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 Whenever brand infringement is blatant and for unfair commercial gain such considerations are often superseded by the protection of the core mark, as dilution, confusion and unfair financial gain, weigh more than any shielded form of personal expression.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.