Conclusion: trademark work cannot continue to be done in the same way

  • The ability to offer commercial, strategic advice will be more important
  • The ability to advise on related areas of law will be highly valued
  • Emotional quotient (EQ) may be as important as IQ

What will the trademark practitioner of the future look like? They will have to be at ease with technology and new media, and comfortable using software tools. That is a given. Other desirable skills will likely include an understanding of related areas of law, such as advertising, product liability and data protection – or at least having someone on the team who can advise on these areas. Greater understanding of related fields that affect marketing, such as consumer psychology, will be useful: what do people really think is distinctive or similar? “You need to see intellectual property beyond the legal issues: what is it for business? It’s more imaginative than purely legal. It’s less about law and more about enabling deals and sales. Lawyers are going to have to develop into more commercial animals to meet client needs,” says one in-house counsel based in Asia.

“You can’t continue to do trademark work the way it’s been done… More and more people are looking at a kind of brand consultancy service – even working directly with brand teams,” says one trademark practitioner. In September 2018 UK law firm Mishcon de Reya launched one such practice, MDR Brand Management, with the hire of Daniel Avener from CAA/GBG, the world’s largest brand management group. It offers services including brand licensing, IP and trademark strategy, reputation management and digital strategy. Future trademark practices may include a much wider range of professionals alongside IP practitioners, such as public relations and reputation experts, software engineers, accountants and branding experts. They will also need to be more diverse (diversity is discussed in more depth in our report on patent practices).

In such a world, will less value be placed on in-depth knowledge of trademark law, procedures and cases, which after all can easily be accessed via software, and more given to the ability to contextualise decisions, explain their significance and relate them to clients’ situations? AI analysts, such as Martin Ford in his award-winning book The Rise of the Robots, point out that as software IQ increases, people will place more value on emotional EQ. In the trademark world, that may mean that creative thinking and empathy will go further than more traditional lawyerly skills such as the ability to write a detailed legal opinion, complete with comprehensive citations to dozens of statutes and cases. Indeed, one in-house counsel said that these are already overvalued: “We rarely want an in-depth consideration of the law, and if that is what we want we will specifically ask for it. Often what we are really looking for is a second opinion.”

Advice will also have to be delivered much more quickly. Business already moves much faster than it did a generation ago, and many IP practitioners have not yet caught up. Clients will not be prepared to wait weeks or even months to find out if they can use a mark; they want to know immediately. In this environment, the key to success is likely to be, as one practitioner puts it, “balancing commodity and complexity” and working out what exactly you can offer that clients are prepared to pay for. “We have to adapt as professionals. You need a differentiator to justify your advice,” says one practitioner. Another puts it even more succinctly: “You have to personalise it if you want to be a good adviser.”

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