How has the
Changed BP

Given the rapidly changing landscape of our world with the COVID-19 pandemic, our strategies in brand protection are in flux. In this edition we asked practitioners:

No one expects a worldwide health pandemic. Yet these last several months the coronavirus has spread across the world causing death, illness and a disruption of business across all industries. In what way has this crisis caused a pivoting or modification of brand protection strategy?

Due to the nature of the question, we allowed for longer answers in service of this crucial question. We also included with the participant’s response, a “time stamp” indicating when their answer was received. Given the fluid nature of the effects of the crisis, we anticipate changes in strategy as practitioners continue to ensure that they are effectively protecting their brands.

John Abrenilla
Director, Global Security & Investigations
Seagate Technology

[time stamp: May 3, 5:35 AM]

COVID-19 has shifted consumer and workplace behavior for the long term, which has created some unique challenges for hardware electronics manufacturers. These companies have seen an increase in e-commerce sales, marketplace activity, gaming, and edge applications at home. The three ways in which a company can pivot their brand protection strategy:

  • actively monitor the company’s official online presence,
  • analyze the e-commerce sales spillover to regional marketplace platforms, and
  • review anomalous behavior in social media chatter and negative sentiment.

Marketplaces have now become the new norm for consumers to find their go-to products. Given the decrease in department store foot traffic and the exponential increase in online activity, brand owners need to shift their strategy and secure their digital inventory. Counterfeit sellers are increasing their efforts in hijacking official product pages by driving low prices on Amazon or misrepresenting your brand on a promoted page. It’s essential to keep an eye on the inventory of product pages for your brand and actively enforce the pages that misrepresent it.

The online consumer surge has created a spillover effect of sales into smaller regional marketplaces that don’t have official brand registry programs. Marketplace monitoring has never been more critical, and driving effective partnerships with these new platforms is essential in protecting your brand and consumers from buying the wrong product. Counterfeit sellers are removed from official channels and naturally move to lesser-known regional marketplaces to off-load their inventory as well. If companies conduct enforcement actions on significant platforms, they can ensure asset protection is available for the entire eco-system.

Social media chatter and negative sentiment have increased significantly in this new norm. Analyze and understand these new normals using machine learning and anomaly detection. Normal distributions in pre-COVID-19 can be the baseline in which you compare anomalies. A sudden spike in negative reviews for a specific product or region could mean a disruptive seller is present. Product sales can thrive on great reviews, but the sub-par product would drive consumers to report, which causes a ripple effect negatively. Sentiment analytics will help you stay ahead of trends and ensure that negatively impacted customers have resources.

Interesting read on the subject in Forbes.

Frederick Spaeth, Esq.
Dilworth IP, LLC

[time stamp: May 7, 8:58 PM]

The Covid-19 crisis forced a re-balancing of ordinary brand protection strategies to a scale unprecedented in recent history. The shift can be seen most clearly in three areas: taking action against knockoffs, customer education, and brand expansion. 
For many businesses, preventing trademark infringement has been suddenly elevated from a matter of routine brand protection to a national priority. For example, when the supply of genuine N95 respirators ran short, counterfeits carrying unauthorized NIOSH certification and brand labels flooded the market, sometimes at exorbitant prices. Desperate customers, relying on the reputation of the brands known to produce these items, were easily lured into placing orders for these inferior products. Therefore, enforcing the right of exclusive control of the use of these brand symbols had to be made a high priority to prevent respected brands from becoming associated with unexpected product failures and price-gouging. 3M has been prominent in this regard as a mask manufacturer by quickly going to court to protect its brand and its customers from over-priced, sub-standard knockoffs. The 3M company has filed suits against numerous vendors, some of whom targeted emergency officials in several states, offering to supply billions of nonexistent N95 respirators at highly inflated prices. (See 3M, 2020). A more recent report puts the lawsuits at 10.
Customer education has become a key component of preserving brand loyalty when supplies are limited and counterfeits abound. (See Clorox, 2020). Customers need to understand what component or unseen feature of a genuine product —such as hand sanitizer, hard surface cleaner or an air filter —makes the product effective, and to be assured that the brand they are familiar with is dedicated to delivering results. (See Clorox, 2020). It is also important for customers to know that a company will not take advantage of a critical need for supply of its product by demanding unfair prices. (See Clorox, 2020 and 3M, 2020). Customer education can also be a critical tool in dispelling misconceptions that can lead customers to misuse products in dangerous ways; thus, protecting the brand from potentially tragic associations. (See RB, 2020)
Thirdly, many companies, ranging from beverage producers to automobile manufacturers, have adapted their manufacturing facilities to help meet critical needs for products outside their traditional niche —such as disinfectants (See Brunner, 2020), respirators (See 4jax.com, 2020) and masks, to help respond to the crisis. In other cases, companies are making sizeable donations of their existing products or services, or available money. Efforts such as these serve to build genuine loyalty to corporate brands in indelible ways. Additionally, such efforts bring the brands into public awareness in new ways, creating opportunities for future growth.
Finally, history teaches that in meeting the challenges of a crisis, we often find new opportunities. As one outgrowth of the current crisis, the USPTO is now examining close to 200 applications to register goods or services under a COVID brand. Going forward, we may also see existing brands expand into areas that they would not have explored if they had not risen to meet today’s challenges.