Wednesday, May 25, 2016

More than 10,000 trademark attorneys from around the world celebrated the annual meeting of the International Trademark Association (INTA) this week by descending on Orlando like a flock of migrating birds.

It is quite literally the largest gathering of IP lawyers to be found anywhere, and for more than a century this meeting has served as a remarkable assemblage of thought leaders, talented practitioners, and representatives from the biggest and most important companies on the planet. After several days of meetings where we network and discuss the‎ hottest topics in branding, we have all come away with deep thoughts about where the law and practice of trademarks is heading in the years to come.

This year, some key trends we identified from the front lines provide a glimpse of a new path for trademark law, brand managers and trademark lawyers:

1. The work of trademark lawyers and brand managers has expanded well beyond the traditional role of clearing trademarks and pursuing infringers, and now encompasses a wide variety of other marketing practices.

In our modern world a brand is more than a word, it is instead the sum total of the consumer experience. For that reason, decisions regarding the choice of trademarks are no longer made in a vacuum, but are integrated with social media strategies, consumer outreach promotions, new communication platforms and even designs for the physical experience of a product.

Trademark lawyers are now increasingly involved in earlier stages of the marketing plan, and trademark law is being utilized to build ownable distinction into every aspect of a branded experience.

2. A global marketing view matters. More specifically, what works in the United States can still be subject to challenge in other nations, and we must be even more sensitive to international impact.

As the Web and a variety of social media platforms have tricked many marketers into forgetting that the laws of the world still apply “online,” having a strong network of local counsel in jurisdictions around the world has never been more important. Almost any marketing effort can rapidly become an act of international commercial concern, and the need to be sensitive to legal necessities outside of your own nation has grown ever more critical as communication becomes easier.

3. Copycat designs in the digital age are better, harder to stop, and more widespread. As brands become increasingly important to every type of company, counterfeiting has become more sophisticated. But beyond the traditional forms of counterfeiting that continue to flourish, new technologies like 3D printing have provided brand owners with a variety of novel things to worry about. If the “plans” to make an authentic product can be sent via electronic means, and a 3D printer can be used to assemble it anywhere, the old means of interdiction may require new tools.

New questions arise: How can copyright law and design patents help prevent these types of schemes? What type of additional value can brand owners provide to distinguish authentic goods from fakes?

And these are just some of the larger themes we encountered. Other topics – from ambush marketing on social platforms to disparaging trademarks to false advertising by “influencers” speaking on your behalf – also bubbled up in conversations at the conference.

While these concerns are on some level independent of each other, the most critical element tying all of these issues together is this: In a world where so many forces seek to commodify every product as rapidly as possible, brands and trademarks have become more important than ever. Companies and their counsel are always looking for new and powerful tools to distinguish themselves from competitors and maintain visibility in a marketplace with an exceedingly short attention span. And INTA remains a key laboratory looking for new answers every year.