Trademark Counsel in the time of Cancel Culture

With 2020 being the year when everyone is practically living on the internet, it has been an interesting, challenging, and unprecedented year for those involved in brand reputation and brand management. ‘Cancel culture’ has gripped the world, and brands must now deal with excessive scrutiny and criticism on social media platforms and other forums from audiences belonging to all walks of life. Managing trademark portfolios has been traditionally a passive risk management function. However, due to the combination of the pandemic, a wave of social justice protests, and a generally simmering environment of partisanship, the role of trademark counsel has expanded beyond its conventional boundaries.

This newly expanded role for trademark counsel is better understood in the context of examples. A recent advertisement of a leading Indian jewellery brand (Tanishq) caused public outrage in some sectors for showing a Hindu woman married into a Muslim family getting ready for her baby shower. Many viewers called for the brand to be banned and the ad to be dropped, with memes and hashtags trending on social media networks. The company eventually pulled the ad after some of its employees received death threats. Another incident where a brand faced public outrage was when the e-commerce major Flipkart replied to a customer on a public forum stating that they did not deliver products to Mizoram (in the northeast of the country), as it was outside India. These instances demonstrate the impact and influence that public criticism can have on a brand. IP professionals are now positioned to become even more essential to their clients and companies and are expected to assess these risks in advance to protect and preserve a brand’s image and reputation. But are IP professionals truly ready to take on these responsibilities?

Public Relations risk is now part of the IP job description

Gone are the days when trademark counsel were only consulted for filing and prosecuting trademarks. With an increase in instances where brand and trademark reputation are at risk, trademark counsel now have an increasingly crucial role to play. Besides mere filing and prosecution of trademarks, and keeping track of procedural requirements, trademark counsel may now need to review advertising materials, manuals, internal and external communications, packaging materials, company websites and technical specifications for the proper use of trademarks. Such responsibilities make trademark counsel an essential part of the business team that protects an organization’s valuable trademarks.

IP professionals in India should keep the following key points in mind while dealing with hypercriticism online:

  1. How you protect your brand reflects the brand itself:

In a consumer-driven world, social media drives brand sentiment at a scale and speed that can sometimes be difficult for a business to control. As a result, the image that a brand puts forward must consider and assess all possible social risks, besides other conventional concerns, while launching campaigns. Consumers have come to associate the manner in which companies promote their brand as a projection of the brand’s persona itself. In equal measure, what companies do to protect their brand can be an image management issue as well. Therefore, the steps that a company takes to mitigate risks, or protect brands, or undertake damage control, are also under scrutiny, and are an intrinsic part of the brand now.

  1. The social media challenge

Living in the time of all-pervasive social media, image is (almost) everything, and how companies curate that image, or the persona they present to the world, can make a difference as how others interact with their brands. Companies often use social justice messaging to sell products, but it is important to project in advance as to how such social media issues can invite positive or negative criticism.

  1. Going viral for the right reasons

Campaigns are used to sometimes spread rumours and gain public attraction. However, it is very important to ensure that a campaign has been induced to go viral for the right reasons. Interestingly, when the skin-whitening fairness creams took steps to remove the word “fair” from their branding through their social media campaigns, there was a negative impact in the market. Consumers started questioning the authenticity of the ingredients and began asking why the word “fairness” was used in the first place. A negatively perceived action can hurt a brand’s standing, very quickly and to devastating effect. But a genuine gesture that reinforces a brand’s favourable image can strengthen its hold on the public imagination, and even expand it.

Tackling criticism constructively

Criticism can help a company constructively and allow it to improve performance and increase customer loyalty. For this to happen, a company must not ignore criticism nor wait for it to gain traction. Instead, it should take steps at the right time. Changes like these have also forced companies to move out of their comfort zone and undertake rebranding exercises and revisit advertisement policies and priorities. Throughout this process, trademark professionals can assist companies in managing these new and increased responsibilities and ensure that companies are clearly aware of how criticism can be used as an opportunity to enhance a brand’s reputation.

It is also important for trademark counsel to understand their clients’ business and listen to the branding goals of the marketing department. Thereafter, they should explain issues from a brand protection perspective and to proactively offer alternative means of accomplishing the branding goals. While doing so, the trademark counsel should assess the legal risks, practical risks and public relations risks that might enter the picture. Trademark counsel are the ambassadors and protectors of the reputation of a company, which means that they are not only responsible for speaking up about the legal or trademark risks in various situations, but also for reputational risks. This expansion of roles and responsibilities is a great opportunity to add value to the trademark profession, and by corollary, add value to brand value and goodwill as a whole.