Ebooks and Guides

The Definitive Guide to Online Brand Protection

  • Brand Protection

What is it and how can you benefit?

Brand protection is the act of seeking to prevent counterfeiters, copycats and other bad actors from infringing your brand illegally by using your intellectual property (IP), your brand name, brand identity and/or violate your trademarks, copyrights, patents, designs and other types of IP.

In this guide, whether you’re a business owner or work for a large company, we explain exactly how you can start the fightback through the practice of Brand Protection.

Threats for brands and their customers

Imagine your customer for a moment. Searching online. Honing in on the product they want. Cruising through the perfect, frictionless buying experience you always wanted them to have.

And then it happens. They come across that fake site or seller and they’re presented with a temptingly cheap knock off. Or even more disconcertingly – a highly convincing fake.

Whatever their reaction is, it’s one you’re not going to want. Brand infringement is a trigger for a variety of undesirable consumer emotions that are going to impact your profits, your reputation – or both.

And it doesn’t matter who you are.

Whether you’re selling luxury goods, electronics, food or any other industry, you don’t want your brand to be anywhere near this tawdry, reputation-damaging fakery that’s diluting the strength of your brand.

If you’re selling goods at a low price point, it’s still going to hit your sales.

And it’s not just fakes you have to worry about. There’s a whole world of other issues to consider; from regulatory breaches to social media impersonators, to phishing scams that could create headlines for all the wrong reasons.

What is brand protection?

In the simplest possible terms, brand protection is the act of prevention against brand infringement.

So by engaging in Brand Protection, you are seeking to prevent someone from infringing your brand illegally by using your intellectual property and/or brand name.

But what is the ‘intellectual property’ we talk of – and is it really all that intellectual? Well no, not necessarily.

Intellectual property is simply the legal framework that covers anything you produce that is a ‘creation of the mind’ – which could be an invention, artistic work, or product.

Your intellectual property could be a thousand-page novel or a new type of plug for a sink. Or it could simply be the logos you use to represent your brands.

Types of brand infringement: counterfeiting

Counterfeiting should need little introduction. It is the manufacturing or distribution of goods under your brand name or IP rights, without your permission.

Yet there are subtle differences within the counterfeit trade that are important to define. Many counterfeiters produce knock-offs (non-identical imitation goods that do not feature branding or trademarks), for example, which are often very low quality and do not meet the criteria of what you might consider being a ‘true’ counterfeit.

True counterfeits, on the other hand, tend to be made at scale by criminal organizations. These criminal organizations often have access to materials that make their imitations very hard to differentiate from the genuine thing. They also tend to have wide distribution networks.

True counterfeiting is a much more problematic area because it makes it much more difficult for you and your consumers to see what is real and what is fake. It can also pose serious health and safety risks. Counterfeit bike helmets, for example, have been known to shatter at the slightest impact when made from inferior materials and without adherence to required industry standards.

There are many other types of brand infringement to consider

Copyright infringement

Copyright infringement refers to the unauthorized copying, distribution, display or performance of any of your works protected by copyright. Copyright is a core type of intellectual property covering original works such as literary, video, photographic, audio or other art forms.

Trademark infringement

Trademark infringement, on the other hand, is the unauthorized use of your trademark on goods and services. Trademarks are a badge of origin and anything that can be used to differentiate your products or services from others often falls within this. Trademarks usually take the form of words, logos, patterns, and shapes associated with your brand.

Patent theft or patent infringement

Then there is patent theft or patent infringement – the act of making or selling your patented product without your permission. A patent is an exclusive right that can be granted to you by government authorities for a new invention – i.e. a product or process that is original or provides a new solution to a problem.

Design infringement

Design infringement is similar to patent infringement and usually involves the manufacture of goods using patented design features to create a similar unauthorized version of your product. According to a report by the UK government Intellectual Property Office, a staggering 98.3% of design rights owners say they have experience of design infringement. It is a particular problem in the fashion industry, where so-called fast fashion outlets often produce lookalikes of new range launches. When you enter the world of Brand Protection, you’re also likely to hear the term intellectual property infringement. This is the umbrella term that covers all types of IP infringement, including copyright and trademark infringement. Intellectual property infringement also covers infringement of your design patents or theft of your trade secrets.

We also need to mention the various tactics and mechanisms by which the act of brand infringement is carried out.

Rogue or copycat websites

Rogue or copycat websites, for example, are set up to imitate the official site of your brand, often with a subtly subverted version of your official URL. Other types of rogue websites do not necessarily attempt to replicate the look and feel of the official site. They look and feel like fakes. But the purpose is the same – to sell counterfeit products.

Phishing

A related practice, phishing, is the act of impersonating your brand in order to gather personal details. These details are often gathered via order and contact forms on rogue websites. Once gathered, the details can be used to carry out theft, identity theft, and online fraud.

Social media impersonation

Social media impersonation, meanwhile, is an increasingly common practice that involves creating fake social media accounts under the guise of your official brand – often with the intention of redirecting consumers to rogue websites or listings on e-commerce platforms that sell counterfeit or infringing goods.

Fraud

A word also about fraud and the terminology that surrounds it. In Brand Protection terms, fraud usually refers to the sale of goods by sellers misrepresenting their authorized status or the products and offers they provide. Fraud is often carried out via false association, which is the creation of the appearance of a relationship that may be illegitimate or fraudulent, but where there may be a relationship of some kind in existence. More serious cases of fraud by false association fall under the category of unauthorized use, which is the creation of a relationship where none previously existed. When you enter the world of Brand Protection, you’re also likely to hear the term intellectual property infringement. This is the umbrella term that covers all types of IP infringement, including copyright and trademark infringement. Intellectual property infringement also covers infringement of your design patents or theft of your trade secrets.

Compliance

Finally, we also need to mention that Brand Protection also extends to the issue of compliance. This is used by brands to ensure that official resellers comply with industry standards. Compliance is particularly important if you operate in a highly regulated industry such as pharmaceuticals, where the sale goods are strictly controlled by the government and independent regulators.

Why do I need brand protection?

We don’t really need to tell you. Ignoring these threats is not going to be a good idea – online platforms are unlikely to fight in your corner without your support and, left to their own devices, can exacerbate the problem.

You’re going to lose money. Your reputation is going to suffer. People are going to outright steal your ideas and come back and do it again.

But how do you even begin to quantify what that really means for your business – in real terms?

There’s plenty of research out there that will help you build your business case.

According to a recent study by Sapio Research, for example, 52% of US consumers say they have lost trust in a brand after unintentionally purchasing counterfeit products online.

That’s a huge potential hit to your brand.

Further Sapio research says that this lack of trust has a direct effect on buying behavior. A separate survey found that as many as 76% of consumers are less likely to buy products from a brand that is regularly associated with counterfeit goods.

The European Economic and Social Committee says that the probable overall value of trade in counterfeit products worldwide is likely to be between EUR 600 billion (UN) and close to EUR 1 trillion.

A recent report by the Organisation for Economic Co-operation and Development (OECD), meanwhile, says that the value of imported fake goods worldwide currently stands at over $500 billion annually.

Fake goods now make up 3.3% of world trade

Source: OECD and EU Intellectual Property Office, 2019

Clearly, the impact of counterfeit goods on brand value, buying habits and even wider societies and national economies is huge.

If you want to know more about the wider economic impact of counterfeiting, you can find out more in the full Sapio report.

Brand protection strategy

So enough about the challenges. What about solutions? Before you even think about the technology you are going to need, your response needs to start with a well-thought-out strategy. But what exactly should that strategy include?

IP portfolio

Firstly, if you don’t already have the expertise in-house, you need to get some good IP portfolio advice that will help you to manage and protect your IP portfolio effectively. This might include performing clearance searches to screen new brands or dealing with trademark and design registration to secure your brand in all key markets. Bottom line: you will need to manage your intellectual property by ensuring it’s fully protected against any possible local objections to maximize its potential monetary value.

Business intelligence

Secondly, you will need to set up a mechanism for data collection and gathering business intelligence. This will also need to work across many e-commerce platforms and geographies. How much do you know about where your brand is being infringed online? Which products are most affected? In which regions? And where is the most traffic going? Gathering this kind of intelligence should be the cornerstone of your Brand Protection strategy and will help you to prioritize effectively.

Prioritization and threat analysis

With this kind of information and intelligence at your disposal, it’s possible that you’re also going to feel a little overwhelmed. This means your strategy is also going to need a level of prioritization and threat analysis that will help you manage and target your IP protection and anti-piracy/anti-counterfeiting efforts effectively.

Online advertising monitoring

As part of this strategy, it may be relevant for your brand to carry out extensive online advertising monitoring. This will help you identify where your ads are shown in undesirable locations and deliver the intelligence you need to rectify it.

Social media monitoring

Social media monitoring is equally important. This is because it often reveals networks of bad sellers that spread their influence through popular social media channels. Recently, a case was recorded where the discovery of a single Instagram account promoting counterfeit goods led to the exposure of a network of 531 social media accounts. This network had a combined total of 716,645 followers, 14,143 infringing URLs and 7,138 infringing listings on online marketplaces.

Network of partners

If you want to pursue your anti-counterfeiting strategy to the fullest possible extent, you will also need to put in place a network of ‘offline’ partners (such as law enforcement or government customs agencies) that you work with to chase down the most persistent offenders.

For some brands, though not all, this course of action is likely to lead you towards IP enforcement and Brand Protection litigation. This will often be the final piece in the Brand Protection strategy for those brands who pursue it.

Brand protection tools & features

To achieve this level of brand protection, the technology you choose should include 6 key elements:

Keyword monitoring

Enabling you to track the most important keywords that are directly or indirectly related to your products or brand and appear in product listings.

Optical Character Recognition (OCR)

So you can also detect counterfeit products that look the same as the original but do not use the official brand name.

Image Matching

So you can also detect counterfeit products that look the same as the original but do not use the official brand name.

Logo Detection

Allowing you to discover infringements where logos have been obscured or distorted to avoid enforcement.

Artificial Intelligence & Machine Learning

So your system can learn the ways counterfeiters and other actors are changing the way they describe products with keywords and continually change search parameters to adapt.

Network Analysis

Enabling you to automatically connect infringements across channels such as social media, marketplaces, and websites and uncover coordinated networks of infringing activity.

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