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The trademark ecosystem Global insights into infringement, technology and evolving trademark researchContents 3 Executive summary 5 Key findings 6 An overall view of the ecosystem 10 Infringement continues to rise 13 Improving the process: technology and beyond 15 Conclusion3 In todays global business landscape, competition is fierce. Organizations are competing on a fast- changing international stage, impacted by regulation, politics and shifting economies as well as the prevalence and convergence of advanced technologies. For the trademark industry, business transformation is further shaping the landscape with an uptick in new entrants to the market, consolidation and merger and acquisition activity. This increase in activity in the trademark space and the way the market is evolving highlights the increasing value of intellectual property (IP) and the corresponding investment in it. In such a dynamic environment, organizations need to make use of all tools at their disposal to boost their competitiveness and strengthen their market position. In addition to other forms of IP , registering and protecting a trademark is one of these tools; something that builds a foundation for future growth, helping to establish brand identity and solidify the promise to the customer, partner and prospect. Despite their importance, developing, registering and protecting a unique trademark in the current climate is getting more and more challenging. More trademarks are being filed than ever before. According to the World Intellectual Property Office (WIPO) nearly 11 million marks were filed in 2018, covering 14.3 million classes, which equates to a rise of 15.5% from 2017. It is also the ninth year in a row that applications have increased 1 . China is playing a leading role in this growth, with the majority of these new marks (7.4 million) coming from this country 2 . Executive summary 1 wipo.int/pressroom/en/articles/2019/article_0012.html 2 wipo.int/pressroom/en/articles/2019/article_0012.html4 Looking at the landscape overall, the number of active trademarks now equates to 82.9 million worldwide according to SAEGIS on SERION . As more marks enter the market, the challenge and complexity increase. The traditional trademark is also changing. We are seeing the emergence of more opportunistic approaches to trademark applications that demonstrate the value of intellectual property. A case in point was the recent application by celebrity entrepreneur Kylie Jenner to trademark the phrase “rise and shine” or NBA star Lebron James who tried to trademark “Taco Tuesday”. The latter was rejected by the US Patent and Trademark Office (USPTO) 3 , but demonstrates the way the landscape is evolving. While the sheer number of trademark applications and active trademarks presents a challenge for organizations establishing a unique mark, it also creates a challenge for trademark professionals when it comes to protecting existing marks. The more trademarks and trademark applications, the greater risk of infringement, and the more resources, namely time and money, need to be spent actively protecting a trademark portfolio. For many organizations with large trademark portfolios, watching all of their marks across all channels, all of the time, is just not possible from a practical and economic point of view. However, that is not to say that brand protection is not a priority. Instead, it means the entire trademark process from beginning to end, needs to be streamlined, efficient and right sized to allow for maximum protection across the portfolio. Trademark professionals do have a host of tools and technologies that aid them in their tasks. They also work with experts, such as intellectual property law firms and third-party providers who can lend their own expertise and tools to assist throughout the trademark ecosystem. To gain a deeper insight into the practices, perspectives and experiences of trademark professionals, CompuMark , a Clarivate Analytics company, commissioned research into the trademark ecosystem. Carried out by independent survey firm Vitreous World, the research sought the views of 351 trademark professionals, both in-house and external counsel, across five countries. With active trademarks nearing 83 million worldwide, we can expect time and budget pressures related to developing new and unique brands. 3 5 Technology continues to play a leading role in the trademark process Trademark professionals demonstrate an increasing appetite for new tools and technology. Technology is the most cited improvement when it comes to trademark research and protection, chosen by 49% of respondents. In addition, artificial intelligence (AI), previously thought of as a threat to trademark professionals, is now identified as one of the ways to enhance aspects of the trademark process, especially speeding it up, predictive analytics and automating tasks. More filings and more infringement While the two cannot be linked, both the number of trademarks filed and incidents of infringement are on the rise. 48% of respondents filed more marks this year than in 2018 (with 31% filing the same number) 85% experienced infringement in 2019, compared to 81% in 2018 and 74% in 2017 Infringement is spanning channels, from business names and social media, to web domains and advertising campaigns The cost of infringement remains high In addition to customer confusion, loss of revenue and reputational damage, infringement can be costly 46% of respondents had to change a brand name as a result of infringement 75% of respondents say infringement has led to litigation 40% of respondents have spent between $50,000 - $249,999 on infringement cases Internal processes and perceptions are changing too Over the last year theres been a move toward more collaboration during the naming process between trademark professionals and other areas of the business, such as marketing. Training forms a part of this move, either formally or on an ad-hoc basis, with 30% delivering formal training programs. The trademark landscape is expanding More than half of respondents say they filed more image marks over the last 12 months, and surprisingly 78% have included industrial design in their filing strategy. Key findings6 Trademarks play an important role in global commerce, regardless of whether they are start-ups or well established in the marketplace. As a result, marks must be unique, in good legal standing, and must be protected in order to mitigate risk and maximize commercial value. However, the pace of innovation and change creates a challenging landscape in which both brands and trademark professionals operate. The number of trademarks filed globally keeps growing year-on-year according to WIPO and this is supported by the research. Nearly half of respondents (48%) say they filed more trademarks in the last 12 months than they did in the previous year, 31% filed the same number of marks, while just 21% say they filed fewer marks. These figures are placed into context considering the number of marks trademark professionals say they filed in the last 12 months. While 40% filed 6-20 marks, 23% filed 21-50 and 9% filed more than 51. This is a slightly different picture compared to CompuMark results from its 2018 research. More marks, different marks While there is certainly upward movement in the number of marks that are being searched and filed, there are also other changes within the industry. Notably, this is in the types of trademarks that are being filed. For example, there has been an increase in the filing of image marks, with 56% of respondents saying they filed more in the last year. An overall view of the ecosystem Figure 1. Trademarks filed globally7 Surprisingly, respondents also say they are filing industrial designs. Nearly eight in 10 (78%) of trademark professionals say they have included industrial designs into their filing strategy, while those that dont say it is due to lack of demand (45%) or budget (33%), Availability and protection Best practice certainly dictates that all trademarks should be thoroughly searched before filing. However, practically it is not always possible, especially when resources like time and budget are in short supply. When asked about how many trademarks they searched before filing, just 29% say they search more than three quarters of marks. Most respondents say they search between 26-50% of marks. Again, compared to the same result from last year, there are some differences, particularly when it comes to the least and most searched. Last year just 20% searched 76% or more of their marks, which has risen to 29%. In 2018, 13% searched 1-25% of marks, while in 2019, this has dropped to 9%. This is certainly not an easy task; with many factors to contend with, such as pressure on resources, especially in-house. Nearly half of respondents (47%) that clear marks on their own, with no outside help, say they spend between six to 10 hours. Considering that these could be billable hours, trademark professionals have to determine resource trade-offs. Respondents also say they face significant challenges when clearing a mark on their own; these include the fact that there is too much data (49%), not enough time (44%), not enough resources (38%) and not having the right tools and technologies (35%). When it comes to how trademark professionals search industrial designs and image marks, the majority search between 26-50%. Respondents also say they face significant challenges when clearing a mark on their own; these include the fact that there is too much data (49%), not enough time (44%), not enough resources (38%) and not having the right tools and technologies (35%). Figure 2. Marks searched Figure 3. Industrial designs and image marks searched8 Given the number of marks respondents say they search before filing, it is important to understand how they make those decisions and what influences which trademarks are searched. In 2019, the main factor influencing search was overall investment in brand, selected by 28% of respondents, followed by budget (22%) and tier of brand (18%). This is rather different to 2018 results where budget was the most important factor (28%), followed by investment in the brand (25%) and anticipated revenue from the brand (19%). While the percentages dont differ significantly, it is interesting to note that budget is no longer the main consideration. This could possibly be due to the fact that professionals are getting bigger budgets to get this done, or simply because prioritizing overall investment is more important. This prioritization is in sharp contrast to the way that trademark professionals prioritize which trademarks to watch. In 2018, it was anticipated revenue from the brand that influenced watch, while in 2019, it is budget. Figure 4. What influences which trademarks to search before filing 2018 20199 This is the full picture when it comes to prioritizing watch services: While the factors that influence watch have changed from last year, the number of marks being watched has not. The figures have remained the same, with the majority (37%) of respondents watching 26-50% of their existing marks. Figure 5. What influences which trademarks to watch 2018 2019 Figure 6. How many trademarks are being watched10 Despite the lack of time and resources to effectively search and watch all trademarks, the fact remains that infringement is on the rise. A glance at the news headlines certainly reinforces this sentiment; in October 2019 California Wine Company filed a complaint that Applebees VAMPIRE cocktail is infringing on its own VAMPIRE trademark 4 . A similar case saw Riot Games sue Riot Squad for trademark infringement, saying Riot Squad was intentionally using Riots name to infer a relationship between the two brands to fans 5 . The research highlights a growing trend in infringement. In 2017, 74% of trademark professionals experienced infringement. This increased to 81% in 2018, and now in the latest research has hit a high of 85%. In just two years, there has been a 15% increase, signaling a definite upward trend. This increase can also be seen in the number of cases reported by respondents. Nearly four in 10 report they experienced between 1-10 instances of infringement, while 30% experienced between 11-30. Infringement continues to rise Figure 7. Instances of infringement 4 5 11 The figures from the 2018 research are in line with the new research, except where respondents reported 31-50 cases; in 2018 7% experienced 31-50 cases, while in 2019 this figure rose to 12%. This rise is reflected in perception too. More than four in 10 (43%) trademark professionals say they believe infringement has increased over the last two years, while 37% say they believe cases of infringement remained the same during the period. This demonstrates the severity of the threat and the fact that the consequences for brands remain a major issue that they need to contend with. Additionally, the research highlights that infringement is taking place across channels. Respondents experienced infringement across business name (44%), web domains (44%), social media (38%), online marketplaces (38%), and advertising campaigns (34%). The cost of infringement It is not just the number of instances of trademark infringement that organizations face that is concerning, but the overall cost of that abuse. The consequences of infringement are well documented; from loss of customer trust to loss of revenue. Trademark professionals in the research identified four key areas that infringement had an effect on, namely customer confusion, loss of revenue, damage to brand reputation and reduced customer trust and loyalty. These remain aligned to the 2018 CompuMark research: v C 8 9 Figure 8. The impact of infringement12 However, there are other tangible concerns that organizations experience as a direct result of trademark infringement, all of which affect the four elements listed above. Specifically, 75% have started litigation as a result of infringement. This is a costly avenue and impacts on the wider business in terms of publicity, how customers and the market perceive the brand. In fact, 47% of respondents say their organization spent up to $50,000 on litigation in their most challenging infringement litigation. Additionally, 40% spent between $50,000 - $249,999. While lawsuits may be settled amicably, such as in the well- publicized case of Burberry versus Target 6 , or Adidas America versus Skechers USA 7 , it can also lead to more costly conclusions. Apart from litigation, 46% of trademark professionals say their organization had to change a brand name as a result of infringement. This figure is up significantly from 2018 where 30% had to resort to this measure. Again, changing a brand name has wide-reaching implications, including cost, reputational damage and customer trust. Depending on where the organization is in launching a new brand, for exam
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