David Barnett's Brand Protection Articles

Tuesday, 25 March 2025

Alas Smiths: an exploration of WHSmith's domains following their store closures

Introduction

Following the news of the announced closure of many of the physical stores of the 200+-year-old UK-based retailer WHSmith, we conduct an overview of the domain-name landscape relating to the brand.

This follows on from other similar recent Stobbs analyses for other troubled brands^[1,2]. In response to economic difficulties, tax rises and increased online competition, the organisation - which was running popular celebrity advertising campaigns on prime-time television as recently as the late 1990s (Figure 1) - is exploring strategic options relating to the sale of its high-street stores, with a greater potential focus on travel retail (based in airports, railway stations and hospitals) and potentially on online sales^[3,4,5].

Figure 1: Still from a WHSmith television advertisement (1997) (courtesy of YouTube; copyright WHSmith)

Analysis

The size of the overall domain landscape relating to the brand is relatively modest - perhaps unsurprisingly, given the previous physical retail focus of the organisation; analysis of domain-name zone files shows that, as of the start of February 2025, there are around 171 registered domains with names containing 'w(-)h(-)smith' (with optional hyphens), of which 112 appear to be under official ownership (according to information available via automated whois look-ups), leaving just 59 apparent third-party - potentially infringing - examples.

A handful of the domains appear to be non-relevant (e.g. examples relating to 'Andrew H Smith', 'Matthew H Smith' and 'W W H Smithers'), whilst a few more appear to relate to use of the same brand name by unrelated entities in distinct business areas (including construction, engineering and wine companies, and a school).

Of the 51 remaining domains, few show significant website content, with the majority resolving to no live site (21 instances), pages of pay-per-click (PPC) links (13), pages offering the domain name for sale (4), placeholder pages (4), or blank or other error pages (4). It is possible that some of these may also be under official ownership (perhaps managed outside a central portfolio), in which case the importance of domain consolidation, and re-direction to official website content (to maximise web traffic and thereby the 'value' of the domain names, and to minimise customer confusion) is highlighted. If genuinely under third-party control, some are clearly being monetised by their owners (though offers of sale or the placement of PPC links) and might be candidates for dispute. Many of the domain names in the dataset are highly relevant (e.g. just 'whsmith' plus a TLD (top-level domain, or domain extension), or feature the brand name together with relevant keywords such as 'books', 'stationery' or 'stores'), and might be targets for acquisition by the brand, for use with official websites. It is also noteworthy that there is a record of a previous legal case by the company in 2000, against the third-party registrant of the domain name whsmith[.]com^[6] (now part of the official portfolio), in addition to a much more recent UDRP dispute by the organisation against the registrant of whsmith[.]site, resulting in the successful transfer of the name^[7].

Four of the websites in the dataset display official branding; these might be legitimate sites (perhaps operated by regional entities or approved partners), but do pose significant potential for threat if not under official control (Figure 2). One further example comprises an explicit case of misdirection; whsmithco[.]com re-directs to a site promoting gambling services (Figure 3).

Figure 2: Examples of websites displaying official WHSmith branding, but lacking explicitly official domain ownership details

Figure 3: Screenshot of the re-direction destination website from whsmithco[.]com

Furthermore, 27 of the 51 relevant third-party domain names (i.e. 53%) are configured with active mail exchange (MX) records, indicating that they have been configured to be able to send and receive e-mails, and could be associated with phishing activity. 16 of the 51 domains have been registered since the start of 2024, and may be particularly worthy of close monitoring as they may not yet have been 'activated' for use.

It is also noteworthy that the set of third-party domains is dominated by registrations carried out via retail-grade registrars, which are traditionally popular with infringers. Included in the list are six registrars with 'bad reputation' scores of 0.1 or greater according to Spamhaus^[8] (Namecheap (score = 0.1; 3 domains in WHSmith dataset), PDR (0.2; 2 domains), NameSilo (0.5; 1 domain), Sav.com (0.2; 1 domain), URL Solutions (0.9; 1 domain), West263 (0.2; 1 domain)), putting them in around the top-100 'high-risk' registrars in the list.

Conclusion

With the exception of the few potentially threatening examples presented in this article, the domain landscape for WHSmith is currently relatively 'clean' - though, as discussed, there are perhaps some recommendations to be made regarding good practice for domain portfolio management..

It is noteworthy that a brand with the renown of WHSmith has seen such an apparently limited level of online infringement, though this may be in part due to the extent to which it has historically perceived as a physical, 'real-world' brand. However, we have seen previously that high-profile news stories are frequently a trigger for spikes in domain infringement activity, and the opportunities for scammers are perhaps magnified in view of WHSmith's potential move away from physical retail to a possible greater focus on online sales. More generally, it remains to be seen how the evolution of the brand may affect its future success; high-street sales generally are declining, and the travel retail part of the organisation is likely not to generate such high levels of brand engagement - might a future increased online element to the business generate a push back towards the previous higher levels of brand engagement?

Either way, going forward, the WHSmith brand owner responsible for online content would be well advised to keep a close eye on the evolving landscape, through a comprehensive programme of online monitoring, analysis and prioritisation, and enforcement.

References

[1] https://www.iamstobbs.com/opinion/high-steaks-game-hawksmoors-ipo-and-its-domains

[2] https://www.iamstobbs.com/opinion/no-party-ip-associated-with-the-fallen-tupperware-brand

[3] https://www.sharesmagazine.co.uk/index.php/article/wh-smith-hangs-for-sale-sign-over-historic-high-street-stores

[4] https://news.sky.com/story/wh-smith-in-secret-talks-to-sell-historic-high-street-arm-13295955

[5] https://www.timeout.com/uk/news/heres-the-full-list-of-whsmith-stores-that-are-closing-for-good-in-2025-012025

[6] https://www.5rb.com/case/wh-smith-v-colman/

[7] https://www.wipo.int/amc/en/domains/decisions/pdf/2023/d2023-5342.pdf

[8] https://www.spamhaus.org/reputation-statistics/registrars/domains/; data correct as of 29-Jan-2025

This article was first published on 25 March 2025 at:

https://www.iamstobbs.com/insights/alas-smiths-an-exploration-of-wh-smiths-domains-following-their-store-closures

Tuesday, 11 March 2025

The Man with The Golden Gun: Explorations of James Bond IP

Introduction

The worst-kept-secret member of the British Secret Service has been in the news a number of times in significant weeks. Following from ongoing speculation about the identity of the next actor to take on the role of Bond^[1], a number of stories about the creative control of the film franchise have emerged. One of the most significant revelations is the news that the Broccoli/Wilson family - owners of EON Productions Limited and Danjaq in the US^[2], and long-time controllers of brand Bond - will be ceding control to Amazon MGM Studios in a reported $1 billion deal^[3,4,5,6,7].

An additional complication is that fact that the copyright protection for the original James Bond novels is set to expire in 2035, allowing some elements of the IP to fall into the public domain and potentially providing an opening for creations by rival studios^[8] and, potentially, additional licensing opportunities^[9].

Furthermore, a case has also recently been filed by Dubai-based property developer Josef Kleindienst for the cancellation of various Bond-related trademarks in the EU and UK, on the grounds of non-use^[10].

With these developments in mind, it seems an appropriate time to consider the current landscape of intellectual property surrounding 007, to gain an overview of what the current and future custodians of the brand may need to contend with. In particular, there may be a risk that James Bond may be (or may become) subject to some element of genericism, as an overall descriptor of an action-hero spy character.

The James Bond domain name landscape

As in numerous previous studies, the domain name dataset is a good place from which to gain initial insights, as a proxy of the overall IP landscape. As of 01-Mar-2025, there are 746 registered gTLD^[11] domains with names containing 'james(-)bond', 'bond*007' or '007*bond'^[12] (collectively, 'James Bond domains'), according to zone-file analysis, of which at least (only) 37 appear to be under official ownership (Figure 1).

Figure 1: Numbers of third-party James Bond gTLD domains, by month of registration (where available) (Jan-1996 to Feb-2025)

425 of the 709 third-party domain names produce some sort of live website response, of which 230 have a 'non-zero' webpage title.

Aside from the group of essentially 'dormant' sites, such as those displaying holding or parking pages, and pages offering the domain names for sale, the dataset unsurprisingly also includes groups of informational or fan sites, and other instances of websites which may pertain to legitimate use of the same ('James Bond') name ('James Bond Furniture', 'James Bond Dental', 'James Bond Logistics', 'James Bond Carpet Cleaning', etc.).

Beyond this, there are a number of additional websites featuring use of the '007' 'tag' in conjunction with what appear to be otherwise unrelated 'Bond' references, as an apparent means of providing an additional marketing 'hook' (e.g. Megan Bond beauty products (SLD^[13]: meganbond007), Bond Flooring (SLD: bondfl007ing), 'Bond 007 Heating and Cooling' (SLD: bond007heatingandcooling), bond provider Worldwide Insurance Specialists, Inc. (SLD: bond007), etc.) - an illustration of the extent of renown of the 007 / Bond name and brand.

However, there are also a number of instances of more explicit, potentially unauthorised use of official IP, of which some examples are shown in Figure 2.

Figure 2: Examples of websites potentially infringing James Bond IP - top to bottom (SLDs given in brackets in each case):

Potential digital piracy - video (100jamesbond); audio / music (jamesbond-online)
Promotion of cryptocurrency coins or schemes (jamesbondsol, jemesbond007 [sic], jamesbond)
e-commerce (jamesbondlifestyle)
Misdirection / false affiliation (e.g. gambling websites) (mrjamesbond, pkv007bond, jamesbond777aud)
Other potential unauthorised claim of affiliation (thechampagneofjamesbond)
Other brand references (e.g. sites pertaining to bail bonds) (bailbonds007, jamesbond007brazoria)

Conclusion

The analysis shows that there already exists a wide range of potential infringements relating to James Bond, comprising a universe which may be set to grow, following the high-profile news stories of the changes of IP ownership, continuing interest in the franchise, and the massive potential growth in spin-offs and licensing opportunities as the IP landscape continues to evolve over the coming years.

As for other popular brands, the IP owners would be wise to monitor the landscape as part of a holistic brand protection initiative, covering the compilation and consolidation of an appropriate domain portfolio (including defensive registrations), securing of appropriate IP protection in relevant product classes and jurisdictions, and a comprehensive programme of monitoring, analysis and enforcement.

Or, we could say...

The spectre of a brand-protection thunderball of problems might scare the living daylights out of the brand owners of the spy who loved me. As the portfolio is transferred from one group to another, we may find that you only live twice to see a requirement for appropriate measures to be put in place.

If you're charged with management of a brand, a key component is the use of a monitoring service to keep a golden-eye on the landscape, providing an overview of infringements for your eyes only. A comprehensive portfolio of IP protection essentially provides you with a licence to kill any such infringements. Following a process of analysis and prioritisation, it is then advisable to consider next steps. Some findings are best left to live and let die, whilst you may take a view to a kill for other more concerning examples. The most problematic infringing sites are those which have no time to die - e.g. those originating from high-risk or low compliance jurisdictions, such as those coming from Russia with love - so it may be prudent to consider escalation measures, in the hope that the infringements die another day, though there may be little more than a quantum of solace in cases where the sites refuse to sky-fall.

Finally, in brand protection, one must also consider that the world is not enough, and that (Dr) no set of measures may be too much - the landscape is continually evolving, so it is always important to be forward thinking, in acceptance of the fact that tomorrow never dies.

References

[1] https://www.gq-magazine.co.uk/article/new-james-bond

[2] https://www.eon.co.uk/james-bond/

[3] https://deadline.com/2025/02/james-bond-amazon-mgm-studios-deal-1236296104/

[4] https://theweek.com/business/amazon-james-bond-new-deal

[5] https://www.washingtonpost.com/entertainment/tv/2025/02/20/james-bond-creative-rights-amazon-mgm/

[6] https://www.ign.com/articles/bond-ip-slop-and-the-fking-idiots-taking-over-007

[7] https://www.hollywoodreporter.com/business/business-news/james-bond-amazon-mgm-broccoli-1236147148/

[8] https://www.linkedin.com/posts/oherzfeld_amazonvseveryone-battleforbond-bondvillan-ugcPost-7301317006035734528-vMtL

[9] https://licensinginternational.org/news/the-future-of-brand-licensing-for-james-bond/

[10] https://www.theguardian.com/film/2025/feb/14/james-bond-in-battle-to-keep-hold-of-007-super-spys-name

[11] Generic top-level domains, or domain extensions (such as .com, etc.)

[12] where '(-)' is an optional hyphen, and '*' is any combination of (or no) characters

[13] SLD in this context refers to the second-level domain name, i.e. the part of the domain name to the left of the dot

This article was first published on 11 March 2025 at:

https://www.iamstobbs.com/opinion/the-man-with-the-golden-gun-explorations-of-james-bond-ip

Wednesday, 5 March 2025

Br'AI've New World - Part 1: Brand protection 'clustering' as a candidate task for the application of AI capabilities

Introduction

The issue of 'clustering' in brand protection - that is, the ability to flexibly identify the existence of links between disparate findings^[1] from a brand monitoring solution - is one of the great unsolved problems in the industry^[2].

Clustering has a number of key benefits, including the identification of high-volume or serial infringers to serve as priority targets for enforcement and demonstrate 'bad faith' action, offering the potential for efficient bulk takedowns of groups of associated results in a single action, and the building of a full profile of the activity associated with a particular entity through an OSINT (open-source intelligence)-style investigative approach^[3].

In general, there are several characteristics of any finding/result from a brand monitoring programme which can serve as a basis for clustering, some of which will be dependent on the channel or type of content. Domain names are one of the 'richest' sources of such data points (many of which can be determined through standard look-ups), which can include features of the whois record^[4] such as registrant (owner) and registrar contact details, hosting information (e.g. host IP address and hosting service provider), characteristics of the domain name itself (such as name patterns^[5] and TLD^[6]), and the providers of any MX (mail exchange) record(s) (allowing e-mail functionality) or SSL (secure sockets layer) certificate(s) (i.e. the authentication feature allowing the domain to use an https URL), in addition to features of any associated website. Many of these characteristics can also be relevant to other types of general Internet content, and other features may be applicable to content from other channels (such as seller names in e-commerce marketplace listings).

These features can additionally serve as the basis for more generally quantifying the level of potential threat posed by an identified result, which can be a key process in prioritising the identified results (which may, in general, comprise a large dataset), to identify the priority targets for further analysis, enforcement or content tracking^[7,8].

Clustering analysis techniques

The simplest type of clustering analysis technique - and one which is still the only offering by many brand-protection service providers - is that which is based on the use just of a single particular common characteristic of a particular type (i.e. associated with a specific single 'label', such as the registrant name or host IP address) associated with the set of results in question. For instance, if the name of the registrant of a group of sites is the same for each of the examples, then those sites can be determined all to be connected to each other (if that registrant name is suitably distinctive). This very simple approach is really nothing more than can be achieved through manual analysis (essentially, carrying out a series of 'reverse look-ups') and, while it can have value, the extent of this value is often limited.

Clustering becomes more insightful and useful if links can be drawn on the basis of identical (or similar) characteristics associated with different fields (or labels) in the database of pieces of information associated with the set of 'candidate' findings to be analysed. For example, if a particular e-mail address appears in the whois record of some domains, but in the website content of a series of others, the wider set of both groups of findings can reasonably be assumed to be associated with each other. However, these types of insights are generally much harder to obtain, essentially because it is not known in advance where these commonalities may appear. The situation may become even more complex if links must be followed in order to find the common features - e.g. crawling from a marketplace listing to the associated seller information page, to identify company names, addresses, telephone numbers, etc. These types of instance are where artificial intelligence (AI) tools can potentially begin to provide value.

Specific requirements of an AI tool to carry out clustering analysis

Beyond even the initial complexity described above in constructing an effective clustering tool, there are a number of additional points to consider:

Distinctiveness / reliability of the features used as the basis of clustering - The point to be made in this case is essentially that some characteristics of a result will be more reliable than others as a basis for clustering that result with others sharing the same characteristic. Features such as e-mail addresses and telephone numbers are (generally) highly distinctive, unique and diagnostic. Others, such as seller names (especially if relatively generic and identified across different platforms) and host IP addresses (in cases where multiple different web-hosting customers may share the use of a single webserver), may be less so. At the other end of the scale, features such as the use of a common TLD (e.g. if we consider a group of sites which just share the use of a common extension such as .com), reference a common privacy-protection service provider in their whois record, or the observation for a group of domains that they simply happen to have been registered on the same day (unless other characteristics suggesting a link are also present) may, in isolation, be poor indicators of an actual connection between the findings. Accordingly, any clustering tool will need to take account of the differences between the various possible clustering criteria, and 'weight' their contribution to the overall 'strength' of any asserted potential link.

Identification of variants - In many cases, even when results are linked, the pieces of information pertaining to that link may be presented in different formats across the various findings, so any clustering tool will need to take a 'fuzzy' approach to its matching. For example, the same telephone number may be presented in a variety of ways (e.g. "01223 435240", "01223435240", "01223 435 240", "+44 (0)1223 435240", "44 1223 435240", etc.). Similarly, in many cases, a particular company name may be presented differently in distinct contexts (e.g. the registrar / hosting provider GoDaddy might variably be cited as "GoDaddy", "Godaddy.com", "GoDaddy.com, LLC", etc. - and in some cases, depending on the nature of the variations, the entities might be better considered to be distinct anyway - e.g. "Alibaba Cloud LLC" vs "Alibaba Cloud (Singapore) Private Limited"). There is also complexity of the type that (for example) "badseller123@gmail.com" and "badseller123@qq.com" may or may not relate to the same actual entity.

Analysis of rich content types - Further difficulties arise from the fact that Internet content is becoming increasingly 'rich' (in terms of the ways in which data can be presented) and any truly comprehensive clustering tool would ideally need to be able to interrogate all of these areas of content. Examples for consideration might include text, imagery or audio content embedded in pictures or videos (say, text displayed as a watermark), potentially requiring features such as image analysis, optical character recognition (OCR), etc.

Conclusion

The construction of a truly effective clustering tool able to take account of all the factors discussed in this article is likely to be an extremely difficult problem to solve. However, appropriate application of AI capabilities may be able to provide a stepwise approach towards addressing the issue.

The benefits of successfully doing so will be enormous, potentially building insights and efficiencies into the processes of brand protection monitoring, analysis and enforcement which are essentially not available through any 'classic' approaches. Any service provider able to put a compelling solution of this nature in place in the short to medium term - particularly if it also offers other attractive AI or machine-learning features, such as the option for automatic 'tuning' of search parameters to identify and categorise the most significant results, being able to be 'trained' based on analyst feedback on the quality of the outputs, or the implementation of semi-automated enforcement notice production and sending - may find themselves a long way ahead of their field of mainstream competitors.

References

[1] In referring to a 'finding', in this context I refer to any single result (such as a website / its associated URL) identified via a brand monitoring product or service configured to search the Internet for material of potential interest or concern.

[2] https://circleid.com/posts/20230525-the-millennium-problems-in-brand-protection

[3] 'Patterns in Brand Monitoring' (D.N. Barnett, Business Expert Press, 2025), Chapter 6: 'Result clustering'

[4] The 'whois' record of a domain gives technical configuration and ownership information for that domain.

[5] e.g. the group of domains all with names of the form ketoXXXYYY.TLD (where 'XXX' is a string of (typically six or seven) random alphabetical characters, 'YYY' is a string of three random digits, and 'TLD' is a low-registration-cost new-gTLD extension such as .sbs or .cloud) which were identified as all being part of a health scam campaign in a 2024 study -
https://www.iamstobbs.com/opinion/health-scam-websites-identifying-related-domains-using-clustering-techniques

[6] The TLD (top-level domain) is the domain name extension - i.e. the part of the name after the dot.

[7] 'Patterns in Brand Monitoring' (D.N. Barnett, Business Expert Press, 2025), Chapter 5: 'Prioritization criteria for specific types of content'

[8] 'Patterns in Brand Monitoring' (D.N. Barnett, Business Expert Press, 2025), Chapter 3: 'Brand content scoring'

This article was first published on 5 March 2025 at:

https://circleid.com/posts/braive-new-world-part-1-brand-protection-clustering-as-a-candidate-task-for-the-application-of-ai-capabilities

Tuesday, 18 February 2025

Long-term trends in the online prominence and sentiment of tyre brands

by David Barnett and Chris Anthony

Following some 20 years of ongoing cooperation between Tyres & Accessories and analyst David Barnett in the field of online tyre brand analysis, here Stobbs presents the results of a new study looking at the online prominence and sentiment of tyre brands.

The previous research was produced by Envisional and NetNames between 2005 and 2017, plus a recent study by Stobbs in January 2024. For the purposes of this report, the January 2024 data has been redesignated as the 2023 study for obvious chronological reasons and because it was largely reflective of the previous long-term data.

Set in the context of the earlier research, the latest study utilises a new and improved methodology for quantifying brand prominence and sentiment, as originally outlined in the study of the top 100 most valuable global brands in 2023. The basic calculation frameworks are outlined in Appendix A [of the previous study].

In the study, we consider a set of 150 tyre brands drawn from various sources, including Tyres & Accessories' list of leading tyre companies; Brand Finance's list of most valuable tyre brands, and also incorporating all brands considered in the previous NetNames/Envisional studies. The methodology involves the use of a series of generic tyre-related search queries to bring back a set of pages for analysis, resulting in a dataset of 3,918 distinct webpage URLs. Findings are based on searches and analysis carried out on 19-Nov-2024, utilising results returned on the first page of Google.com, browsing from a UK-based IP address.

The brands with the highest prominence scores are shown in Figure 1 and Table 1. The brands with the highest positive sentiment scores (i.e. the most favourably-referenced brands) are shown in Figure 2 and Table 2.

Figure 1: Top 30 brands by prominence score

Rank	Brand	Prominence score
1	Michelin	1.841
2	Continental	1.449
3	Pirelli	0.835
4	Goodyear	0.741
5	Bridgestone	0.564
6	Falken	0.557
7	Dunlop	0.471
8	Toyo	0.319
9	Hankook	0.275
10	Yokohama	0.242

Table 1: Top ten brands by prominence score

Figure 2: Top 30 brands by sentiment score

Rank	Brand	Sentiment score
1	Michelin	34.14
2	Continental	25.52
3	Falken	19.05
4	Bridgestone	18.55
5	Goodyear	17.16
6	Pirelli	16.86
7	Toyo	15.14
8	iLink	13.92
9	Dunlop	12.55
10	Kumho	12.13

Table 2: Top ten brands by sentiment score

Overall, as in the previous study, Michelin achieves the position of being both the most prominent and the most positively-referenced brand. Of the top ten most valuable tyre brands (as compiled by Brand Finance), nine appear in the list of the top ten most prominent brands (together with Falken, in sixth position, and with the exception of Giti, the 17th most prominent overall), and seven feature in the list of the top ten most positively referenced (together with Falken (3rd), iLink (8th) and Kumho (10th)). Broadly, there is a moderate positive correlation between brand value and both online prominence (correlation coefficient = +0.71) and online sentiment (correlation = +0.79) (Figures 3 and 4).

Figure 3: Comparison of online brand prominence score with brand value (for the top ten most valuable brands)

Figure 4: Comparison of online brand sentiment score with brand value (for the top ten most valuable brands)

Overall, only eight of the analysed brands achieved sentiment scores which were negative, of which the bottom three were Interstate (-2.14), Fullway (-0.51) and Headway (-0.50), based on identified mentions on 20, 8 and 13 pages, respectively.

It is also informative to compare the performances of the brands with those from the previous NetNames / Envisional studies (for those brands which were included in these earlier analyses), and with the most recent Stobbs study ('2023'). For comparisons of prominence, the scores from the earlier studies were renormalised (scaled), so that the mean score across all brands featured in the 2017 study was the same as that for the same group of brands from the 2023 study. The resulting trends over time in the relative prominences of the set of brands analysed previously is shown in Figure 5.

Michelin retains the top spot it has consistently held in all previous studies - though this year by an increased margin - and with the previous 'big six' (Michelin, Goodyear, Continental, Pirelli, Bridgestone, Dunlop) remaining within the top seven brands, though (as in the previous study) again joined by Falken, in sixth position above Dunlop. The other most significant change since the previous study is the drop in relative prominence of Goodyear, having fallen below Pirelli, whose prominence has risen slightly.

Similarly, we can also compare the relative sentiment rankings of the set of 18 brands which have been considered in some or all of the previous studies (Figure 6).

Figure 5: Trends over time in (normalised) prominence score, for the set of brands analysed previously

Figure 6: Trends over time in sentiment ranking, for the set of brands analysed previously

All 18 of these brands continue to receive positive sentiment scores overall (ranging from +1.14 for GT Radial to +34.14 for Michelin - compared with a score of +27.66 for this brand from 2023), indicating that commentary is generally favourable overall for this set of brands. In terms of the degree of positive sentiment, Michelin holds the top position it held in 2023 and in nine of the other previous studies (including a continuous run between 2007 and 2014). Falken continues to climb up the rankings (from 14th in 2015, 9th in 2016 and 2017, and 6th in 2023, to 3rd in 2024), and with other significant changes since the previous study seen for Kumho (up 4 places from 13th to 9th), Yokohama (up 3 from 15th to 12th), Nexen (down 6 from 7th to 13th) and Firestone (down 4 from 12th to 16th).

Finally, it is also possible to calculate a rudimentary 'brand strength score' for those brands for which a monetary brand value is provided by Brand Finance, based on a combination of (normalised versions of) the prominence and sentiment scores, and the brand value itself. The brand strength scores for these top ten brands, and the corresponding values from 2023, are shown in Figure 7.

Figure 7: Brand strength scores for the top ten most valuable brands, from the 2023 and 2024 (current) studies

This article was first published on 16 December 2024 as part of the Tyres & Accessories 'Trends & Facts 2024' report:

https://www.tyrepress.com/epaper/trends-facts-2024-by-tyres-accessories/

Further explorations in brand colour disputes

Part 1: Stratos vs Freia Boble

Given my previous explorations with colour-mark similarity measurement, a recent interesting case^[1] caught my eye. The Norwegian IP Office has rejected (pending appeal) an application by manufacturer Orkla to register the blue shade Pantone 2144 C as a colour mark for 'aerated chocolate' (for its Stratos brand), despite a previous court decision that the company was entitled to protection of the shade through long-term and widespread use.

The earlier case arose when competitor Mondelez launched a similar product (Freia Boble) in 2023 using a "strikingly similar" shade of blue (Pantone 2145 C)^[2]. Orkla's challenge was successful, with Mondelez ordered to change its packaging and pay damages.

But how similar actually are these shades? My previous work on comparison of marks^[3] focuses on the idea that, for certain categories of mark (such as colour), the difference between pairs of marks can be precisely quantified - and that, by extension, it ought to be possible to formulate trademark protection guidelines outlining the threshold to which protection would apply (with a geometric 'distance' of 10 units in RGB colour space being suggested as, perhaps, a reasonable rule of thumb)^[4].

Pantone 2144 C (Stratos) is RGB (0,103,185), whilst Pantone 2145 C (Freia Boble original launch) is RGB (0,78,168). The RGB 'distance' between these two colours is 30 units, making them objectively ('only') 93.155% similar (by expressing the distance as a proportion of the maximum possible distance between two colours in RGB space).

Was the original case decision 'correct'? The two shades are noticeably different when viewed side by side, but how noticeable is the difference when the products are viewed separately? How close should product types need to be in order to 'offset' a lesser degree of similarity between colour marks, when assessing potential 'clashes'?

Part 2: Heinz

So, brand colours - my new favourite thing - are apparently everywhere at the moment. But the material generally does not bode well for brand consistency (or any prospect of a robust quantitative framework for colour mark protection).

For example, Pantone, the global colour standard, released a 'Heinz 57 Red' shade "emblematic of the [ketchup's] enticing appetizing arousing juicy red color [sic]"^[5,6]. According to Pantone's post on X (and my desktop 'colour picker' tool), this colour is RGB (131,31,31). This is rather different to the 'Heinz Red' offered by various online colour archives - with one source (no pun intended) giving a value of (200,41,34)^[7]. How different are these two shades? Precisely 15.8% different (70 RGB units), according to the distance between these two colours in RGB space, as per my previously-outlined algorithm.

Heinz themselves are rightly very defensive of their ketchup colour, as a means of protecting against refills and counterfeit versions, even going so far as to publish a colour 'cheat sheet'^[8] (see below). On their poster, 'Heinz' colour is (211,32,38), actually 80 units (18.2%) different from 'Pantone Heinz 57 Red' (but only 15 units (3.3%) different from Schemecolor's 'Heinz Red').

For comparison, the closest 'not Heinz' on Heinz's poster, (185,37,35), is 27 units (6.0%) different to 'Heinz', with a spectrum running all the way to (104,51,20) ('Is that even ketchup?'), a whopping 110 units (24.9%) different from 'Heinz' (but only 35 units (8.0%) distinct from 'Pantone Heinz 57 Red').

It's all very confusing...

Part 3: T-Mobile

In this latest instalment of my exploration of brand colour disputes, I consider the case of telecommunications provider T-Mobile (part of Deutsche Telekom).

T-Mobile is notoriously protective of the magenta colour used in its branding, and has secured a colour trademark registration for 'Pantone Rhodamine Red U' (RGB (228,76,154)^[9]), despite actually using a range of shades in its own marketing. In 2008, the brand (unsuccessfully)^[10] launched a case against rival telecommunications provider Telia for their use of a shade of magenta, followed by a successful case against AT&T subsidiary Aio Wireless in 2014.

In 2020, T-Mobile targeted insurance provider Lemonade (lemonade.com), despite their shades of magenta being rather different and the fact that the overlap between the areas of business of the companies is tenuous at best. Lemonade ultimately changed the colour of its marketing materials in Germany, before launching an action in Europe to invalidate Deutsche Telekom's colour trademark^[11], with an initial successful outcome in France^[12]. This had been just the latest in a round of disputes by Deutsche Telekom against companies in a range of industry areas, under the justification of the wide portfolio of trademarks held by the organisation in a range of areas, extending to fashion and healthcare.

Lemonade itself has been using shades of pink since its launch in 2015, with a brand association sufficiently strong that the organisation has even commissioned art projects relating to the pink shade #FF0083 (the hexadecimal representation of RGB (255,0,131)), including the creation of an associated portfolio website at ff0083.com (a very nice creative use of a domain name!).

The predominant colour used by T-Mobile in their branding (as of the 2022 article referenced above) is (of the order of) RGB (228,0,116), and with Lemonade's 'banned' shades including (255,86,173), (184,1,145) and (187,2,142).

The difference in colour between T-Mobile's trademark and their own brand colour is 85 RGB units (only 80.8% similarity), as compared with the distances between their trademark and Lemonade's three contested colours of 86, 87 and 85 units (and whose distances from T-Mobile's own brand colours are 107, 53, 49 units, respectively).

Whilst there is some reasonable justification for T-Mobile's earlier cases against companies in the same industry area, the Lemonade case highlights a very aggressive approach against an organisation in an area of business which is a long way from that for which T-Mobile is primarily known. Discussions in my earlier series of articles on the subject have suggested that a formal framework for colour-mark protection should be reasonably expected to include a 'trade-off' between the closeness of the colours of competitor brands and the closeness of their areas of business.

In the case of T-Mobile, however, the organisation appears to be attempting to protect a 'sphere' of colour varations in RGB space of radius approximately 100 units - covering a visually disparate range of shades - across a wide spectrum of areas of business. This 'sphere' (volume 4,188,790 cubic units) would encompass over one-quarter of the total volume of RGB space (255³, or 16,581,375 cubic units) - i.e. the universe of all possible colours - which would clearly be an unsustainable situation if all brands attempted to do so.

The tools are available to construct a consistent quantitative framework for the protection of colour marks - perhaps it is time the industry looked more closely at putting something in place along these lines.

References

[1] https://www.worldtrademarkreview.com/article/the-stratos-saga-continues-uncertain-future-blue-colour-mark-chocolate

[2] https://haavind.no/content/uploads/sites/2/2024/12/Food-beverage-insight-winter-2024.pdf

[3] https://www.linkedin.com/pulse/measuring-similarity-marks-overview-suggested-ideas-david-barnett-zo7fe/

[4] https://www.linkedin.com/pulse/what-degree-variability-might-covered-within-david-barnett-ajyoe/

[5] https://x.com/pantone/status/1262819916928991232

[6] https://www.linkedin.com/posts/carola-seybold-61482613_color-food-design-activity-7293596033001881600-KYJZ/

[7] https://www.schemecolor.com/heinz-red-color.php

[8] https://www.creativemoment.co/heinz-creates-label-with-the-exact-pantone-reference-of-tomato-ketchup-to-fight-ketchup-fraud

[9] https://icolorpalette.com/color/pantone-rhodamine-red-u

[10] https://www.engadget.com/2008-05-28-t-mobile-loses-magenta-suit-against-telia-we-try-not-to-laugh.html

[11] https://thehustle.co/can-a-corporation-trademark-a-color

[12] https://www.businesswire.com/news/home/20201216005880/en/%C2%A0Lemonade-Wins-FreeThePink-Case-Against-Deutsche-Telekom-in-France

This article was first published as a series of LinkedIn postings / articles on 6, 7 and 10 February 2025 at:

https://www.linkedin.com/posts/dnbarnett2001_given-my-previous-explorations-with-colour-mark-activity-7293304831497162754-nQLe/

https://www.linkedin.com/posts/dnbarnett2001_so-brand-colours-my-new-favourite-thing-activity-7293621709687930880-SMMs/

https://www.linkedin.com/pulse/further-explorations-brand-colour-disputes-t-mobile-david-barnett-uoble/

Taking action: EU Commission proceedings against online platforms under the Digital Services Act

by David Barnett and Richard Ferguson

Introduction

i. Overview of the Digital Services Act (DSA)

Around one year on from the full implementation of the Digital Services Act (DSA), we conduct a review of actions taken by the EU Commission regarding online platforms under the scope of the legislation, as reported on the Commission's own 'press corner' website^[1].

The DSA concerns the regulation of online platforms such as e-commerce marketplaces, social media platforms, app stores, and hosting and intermediary services (e.g. providers of cloud and web hosting, network infrastructure, Internet service providers, and domain registrars) and aims to "ensure user safety, protect fundamental rights, and create a fair and open online platform environment"^[2]. Specific measures under the DSA include the introduction of 'trusted flagger' status, obligations on traceability of business users, specific requirements for platforms over a specific size ('Very Large Online Platforms' (VLOPs) and search engines (VLOSEs) with over 45 million users in Europe)^[3], and out-of-court dispute resolution systems^[4].

ii. Routes for awareness of breaches

The EU Commission can become aware of potential breaches of the DSA through a number of routes:

Complaints and reports - Users, consumer organisations, and other stakeholders can file complaints or reports about potential breaches, including instances of illegal content, lack of transparency, or other non-compliance issues.

Digital Services Coordinators - Each EU member state has a Digital Services Coordinator (DSC) responsible for monitoring and enforcing the DSA at the national level, and can investigate and report breaches to the Commission.

Proactive monitoring - The Commission itself conducts proactive monitoring and investigations, which can include analysis of internal company documents, conducting interviews with experts, and co-operating with national authorities.

Transparency reports - VLOPs and VLOSEs are required to publish regular transparency reports detailing their content moderation practices, advertising policies, and other relevant activities. These reports can highlight potential areas of non-compliance.

External audits - The DSA mandates that VLOPs and VLOSEs undergo independent audits to assess their compliance with the regulations. The findings from these audits can inform the Commission of any breaches.

These mechanisms ensure a comprehensive approach to detecting and addressing non-compliance with the DSA.

iii. Sanctions for DSA breaches

The DSA includes provisions for several possible sanctions (primarily against VLOPs and VLOSEs) which may be imposed as a result of breaches. Key categories of sanctions include:

Fines - The EU Commission can impose fines of up to 6% of the global turnover of any VLOP or VLOSE found to be in breach of the DSA.

Periodic penalty payments - These may be imposed by the Commission to ensure compliance with its orders.

Corrective Measures - The Commission may order the provider to take specific measures to address the breach within a set deadline.

These sanctions are designed to ensure that providers comply with the regulations, with the aim of promoting greater online safety and transparency.

iv. DSA coordination in Ireland

Finally, it is also worth noting that the DSA has designated Comisiún na Meán (Media Commission) as the DSC for Ireland, as an EU member state. Also named as a competent authority for articles related to online marketplaces (Articles 30, 31 and 32) is the Competition and Consumer Protection Commission (CCPC). Under the terms of the DSA, Comisiún na Meán has powers to investigate, impose fines, and issue compliance notices, and is awarded trusted flagger status. CCPC also has the capacity to launch investigations and issue fines and compliance notices for marketplaces^[5].

Overview of EU Commission actions

The actions taken by the EU Commission relating to online platforms under the DSA fall into a number of high-level categories, and are collected together as such in the overview below. The summaries reflect the actions taken, and the associated grounds, at the time of the initial announcements.

Platform designations - This category of actions relates to the classification of individual platforms as VLOPs by the EU under the DSA, with the specific obligations which come with that designation. The first group of 17 VLOPs (including Alibaba AliExpress, the Amazon, Apple and Google Play app stores, Facebook, Instagram, LinkedIn, Pinterest, Snapchat, TikTok, Twitter, Wikipedia and YouTube) and two VLOSEs (Bing and Google Search) was announced on 25-Apr-2023^[6] and the second set (the adult sites Pornhub, Stripchat and XVideos) on 20-Dec-2023, together with an overview of more stringent rules for VLOPs^[7]. Subsequent designations as VLOPs followed for the e-commerce platforms Shein (26-Apr-2024)^[8] and Temu (31-May-2024)^[9], and the adult content platform XNXX (10-Jul-2024)^[10].

Formal proceedings - These can be taken against platforms in response to specific issues of concern. Those reported by the EU Commission are outlined below, categorised by the platform against which the action(s) was taken.

X (formerly Twitter) - The launch of formal proceedings against X related to the dissemination of illegal content (specifically in relation to the Hamas attacks against Israel), measures taken to combat information manipulation and increase transparency, and questions over the platform's 'Blue Checks' scheme (18-Dec-2023)^[11]. Preliminary findings on concerns relating to verified accounts, transparency on advertising, and data access were subsequently served to the platform, indicating the Commission had taken the view that the DSA had been breached (12-Jul-2024)^[12]. These formal proceedings had followed an earlier 'request for information' sent to the platform, concerned their policies on a range of issues. These areas of concern included the dissemination of illegal content and disinformation, gender-based violence, and security, mental well-being and other fundamental rights (12-Oct-2023)^[13].

TikTok - This action primarily related to concerns about the risk of negative effects and behavioural addictions caused by the platform’s algorithmic system, measures for the protection of minors, and the availability to the Commission of access to data (including questions about a searchable repository for advertisements (19-Feb-2024)^[14]. Subsequent proceedings related to possible non-compliance with the DSA surrounding the launch of TikTok lite in France and Spain - in particular, the potentially addictive nature of the 'Task and Reward Lite' programme (22-Apr-2024)^[15] - and on election risks - specifically, the possibility of manipulation or exploitation of the recommender systems, and questions over the policies on political advertisements and paid-for content (17-Dec-2024)^[16].

AliExpress - In this case, concerns were raised regarding content moderation and the handling of complaints by the e-commerce platform (particularly in regard to the availability of fake medicines and foods, and of adult content, and the practice of 'hidden links'^[17] to manipulate the platform and circumvent restrictions on the sale of infringing goods), advertising and other system transparency, and the availability of seller data (14-Mar-2024)^[18].

Meta (Facebook / Instagram) - Regarding the Meta platforms, concerns surrounded practices regarding deceptive advertising and the visibility of political content, in the context of the deprecation of the Meta public insights tool CrowdTangle, and the possible non-compliance of the mechanism to flag illegal content (30-Apr-2024)^[19]. A follow-up action centred on concerns about the physical and mental well-being of minors on the platform, including a lack of effective age-verification tools and privacy, safety and security measures (16-May-2024)^[20].

Temu - The proceedings in the case of the Temu e-commerce platform related to the sale of non-compliant products in the EU, the algorithms surrounding content recommendation and the addictive design of the service, including issues relating to data availability (31-Oct-2024)^[21].

EU Commission statements - In some cases, the Commission will issue a formal statement on an area of interest, distinct from an announcement of a formal proceedings action. Two examples in the 'press corner' database include a statement on the suspension of the TikTok Lite Reward programme in the EU (following a prior launch of formal proceedings) (24-Apr-2024)^[22] and one regarding steps announced by LinkedIn to comply with DSA provisions on targeted advertisements (07-Jul-2024)^[23], following a prior request for information (14-Mar-2024)^[24]. The former statement was followed by a subsequent press release announcing the permanent withdrawal of the TikTok rewards programme (05-Aug-2024)^[25].

Other press releases - the EU Commission 'press corner' archive also includes a number of other releases discussing a range of platform-specific issues. Examples in which the DSA is also referenced are outlined below.

Viagogo - The press release in this case outlines the commitment by the online ticket marketplace to improve terms and consumer information, following dialogue with the EU Commission and consumer authorities (16-May-2024)^[26].

Vinted - The e-commerce marketplace for second-hand goods made improvements to the provision pricing and seller information, in order to bring their practices more in line with EU consumer law, and to the quality of its information on refund policies in cases of purchase of counterfeit goods or the non-delivery of items, again following dialogue with the Commission (18-Jun-2024)^[27].

Meta - The EU Commission announced its coordination of action by national consumer protection authorities against Meta's 'pay or consent' model - essentially, a move by the platform to demand either a subscription fee or the use of customers' personal data in targeted advertising (22-Jul-2024)^[28].

Temu - The e-commerce platform was urged by the Commission and national authorities to respect EU consumer protection laws, relating to a range of issues surrounding misleading content (such as fake discounts and reviews), measures to influence decision-making (including pressure selling and gamification), and hidden contact details for the platform (08-Nov-2024)^[29].

Apple - This press release reports the notification to Apple of several potentially prohibited geoblocking practices, across a range of Apple Media Services platforms. Issues include the inability to access interfaces designed for use in other countries, no option for payment methods outside the country of account registration, and no ability to download apps offered in other countries (12-Nov-2024)^[30].

Discussion

Some of the issues raised by the EU Commission are still unresolved, but it is gratifying to see the organisation proactively taking actions against platforms on which problematic issues may be occurring - particularly those which impact consumer safety, have societal impacts, or are causing damage to brand owners. As time goes on, we hope to see the adoption of additional good practices by platforms within the scope of the DSA, such as the EUIPO recommendations for search engines outlined in their recent report^[31,32], and requirements for a more proactive approach to tackling infringements by e-commerce marketplaces, such as the platforms referenced in the 2024 Review of Notorious Markets for Counterfeiting and Piracy^[33,34].

As of the time of writing, no fines have yet been imposed by the Commission, but it may only be a matter of time before this takes place, especially if cases arise where platforms have made commitments, but fail to meet them. One potential example concerns TikTok which, in response to the proceedings referenced previously, has committed to withdraw its Lite Rewards programme from the EU^[35]. It also remains to be seen whether individual platforms may continue to challenge their designation status (i.e. as a VLOP or VLOSE), as a means of exempting themselves from obligations, as was done by Amazon when required to disclose its advertising information in an online archive^[36]. A final point to watch is how the newly-elected EU member state DSCs, responsible for local monitoring and enforcement of the DSA, may continue to develop in importance.

References

[1] https://ec.europa.eu/commission/presscorner/home/en?keywords=dsa

[2] https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act_en

[3] https://www.iamstobbs.com/opinion/digital-markets-act-eu-confirms-big-tech-gatekeepers

[4] https://www.iamstobbs.com/opinion/what-is-the-digital-services-act-and-how-will-it-protect-brands-and-support-online-enforcement

[5] https://enterprise.gov.ie/en/what-we-do/the-business-environment/digital-single-market/eu-digital-single-market-aspects/digital-services-act/

[6] https://ec.europa.eu/commission/presscorner/detail/en/ip_23_2413

[7] https://ec.europa.eu/commission/presscorner/detail/en/ip_23_6763

[8] https://ec.europa.eu/commission/presscorner/detail/en/ip_24_2326

[9] https://ec.europa.eu/commission/presscorner/detail/en/ip_24_3047

[10] https://ec.europa.eu/commission/presscorner/detail/en/ip_24_3723

[11] https://ec.europa.eu/commission/presscorner/detail/en/ip_23_6709