigation is not the only available route
for the brand owner.
Passing off
Passing off may be an invisible enemy, but it is not invincible. Many
times, when it comes to passing off, the source of the counterfeit
products remains a mystery. Whether the traces are hard to decipher, or
the country involved is too exotic and geographically distant for taking
appropriate action against the manufacturer, the fact remains that
there is always room for the argument that cutting off the source means
cutting off the problem. What happens when that is not realistically
feasible? Alternatives, equally efficient and worth exploring, are
acting against the importer and the distributor of the counterfeit goods
(identifying them via local customs offices would be best whenever
there is such a network) and doing so not just on the litigation front.
On a commercial level, through the brand owner's local subsidiary and
their local commercial network, it is always worth considering whether
there are other means of fast and efficient action by trying to cut off
the spider-web of the counterfeit product's importer or distributor.
Increasing brand value
Hand in hand collaboration with the local branch or network goes hand
in hand with successful brand monitoring. Aside from that the
flexibility and adaptability in brand portfolio management has been in
most cases the lynchpin of success in terms of avoiding unnecessary
disputes and ensuring there are always clear signs of the increasing of
brand value in the local market.
In terms of the current signs of the times affecting also brand
exposure, one wonders what is the real stamina of social media, and is
their current establishment as the must-have marketing tool here to
stay? Or is this just another sign of the times which will also evolve
and perhaps be replaced by another type of platform for expression to
the consuming public? On the one hand it is not uncommon amongst IP
strategists to factor in the online presence of a brand even if
presented in a hostile site or social media page, since it is well known
and true that there is no such thing as bad publicity. On the other
hand, what the recent widespread financial crisis has taught us is that
people these days refuse to live in a shell and instead seek more actual
human interaction, thus limiting the exclusivity of the online
influence on their lives which, for a while there, seemed to be
all-powerful.
It therefore seems that the actual market presence still has its
importance and definitely retains its influence over consumers. A
well-rounded approach factoring that aspect in and coordinating with the
local market unit (aside from monitoring the online aspect) seems to be
the safest route available for effective and efficient brand protection
with tangible results, especially in jurisdictions such as Greece, that
remain on the cusp when it comes to a preference of online over offline
transactions.