The art of online brand protection

Par Anca Draganescu-Pinawin,

Controlling use of your brand online can be a daunting task. That’s why clever planning, time-saving tools and automated enforcement procedures are critical to success, says Anca Draganescu-Pinawin.

There is a line attributed to Sun Tzu, the Chinese general who wrote The Art of War, which counsels that: “Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat.” The second part is particularly applicable to the battle businesses face to protect their brands online: Tactics and tools exist, but the internet is fast-moving, and law and practice can struggle to keep pace. 

This puts pressure on internal resources and headcount, and leads to frustration. While, brand owners have mechanisms at their disposal to identify and act against such infringement, the tools themselves may only provide part of the solution.

For example, the Uniform Domain Name Dispute Resolution Policy (UDRP) was released 10 years ago to help brand owners enforce their rights against cybersquatters. In particular, the policy sought to address the inherent challenges of the multi-jurisdictional nature of online infringement, including identifying the infringers, and to offer a simplified and cost-effective solution to brand owners for clear-cut cases.

Since then, infringers have become more sophisticated in their approaches, and infringement have expanded to new and unanticipated platforms, such as social media, apps and online marketplaces. Tools and techniques to identify and act against these new forms of infringement have also evolved, of course, but not always in a centralised or connected way.

New online branding challenges 

Of course, infringement is not the only problem faced by a business and its brands; there is also the question of control. These days, brands take on a life of their own online, much of which is beyond the control of the business owner. Brand reputation is impacted, positively and negatively, by consumer interaction on social media and review websites, likewise by employee feedback online, and the work of social 'influencers'. In other words, there are many voices in the brand narrative, not just the marketing messages of the brand owner.

However, it’s important that a business does not let itself be buffeted into knee-jerk reactions by the currents generated on social media and other platforms. Instead, like a good conductor – or army general – it should be able to harness these powerful forces and use them to its benefit. 

Defending valuable assets is, of course, essential. But, the key point should be how to define a strategy to guide that defence. This can have important consequences for the brand’s positioning on many levels. It’s not just a question of what you do (and don’t do), but also how you do it. Too aggressive a strategy can often turn consumer sentiment against a brand – as Backcountry.com recently found to its cost – while too lax an approach can amount to having no strategy at all. 

What is needed is an overarching strategic vision that aligns long-term branding and business goals, whether that be market growth or product consolidation, with the need to manage the here and now.

Auditing your brand enforcement arsenal

Having the right enforcement tools is already a good start. To minimise the impact on in-house teams, that should mean tools that facilitate monitoring and enforcement, as well as identify the threats. Automation in monitoring and enforcement workflows delivers increased efficiency, the capacity to handle higher volumes of data, and increases the swiftness of response. 

However, as Sun Tzu suggests, the tools are only a means to an end; first, must come the strategy. It’s not possible to tackle everything, so you have to know when to hold and when to fold. Taking the time to step back to consider your current brand management approach, your wider branding and business goals, and your main online challenges both today and in the future will inform the priorities, the jurisdictions and the channels for action, as well as the level of response.

Every move that you make online should be made with an eye upon your larger market goals and be proportionate to the threat and the tools that you have at your disposal. In the haste of acting against infringement, businesses can often overlook this important strategic phase.

For advice on how to design an online brand protection strategy that reflects your brand and IP portfolio, speak to your Novagraaf attorney or contact us below.

Anca Draganescu-Pinawin is IP Counsel at Novagraaf in Switzerland.

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