By Trevor Little
September 21 2012
For trademark counsel already monitoring computer screens for keyword search results on a daily basis, the prospect of highly-targeted advertising that changes street by street in the physical world is a daunting one. Yet attendees at this year’s MARQUES annual conference were warned that this policing challenge could soon be reality – and now is the time to prepare.
The session entitled ‘Sign of the modern times’ tackled the opportunities and threats that exist with regards brand use - and misuse - in social media, before considering mobile advertising issues and forthcoming technologies. The good news is that, while the social media environment seemingly expands on a daily basis, Sahira Khwaja, partner at Hogan Lovells LLP, argued “much of what you will want to cover will be present in existing trademark guidelines”, although she added that counsel will have to be deft in adapting these existing policies to the nuances of the social media environment : “You really need to think about how your guidelines apply in this new forum. For instance, how is your brand used in social media usernames? There are different ways it can be used – you can have affectionate homage (such as Facebook fan pages), parody and even those attacking the brand.”
Crucially, there must be clear guidelines on usage and a decision made over who actually monitors the social media environment, with Khwaja adding: “Whoever does it, you need to undertake clear risk assessment and identify the appropriate route to action.”
This structured, yet nimble approach will only become more critical in the future, as new technologies create new ways to interact with brands – and open up the possibility of increased misuse of trademarks.
Plans for augmented reality (AR) devices provide one example of the opportunities and risks that future technologies could present. Stacey King, digital and IP counsel, explained: “Augmented reality is a live view of an environment with elements augmented through computer generated information and, while it is still early stages, there are real business opportunities in AR technology.” As an example, she previewed Google’s Project Glass, which is developing augmented reality head-mounted display technology – in other words, the vision is for a set of eye-glasses which allow access to the internet via voice commands, drawing on geolocation technology to allow users to search for local services, view maps, interact with friends via social media and record video as they go about their daily business (a useful video of the technology in action formed part of her presentation).
Considering the uses such technology could be put to, she noted: “For brand owners these goggles and AR create real opportunities, but you also have to look at how you manage your brand. For instance, how do you upload your content?”
She also warned that the augmented reality environment, particularly when linked to geolocation technology, could pose a significant trademark policing challenge for brand owners. To date Google has been adamant that Glass will not feature advertising, although speculation has been sparked over how brands – and advertisers – could use the new technology to reach consumers.
Where such devices do result in messages tailored to your specific location, the question of how brand owners can monitor use of their marks is raised. King noted: “It is very hard to say how you would monitor trademark use in this environment. If you are walking down the street and stores are flashing brands that they sell – or say that they do – how do you monitor that? It is difficult as it is location-based and you would have to monitor every single interaction on every single street. You may just have to let go a little bit.”
One suggestion on how to prepare for the future is to consider current agreements with franchisees and licensees to see if they address logo use in mobile advertising. Another is to grasp the opportunity to engage with developers now, before products hit the market: “Start working with these platforms – it is early days and you may have a chance to go in and work with companies, as they develop the technology, to address how your trademark is used as a keyword.”
Crucially, she concluded: “It is early days but this is your chance not to play catch-up.”
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