Brand protection programmes typically consist of a number of key phases:
- Monitoring: The identification of results of potential interest
- Analysis: A combination of automated and manual assessment processes to determine which results pose the highest threat
- Enforcement: A range of actions carried out to remove or deactivate the identified infringing content.
Enforcement occupies a central role in this overall brand protection process, ensuring the removal of threats which could otherwise result in brand damage, revenue loss, or exposure of customers to potentially harmful content. The process is also key in delivering return on investment in a protection programme.
The enforcement (or ‘takedown’) process can take a number of forms and can involve a series of complex workflows in the path from initial action to final successful removal of content. A wide range of factors will determine exactly which route is followed, meaning that the process can vary significantly and a ‘one-size-fits-all’ approach is rarely appropriate.
The Enforcement Variables
The Starting Point: Programme Objectives
The high-level objectives of a brand protection programme determine how monitoring results are prioritised, and which cases are selected for further action. These objectives can vary significantly between brands. Some may focus on disrupting the supply chain for infringing goods, while others may aim to ‘clean’ search results, so that brand-specific searches return only genuine branded products. Another goal may be to ‘gain ownership of the buy button’, ensuring the brand’s authorised product appears as the top-listed option on a particular platform.
In other cases, the priority may be protecting consumers, preventing brand damage or dilution, or meeting legislative and regulatory obligations.
The Nature of the Infringement
Infringing content identified through a brand monitoring programme can fall into a number of different categories, with familiar examples including trademark abuse, copyright infringement, and contravention of patents or design rights. Different infringement types can also manifest in a range of different ways; trademark abuse (for example) can occur as part of a phishing or impersonation attack, or in the misdirection of buyers to unofficial or third-party products in an e-commerce context.
Another factor to be considered is the strength of the portfolio of intellectual property (IP) rights held by the brand owner. It is generally the case that, for an enforcement action to be successful, a brand owner needs to have IP protection in place for the content being infringed, potentially (in the case of trademarks) in the correct geographical jurisdictions and product or service classes. This makes a robust portfolio, with adequate protection across geographical areas of operation, an important foundation for effective enforcement.
To maximise the likelihood of success, an enforcement notice needs to be carefully composed to take account of these variables, with the associated arguments tailored to ensure that the complaint is appropriate to the nature of the actual infringement. The cited IP rights will typically vary depending on the location or target audience of the infringement, with some platforms requiring local rights, whilst others (especially if featuring an international customer base) accepting international IP rights as a basis for enforcement.
The Identity of the Service Provider
In most cases, enforcement actions are directed towards the internet service provider(s) responsible for facilitating the online presence of the infringement. In the case of an e-commerce or social-media platform, for example, complaints can often be directed towards the platform itself, where it operates an IP protection programme. In cases of domain or website infringements, there may be more than one service provider involved.
Most commonly, enforcement notices are directed either to the registrar (i.e. the organisation through which the domain was initially registered) or to the hosting provider (the company providing the technical infrastructure allowing the website to be hosted online). Registrar-level actions can be more effective because a registrar can render the domain altogether unusable by the infringer, whereas host-level deactivations leave the option for the infringer to move to an alternative provider. However, registrars may deny responsibility for website content issues. Providers may also vary widely in terms of the types of evidence required for an enforcement request to be actioned, and may opt not to accept particular types of infringement as grounds for action in particular jurisdictions (unless, for example, a court order can be obtained).
"Every infringement case is different, and enforcement strategies need to be tailored accordingly. A ‘one-size-fits-all’ approach is rarely appropriate."
In some cases, direct communication with the infringer (e.g. a ‘cease-and-desist’ notice) can be appropriate, and may be a prerequisite before an ‘upstream’ service provider will take action. This type of approach can be most effective as a takedown strategy in cases when the entity has a legitimate relationship with the brand owner in question, e.g. as a partner, reseller, or affiliate, which they wish to preserve, and where notices can be served under the terms of their relationship agreement.
In other instances, communications with other entities may also be effective. These may include escalation to registry organisations, which oversee the infrastructure of an entire domain-name extension, or other enforcement bodies. Other enforcement approaches, such as contacting email or payment gateway service providers for deactivations, or notifying search engines of the presence of an infringement and seeking a ‘delisting’ from search results, can be effective ways of disrupting infringer operations.
It’s worth noting that some providers are more compliant to enforcement notices than others. At one end of the spectrum, providers billing themselves as ‘bulletproof’ may explicitly state that they will take no action in response to takedown requests — an attractive business model to a would-be infringer. Understanding these differences is key to tailoring an effective enforcement workflow.
The Nature of the Communication Route
Platforms and service providers will typically accept enforcement notices in several different formats. Many accept email-based notices, though submission of information via a webform is increasingly becoming a preferred option. Many providers also offer access via an API or some other form of technical solution, which can be utilised by technology platforms designed to integrate directly with them. These options can often be partially or wholly automated.
The History of the Enforcement Process
An enforcement process is generally an interactive workflow, which typically needs to be tailored according to observed levels of success and the nature of any responses received. One key consideration is whether to utilise different enforcement routes simultaneously or sequentially. All other factors being equal, using routes simultaneously gives a greater likelihood of a rapid resolution.
If successful takedown is not achieved through initial enforcement routes, a brand protection service provider will typically also explore repeat reports, follow-ups or escalation routes. It can be particularly advantageous to have known points of contact with key provider organisations, to whom unsuccessful enforcement attempts can be escalated for assistance.
If a case reaches the end of the natural enforcement ‘cycle’ without success, it may then need to be referred back for other types of follow-up actions. These might include domain dispute actions or legal escalations, which can be slower and more costly, but can offer the potential for success in cases where other routes have been exhausted.
Even following a successful takedown, it is often advisable to configure the online location of a former infringement to be monitored on an ongoing basis, as inactive links can resurface with live content in the future. In these cases, it may be necessary to re-submit an infringement through an earlier or alternative stage of the enforcement cycle.
Conclusions
The interplay of this wide range of factors means that every infringement case is different, and the enforcement strategies need to be tailored accordingly. Detailed knowledge is required across a variety of areas, including the nature of a brand owner’s IP protection portfolio, and the identity, characteristics and workflows associated with all relevant service providers. These insights are key to constructing an effective takedown strategy, which can involve multiple parallel and sequential steps, looping back to earlier stages in the workflow process, and a complex ‘decision tree’ for assigning next-stage actions.
David Barnett
SnapDragon | Director of Brand Protection
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