Infringement of copyright and trademark is one of the trickiest issues the successful brand-owner must deal with. Too relaxed an attitude towards mild infringements leads to an erosion of brand equity, and ultimately reduced profitability. Too much severity and legal pomposity over ‘intellectual property rights’, on the other hand, risks making the brand-owner a public laughing-stock.
By and large, marketers can expect little assistance from consumers. That much is evident from statistics produced by the Anti-Counterfeiting Group, which was set up by leading brand-owners. It estimates, for instance, that global sales of fakes are worth more than £200bn a year; and that more than ten per cent of clothes and footwear in Europe are in the form of passed-off brands. The inference is that the public, for the most part, regards such activity as a victimless crime. And it’s not just the public: weren’t the supermarkets, just a few years ago, playing the self-same game by providing their customers with own-label products that looked almost identical to those of leading brand-owners, but at a fraction of the ‘rip-off’ price?
On the surface, of course, there’s a world of difference between sophisticated lookalikes and malevolent fakes. No one would seriously suggest that filling a near-perfect replica of a Johnnie Walker Black Label bottle with carefully coloured industrial alcohol is victimless. The damage is there for all to see, both in the potential poisoning of hapless consumers and the actual fact of Johnnie Walker’s owner, Diageo, having to pull a major campaign shortly before the critical Christmas sales period.
Often, however, the damage is not so clear-cut. William Grant & Sons has recently forced a rival, Glen Catrine, to drop the Grant name, not from a whisky, but from its vodka product. Was this really worth a ten-year legal battle, with all the management time and money it must have consumed? We’ll never know for sure.
Still less evident is the value of Arsenal Football Club’s European Court victory over street-trader Matthew Reed, who persisted in selling unofficial Arsenal memorabilia. At best, it’s a sledgehammer to crack a nut; at worst an example of corporate bullying, likely to reinforce the notion that Arsenal is a football club tacked onto a brand rather than the other way around.
But perhaps the most ludicrous, and pompous, recent posturing was Nike’s threat to take Scottish Courage to court for allegedly tarnishing the Nike brand. The offence was caused, it will be remembered, by ‘an overweight and apparently unskilled footballer’, Peter Kay, uttering the words ‘Just ave it’ in an ad for John Smith’s; and the beer brand’s trademark horseshoe being reworked into a Nike-style Swoosh. Sense of humour loss, or what? Fortunately, common sense prevailed: Nike has curbed its belligerence, which if taken to the limit would surely have landed it a prominent place in the McLibel League of Farce.
That dubious honour is still open to ‘Posh’ Beckham, engaged in a goalmouth mÃÂªlée with Peterborough United, and Ralph Lauren, persecuting a top polo player who had the temerity to name his website x-polo.com. The irony is, they probably don’t even realise it.