The government shutdown, news about tariffs, international upsets—intellectual property matters in any economic climate, and especially, in fact, an uncertain one. This is a time to be thinking smart about IP and your existing assets—not pulling the plug on IP innovation or protection.
As tough as an uncertain market could be for your business, taking a more targeted and efficient approach to managing your IP during this time could allow you to emerge with a stronger and more profitable IP portfolio than ever.
Indeed, some of the best known brands have their roots in uncertain—or even downturned economies. Disney was founded in 1923, and Hewlett-Packard and Polaroid were both start-ups in the 1930s. MTV was launched during the early 1980s’ downturn, and Ted Turner founded CNN during the same time. And in the recession of 2001, Steve Jobs unveiled the first iPod.
The success growing out of strategic IP management in uncertain economies is not surprising. Research shows that when times are tough, brand premiums resonate perhaps more than ever, and people are willing to spend a bit more on well-branded products they know and trust.
IP can also serve as a “stable asset in times of uncertainty, to continue to serve the purposes of investment and growth when consumer and investor emotions run amok,” and in this way can “mitigate the impact of economic crisis” on your company, if you grow, protect, and enforce it strategically. Id.
So how do you harness your IP to capitalize on economically uncertain times? We have a few simple and strategic suggestions:
Don’t Delay Domestic Filings
While first to use may win in the end, expenses may increase substantially if you aren’t first to file. That said, file strategically. Hone in on your most important marks and think long-term.
If marks are not in use or important, let them go. Or better yet, consider whether there is a way to monetize them.
Approach Foreign Filings Strategically
Know your markets of interest—are they first to file or first to use? Weigh the costs to register with the risks of nonregistration.
Take advantage of priority rules, and make use of foreign filing regimes that minimize costs. Consider the timeline for foreign registrations with respect to your business plans—some foreign processes can take years.
Exercise Efficient Quality Control
Rebuilding a tarnished reputation costs more than protecting a good one.
Enhance your oversight of licensees and franchisees to ensure efficient quality control at a time when others may be tempted to cut corners.
Maintaining efficient quality control can also help avoid suits from third parties and litigious franchisees.
Maintain Targeted but Vigilant Enforcement
Identify and focus on your core marks, and be vigilant. Dilution, abandonment and naked licensing are costly, and laches runs even when the economy is down.
But be sure to enforce with purpose. Establish your goals upfront and frame your strategy accordingly.
Brainstorm Around Making a Smaller Budget Stretch Further
Crowd source. Hold a naming contest rather than pay an expensive PR company. Give your customers tools to locate and report infringements themselves; your customers’ interests often align with yours, and they can be a great resource in investigations and enforcement.
This is also a great time to give interns a chance—high school and college students need experience: give them an opportunity to step up to the plate.
Maximize In-House Resources
Use downtime to increase training and education about your IP. Develop tracking and use databases. Maintain a filing system of agreements, licenses, and other forms. Create an FAQ list, and in-house trademark manual. Put it all on a trademark intranet.
The more knowledge that can be collected and consolidated in an easy-to-access location, the more you can save on external costs and repeat inquiries to your in-house resources.
While this oscillating market is anything but pleasant, by being savvy as to your IP assets, you can not only increase their value, you can imbibe your brand with a distinction that can only be gained in hard times.
By seeing your brand through these uncertain times, you see your consumers through it too, and in so doing create associations of comfort, reliability, and perseverance that will continue to fortify your brand image and customer base for years to come.
Julia Anne Matheson is an intellectual property partner in the Hogan Lovells Washington, D.C., office. She represents numerous companies and organizations on all aspects of trademark and unfair competition law, including trademark clearance and prosecution, enforcement matters, portfolio management, global brand strategy, due diligence, and licensing.
Lauren Cury is a senior associate in the Hogan Lovells Washington, D.C., office. Her practice focuses on trademark issues and brand protection strategies.
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