Marques is the European association representing brand owners’ interests. Its strategic goals include identifying and focusing on key issues affecting brand owners in Europe, while at all times ensuring Marques remains forward-thinking.
Marques has several teams that form an inherent part of its intellectual assets and are integral to achieving these goals. One of these is the Emerging Issues Team. Tasked with evaluating social and cultural trends, this team explores them in the context of their impact on registered signs, brands and related IP rights as well as considering changing perceptions towards brands and their societal role.
An overarching theme through much of the Emerging Issues Team’s work has been the rise of the “brand role” and the kind of relationship that consumers want to have with brands. This is a relationship in which expectations are created, and brands are continually assessed. In particular, sustainability has emerged as an increasingly important concept for brands to consider.
Conceptually, sustainability is a complex interplay between principles of social equity, access to resources, participation, and social capital, as well as human rights issues. The United Nations’ (UN) 17 Sustainable Development Goals attempt to balance the factors comprising the Triple Bottom Line: profit, people, planet. Brands are increasingly being assessed in the context of their impact within this wider sustainability agenda.
Consumers are also increasingly forming ‘communities’ that reflect a sense of place and connectedness within society. With the benefits of technological advancement and the growth of social media, this sense of place is no longer connection is not territorially limited: it extends to include the importance of shared experiences, relationships, emotions and thoughts that evolve and may change through time and may influence subsequent interactions.
The COVID-19 pandemic has extended and intensified community-based relationships, including the one between consumers and brands.
Brands, greenwashing and climate
Consumers are becoming more environmentally conscious, and brands are following suit. This translates into patent and trademark applications related to ‘green’ technology, as industries find new ways of combating the challenges presented by climate change. There has also been greater interest in green products and packaging, as well as perceived brand owner engagement in environmental and sustainability initiatives (particularly those associated with the UN Sustainability Goals).
Nonetheless, corporate environmental stewardship largely remains self-regulated. Despite brand owners taking initiatives to be more environmentally friendly, the genuine motives behind their actions and environmental policies can be questionable to consumers.
This suspicion is exacerbated by the wide-ranging adoption of seemingly meaningless ‘green’ terminology, confusing certification mark regimes, and the use of evocative nature-based imagery.
Collectively known as ‘greenwashing’, these efforts by certain companies to inflate their environmental credentials are creating an increasingly fractured marketplace, marked by consumer distrust. Equipped with better access to verifiable information, consumer crusaders are quick to identify and challenge those brands who intentionally or unintentionally stray from their stated sustainability policies.
This includes deceitful behaviour and companies who are considered inauthentic in corporate messaging because their promotion of their environmental credentials is perceived as greater than the positive environmental impact claimed.
The public ‘outing’ and systemic consumer distrust that has developed in this space is a challenge for brand owners, but also a salutary reminder that brands need to be credible and authentic in their actions as well as their messaging.
“Despite brand owners taking initiatives to be more environmentally friendly, the genuine motives behind their actions and environmental policies can be questionable to consumers.”
Marion Heathcote, Marques
Brands and diversity
As consumer beliefs, needs and behaviour change over time, brands may also need to adapt to remain relevant. Issues around heritage, gender, sexual identity, and systemic discrimination are becoming increasingly prominent in public discourse. Consumers are also more likely to publicly express their support for a particular cause or community.
Brand owners need continually to reassess and develop to ensure they properly address a more diverse, more personal, and potentially more communicative group of consumers. Our team has observed specific community engagement in branding, as well as community concerns being addressed through brand modifications, for example the gender neutralisation of Mr Potato Head to simply Potato Head, together with new playset options to create a variety of family constructs.
Mattel has looked to create gender-neutral dolls with Creatable World dolls, and Barbie now has dolls representing people from different cultural backgrounds.
The increasing visibility of LGBT+-related marketing activity from well-known fashion and consumer products brands also suggests a broader, cross-industry LGBT+ engagement strategy.
LGBT+-targeted branding acts an indicator of support for those who identify as part of that community. In this way, brands can also influence the wider social agenda.
Brands have reacted to concerns around systemic racism and cultural appropriation. Many brands are positioning themselves to provide support, as witnessed by advertising campaigns referencing the Black Lives Matter movement, as well as reassessing brand language and imagery.
In some instances, brands have made core changes to their portfolio. Nestlé, for example, has changed the name of its Red Skins and Chico confectionery items in Australia, while Canadian brand Saputo dropped the name Coon for one of its cheese products. In the US, the Washington Redskins NFL franchise committed to retiring its controversial name.
Social media, hashtags and influencers
It is now commonplace to see consumers engage actively with brands through social media on a variety of trends. Brands have, in turn, had to learn to play a more active role when it comes to developing brand awareness through social media. As a result, hashtags on platforms such as Instagram and TikTok have become prime marketing tools.
Younger generations, such as Millennials and Gen-Z, took this new means of communication to a new level by working with brands and influencing what the next “it” product will be across all industries, including fashion, cosmetics, health, and cars. Influencers are a must-have for brand owners’ advertising and marketing strategy.
This trend has intensified during the COVID-19 pandemic, as all brands must now have an online presence, on various platforms, to remain connected and engaged. Increased content consumption means government regulators are even more concerned about deceptive advertising. There is a myriad of regulations and advertising standards to comply with, and influencers’ regulation is in constant evolution.
Our team has compiled a guide to legislative and regulatory frameworks in 11 different jurisdictions for Marques members, showing some of the key legal and commercial considerations around influencers.
“Brand owners need continually to reassess and develop to ensure they properly address a more diverse, more personal, and potentially more communicative group of consumers.”
Brand control and personalisation
It is increasingly common for brands to allow consumers to personalise their products and packaging. While customisation boosts sales, raises loyalty and helps companies reach specific consumer groups and demographics, it also entails significant risks: not only can user-generated content “send the wrong message”, it could also ultimately damage the brand.
How much choice can be safely left to consumers in deciding what to put next to the official logo? Selecting from a fixed set of options in order to customise the design and aesthetics of the product appears as the safest way, as it allows high control over the brand identity.
The growing expectation for tailored products can, however, push the boundaries of personalisation further. In some industries, it may be difficult for observers to know if the custom content on, say, a pair of sneakers, stems from the brand owner or from the customer.
While personalisation has become very important for brands, giving consumers some control of their relationship with brands, this is not without relationship challenges. Key brand owner considerations include the risks particularly associated with the use of free text and photos; blacklisting solutions; factoring in content-sharing on social media platforms; and appropriate personalisation terms and conditions.
Brands and the future
Once the domain of science fiction, artificial intelligence (AI) is now a reality. It brings with it wide-ranging technical implications but also challenges for the IP system. AI has the potential to alter how we perceive, use and protect trademarks, and maybe even what may qualify as a trademark.
Will the voice of your favourite digital assistant become an integral part of brand owner identity for which protection is warranted?
Accountability and authenticity
The intersection between trademark law and other disciplines will continue to define the future. Increasingly engaged consumers continue to challenge social norms. As brands continue to evolve their relationships, Marques and its teams are constantly surveying, evaluating and educating Marques members on relevant trends and issues as well as providing, where possible, suggestions to assist brand owners.
Whatever the emerging trend, it is clear that a brand’s longevity is intrinsically intertwined with the consumer in an increasingly complex relationship where accountability and authenticity are key drivers.
Marion Heathcote is chair of the Marques IP Emerging Issues Team and a principal of Davies Collison Cave in Australia. She can be contacted at: email@example.com
Michael Hasiow of Società Italiana Brevetti; Laetitia Lagarde of Global Blue; and Gösta Schindler of Buse Heberer Fromm Part all contributed to this article.
Images, from top: Shutterstock / koya979, Creativa Images, Roman Samborskyi