What Will Post Pandemic IP Enforcement Look Like?

Gibney Anthony & Flaherty, LLP
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As we are on the cusp of gaining some control over the pandemic and regaining a focus on the new normal, it seems to be an opportune time to think about what the post-pandemic world of IP enforcement will look like. While admittedly focusing only on the world of counterfeiters, this brief overview offers some food for thought into other aspects of intellectual property matters.

Unfortunately, we can all agree that the counterfeiters were out of the gate immediately when it came to taking advantage of the pandemic. Not only did they have their trade routes established, they were able to pivot into new areas of ‘expertise’ before legitimate manufacturers could ramp up production. The scope of the counterfeiters abilities are still being seen today with almost daily seizures of bogus PPE at the border by CBP. Add to those factors the cuts in enforcement budgets and staffing to create the perfect storm.

Now brand enforcement personnel have to pick up the pieces and address new issues and developing problems. The profound, and some say permanent, change to online shopping is only part of what needs to be addressed. Let’s take a brief look at some of the issues.

Data is king. But the key remains knowing what to hone in on and harnessing it to address the counterfeiting issues. Something as simple as tracking, and possibly taking action on, Customs seizures offer a low cost way to address bulk importations. Maintaining databases and availing oneself of information is a way to spot trends and develop ways to address them. Talk to other brands about ways to implement strategies using readily available data. Everyone does it differently and it pays to be open to new ideas. There are a lot of metrics available; be judicious in selecting and using them.

The pandemic had an adverse economic impact on many brands. Income went down and, in turn, enforcement budgets were cut or whole brand protection departments eliminated. It will take time to reach a point where enforcement staffing is commensurate with pre-2020 levels. This then raises the question of how best to address emerging online threats. Do you make do and cover what you can with limited personnel? Do you look at bringing in outside vendors to provide previous in-house functions even if only for a limited time? With brand protection often viewed as an expense that fails to add to the bottom line, the trick is to utilize limited resources in the most effective way possible.

How do you address the brick and mortar aspects of the trade in counterfeit goods? If you ignore it, it will continue to flourish. Enforcement has to be seen as a 360 degree effort of multiple types of enforcement that are in a constant state of re-calibration. How do you justify allocating resources and to what extent given online issues? It is not an easy call, but one way may be to make better use of resources for training and engaging law enforcement so they may look at the most egregious sellers and enter into investigations where costs may be shared among brands. The adaptation to the use of technology used on LiveStorm or Webex and others is a way to take training programs where they have not gone before. Certainly it is hard to replicate the connection made at in person trainings, however, remote trainings allow knowledge to be shared in a low cost and effective manner for the time being.

It goes without saying that social media has become a double-edged sword. It is a way for a brand to promote itself and its values across multiple platforms to a full range of current and potential customers. However, sometimes influencers do run amok as evidenced recently on platforms where the influencers suggested buys were actually disguised counterfeit goods from which they profited. Sadly, counterfeiters have always been better at monetizing new technology/platforms faster than the developers. Here the challenge is to maintain vigilance, not just on well-known platforms, but also being on the look-out for any new platforms (and scams) that emerge to push the sale of counterfeits.

If the only constant is change, brand owners have to be ready to anticipate, adapt and aggressively address issues before they mutate into serious problems and become harder to eradicate. Enforcement in a post pandemic world has to be viewed as an opportunity to take a broad look at all enforcement efforts and further fine tune them based on experience, budgetary limits and a wary eye on the variables of the future.

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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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