Automated IP Enforcement: Moving Towards Better Results

Gibney Anthony & Flaherty, LLP

Last year in our article “What Will Post Pandemic IP Enforcement Look Like,” we looked at the future of enforcement and what strategies may emerge and take root post-pandemic. As it appears we are moving to an endemic stage, it may be a good time to revisit some key ideas.

Over the course of the last two decades, online brand protection has changed tremendously. I recall the days when we received monthly reports of violative goods on a single platform on which we then took action. Today, we monitor a multitude of platforms on a daily basis for a variety of clients. At various times, our clients have asked us to utilize specialized software or services to assist in the effort. We have had the opportunity to sample the full gamut of providers.

As these monitoring services have improved over the years, they have performed better. However, even with various iterations and implementations of artificial intelligence, none we have utilized are able to fully meet the enforcement challenge. Absent the presence of human intervention, the net cast is often too broad and cannot fully discern the subtleties of identification. Previously, we discussed the importance of data. However, if the volume or content of that data impedes the enforcement process, additional steps must be taken.

I am all for automating as much of the process as possible with the caveat that the results are able to be acted upon immediately and not encumber the takedowns. Unfortunately, a fully automated process seems to routinely produce many false positives. Our experience is that trained personnel are needed to cull the results and better identify actionable content. This is done so as to avoid possibly costly mistakes by removing genuine or even unrelated product.  While technology and the data it can produce represent a significant step forward in the battle against counterfeit goods, do not underestimate the need for a review process that ultimately helps the software perform better. That review process may also help a brand better define the scope of the problem. If initial results appear to indicate 10,000 violative items on a platform, further review may reveal the number is actually in the low hundreds.

Working with your software provider and highlighting the issues you may be having certainly does have an impact.  Algorithms can be changed and parameters altered to create a better and more refined user experience. Many of the software vendors will work closely with you to understand the issues and implement necessary changes. Again, it is up to the brand representative to monitor and provide ongoing feedback. Each brand has different needs and strategies that cannot be accommodated by one size fits all products. Luckily, we have reached a point where suggestions and considerations can be incorporated quickly in pulling actionable results.

In the end, the data and utility of the correct (for your brand) enforcement platform can act as force multipliers for your efforts which may have been impacted by headcount or budget reductions. However, be an active user, willing to review and push for the best results. Technology is only as good as your knowledge and insight can push it to be.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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