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Marques 36: Are we prepared for Brand Protection 2.0?

Back with vigour and energy, Marques 36 suggested technology and professional change will drive multi-dimensional brand futures

Alvin Toffler, noted futurist of the 20th century, reportedly said that the illiterate of the 21st century would not be those who could not read or write, but be those who could not learn, unlearn, and relearn. Reissued in a Marques 36 presentation, the quote could have been tailor-made for a profession undergoing radical shift.

That learning/unlearning/relearning evolution may now involve a massive emphasis on considering the impact of technology forces not merely within the trademark world but far beyond it. What are the likely trajectories of brand protection as virtual worlds take root in enormously influential ways, whilst brands, their meaning and their values are under scrutiny as never before?

Digging deep on any of these issues means getting rather rapidly from the merely problematic to the completely uncharted.

And at Marques 36, we dug deep.

Our seven takeaways:

AI: clever, but not too clever, or perhaps very clever…

#1. In showing a powerful demonstration of Rocketeer, an AI-based advisor he had developed, IP lawyer-cum-tech-innovator Darren Meale of Simmons and Simmons posed a fundamental question: “Is AI better than you at trademarks?”. Moving quickly to the answer, he says, “Yes, but only sometimes.” The qualifications are necessary, the definitions important, the “right” applications vital. AI tech may make big impact, but for the moment it is best at relatively structured tasks where it can apply rules in a highly consistent way, or it can provide instant recall for large amounts of data.

AI: Getting good AI tools to process trademarks will take time to develop

#2. As a result, don’t expect the trademark profession to be replaced by robots anytime soon. Technological redesign of parts of the procedural aspects of trademark ecosystems is possible but will be complex, and probably piecemeal. IPO executives seem to be relatively cautious in their expectations although many technology tools are being trialled.

One senior commentator suggested that the development paths of public sector and private sector realisations of AI-based trademark tools are likely to be very different at least for the foreseeable future. Expect a lot of visibility in useful virtual assistant-type systems in the major filing domains, however. According to one speaker, we are getting to the stage of asking the right questions.

Blockchain sees realistic end-to-end track and trace applications emerge

#3. Unlike AI, blockchain applications are now emerging in brand protection particularly in critical supply chains where they can be deployed as a complete solution. An impressive case study emerged from Singapore based Zuellig Pharma which have developed an end-to-end pharma protection blockchain based system based. Zuellig Pharma’s Michelle Tan says the rationale for blockchain includes “trust, compliance, scalability, transparency, and consensus-based.”

Blockchain architectures have several advantages according to the Ms Tan: end-to-end authentic product traceability, real time verification technology, and data connectivity and visualization of potential counterfeit activities.

The metaverse: A rush for the Second, Second Life?

#4. Propelled by enormous tech resources, global brand after global brand seems to be heading full tilt into the metaverse, that Next Big Thing buzzword of the moment. Diageo’s Jimmy Klein argues the big development has been that blockchain, NFT, crypto, VR/AR and systems enabled with 5G have finally come together to create and support this fluid and fused mix of physical and virtual realities as an immersive experience. Much of the interest in metaverse is being spearheaded by massive gamification and world building ideas which are capable are reaching over most demographics globally, Mr Klein suggests. “For brands like mine, this is a very strong space to play,” he says.

With energetic hi-res graphics showing gyrating artificial worlds—one commentator called them “inconceivable worlds”--populating large screens in a conference hall, it’s difficult not to be impressed. Search engine interest for the term “metaverse”, consultant Patrick Juarez Pennant points out, has soared in the past year. Separately, indications suggest we should see metaverse-related trademark filings are heading up, as major brands in sectors from footwear to autos position themselves in the new territories with “insurance” strategies.

“Brands need to be a part of the metaverse,” says Mr Juarez. “You have to be here.” But…are we in for a major disappointment and an unintentional revisiting of the hype cycle? Those who remember even the moderately recent past will recall Second Life, a superficially similar attempt at generating artificial worlds where users and brands could interact. What’s to stop it happening all over again? Proponents like Mr Klein and Mr Juarez reflect on different eras, the multiplicity of channels and audience buy-in. “Second Life was for geeks,” says Mr Juarez: “It was not the right way to go, it was probably not the right psychological moment or technical moment. Today, there’s all this diversity and inclusivity when it comes to tech, when it comes to communities, when it comes to joining people together” he suggests. Mr Klein agrees, “The metaverse has many platforms.”

What are the risks?

#5. How businesses, and particularly the large corporate brands, interact in an emerging metaverse could be the greatest market challenge they may ever take. But…there are potential downsides. The metaverse carries barely-formed legal frameworks and practices in the IP space as basic as rights formulation, jurisdictional definition, and enforcement issues. Alongside this business models will inevitably become more complex, particularly where new partnerships (a common feature of much of this early experimentation) are constructed. In short, we are facing a very big gap between the legal and the technological.

But, for everyone, the pull may be just too much. In prospect are gigantic virtual territories ripe for exploitation by the brands—or someone else. Watching the making of a (very widely-viewed) Cruzcampo beer commercial bringing long-deceased Spanish actress, Lola Flores, to deepfake life was as fascinating as it was terrifying.

More broadly, experts expect that new and advanced kinds of digital representations—termed by one speaker as “highly significant” —including digital garments will allow people to see and be seen as they want in the metaverse, but this capability could clearly see abuse.

Experts acknowledge there are few tech or cost barriers to producing high quality criminal efforts without restriction. Fast-moving, dynamic propositions flowing past millions of users, providing experiences to all intents and purposes indistinguishable from the “real” thing could become the new counterfeit economy.

So, is it all about brand values? Check out the sustainability world for some lessons…

#6. Marques 36 intelligently addressed sustainability, brands and trademarks. In doing this, it was able to explore much broader issues of brand responsibilities and values in areas of high consumer sensitivity from a new point of view. Green brands—aka “alternative brands”—need brand messaging collateral which raises important questions for trademarking. Alongside this, is it possible to make any brand a “sustainable” one in any sense? Is there a relationship between the sustainable and the sustained?

Being a brand, and aspiring to be a better brand and more attractive to the consumer is a risk-based proposition in its own right. Establishing and proving those green credentials takes time and effort, emerging green brands admit. But maintaining that marketable brand balance has generally not through legal approaches, but more pragmatically in the court of public opinion. We have seen many instances where ethical shortcomings such as greenwashing, the practice of claiming illegitimate green credentials for marketing purposes, are being severely punished on social media.

So, learning, unlearning and relearning?

#7. If it wasn’t obvious by now, the profession itself is probably in the throes—and has been for a short while—of major Toffler-predicted change. Welcome to Brand Protection 2.0 (my label btw). Brand Protection 2.0 suggests a supercharged and superpowered brand protection profession with trademark specialists potentially at the core. Trademark attorneys will continue to process, file, oppose, monitor infringements, and prepare litigation. But increasingly they are also managing client risk. Trademark experts are becoming brand advisors and, arguably, even brand custodians.

Suddenly, it seems, this expansive makeover suggests the new learning of marketing and communications savvy are important to get that risk balance right.

Onlookers may be wondering who or what we are now involved with in the 2.0 version: firms, customers, products, relationships, platforms, business models, longevity, risks, or code. That world of trademarks, once so narrowly defined, seems to be diffusing out as fluidly and rapidly as water flowing over an emerging and widening landscape, not least towards a global, borderless and virtual future.

Stephen McClelland

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ACG represents more than 3,000 brands affected by this influx of fakes into the UK and delivers an international network of information, advice and contacts on all aspects of IP protection. Working with Government and law enforcement agencies since 1980, ACG is focused on providing an effective and sustained response to counterfeiting.

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