Brand Resilience: Risk, Recovery, and the Future of the Brand Practitioner Conference

Amid the ongoing COVID-19 pandemic, INTA recently held a Brand Resilience: Risk, Recovery, the Future of the Brand Practitioner Conference that put into focus how brands responded to the global pandemic, revolutionary technological changes, and shifting priorities for brands, their consumers, and their employees, and how they have since continued to navigate the changing environment.

The Association held the Conference virtually September 22–23, attracting more than 200 registrants from 29 countries. Megan Bannigan (Debevoise & Plimpton LLP, USA) and Adraea Brown (H-D U.S.A., LLC, USA) were the co-chairs of the project team.

In her opening remarks, Ms. Bannigan noted that brand resilience has always been important, but the team specifically chose the theme of brand resilience for this event because of the immense challenges facing brands today.

2021 INTA President Tiki Dare (Oracle Corporation, USA) pointed out that COVID-19 put a spotlight on brands from the very beginning, and the public has paid careful attention to brands and how they have responded to the crisis caused by the pandemic.

“There are countless examples of brands that stepped up where governments could not. And countless more brands that showed remarkable innovation, taking bold action despite the increased pressure on the bottom line from the crisis,” said Ms. Dare. “This will unquestionably prove to be a watershed moment with long-lasting impact on brands and their role in society, and on consumer expectations.”

In addition, the Conference program emphasized the resilience of brands under difficult conditions, such as navigating politics, activism, and criticism; cancel culture; new technologies; and brand restrictions.

Navigating Politics, Activism, and Criticism

Ms. Bannigan kicked off the panel discussion on how brands navigate politics, activism, and criticism by asking the provocative question: “When should free speech and expression override trademark laws?”

During the discussion, Andrew Tsai (Mars, Incorporated, USA) shared the story of rebranding UNCLE BEN’S to BEN’S ORIGINAL. He explained that the company did not have a blueprint for how to proceed with rebranding but that it needed to create a more inclusive future for the brand.

Robert Tadlock (Patagonia Inc., USA) explained how the clothing company’s activism began with environmental activism and why its activism has grown to include political activism. Mr. Tadlock pointed out that although many companies choose not to publicize their political views. Patagonia shares its political views as a way to raise awareness of important issues. For example, while promoting certain political candidates, Patagonia also ran a campaign encouraging people to vote in national elections.

Challenging Call-Out Culture

Capsule Keynote speaker Professor Loretta Ross (Smith College, USA) zeroed in on another hot topic: cancel culture. She noted that while this has become somewhat of a phenomenon in recent years, this form of ostracism actually dates to the 5th century. However, now it has become easier to reach more people with less effort because of social media.

According to Ms. Ross, today’s widespread cancel culture formula includes three main ingredients: a complaint, smartphones, and visibility and virality. “The challenge is to call people in instead of calling them out. … Calling in is not about them, it is about ‘you,’ and how you want to be seen,” she said.

The Threat of Brand Restrictions

Sergio Barragan (PepsiCo, Inc., Mexico), who is the current vice chair and incoming chair of INTA’s Brand Restrictions Committee, joined INTA CEO Etienne Sanz de Acedo to discuss the Association’s recently published Brand Restrictions Study—A View from Gen Zers and Millennials. The study emerged against a backdrop of proliferating brand restrictions in recent years as governments attempt to address public health issues by reducing the attractiveness of products deemed unhealthy. Plain packaging is one of the most prominent and widespread forms of brand restriction. It is one of INTA’s policy priorities and a major threat to brands and brand resilience.

The study explores the value that Gen Zers and millennials place on brands, the role branded packaging plays in their lives, their perceptions of brand restriction legislation, and how such legislation would impact them. A majority view expressed in the study was that most consumers will buy the same amount or more of a product even if branding elements are removed. In other words, the measure will not be effective in reducing consumption.

Mr. Barragan pointed to the effect of brand restrictions on counterfeiting. Brands—and trademarks specifically—convey important information to consumers, such as source and quality, and safety and legitimacy. As brand restrictions make it easier to produce counterfeit products, study participants expressed concern that this will lead to an increase in counterfeiting.

Going Virtual

The impact of technology on brands has become acute during the pandemic. “Going Virtual: The Cost of Convenience,” covered key business, legal, and regulatory issues that brand legal professionals need to understand so that they can support the marketing and sale of their company’s products and services in a virtual world. The session was moderated by Rob Doerfler (Mars, Incorporated, USA) and featured Tony Dent (Harley-Davidson Motor Company, USA) and Melissa Schoffer Farber (BroadwayHD, USA).

Mr. Dent explained how LiveWire, an innovative Harley-Davidson development in electric vehicles (EVs), provided the company with an opportunity not only to enter the growing EV market with its electric motorcycle, but to do so utilizing omni-channel marketing, including direct-to-customer sales and working with specialist dealers.

Turning to the theater world, Ms. Schoffer Farber pointed out that social distancing measures imposed to mitigate the spread of COVID-19 forced the theater industry to evolve and innovate. New theater formats emerged, such as quarantine-style programming recorded in a socially distant manner at several locations and pieced together, as well as sing-alongs and watch parties to bring people together.

She also spoke about the evolution of live streaming in theaters and expressed optimism that the desire for the digital capture of a theater performance will create more opportunities and help make theater more accessible around the world.

Concerns around how livestreaming might cannibalize the market proved to be unfounded. Instead, theatergoers are now first sampling shows online before signing up for the in-person shows. Ultimately, livestreaming has opened up new markets for the theater industry. Ms. Schoffer Farber noted typical intellectual property (IP) challenges which did not change dramatically as a result of the pandemic; for example, rights clearances, as well as licenses and contracts, must be examined particularly carefully for online permissions, adaptations, and recording for the purposes of viewing at a more convenient time.

New Digital Assets

A session on non-fungible tokens (NFTs), moderated by Maria Baratta (Kilpatrick Townsend & Stockton LLP, USA), proved both lively and educational. During the session, Nettrice Gaskins, a digital artist (artwork featured below), resident in the Autodesk Technology Centers Outsight Network, and assistant director of the Lesley STEAM Learning Center at Lesley University (USA), showcased some of her digital artwork that she had minted (the process through which digital art becomes a part of the Ethereum blockchain, a public ledger that is unchangeable and tamper-proof).

Included with permission from Dr. Nettrice Gaskins.

In discussing NFTs, Dr. Gaskins touched on some climate change concerns around this blockchain technology, with some artists leaning toward low energy consumption ways to mint and be paid for their artwork. She also commented on the interplay between the physical and virtual worlds, citing artist and former Major League Baseball player Micah Johnson, who came up with an NFT of a cartoon astronaut which has been optioned for a movie, and artists selling NFTs along with digital prints.

Arif Khan (Alethea AI, USA) discussed the next generation of “avatar” celebrities and iNFTs embedded with a personality that can interact with viewers.

Matthew Holt (NBA Properties, Inc., USA) introduced NBA TOP SHOT, an NFT marketplace where fans can buy, sell, and trade NBA moments. As Mr. Holt explained, NBA TOP SHOT exemplifies how this emerging technology presents new revenue streams not only for artists, but also for businesses, and how NFTs have moved from early adopters, through the speculators, to the mass market.

Jason Champion (Knobbe, Martens, Olson & Bear, LLP, USA) expounded on the legal issues. Who controls the file that underlies the NFT? What if the website owner stops paying website hosting fees? What if the company goes out of business or merges? Some markets are now becoming better organized and allow for a copy of the NFT to be downloaded or stored elsewhere. There is also the danger of “bad actors,” who can replicate an NFT on different blockchains or change one pixel, so they are not identical.

Licensing and enforcement issues are also tricky. Do old licenses include the right to mint NFTs? Should new licenses call them out? Many platforms don’t have a lot of enforcement structures yet, so artists and businesses alike may need to set up their own accounts on the different platforms to reduce the risk of someone else masquerading as them.

Diversity, Equity, and Inclusion

In a session focused on diversity, equity, and inclusion (DEI) moderated by Deirdre Davis (American Express, USA), speakers Walter K. Frye (American Express, USA), Duane L. Hughes (Orrick Herrington & Sutcliffe LLP, USA), and Stephen C. Lee (Target Corporation, USA) shared their companies’ journeys in creating and executing effective DEI strategies. Several of the speakers referred to the killing of George Floyd as a watershed moment that has forever changed the perspective on and impetus behind DEI.

Among the speakers, Mr. Hughes referenced “How Diversity Works,” a well-known article published in Scientific American in 2014, noting that the benefits of DEI extend to all levels of a business. Regarding innovation, for example, he explained how, when two people don’t have the same background and cultural touchstones, they won’t use shorthand to describe ideas, which improves communication and fosters innovation. The interaction might not feel as pleasant, he noted, but it works better.

Innovative Business Development—The Adventure Begins …

In addition to educational programming, the Conference included several innovative Business Development sessions anchored in the content of the program. At a first-time workshop titled “The Adventure Begins …,” participants split into teams to develop legal advice and policy recommendations for a hypothetical legal problem based upon the topics from the first two sessions.

One of the participants, Jessica E. Cardon (Quality King Distributors, Inc., USA) described the legal program as “a very current fact pattern involving social media brand engagement as well as partial brand acquisition and competition issues, and the virtual forum allowed participants to engage in these topics in a novel and fun atmosphere.” She especially enjoyed learning about jurisdictional variations in potential litigation strategies and collaborating with in-house and outside counsel to tackle the hypothetical problem.

Another registrant, John Zevitas (T. Rowe Price, USA), liked the way this new format teleported participants back to their law school days. He considered the exercise to be extremely valuable for attorneys open to adopting innovative and agile strategies to better respond to situations that brands face today. In particular, he praised the “highly nuanced and relevant fact pattern that explored the legal, business, and public relations issues that all companies need to consider before addressing a brand incident.”

A second Business Development session, “Did You Catch That? Team Trivia Competition,” tested registrants’ knowledge of the Conference’s panel discussions in a fun and interactive game show‒style session.

INTA’s Resilience

In addition to sessions illustrating the issues facing brands during the pandemic, INTA CEO Etienne Sanz de Acedo presented some perspectives on how INTA has shown resilience and continued to make progress over the last two years. He touched on the Association’s Digital Transformation Project, whose first milestone was the launch of a new website in June 2020; The Women’s LeadershIP Initiative and INTA’s efforts to close the representation and leadership gap for women in IP; the publication in November 2020 of reports exploring the future of IP law firms, in-house practice, and IP offices; and a membership donation drive set up in the early days of the pandemic when there was a shortage of personal protective equipment in many countries globally.

Mr. Sanz de Acedo also described how INTA pivoted from in-person to virtual events and activities early in the pandemic. This included re-imagining and enhancing e-learning offerings, adapting Speed Networking for the virtual world, transforming the New York Conference traditionally held in person in March into the virtual Brand Resilience Conference on a virtual platform, and organizing and hosting the combined virtual Annual Meeting and Leadership Meeting in November 2020, which laid the foundation for future events, including the upcoming 2021 Annual Meeting Virtual+.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

© 2021 International Trademark Association