Black Friday shopping
Given the potential for severe brand abuse and risks to consumers, it is important for brands to match their commercial aspirations with legal resource.
The internationalisation of national holidays combined with a global e-commerce market means that brand owners should look beyond their own markets to consider if someone else is capitalising on their brand assets and product range.
Black Friday, is a retail phenomenon that takes place the day after the Thanksgiving holiday in the United States. With the UK starting its Black Friday sales a week early this year, it is clear that the event is now much more than a U.S retail craze. It is part of a wider global appropriation of retail calendar events, to which can be added Singles Day and Chinese New Year (amongst others). However, with deals come dangers.
The sale of counterfeit items and pirated goods online is nothing new, but the freneticism of grabbing a deal during these sales periods can leave many consumers receiving something very different to what they thought they were getting – or positively out of pocket in the case of a victim of phishing. Whether the consumer is an ‘unaware’ (duped) or a ‘don’t care’ (conscious counterfeit consumer), sales are lost and the brand is damaged.
It will never be possible to eliminate all instances of counterfeit product and customers being scammed, but the below list provides some pointers on how to get closer to zero:
- Empower the customer: many brands shy away from wanting to admit publicly that they have a counterfeiting problem. However, customers can be a great intelligence tool, particularly when they themselves identify with a brand’s values. Educating consumers about genuine product hallmarks and providing a reporting tool needn’t cost the earth or create PR issues.
- Get the right rights: taking stock of whether your IP portfolio matches not just your own commercial ambitions but also where the counterfeiters operate is key. Rights cannot be registered overnight and so will need to be planned for.
- Proactivity pays: keeping the market clean year-round sends a message to would-be infringers that you are not a brand that will tolerate abuse. Properly strategised online brand enforcement and customs programmes can assist with this.
- Intensification season: be it from a domain watch, customer complaint or customs notification, it pays to allocate extra time and budget to tackling these issues with extra agility. Part of this will be determining if enough legal resource is accounted for.
- Collaborate and share: whilst commercially brands may be competing with one another, they have a common goal of ridding the marketplace of counterfeiters and fraudsters. Sharing intelligence with your counterparts can be key to getting to the root of an issue. Splitting the costs of enforcement can also unlock the possibilities of taking a certain cause of action.
- Take stock: even with the above implemented, Black Friday 2019 will likely bring up some counterfeiting and phishing surprises for any brand. The main issue here is not that it has happened, but to make sure that history does not repeat in 2020 and beyond. Reflect on what went well and what could be improved on, just like when looking at like-for-like sales in previous years.
Whatever stage a brand is at in their anti-counterfeiting and anti-piracy programme, there are always adjustments that can be made – as the fraudsters evolve, so too must brands.
Chartered Trade Mark Attorney, Stobbs IP Limited