Online Global Brand Protection & IP Basics – 101 if you will….

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Online Global Brand Protection & IP Basics – 101 if you will….

July 25, 2022
Howell & Associates

Let’s start a true “Brand Protection Basics” conversation this morning, something I have been eluding to the last few weeks.

To start the conversation, I always feel it’s my obligation to ask any a few simple questions before even starting any brand protection discussions;

What are your overall goal(s) with your brand protection program?
How will you determine a level of success in 12 to 24 months with your brand protection program?

As a brand, have you ever been asked those basic questions? We can ask many other questions when talking about a brand protection strategy but it is my experience that just those 2 questions can give one the information needed to start a detailed conversation. Setting the proper expectation around a brands goals and their level and time-frame of success is critical. I personally have seen many programs fail because of a simple lack of setting the proper expectations. “I want all unauthorized third-party sellers on a xyz marketplace removed in the next 6 months” Yeah, that isn’t realistic in any world we live in and for one to think it is might be a little off their rocker. However, what if 60% or even just 40% of those unauthorized third-party sellers are taken down in 12 months, is that a level of success? Usually, I hear “Absolutely, you would make me a hero” There you go, set the right expectations and don’t be a “Yes Person”.

So let’s try to answer the question, why is this happening to brands online? We can answer that with one word “Diversion” – Webster Definition – an instance of turning something aside from its natural course. In my experience, virtually every example of brand infringement online is some level of diversion. What type of diversion will depend on one of the 5 areas we will discuss. Basically, it all comes down to Money. From website traffic to online sales, it all comes down to someone diverting the consumer for the purpose of generating revenue. We can as well dive into this in a separate discussion, as some of the examples I have seen can really make someone think.

Before we dive into what I personally feel are the primary areas of Brand Protection. We need to think about the 3 core components that should be part of any brand protection program. I have been speaking to this for close to 15 years now and it is even truer today with where Omni-Channels are exploding. (We will dive much deeper into all these areas in later posts)

Monitoring – How one identifies possible infringements online
Research – the Who, What, Where, When and Why of the infringement – Due Diligence Enforcement – Taking action – Steps 1 & 2 are useless if one doesn’t take any action to solve infringements.

* Omnichannel (also spelled omni-channel) is a multichannel approach to sales and information sharing that seeks to provide the customer with a seamless shopping experience whether the customer is shopping online from a desktop or mobile device, by telephone or in a bricks and mortar store.
I will go on record in saying “If you do not have these 3 components in your brand protection program, you will fail” Speaking from personal experience of course. Let’s think about this and break it down a little; Monitoring alone will not solve a problem, we cannot just see what is hurting our brand. Skipping research will not give you the information you need to properly enforce, so much is hidden online these days that we need to insure we are enforcing properly. Lastly if we exclude enforcement why are we bothering with monitoring and research, that would just be time and money spent in vain. I think one can see where I am coming from here.

Now let’s talk about the basic areas I have been eluding to;

I have always essentially broken down any type of global brand protection or intellectual property monitoring into 5 basic areas:

Domain Name Monitoring 2. Website Content 3. Social Media 4. Pay-Per-Click (or PPC and AdWord Advertising bidding) 5. Grey Market/Counterfeit sales
Please keep in mind, I do understand one can think of many other areas or subcategories, however I want to cover the basics this evening. I also understand you can break up Grey Market and Counterfeit sales, but for my discussions here, we can categorize them together.

I will try to briefly explain what each of these areas of brand monitoring is:

I define Domain Name Monitoring as watching all domain name registrations, both gtld, cctlds and now the New TLD’s globally, for correlation with your Trademarks, Brands products and so on. I have always stated that the zone report are critical, due to the structure of gtld’s zone files in some cases, shut down the registration before it even propagates to a live website.

CCTLD is Country Code Top Level Domain and refers to foreign domains such as .ru for Russia or for United Kingdom, and GTLD is Generic Top Level Domains or .com, .net, .org. New tld’s are .xyz or .travel
– Website Content is usually where the bulk of the infringing content is found. Searching the hidden and visible text of the website, beyond the basic content, and uncover such hidden text like meta descriptions, image titles or programming text with infringing content. This is a perfect example of how one shouldn’t stop at just infringing domains; go after all infringement.

– Social Media Monitoring: social media monitoring services now can monitor over 600+ global social media networks, essentially for trending, customer satisfaction, product reviews and public relations. Enforcement is traditionally more difficult in social media outlets due to 1st amendment protections, and the Universal Declaration of Human Rights, but Marketing or Sales departments can make excellent use of the unprecedented amount of data gathered. Needless to say this have never been a favorite area of mine, but one can say a necessary evil. Given the nature of todays Social Media and “opinions” lead to almost 1000 to 1 ratio of false positives, defiantly not in favor of actionable or relevant date once can use. This usually leads to diminishing returns on one investment of such a service. That being said, having the ability to filter social media results into sentiments such as Positive, Neutral and/or Negative can help narrow the data to a more reasonable level.

– Pay-Per-Click or PPC and AdWord Advertising bidding is a much more stealth violation of your brand by using your legally held keywords to divert your traffic and increase your digital marketing costs. This is perhaps the most overlooked violation and is arguably the most egregious. One can address this by monitoring search advertising networks like Google, Yahoo and Bing, globally, and then fine sorting by Geography. One should catalog the results and to give the brand the ammunition to enforce against the violation.

*Keyword bidding is a situation where when you put your brand in a Google search bar, other advertisements appear, unrelated to your brand and unauthorized. Sponsored or shopping listings are among the most popular.

Similarly, for Grey Market & Counterfeit sales, one should strive to eliminate product dilution and price erosion by focusing on online Marketplaces. Grey Market sales seem to happen more on the Amazon or EBay’s of the world, where Counterfeit isn’t limited to but primarily on Asian Markets such as AliExpress, Aliabba and TaoBao. Having success enforcing under IP Rights and taking down the infringing listings. This is an endurance contest and over time you will see the ceasing of infringement from the bulk of sellers. This last area can open a whole can of worms as it can be the most impactful.

*Grey market is a situation where sales are made outside company compliance rules and approved channels or markets, with real products, counterfeit, or third shift items. Third shift is where a foreign factory, using its own materials and labor, produce actual products for market, but none of the revenue is realized by the actual company.

A brands goal in the end will be to move one’s organization from a reactive brand monitoring or protection posture to a more proactive, enforcing stance. With aggressive monitoring one can react much more quickly to accomplish this level of escalation online. I understand that given the nature of the internet, something has to happen to be able to identify and take action, but if one can be proactive in identifying rather quickly when something happens against a brand or trademark that same person can act quickly to enforce to mitigate any possible damages.

There are many brand monitoring companies currently on the market, one should consider their ability to deliver accurate and actionable data in a very timely manner. A true brand protection company should always strive not to deliver false positives or non-actionable data, as that creates more work for you and your organization in the end. I also always encourage asking any brand protection company the hard questions. What are those hard questions, lets dive into that in the next conversation?

How a brand protection company can help you should be to focus on the two components that lead up to the enforcement actions such as: sending Cease and Desist or Demand Letters, take down Grey Market and Counterfeit Sales within online marketplaces, provide for full UDRP Services (Uniform Dispute Resolution Policy) and research and investigation services to uncover anonymous third party marketplace sellers or Domain registrations under the Deficiency Check system employed by UDRP enforcement.

Please do not hesitate to reach out to me – I look forward to answering questions and feedback regarding this topic and others soon to be posted. I will be covering all aspects of Brand Protection Basics – a FREE source of advice and discussions

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