Brand protection 101 – Part 2: The programmes
To effectively fight counterfeiters your strategy needs to understand what tactics they are using.
This comprehensive guide is designed to arm you with the essentials of online brand protection. In Brand Protection 101 part one, we explored key types of intellectual property and the relevant laws in the UK, US and EU that can be harnessed against bad actors. This will help you to identify where your brand is being infringed, how this infringement can be categorised, and when common law is applicable for enforcement action.
This week, we conclude our Brand Protection 101 guide with a breakdown of online brand protection programmes and when they are relevant to implement. We discuss core types of infringement and specific tools that can be used to combat bad actors.
Brand protection – What is it?
There are two cores types of brand protection programmes and which you follow depends on the nature of your brand’s issue and the scale of infringement. For brands that are plagued by fake products, anti-counterfeiting programmes supply the tools necessary to fight bad actors and regain lost sales. For brands that are concerned with false association and traffic diversion, or merely want to be alerted to emerging threats before they can increase in scale, a monitoring programme is recommended.
Counterfeiting is designed to deceive the well-intentioned customer to make them believe they are buying a genuine product. Knock-offs (non-identical imitation goods that do not feature branding or trademarks), often do not meet the criteria of what a brand considers to be a ‘true’ counterfeit, as they are very low quality, and their target customers are unlikely to purchase the genuine article. Counterfeits, on the other hand, are increasingly made at scale by criminal organisations with access to high-quality materials and wide distribution networks. Thus, it is more difficult for consumers and brand owners to discern between what is real and what is fake, and sales from the well-intentioned customers are lost.
Anti-counterfeiting programmes aim at identifying and enforcing counterfeits on online marketplaces, websites, social media, paid search, and mobile & messaging apps. Sophisticated programmes make use of image and keyword matching technology. Most importantly, however, is clustering technology that links together related entities within counterfeiting operations and facilitates enforcement at a network level.
Monitoring programmes focus on keeping track of the online use of trademarks and brand names by resellers, partners and other affiliated (or non-affiliated) parties. Rather than trawling for counterfeits, these brand protection programmes instead target infringement such as unauthorised use, false association and cybersquatting.
Unauthorised use and false association
Under the first sale doctrine (US, UK and EU) individuals that purchase a legitimate trademarked product are permitted to sell and display that product, notwithstanding the interests of the rights holder. Unauthorised resellers are not enforceable under platform policy directly. However, if they use copyrighted materials (stock imagery from a brand’s own website, for example), make false claims about a product, brand, warranty, or alter the product itself in any way, they become infringing.
False association is creating the appearance of a relationship that may be illegitimate or fraudulent, but where there may be a relationship of some kind in existence. Unauthorised use is the creation of a relationship where none previously existed. Monitoring programmes identity third party resellers that infringe copyright or make claims that amount to false association or unauthorised use. Brand owners can then either enforce against these infringers or attempt to convert them into official partners to make use of their distribution networks and pool of customers.
Traffic diversion and cybersquatting
Traffic diversion refers to the practice of hijacking a brand or trademark to redirect traffic to illegitimate or competitive websites. Misspellings in URLs and unofficial site names that include trademarks and domains are examples of traffic diversion and often link to sites promoting scams, phishing schemes, or counterfeits.
Cybersquatting in the context of brand protection refers to bad-faith registration of internet domains that include well-known company or brand names, for the purpose of generating profit through ad revenue or resale. The US Anticybersquatting Consumer Protection Act (ACPA) allows for enforcement against bad faith registration of domain names confusingly similar to existing trademarks. The General Data Protection Regulation (GDPR) in the EU and European Economic Area (EEA), however, mandates that domain name registrars and registries no longer publicly display identifying information about registrants, complicating enforcement for brands.
Effective monitoring programmes use constantly evolving databases and advanced keyword and image matching technology to discover sites that cybersquat or use trademarks to divert traffic. Harnessing the law and technology, rights holders can request ID information of registrants (the domain owner) suspected of infringement from registrars, registries, or ICANN (organisation for domain name system management) and then seize or shut down any illicit domains.
A brand protection solution tailored to your issues
You’re now ready to start looking into brand protection solutions that can be tailored to your brand’s unique issues. Learn how to measure the effectiveness of your chosen brand protection strategy with Forrester’s Total Economic Impact report.
If you need to refresh your understanding as to why you might need a brand protection solution, read our definitive guide here.
At Incopro, we work with our clients to create effective Brand Protection solutions, leveraging our expertise in intellectual property, criminal intelligence and technical design. If you believe your IP is being infringed and are interested in see to the scale of the online threats, you can request a customized Talisman below from on of our experts.
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