How to navigate the brand protection challenges exacerbated by COVID-19

The closure of bricks and mortar retail outlets in an attempt to stem the spread of COVID-19 has seen a dramatic shift to consumers shopping online.  

Although an uptick in online purchases has been a life raft for brands agile enough to capitalise on the shift in consumer behaviour, the rise in online sales has exacerbated existing brand protection challenges.  The increase in consumer demand, coupled with disruption to supply chains, has seen opportunistic counterfeiters step up to exploit shortages of genuine products, utilising the same advertising and marketing strategies employed by brands (such as social media marketing and sponsored ads on ecommerce platforms and marketplaces) to legitimise counterfeit products.  Such activities not only eat into brand owners’ profit margins in the short term, they also undermine consumer trust and brand value in the long term.

What are the challenges?

Unsurprisingly, a recent report by the European Union’s law enforcement agency, EUROPOL, highlighted that counterfeiters have been quick to exploit consumer fear and anxiety surrounding the COVID-19 pandemic, with a surge in counterfeit pharmaceutical and healthcare products. Interestingly, EUROPOL noted particular trends when tracking surges in counterfeit products correlating with social media commentary on outbreaks of the virus and the introduction of restrictions on movement to control it’s spread.

Predictably COVID-19 has also seen enforcement authorities channel resources to focus on public health and safety.  This, along with the restrictions on movement and safe working practises means physical market checks and customs enforcement for “non-essential” goods (i.e. fashion, luxury goods, personal electronics, etc.) may be treated as a lower priority.  All of this highlights the importance of effective and adaptable online enforcement mechanisms.

A recent study by World Trademark Review identified the 3 key concerns of in-house counsel as a result of the COVID-19 outbreak to be: (1) budget reductions; (2) increase in counterfeiting; and (3) the rise in online trade mark infringement.

Mindful of the challenging circumstances presented by COVID-19, the resulting contraction in the economy and knock-on budget reductions, we have the following tips and suggestions for consideration when apportioning budget for brand protection, to ensure an efficient allocation and use of resources.

What can brands do to protect themselves?

• Review your current brand protection strategies now to ensure they encompass marketplaces, domains and social media, and where necessary repurpose efforts to focus on online strategies to help increase resilience and future proof your brand(s);
• Prioritise your efforts on key online platforms and marketplaces where your consumers shop most and/or where authorised resellers of your brand operate;
• Consider becoming a brand partner on these platforms/marketplaces to leverage your power and influence with the platform to enforce your rights;
• Going forwards, ensure that your brand protection strategy aligns with the business’ priorities, to ensure wider buy-in from the business;
• You can’t be everywhere - educate your customers and provide reporting mechanisms to empower consumers to report issues;
• Don’t just rely on IP - look at other enforcement mechanisms that protect consumers, reporting listings that violate platform/marketplace T&Cs; and
• Join forces and collaborate with other brands to spread the cost of enforcement against prolific offenders.