Counterfeiting and trademark infringement continue to evolve, creating challenges that extend far beyond traditional marketplaces. From intercepting infringing goods at the border to addressing unauthorized activity online, businesses need a proactive and coordinated approach to brand protection.
In this article, Graham Hood and Tamara Céline Winegust explore practical strategies that business owners can use to safeguard their brands and strengthen their enforcement efforts in both the physical and the digital worlds.
Interview edited lightly for style and clarity.
What are the biggest takeaways you hope the audience learns?
Graham Hood, Principal, Trademarks Practice Group Leader: It's important to protect your investment. That means putting tools in place and spending resources on protecting your brand, whether that's at the border or online. Too often, I see clients who don't invest in border protection or don't invest in online protection because they think their brand is invulnerable to counterfeiting and infringements.
Tamara Céline Winegust, Principal: Every brand owner is going to find a different mix [of IP tools] that works.
It's important to keep in mind the nature of the infringement to be addressed, and if there are proactive steps that can be taken to reduce the risk of it occurring, whether that’s integrating technology into products, or creating a culture that values the authenticity of products. Businesses also need a plan on what to do when things go wrong.
Graham: There's no one-size-fits-all solution. It depends on your goods and services, your market, your target audience, and where you do business. So, it really comes down to what tools work best for you to protect your brand.
How can companies better leverage technology or monitoring tools to get ahead of infringement?
Tamara: In my view, the new AI tools that are being implemented and advertised don't change the nature of the work, but they certainly increase speed and discoverability. From my experience, part of the exercise that a lot of brand owners are going through right now is trying to sort through the noise and properly triage what is actionable, what is problematic, what is tolerable and what is relatively low priority.
Graham: I think at the end of the day, it comes down to resource management. There's only so much that in-house counsel can do, and chances are they have a lot more on their plate than simply online infringements. We're specialists in the field, and we're happy to assist our clients in protecting against and enforcing against online infringements. Oftentimes, clients reach out to us because they're either strapped for time, they simply don't have the bandwidth to take it on themselves, or they don't have the expertise—and that's what we're here for.
What’s changed most in the past few years when it comes to protecting brands at the border and online?
Graham: One of the biggest changes I've seen is a greater awareness around infringement and around piracy. Brand owners are becoming more aware of the threats that are out there, both at the border and on the web, and are taking action. It was a problem that was previously brushed off as an issue exclusive to luxury brands, for example. Now, I'm seeing a greater awareness of the issue, regardless of the industry in which our clients operate and a greater willingness to do something about it.
What are the biggest misconceptions businesses still have about brand enforcement?
Graham: That having been said, there are still brand owners out there that don’t think they’re at risk for infringement. But counterfeiting is industry agnostic: if the genuine article is making money, chances are someone's ripping off the real thing. One of the greatest misconceptions I still see is that brand owners don't think counterfeiting is their problem.
Tamara: One of the other misconceptions I've seen has to do with the quality of counterfeits. Whereas previously you might have been able to tell if an item was counterfeit from the absence of a holographic sticker or poor stitching, counterfeiters have become very sophisticated. Counterfeiters may even be working with employees from some of the factories that had worked on the legitimate products previously and have some of that know-how. But the quality of many of these counterfeits, especially in the luxury goods space, at least from a visual perspective, is quite good.
When a company discovers counterfeits or infringement, what are the most common mistakes they make in their response?
Graham: One common mistake I see is brand owners not going far enough in their investigations. They'll find someone selling a knock-off product, but they won't investigate where it came from, where it was manufactured, and what could be done about the source of the counterfeit product. Unfortunately, resources are finite and we must be strategic in how we allocate our time and energy. But if we don't get to the root of the problem, it will continue. When we come across counterfeit goods, whether at the border or on the web, we must exhaust every avenue to root out the ultimate cause of the problem – the source of the products sold.
Why is it so important for companies to think about both proactive and reactive strategies together?
Tamara: It's as simple as “an ounce of prevention is worth a pound of cure”. Having a multifaceted strategy can help both prevent problems that might crop up as well as assist with addressing them when they do.
Having an authentication program in place can be extremely valuable if you're a brand owner. On the prevention side, you’ll have an educational program to help consumers learn the legitimate channels where the authentic goods can be purchased. That way, if you are approached by a disgruntled consumer who claims to have purchased one of your goods and it’s fallen apart or is of poor quality, if you have an authentication process in place, you can seek certain information from the customer to figure out where the good was sourced, which can help you determine if it is counterfeit and to act quickly. Systems in place that can help you on both sides of the proactive-reactive equation are incredibly important.
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