Sunday, September 05, 2010

Q&A on Trademark Proactive (TP), Tipi and Indian Givers

I was delighted by the questions after I uploaded my Asia Pacific IP Forum presentation in Hong Kong to Slideshare: 'How Social Media Challenge the Brandscape for Trademark Holders' in which I propose a solution for trademark holders: Trademark Proactive (TP).

Below I will explain some key points of TP:

Why should a trademark holder give away some of its rights? Social media users will use or abuse trademarks, whether trademark holders want it or not. Because of the characterisics of Social Media the spreading of damaging content can hardly be stopped. However, with TP they do not give away any right. To be proactive a trademark holder engages with the Social Media users and regains some of its control by authorising some use of the trademark under certain conditions.
Rob Polet, President, CEO and Chairman of the Management Board of Gucci Group put it this way at a presentation at Google Zeitgeist Europe 2010 (starting from minute 38): "How do we manage this community of Facebook? Friends that we have. 660,000 for the Gucci Brand. And I said, well you interact with them. You ask them everything they want to tell you. Ah, but they might say something which is bad about us. That's exactly what you like to know. Yeah, but it'll be public. But you know what? We better have it saying it to you, then being public, and saying to their friends anyway."
And Dan Cobley, marketing manager of Google gave an interesting TED presentation about what physics taught him about marketing: "The lesson from physics is that entropy always increases, it's a fundamental law. The message for marketing is that your brand is more dispersed, you can't fight it, so embrace it, and find a way to work with it."

Why do service providers need to assume liability?
Service providers (such as Facebook, Twitter and Blogger) are more and more setting up the rules. Therefore it is fair they should also be held liable for non-enforcement of these rules. This will be pushing service providers to come up with Terms of Use that are effectively enforceable. In other words, Social Media could become more or less restrictive than trademark law, on a contractual basis. So far the Social Media sites' business model is advertising paid by trademark holders. Therefore it is justified that the trademark holders get something in return: enforcement of their trademarks.

What makes an effective and efficient enforcement of trademark authorisations possible?
Social Media could automatically compare the request for a third level domain name or content which mentions a trademark, and one database in which trademark holders have given exactly what is possible with their trademarks and under what conditions. Enforcement could be also automatically, without elaborate notice and take down procedures.

What kind of trademark use and under what kind of conditions could a trademark holder proactively authorise to a Social Media user?
A trademark holder could for example proactively authorise that a Social Media user could use a trademarked logo online, to illustrate an article about the brand, under the condition that the logo is not altered, and that the logo is linked to the official website of the brand. Or the logo could be altered, or used in parody, or used in comparative advertising (only in jurisdictions where this is allowed).

Why is the symbol of TP a tipi?
TP stands for Trademark Proactive, but can be pronounced as tipi. The tipi refers to a place where disputes can be solved. When the first Europeans came into contact with native Americans and for example they were cold, the Indians provided them with blankets. When they did not need the blankets anymore, the Indians wanted the blankets back. This lead to the misperception that the Indians wanted their presents back. That is how the saying: "Indian giver" came into being. Of course the Indians did not give a present, but just the right to use the blanket. TP should also give more clarity about how social media users are authorised to use trademarks.

What is next?
Feedback of trademark holders needs to be incorporated into a more definitive proposal.
Feedback to Danny Friedmann is welcome: ipdragon at gmail dot com

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