Tag Archives: Reputation Management

Brand and Trademark

Crocodile Wars – Lacoste’s Latest Victory On Brand And Trademark Over Polish Company’s Use Of Caiman Mark

Crocodile War - Logos

Brand and TrademarkBrand and trademark establishment is of central importance to any successful business. Maintaining a brand’s image is essential, and using trademark law to protect business reputation is an important component of that. One way of doing so is through opposition of trademark applications as demonstrated by a recent case between French retailer Lacoste and Polish clothing company ‘KAJMAN’.

The ruling of the EU General Court agreed with Lacoste’s view that there is a risk that the use of the caiman would cause confusion amongst consumers, resulting in a potential loss of prestige. The opposition against the Polish company’s application to register the sign for leather goods, clothing and footwear was therefore upheld.

Confusion can arise as a result of visual, phonetic and conceptual similarity. The Court agreed that from a conceptual perspective there was an average degree of similarity. However, visually, any such likeness was in fact very minor. Despite clear differences between the two logos, it was nevertheless necessary to appreciate the possibility of the public “recognizing and retaining a memory of the imperfect representation”. Considering that both ‘KAJMAN’ and Lacoste provide similar services the focus was on the risk that the two companies may in fact be perceived to be variants of one another.

Brand And Trademark Dispute

One of the arguments put forward by ‘KAJMAN’ was that allowing the Lacoste mark such extensive protection would result in an “unjustified monopoly” on all crocodile marks. However, the General Court was keen on recognizing the importance of being able to oppose a trademark registration specifically where there is concern over damage to a brand’s reputation.

It is interesting to note that this is not the first brand and trademark dispute in which the French company has attempted to seek exclusivity with regards to its use of the crocodile on the basis of potential confusion for its consumers. The longest lasting dispute involves Singapore based rival Crocodile International, with Lacoste attempting to assert trademark rights in China and, as of recently, in New Zealand.

In 2008, it further targeted a Gloucestershire dental practice on the basis that they registered the logo of a grinning reptile to be used on their welcome sign. Shortly after, clothing supplier Baker Street Clothing became another one of its targets after registering the mark ‘Alligator’. In both cases Lacoste was unsuccessful. The decisions were important in what seemed to be a move to limit the scope of the Lacoste trademark monopoly.

Judging from the recent victory over ‘KAJMAN’ however, it is clear that the French company remains undeterred and it seems that the Courts have begun to take on a more strict approach in what they deem to be potential trademark infringements.

For more details on the recent Lacoste victory see the article here.

Brand Planning

Brand Planning – A Lesson Learned From A Golden Bear

Brand PlanningFor companies, brand planning is an important aspect in brand execution. As far as we know, the best brands are also the best planned brands including the legal side. In a recent turn of events Lindt, the Swiss chocolatier, has emerged victorious in a long-standing battle with Haribo, the German confectionary company that has been attempting to stop Lindt from selling gold chocolate bears since 2012.  According to an article published in the Guardian, Haribo had won the first round of the battle, when a German court banned future sales of the Lindt chocolate bears in December 2012. That ruling, however, has since been overturned on appeal, noting that there was no likelihood of confusion between the two products.

Interestingly, Lindt had lost its fight against German chocolatiers, Confiserie Riegelein, which was producing similar chocolate bunnies. One might say what-goes-around-comes-around when it comes to trademarks and confectionary sweet companies, however, Haribo is likely to be bitter about this ruling.

The point in case was that, according to Haribo, the chocolate bear wrapped in gold foil accompanied with a red ribbon was an appropriation of Haribo’s Goldbären brand and to that effect, the chocolate bear was consolidating a market position on the back of investment and brand awareness built by Haribo. Lindt, on the other hand, argued that the golden bear had been a variation of the golden eastern bunny chocolate and not an illegal imitation of the golden gummy bear or its corresponding logo.

Brands And Competition

Not long ago we wrote about Nestlé being blocked by rival competitor Cadbury’s in our post on: 3D Trademarks & Registered Designs – KitKat Loses Legal Fight for Four-Finger Chocolate bar.

What is easy to take from this is that where industries are particularly competitive, such as in confectionary food industry, it is a brand’s distinctiveness and the awareness surrounding that brand which allows it to survive on a global level. This is where brand planning comes in handy to assure that you know where your brand is heading, legally.

As a lawyer said “The cost of these cases is significant, but it’s about being seen to take action and ringfencing your brand and intellectual property rights as much as you can.”

This is important because trademarks are increasingly relevant in today’s digital economy, as the advent of the internet and development of internet based technologies has opened trade channels on a truly global level not seen before. Trademarks offer the most powerful forms of intellectual property (IP) protection for any brand logo or name and therefore, it is imperative that a certain amount of consideration is paid to trademarks as part of any business strategy.

Below are some trademark considerations from International Trade Mark Association (INTA) for you to bear in mind.

The Portfolio

Every business will have a trademark portfolio. This will comprise of everything from registered trademarks, marks or symbols which are in use but not yet registered, acquired trademarks through licenses, co-branding agreements with other companies and also domain names which include the trade name or trademark within it. Creating a family of trademarks and trade names will help create a stronger brand but can also strengthen the protection afforded that brand.

Brand Planning And Management

Securing rights as early as possible is always highly recommended. On that note, it is important to budget accordingly because registering a trademark in every country around the world can be both expensive and also impractical for a small-to-medium enterprises (SME) or early stage businesses. The strategy is to carefully consider which jurisdictions from a sales and marketing prospective are key to your business, conduct the necessary availability searches and register a trademark to perfect your brand in that territory as soon as it is practically possible.

An important note in managing your trademarks is also ensuring that they are used, or you risk them being revoked.

Enforcement 

Keeping on top of a trademark portfolio does not mean just registering them. To increase and maximize the value in a trademark, a certain amount of maintenance is involved. This includes actively monitoring the use of your mark and actively policing your trademark with cease and desist and take down notices when you see that it is being used without authorization. A good way to police you trademark is to monitor competitor activities and trademark applications which are published in trademark journals. To do this, you may want to invest in a brand watch service which can help protect your trademarks in the most efficient way possible by bringing to attention any issues that arise as they come.

Given the online nature of most business, a good way to enforce your rights in your domain names is to make sure that you have a registered trademark and that name is contained in your domain name.

Azrights has helped many SMEs and ambitious entrepreneurs to help secure their rights, commercialize their brands and enforce their IP rights. Visit our trademark registration, trademark search, trademark disputes and brand protection services pages to see how we may help to implement an efficient and cost effective strategy for you. Alternatively, contact us and speak with one of our specialist team members to see how we can help in your brand planning.

Brand Identity

Brand Identity – 3 Trademark Lessons From The Beer And Microbrewery Industries

Brand IdentityBrand identity is an essential component of any business. Put simply, the name of your brand is the first point of communication for your business to your target market. It is a vehicle for the associations related to your product, service, reputation, quality, value, or perceived value, and so on.

The UK beer market has seen a considerable rise in trademark applications. According to an article published by the Telegraph, trademark registrations in the UK rose by 12% or 1,485 in 2014, as outlets have increasingly sought to stock craft and artisanal beers, said City law firm RPC.

Brand Naming In Overcrowded Markets

The difficulty with niche industries is that once they start to become overcrowded, you soon find yourself hard pressed at finding suitable names for your products that don’t overlap and infringe on the rights of others. This is because the more niche a market is, the more finite the descriptive naming options become. Consequently, it becomes harder to think of a name which hasn’t already been used.

For example the term ‘Hells’, derivative of the German of ‘Helles’, is a generic description for a light lager. So, Camden Town, who registered the trademark ‘Hells Lager’, prevented another brewery, Redwell, from selling under the same name. They also claimed exclusive rights in the word ‘Camden’ for bee, and prevented another London based brewer, Weird Beard Brewery Co, from using ‘Camden BeardD’.

The sticking point is that in such homogeneous markets, brand identity plays just as important a role as the taste or quality of the product. According to new reports, figures show that an estimated 3 new microbreweries open every week, whilst 30 pubs per week are closing. In these market conditions. The rat race for market dominance becomes a battle of the brands.

Brand Identity Lessons For Entrepreneurs

Most industries are relatively overcrowded, and this is largely because of the prolific use of the internet which has allowed us global access to virtually any product and service we can enter into a search engine. Getting into the game can therefore be quite daunting, and even full on intimidating. Here are a few tips on establishing your brand identity according to Entrepreneur.com:

  1. Know Your Market And Pre-Empt Your Competitors 

Whilst it seems pretty straightforward, knowing your industry is not something which all take into full consideration. Take the above example with ‘Hells Lager’. Understanding an industry requires frequent stock taking and closely studying your competitors. It also means collecting this data and analyzing your business periodically against it to figure out what works and what does not. For example, which Intellectual Property (IP) assets are building more goodwill and which ones are not? Only in this way can you hope to build a brand identity strategy that works for your product or service, and you can keep one step ahead of your competitors, as opposed to infringing on their rights.

  1. Do Your Research And Trademark As Soon As Possible

The value of trademark searches and early trademark registration cannot be stressed enough. At the very least it saves you immeasurable time, money, and effort spent on trying to defend an opposition later down the line, and at best it can save you from a crippling rebranding or an expensive lawsuit.

  1. Collaborate And Co-Exist

Not all conflicts have to be a win-lose scenario. Most people are non-confrontational and do not want to engage in expensive legal fights. There might be scope for collaboration or registration of your trademark rights whereby you can come to mutual understanding as to the scope of use of the mark and create revenue together, or separately, without the anxiety that your brand might get shut down. Then you will have to get back to the drawing board.

Azrights deals with a plethora of different businesses on a daily basis. We can help with your business name search and offer our opinion, help you understand your most valuable IP assets through our Intelli IP audit services and ultimately help you protect your brands through trademark registration. Get in touch with us if you have any questions about starting up in your industry.

Trademark Slogans – Swatch Registers ‘One More Thing’ Trademark

Can you trademark a sloganTrademark slogans are important as they help distinguish a brand by emphasising what the business does or aims to do. By adding a tagline to a logo or name it is possible to encapsulate what the brand has become known for.

We recently wrote an article about Trademark searches and how to minimize the dangers of having similar names to your competitors. Just recently, Swatch has pulled a similar number on Apple by trademarking “One more thing”, a phrase made famous by Steve Jobs at every keynote he gave and recently, by Tim Cook when he unveiled the new Apple Watch.

Competition can take many forms, and trademarks play a significant role in keeping brand buoyancy amongst competitors.   According to an article published by Techradar, the move was inspired by Inspector Columbo’s “Just one more thing” catch phrase. It all seems well timed. A year ago, Swatch attempted to block the ‘iWatch’ trademark on the grounds that it was too similar to the ‘iSwatch’ brand. See this article from the Telegraph about Swatch objecting to Apple’s iWatch for more details.

Developing And Deploying Your Trademark Slogans and Taglines.

Slogans and taglines can be notoriously difficult to register as they often fail for a lack of distinctiveness. A tagline is something that represents your company, perhaps a distillation of your business aims. A slogan is a short phrase, much like a tagline, which often aims to be a catchy way to embody the business’ values. The aim of both slogans and taglines is to help distinguish a brand, product or service from its competitors.

Remember, that for something to be registered as a trademark, it must be capable of distinguishing your undertaking from those of another.

In one case, Mars objected to KitKat’s application for the slogan ‘have a break’ on grounds that it lacked distinctive character. If taken in isolation ‘have a break’ is actually a term which can, and is, used colloquially. It was held that “have a break” was therefore insufficient to distinguish the confectionary goods without the subsequent “…have a KitKat”, which it already has registered as a trademark.

In order for a slogan to be registrable, it must be able to show that it is inherently distinctive or has acquired some distinctive value through use. This can be a difficult task, but in a nutshell, you will need to be able to show that the expression of the slogan must be understood as referring solely to the use of the trademark for the purposes of identifying that brand or business from that of another.

If you would like to know more about how to proceed with your trademark slogan or tagline, or you are unsure about whether your slogan is inherently distinctive or has an acquired distinctiveness, see our trademark registration page or get in touch with us and we will be happy to help!

 

Trademark Search Essentials

Trademark Search – Minimizing The Dangers Of Having Similar Names To Your Competitors

Trademark Search EssentialsTrademark search is designed to help minimize the dangers of choosing names for your business, brand, product, or service, which are similar to those of your competitors and which might land you in an expensive intellectual property conflict.

For this very reason, we were surprised to hear, then, that LG electronics, the South Korean technology giant, has filed a number of trademarks disputes which included the ‘EDGE’ moniker, more commonly associate with Samsung’s Galaxy smartphone and tablet product range. The ‘EDGE’ element, originally coined by Samsung for Galaxy Note Edge device which has a curvature on the side of the display, was later exported to the Galaxy S6 Edge and, now, to the S6 Edge +. In a bold move, LG has stepped into the ring with trademark applications for: Super Edge, Dual Edge, Upper Edge, Dual Side Edge, Side Edge, Double Edge, Two Edge, G Edge. According to G Edge filing which you can find here, it is apparent that the name is intended to be used for smartphones.

What’s The Play?

One can only speculate as to what LG’s legal team was thinking. An article on TECHTIMES.com has noted that aside from the trolling Samsung theory, perhaps this is LG’s way of saying how it too wants to join the curved display market for smartphones and tablets. A notoriously competitive industry, the smartphone market has been fraught with ‘wars’ between Apple and Samsung, and Motorola and Microsoft. We previously wrote about how the Xbox 360 was close to being banned in America in a patent battle with Motorola in our article – Motorola, Microsoft patent war rages on.

It could be that LG’s move might trigger another intellectual property war; this time for dominance in the curved edge displays market between LG and Samsung.

Similar Names

When it comes to trademarks, even a name which is different but similar enough to a prior trademark can result in litigation. Bigger companies with a reputation are more likely to litigate aggressively as a name and its associated reputation tend to be the differentiating factor in highly homogeneous markets, such as the smartphone market.

It is easy to see how a name of a product or service is highly relevant. The old adage ‘a death by a thousand cuts’ rings true for products and services with a distinctive name and renowned name. Should a name be used for a variety of goods and services, the distinctive sparkle fades and the market position soon starts to evaporate.

See our article on Naming Strategies – Google’s New Brand Strategy for more highly distinctive names that run the risk on becoming generic from being overused.

Trademark Search Essentials

When choosing names, it is important that you avoid names similar to your competitors. This is primarily to ensure, as much as possible, that the name you have chosen is distinctive and readily associable with your brand, product or service and your business values, and not those of your competitors.

A trademark search will help you ascertain which names you can and cannot choose. Further, a trademark search on the registers of each relevant target market will clear the options available to you and the best relevant strategy to employ to your market position and that of your competition.

Having said that, LG’s aggressive play presents a different strategy altogether, and one which tends to be permissible only to those with deep pockets. Applying for names similar to competitors will most likely prompt litigation. If you have the resources to fight it out with expensive lawyers, it can be a risk that you will take. Nevertheless, litigation can only go one of two ways.

First, is that you lose the opposition and you start from scratch with a new and different name. For a lot of companies, a re-brand can be as fatal as the rate of consumer consumption far surpassing brand loyalty (just think of Apple who has resorted to clever ways to lock you in with their entire product range). For a ‘Small And Midsize Enterprise’ (SME), this can be dangerous play.

For a company like LG Electronics, however, it can be a mere way of publicizing a challenge which can put them in the spotlight as a newcomer and will undoubtedly disrupt Samsung with legal costs (as Apple did in 2012 when the Court ordered Samsung to pay Apple an eye watering $1Billion in damages). In the event that they become successful in registering the ‘EDGE’ moniker, it will have the wider effect of knocking Samsung down one more peg and steal its curvy display thunder with something which is newer and potentially more innovative.

If you are thinking about starting a new company or launching a product or service and need a new name, here at Azrights we can do international trademark searches and provide you with an opinion on how to avoid getting caught in an expensive trademark battle. See our trademark search page for more details on how we can help.

Copyright Infringement Laws

Copyright Infringement Is Claimed By Hacked Dating Service Ashley Madison

Copyright Infringement LawsCopyright infringement is allegedly the basis on which dating service Ashley Madison is trying to prevent the spreading of its stolen member database.

Last week, more than 33 million records of Ashley Madison users, containing information such as names, profile information and even partial credit card information were released online.

Although it has not yet been officially confirmed by the company to be legitimate records, outside investigations have indicated that they are.

Claim Of Copyright Infringement

The infidelity-focused dating service Ashley Madison is reportedly using copyright notices to persuade websites to remove the leaked data.

Motherboard journalist Joseph Cox wrote that an employee of Avid Life Media, the company behind Ashley Madison, sent a Digital Millennium Copyright Act (DMCA) takedown notice after Cox posted three tweets containing fragments of the leaked material. The notice, according to Cox, also confirmed the leaks’ veracity: “Avid owns all intellectual property in the data, which has been stolen from our data center, and disclosed in this unauthorized and unlawful manner.”

Notice Of Copyright Infringement

Copyright notices are a common way of suppressing criticism or leaked secrets, a practice that might be most strongly associated with the Church of Scientology. Filing a DMCA takedown on Twitter is as easy as filling out a short form. Anyone could theoretically send one under any name to require Twitter to investigate the submissions internally. It could only result in legal penalties.

However, tweets are hardly copyrightable materials. Emails, names, credit card details and other mere lists of information are not copyrightable unless arranged with sufficient originality invested by the author. Automatically arranging the already sorted information in a spreadsheet would not even suffice.

Furthermore, in 1991, the US Supreme Court said that the telephone directory white pages cannot be protected by copyright law.

Interestingly, experts have already commented on this issue warning users not to download the Ashley Madison database mainly because it will be considered stolen property. However, it depends on what Ashley Madison claims to be their copyright. For example, the text written in each user profile belongs to the author and owner of the profile while it is contained in a copyrighted website.

The terms of service of Ashley Madison states that:

You acknowledge and agree that all content and materials available on our Site are protected by either our rights, or the rights of our licensors or other third parties, of publicity, copyright, trademarks, service marks, patents, trade secrets or other proprietary rights and laws.

This particular section is vague, ambiguous and gives no guidance on, for example, transfer of ownership or if these terms are not signed by users.

The issue of hackers and how “invincible” they could be is well illustrated with our experience a few years ago when one of our websites was hacked. Fortunately, we were prepared and we quickly identified the nature and extent of the hack and restored the website.

Ashley Madison will allegedly claim copyright infringement against those who publish and open their database, including those who hacked into their data, however, it may be very difficult to precisely identify individuals who stole and leaked their records.

Whether an intellectual property dispute will arise or not, it is a very interesting development to keep an eye on.

The Importance Of Patent Protection

The Importance Of Patent Protection – Why GoPro’s Shares Tumbled

The Importance Of Patent ProtectionWe often hear about the importance of patent protection for innovations. Patents can be one of the most valuable type of intellectual property a business can own.

However, in practice, it is difficult to predict the value patent protection brings to a business. It can take many years to secure a patent from the research and development phase through to the grant of rights. So, there is some unpredictability before a product finally makes it to market.

However, as Apple recently demonstrated, patent protection not only helps your business to grow, but it can also impact the industry as a whole. Apple were recently awarded a patent for an action camera. When the news went public GoPro’s shares tumbled 10% due to the potential increase in competition in a field in which they were largely dominant.

There is more information about the action camera industry in this Guardian article, GoPro shares slump on patent – but is Apple planning a wearable camera?

Don't risk your brand reputation

Ways To Build Your Brand On Social Media Without Risking Your Reputation

Don't risk your brand reputation

‘A brand is no longer what we tell the consumer it is – it is what consumers tell each other it is’ Scott Cook, co-founder of Intuit

Internet technologies have made it possible for ordinary people to post content online without the help of web designers skilled in HTML.

Social media has caught on far more rapidly than the time it took for radio, television or even the Internet itself to achieve such widespread use. This has resulted in phenomenal changes in the way we all communicate with one another. It has also radically transformed the way brands engage with customers.

Although it is relatively easy to gain social media presence, it is decidedly more difficult to develop a cohesive strategy for using social media to promote your business.

How to engage online

Social media throws up many new questions for business and business owners about how to engage online and protect their brand.

Pre-social media, it was easier for marketing and advertising agencies to influence and shape consumers’ impressions of the brand they were helping to promote, but social media has altered the way in which businesses promote themselves. As consumers discuss products and services they’ve experienced online, they become an important new dimension for business to address. Delivering excellent customer service is key to success in the new online environment.

Monitoring

So many people are engaging in discussions on the web and commenting on blogs, forums, social media sites, sometimes anonymously, and this is one reason why companies are finding it necessary to keep up with these trends and monitor the digital space.

Whether a company is web based business or a bricks and mortar one, conversations about it will take place online. So it makes sense to listen to, and even to take part in, these conversations because management of business reputation is a key component of successful brand building.

Keep tabs on your online reputation

A happy customer may pass on their feelings to a few of their friends, but a disgruntled customer will pass on their concerns even more widely. Social networking means the ‘disgruntled customer’ effect quickly accelerates and an unfavourable write-up of your company or product can be quickly exposed to a potential audience of thousands, if not millions of Internet users.

While Google is undoubtedly the quickest way to gauge your online reputation, it’s hardly the entire picture. Finding out what’s being said about yourself or your company online needs to take account of all blogs, microblogs (such as Twitter), social networking, video sharing websites, news feeds, forums, message boards and whatever other new buzz tool Web 2.0 throws up this week.

There are a variety of free tools online, such as Google Alerts that will allow you to search through sites to monitor them in real time, but keeping tabs on everything can be complicated, confusing and time consuming. As a result, an increasing number of companies and individuals are using external reputation monitoring services to keep track of their online reputation. These services will monitor keywords, such as names of key staff, or topics that the business is interested in. It’s also relevant to monitor competitors too.

The best defence is good offence, and if you’re already out there on the Internet engaging with your customers via blogs and social networking, you’re in a good position to promote your reputation by being honest, transparent, and positive.

Online Brand Protection

Shireen Online Brand Protection BlogBeware of buzz marketing. Writing fake online reviews can land your business in serious trouble and cost you more than you gained in reputation or sales, as evidenced recently by a host of SEO companies caught up in New York’s “Operation Clean Turf”.

A year-long undercover investigation into the reputation management industry caught 19 small businesses engaging in astroturfing, flooding the internet with bogus consumer reviews on websites such as Yelp, Google Local and CitySearch.

Astroturfing is the practice whereby a business pretends to be an ordinary customer, writing glowing reviews about the business’ own products or services, or negative reviews slamming their competitors’.

In a crackdown last month, New York Attorney General Eric T. Schneiderman issued penalties in excess of $350,000 between the offending companies.

Schneiderman’s office discovered that many of the businesses probed had used techniques to conceal their identities, manipulating advanced IP spoofing techniques, setting up fake online profiles on consumer review websites and paying writers in the Philippines, Bangladesh and Eastern Europe to mock up false reviews. In the process, these companies had engaged in illegal and deceptive business practices, violating multiple state laws against false advertising.

“Astroturfing is the 21st century’s version of false advertising – and prosecutors have many tools at their disposal to put an end to it,” Schneiderman warned.

The law in the EU under the Consumer Protection from Unfair Trading Regulations 2008 is stricter than the USA, so that “falsely representing oneself as a consumer” in the context of promoting a product to consumers is a criminal offence, for which the maximum penalty is 2 years imprisonment and/or an unlimited fine. The Regulations are policed by the Office of Fair Trading and Trading Standards, which may also direct complainants to the Advertising Standards Authority.

There are plans to further strengthen the law so British consumers have the right to take direct action against traders for misleading or aggressive practices. The proposed law, when implemented, will empower consumers to make direct claims against traders with whom they have entered a contract or made a payment to as a result of misleading advertising.

Given the anonymity of the web and accessibility to a growing range of social media channels, it’s easy to see how so many businesses succumb to such underhand tactics. However, while astroturfing is unethical – and in most cases illegal – it should be remembered that the ultimate penalty is the PR own-goal scored when caught. Businesses build their brands, above all else, on trust. Being exposed for falsifying reviews and manipulating online discussions could therefore cause irreparable reputational damage, shattering consumer and client relationships which are the lifeblood of any business.

Reputation is critical to any successful business, no matter its size. Astroturfing is an unauthentic and foolish path to follow in a digital age where connection and sharing is just a click away.
The damage to reputation for any company caught trying to steer public commentary around their products and services could prove fatal for your brand.

To find out about the risks online and how to best promote and manage your brand, why not come along to this Own It event at which Shireen Smith will be speaking on 29 January 2014 at 18.30pm. For more information please visit www.own-it.org/events.

Protecting the Olympic Brand – a most valuable asset, but for whom?

With the Olympics approaching, one slightly less predictable aspect of the games has been attracting attention: intellectual property. Just like other businesses, the London 2012 Olympic Games has a brand it is keen to protect. The London 2012 site refers to the brand as the Organising Committee’s ‘most valuable asset’ and claims that its use needs to be controlled so as to maintain ‘both the emotional and commercial value of the brand’

Image of three trophiesDoctor Nicola Searle, writing for the IPKat,  contrasts the need for control of the branding rights as a mechanism to guarantee sponsor exclusivity and attract funding, with the value of the Olympic logo and signs as ‘freely used cultural symbols which form part of the feel-good intangible benefits’ of the games. What should be an important goal for the Organising Committee, the encouragement of community spirit, a country united, seems undermined by strict protection of the Olympic brand in this way.

The Problem of Ambush Marketing

Some argue that such a draconian approach has lead to a weakening of the Olympic spirit. Long associated with the bringing together of people of all nationalities in heroic sporting endeavours, the borderless, level playing field of the Olympic Games just doesn’t seem to fit with strictly enforced exclusivity when it comes to the symbols people use to talk about it, where big companies with sponsorship deals can enjoy the brand but myriad smaller business owners are locked out from a national event that may never reoccur in their lifetime.

A Techdirt blog post offered sobering insight into the extent of the efforts made to restrict use of the brand by highlighting the case of an 81-year old woman selling a doll clothed in a sweater donning the Olympic logo for just £1 at a church sale. Joy Tomkins was warned off selling the doll by trading standards, who advised that she would commit an act of infringement by doing so. Her reaction was one of disgust, having assumed ‘the hoops symbol was universal’

Still, the problem for the Olympic brand is ambush marketing, whereby other businesses who have not sponsored the games find ways to bolster their advertising, sometimes by use of the Olympic symbols. This has always been a problem for sporting events like the Olympics or the World Cup. With global sponsorship of the Olympic games in the tens of billions, if ambush marketers are not kept in check there is a risk that pockets might not be so deep as time goes on. Large events like the Olympics rely on sponsorship for funding. When other businesses use the brand in their marketing, this could reduce the value of the exclusivity paid for by sponsors.

Olympic symbol is universally recognised

With the Olympic symbol proving to be ‘the most recognised symbol in the world’, and in light of the immense coverage and prestige of the games, it is unsurprising that brands would want to associate themselves with this event.

The London Organising Committee of the Olympic and Paralympic Games (LOCOG) have taken steps to ensure not only that their brand is protected under a combination of copyright, trade mark, and design rights, but also that it is a criminal offence under special purpose statute to market or sell goods using any logos, symbols or words that might associate unauthorised businesses with the Olympics. The Olympic rings, Paralympic agitos, the Olympic podium and words or phrases associated with the Olympics, including ‘Olympic’, ‘Spirit in Motion’, and ‘Inspired by London 2012’ are all protected. On top of this a combination of certain words, such as ‘London’, ‘2012’, ‘Games’ and ‘Twenty Twelve’ in marketing campaigns can also lead to trade mark infringement. (See BBC for a complete table of restricted words)

Nike’s IP lawyers can find ways around the rules

Despite strict regulation, already certain companies who have not paid to become official sponsors are benefiting from the Olympics. For example, as reported by UK digital agency the Jam, Nike is the brand most associated with the upcoming Games, over Adidas, the official sponsor of the event. This might be the result of their #makeitcount social media campaign promoting Nike-sponsored British athletes, and is also likely due in part to their advert featuring two Olympians. Crucially, simply featuring Olympic athletes in their campaign does not infringe Olympic IP. So despite the comprehensive measures it has taken, LOCOG still faces difficulties in controlling and policing all marketing efforts that hope to benefit through an association with the games.

The FT cites London 2012 as being the ‘first truly digital games’, and the growth of social media has only made it more difficult to protect the Olympic brand than ever before, despite Twitter and Foursquare lending their support to help enforce exclusivity. Simon Chadwick, professor of sports business management at Coventry University gets to the crux of the matter at the FT, explaining that ‘social media is a very, very difficult area [in which] to control the dissemination of information – it’s very fast-paced and hard for rights protection officers to track and monitor what is happening before it has already happened’. Clearly, management of the Olympic brand is a complex issue. Ambush marketing threatens to eat a hole in the pockets of the organisers that are doing their best to give the nation an experience it will never forget, and even with strict control, specialist legislation and proactive enforcement it is still a battle to guarantee sponsors the exclusivity they are willing to pay for. But this exclusivity sits uneasily with the otherwise inclusive nature of the festivities, and there is certainly an argument to be made for allowing the public freedom to use Olympic symbols in their own way. Is it fair to restrict the opportunity to show support for the games to businesses who can pay? Wouldn’t it put a smile on your face to pick up a bite to eat from the Olympigs roast-pork stall? Officials have said they understand some unauthorised uses are just down to ‘pure enthusiasm for the Games’, and suggest they will take a pragmatic approach. It’s a difficult balancing act, and we shall have to see whether this controversy will start to fade as the events get underway, just one month to go!