by Elliott Champion and David Barnett
Internet use has become ever more pervasive. With around five billion global users[1], it generates an economy of around 15%[2] of global GDP (gross domestic product)[3] - around $15 trillion, and a figure which is growing 2.5 times faster than GDP itself. This makes the Internet an attractive channel for infringers.
Phishing and other fraud tactics, selling counterfeit goods online, and digital piracy are primary areas of concern. Unauthorised branded content use, traffic misdirection, false affiliation claims, or negative comment and activism are also significant issues. All of these can directly affect a brand's revenue, reputation and value.
This makes a comprehensive, holistic brand protection programme crucial for any brand owner, including monitoring to identify potentially damaging third-party content, and using enforcement strategies to take down infringing material. A brand protection programme should also cover a range of online channels like Internet content, branded domain names, social media, mobile apps, e-commerce marketplaces, etc., as these areas are becoming increasingly interlinked, providing different environments where the same kinds of infringements happen.
An effective enforcement programme not only addresses issues directly affecting company revenue, but also makes a protected brand a less attractive target for criminals. Furthermore, it helps protect customers and official online partners, can positively affect brand reputation and value, satisfies regulatory requirements, and can be a pre-requisite for retaining intellectual property (IP) protection.
Below we outline a four-step process for the effective and efficient implementation of a holistic brand protection programme.
1. Evaluate the landscape and establish goals
Step one is to determine where any problems lie, and what to focus on. An initial brand snapshot or landscape audit will establish this, conducting a series of brand-related searches across all relevant channels. A marketplace sweep is also beneficial, as it looks at the numbers of results returned in response to brand-specific searches on a range of key e-commerce marketplaces. Results can be prioritised via threat scoring, clustering technology (to identify serial or high-volume infringers), web-traffic analysis, sales volume information, and so on.
It is essential to ensure that the focus areas of any programme align with the organisation's business plan and strategic goals. These might relate to geographic areas where the company has operations (or is planning to expand), and the channels where it has online presence. We advise appointing a digital governance team, including representatives from marketing, IP and legal, security, and domain operations, to ensure that brand protection is a collaborative interdepartmental effort.
It is also necessary to review the organisation’s IP protection portfolio to ensure that relevant brand terms are protected (e.g. trademarks registered in the appropriate product classes and geographic jurisdictions). Having the correct IP protection is vital for an effective enforcement programme. It is also useful to have an overview of official websites and partners, so they can be added to an 'allow' list for monitoring, and any pre-existing compliance issues can be addressed. If this information is unavailable, compiling such lists can be an objective of the monitoring programme.
Finally, it is vital to set out the overall goals of the brand protection initiative in advance, to measure its effectiveness. This can be as simple reducing infringements - that is, removing significant numbers of them from the top e-commerce marketplaces and social media sites, or cleaning search engine results to eliminate infringements appearing on the first page. It may also be relevant to see an increase in web traffic to official channels or to pre-empt infringement activity against planned new product or brand launches.
2. Monitor critical online channels
Having established the key focus areas, the next step is to agree on monitoring parameters. This includes determining which channels and platforms to monitor and assessing which search terms to use. The minimum requirement is to search for the brand name itself - essentially mirroring customer searches - to identify the most visible content. It is often useful to search for content featuring brand variants like typos, abbreviations, and character replacements. This helps capture content where the infringer has deliberately not used the exact brand name in order to evade detection, or used confusing or deceptive brand variations. Additionally, it may be necessary to configure search terms incorporating other brand terms or industry- or product-specific keywords. This helps identify relevant material when the brand name itself is a generic term. Conversely, some monitoring services use exclusion keywords, where content is actively ignored if terms are found that imply the brand name is being used in a non-relevant context.
It is essential to extract as much rich data as possible from the webpages and listings identified through monitoring, because it allows findings to be prioritised and triaged effectively, and then clustered to identify key targets and infringers. Data extraction can be done in several ways, including rules-based analysis of page content, scraping to extract relevant data from known locations on a page (especially effective on e-commerce marketplaces, social media sites, mobile app stores etc., where the page structure is known in advance), or using an API (application programming interface) provided by the monitored site. With e-commerce marketplace listings, for example, relevant data points include seller information, item quantity and supply, price, item description, etc. Aggregated historical data for individual sellers - like numbers of previous infringements and enforcement history- can also provide a measure of overall seller risk. Finally, in cases of particular concern, carrying out detailed entity investigations can build a fuller picture of a particular seller or organisation's online profile and associated activities.
Furthermore, visible characteristics (e.g. counterfeit indicators) in the product image can help determine whether a listing is infringing. This can be achieved using both automated image analysis and manual inspection by an analyst.
It is generally also useful to ensure that the visible page content for any relevant results is recorded using snapshots or page caching; it provides evidence of the presence of an infringement at the point of discovery.
3. Enforce using the most impactful strategies
A key element of a brand protection programme is removing infringing content that would otherwise result in lost revenue for a brand, or damage its integrity and reputation. To avoid a 'whack-a-mole' approach, identifying and tackling the highest value targets first and then using the most efficient takedown method - which varies depending on the channel, platform, and the nature of the infringement - creates the greatest impact.
Certain platforms have specific IP protection programmes to remove brand-damaging content (e.g. AliProtect for Alibaba Group sites and VeRO for eBay). Clever use of these programs can help achieve greater impact, like aggregating takedowns in batches to take advantage of a marketplace's 'three strikes' policy, and result in quicker seller suspension. Some platforms also have good-faith programmes where brand owners or their representatives can achieve rapid takedowns by having a low false-positive rate in submitted infringements. The Amazon Brand Registry and Brand Gating schemes are examples of programmes where brand owners can proactively reduce the appearance of infringements.
For other Internet content, having a toolkit of enforcement approaches is beneficial - from low-cost, low-complexity, rapid primary actions, like cease-and-desist notices, through secondary tactics like host-level content removals or registrar- or registry-level suspensions, up to longer-term, complex tertiary approaches like domain-dispute processes and legal actions. In some cases, other techniques like payment gateway suspensions or search engine de-listings may be appropriate. Having a range of enforcement options allows a brand owner to select the most cost-effective and efficient approach, reserving others for escalation. Some of the more complex dispute or acquisition options may only be appropriate when the brand owner wants to reclaim a domain for their own use.
Other supplementary actions can help build the most efficient and impactful enforcement programme, e.g. test purchases to prove a product is counterfeit, engagement with local law enforcement, or establishing reseller policy agreements.
4. Evaluate impact and realign strategies
As a brand protection programme matures, brand owners can evaluate its impact using a variety of techniques, many of which measure the financial return-on-investment (ROI) of the actions taken. This calculation can involve the total value of infringing goods removed from e-commerce marketplaces, the total amount of web traffic received by infringing sites, or both. Determining the amount of lost revenue that is reclaimable after successful enforcement is key to demonstrating ROI. For e-commerce de-listings, for example, this considers the conversion rate of customers who will buy a legitimate item when the counterfeit version is made unavailable. This conversion rate depends on the item's price[4] - or more specifically, the price differential between the genuine item and a counterfeit. Conversely, with a successful domain acquisition, the traffic for the infringing site can be re-directed to the brand owner's official website (and thereby monetised) once the domain is added to the brand owner's official portfolio[5,6].
Following a successful enforcement programme, brand owners can also directly measure other positive results, including increases in web traffic and sales volumes for their official network of sites, resellers, and partners. It may also be possible to see a clean presence on search engines and other platforms, with no infringing content returned for brand-specific searches.
Knowing how a brand is being referenced online through a monitoring solution can have other less tangible benefits, even where enforcement is not possible. For example, intelligence on negative customer comments allows brand owners to make informed decisions on their marketing and product development strategies. Monitoring can also uncover issues like brand confusion and brand dilution[7].
Combining a brand protection programme with factors like customer education and the use of product verification tools also protects the consumer base from exposure to non-legitimate products and content. Overall, this can have a positive impact on trust levels, and ultimately on the intrinsic value of the brand.
Reviewing the process and realigning strategies in response to observations, trends, or changes in business strategy is also beneficial. New channels or platforms may emerge, or additional takedown techniques may become available (e.g. the introduction of a new IP protection programme). A brand owner may introduce new brands and products, change their geographic footprint, or increase their portfolio of protected IP, e.g. through registering new trademarks. Infringement patterns may also change over time, as sellers move to different marketplaces or change the way they describe the products (sometimes in response to the enforcement actions of the brand owner). Finally, the emergence of new technologies or significant world events can also affect the infringement landscape[8,9].
Any of the above factors can necessitate changes to how a holistic brand protection programme is executed, to keep it focused, relevant, and effective. For this reason, the approach should always be circular and iterative, with brand owners keeping a close eye on activity and trends, and constantly evolving their methods to respond to any changes.
References
[1] https://www.statista.com/statistics/617136/digital-population-worldwide/
[2] https://www.worldbank.org/en/topic/digitaldevelopment/overview
[3] https://data.worldbank.org/indicator/NY.GDP.MKTP.CD
[5] https://www.worldtrademarkreview.com/anti-counterfeiting/return-investment-proving-protection-pays
[7] https://securityboulevard.com/2022/07/online-brand-abuse-is-a-cybersecurity-issue/
[8] https://www.cscdbs.com/en/resources-news/impact-of-covid-on-internet-security/
[9] https://www.cscdbs.com/en/resources-news/supply-chain-report-form/
This article was first published on 27 September 2022 at:
Also published at:
https://circleid.com/posts/20221005-four-steps-to-an-effective-brand-protection-program
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