Brand Policing is a necessity to protect your intellectual property, not just a suggestion.
Many brand owners think of intellectual property rights infringement as two separate problems:
- Stopping major infringements, including copying by competitors; and
- General brand policing (including online marketplaces and smaller scale infringements) which aims to maintain consistency with brand image.
They rightly consider problem #1 as a vital strategic move for their brand, which they are willing, if needed, to divert considerable resources to.
However, problem #2 is considered by many brand owners as a “nice thing to have.” You might think that only big brands like Nike or those in the LVMH group undertake these kinds of activities. Aside from the obvious benefits: recouping lost profits and sustaining brand image, there are growing legal reasons to consider a continuous brand enforcement strategy.
In the UK, recent case law has emphasised the importance of brand policing in order to make it enforceable in the future.
The case in question dealt with character merchandising. Character rights have always been a distinct area of trademark law; however there are wider learnings.
The case concerned used the ‘Betty Boop’ character created way back in 1930 by Max Fleischer. Hearst Holdings, who were the exclusive licensee of the Betty Boop character, took legal action for trademark infringement against AVELA who made posters featuring the character. AVELA claimed that they only used the image as decoration and not in a way that a trademark is used – a trademark shows origin.
Related reading: 10 Tips on How to Register a Trademark
However, what swung the decision Hearst’s way was the court’s finding that the general public, if they saw the Betty Boop character, would think that it emanated from one particular origin (i.e. Hearst).
Hearst have built up the Betty Boop brand by actively policing the market and making sure it is always clear that Hearst are licensed to use the Betty Boop character by labelling. So when they came to rely on the brand, as they did here, the Court saw the mark as an indication of a single source of merchandise.
This case is crucial for brands that base designs around characters, however, it may also have wider implications for other businesses. Brands need to make sure they manage their markets in order to ensure the public see the brand owners or their licensees as the only source of their goods.
To do this they need to be clear on how they deal with the description of the licensor or licensee on products, while also having a strategy for managing licensees and a brand enforcement program.
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