INTA’s Digital World Conference, which took place in Brussels, Belgium, December 1–2, provided registrants with practical solutions to some of the most pressing trademark issues companies are facing in the digital era.
Panelists such as Daniel Greenberg from (Lexsynergy, UK) and Jeremy Kaufman (Netflix, USA) covered issues that arise in their daily work and how those specific problems might be solved. Conference co-chairs Toe Su Aung (Elipe Limited, UK) and Mei-Ian Stark (NBC Universal Media, LLC, USA) assembled an extremely varied group of speakers that included not only industry leaders, trademark owners, and lawyers acting on their respective behalves, but also voices from academia, politicians, consultants, and representatives of international organizations, such as the European eCommerce and Omni-Channel Trade Association, the European Parliament, the European Commission, the European Telecommunications Network Operators’ Association, ICANN, and a former Presiding Judge of the German Federal Court of Justice.
Topics covered included:
- impending improvements to the EU’s Digital Single Market;
- challenges related to the ever-changing Internet;
- the importance of data protection, data privacy, and the duty of care in the digital world;
- legislation related to social media;
- native advertising;
- the rise of hashtags and the shift to mobile devices;
- challenges of a digital single market for copyright owners;
- the risk of data infringements linked to the fact that data flows across borders and that more and more products have become “smart”;
- changes in the role of brands in response to this changing world;
- how changes in the Internet of Things affects brands; and
- the risk represented by the promotion and commercialization of geographical indications on the Internet in terms of counterfeiting, infringements, and other forms of misappropriation.
As outlined by Mahmoud Lattouf (Abu-Ghazaleh Intellectual Property (AGIP), Jordan), the ever-changing Internet is providing businesses with great opportunities and great challenges simultaneously. Indeed, a fully functional Digital Single Market would promote innovation, contribute €415 billion to the EU economy each year, and create hundreds of thousands of new jobs.
However, to reach that result, businesses need to know that their innovation will be protected through strong copyright protection and by fighting the sale of counterfeit products over the Internet. Therefore, when discussing protection of commercial interests on the Internet, one should be careful not to ignore cybersecurity.
Digital Single Market
EU politicians are facing a big challenge: allowing the EU Digital Single Market to achieve the status of “fully functional digital single market” (i.e., to allow sufficient freedom and to give Member States enough room for movement) while at the same time protecting both businesses, trademark owners, and consumers (i.e., to bring some restrictions).
With that aim, the European Council agreed on November 28, 2016, on a draft regulation to ban unjustified geo-blocking between member states.
The proposed regulation will prohibit geo-blocking and various related acts that discriminate by reference to the customer’s nationality, country of residence, or country of establishment within the European Union, with a view to boosting e-commerce.
The main objective of this proposal is to prevent discrimination for consumers and companies on access to prices, sales, or payment conditions when buying products and services in another EU country.
In its conclusions of June 25 and 26, 2015, the European Council emphasized the importance of the digital single market strategy and called on taking action to implement key components of the strategy, including the removal of remaining barriers to the free circulation of goods and services sold online and to tackle unjustified discrimination on the grounds of geographic location.
Mr. Lattouf told brand owners, “You need to follow your target customers. Make sure you position and protect your brand and listen to your customers, or even establish your brand on new platforms before your customers start using it.” He justified such advice by stating that today:
- 82% of smartphone users consult their phones when in a store;
- 66% of smartphone users consult their phones to learn more about something they saw in a TV commercial;
- 69% of smartphone users are more likely to buy from a company whose mobile site or app can help them find answers to their questions easily.
The panelists in the session on data protection also provided useful advice to brand owners and businesses. They outlined the key points of the EU Data Protection Law and introduced the changes that will be brought by the General Data Protection Regulation (GDPR) in 2018.
One of the most notable changes concerns consent. Indeed, under the GDPR, the consumer’s consent must be explicit (while it could have been implicit under the Directive). It is hence important to note that consent must be verifiable and requires some form of clear affirmative action.
Such consent is (unfortunately, from a consumer’s perspective) not required before receiving a huge number of requests and advertisements while navigating on the Internet. In that regard, the panel on hashtags, endorsements, and disclosures outlined how difficult it can be to determine when an advertisement is not an advertisement. The panelists emphasized that it is a crucial question for brand owners who need to take some measures before featuring these kinds of online advertisements, and offered the following tips:
- Use the word “AD” or “Advertisement”;
- Show “sponsored” in the content;
- Use contract law to avoid programmatic snafus;
- UK standpoint:
- Use of the expressions "paid-for ad," "ad," or "ad link." The terms “sponsored,” “in association with,” “recommended by,” and “brand publisher” are not enough.
- The audience of the content is important in establishing compliance with the Cap Code.
- It must be clear that content is an advertisement prior to the audience engaging with the content.
Panelists in the session on hashtags provided the following useful advice:
- Use ad #sweepstakes or #sponsored;
- Don’t give an incentive for using a hashtag if you don’t want to disclose;
- Check to see if the tagged word has a different meaning… or is “owned” by another company;
- Avoid hijacking by using hashtags to reinforce, not change, images;
- Make sure employees disclose who they are when using hashtags.
The Role of Brand Owners
In reaction to all these changes brought about by the Internet, the role of brands has evolved. It was very interesting to hear the comments of Mat Heinl (Moving Brands, UK) concerning two very famous and successful brands with two very different brand strategies (Apple and Uber).
The Internet of Things
The Internet of Things and its billions of connections between devices all around us (from home automation to cars and medical equipment) has had a transformational impact on (almost) all sectors. It also has an impact on brands, as was underscored by Leo Baumann (Nokia Corporation, Belgium). Indeed, the Internet of Things enhances brand advertising and visibility tailored to customer behavior and affects a brand’s image and market by reshaping industry boundaries.
Geographical Indications Online
One of the last topics concerned the protection of geographical indications (GIs) on the Internet. It was very interesting to hear examples of abuses/counterfeits on the Internet, as well as the corresponding actions that have been taken to stop them, especially given the risk linked to the limited liability of online hosting providers.
Europe Office 10th Anniversary Celebrations at the end of Day One
The cocktail reception that followed the first day of the conference celebrated the Tenth Anniversary of the Europe Representative Office in Brussels. There were speeches by Ronald Van Tuijl (JT International, Switzerland), 2016 INTA President; Geert Glas (Allen & Overy, Belgium), a local member who provided support to the establishment of the Office in Belgium and has been assisting ever since; and Christina Sleszynska, Chief Representative Officer – Europe, who gave a 10-minute speech – one for each year of the Office – on the achievements of the INTA Europe Office during its first decade and on upcoming activities. The reception was attended by the conference participants and by selected guests including officials from the EU Institutions, other IP and industry associations and stakeholders.