After the first and second
report from INTA’s

Brand Authenticity Conference, Alex Woolgar (Allen & Overy) is back with further updates
from the 2-day Berlin event.

Here’s what Alex reports:

“Day 2 of INTA’s Brands Authenticity
conference in Berlin resumed the morning with
a keynote address from Aiko Bode, Group Chief Sustainability
Officer of Fenix
, which owns a number of outdoor/adventure brands,
including FJÄLLRÄVEN.
The company has adopted the so-called “Fenix Way”, by which it seeks to
entrench sustainability as a central element of the company’s identity, not
least because the company’s business depends on the continued attractiveness
and availability of the natural environment. Fenix has signed up voluntarily to
the UN
Global Compact
Fair Labor Association and the Sustainable
Apparel Coalition
, and abides by the “Management
” principles (being Nature, Economy, Society
and Wellbeing). Much like Pacari
 yesterday, the standards provided by these
organisations give Fenix clear sustainability goals, and their certification
marks allow Fenix to communicate its values to consumers. Aiko noted that now
all publicly-listed companies with turnover of €40 million or greater and/or 500 or more staff are required to report
annually on certain non-financial performance measures. Aiko provided evidence
to suggest that more sustainable companies outperform less sustainable ones,
and argued that sustainability is no longer nice to have; it is a must have,
and it is coming whatever happens, so companies should get ahead of the
prevailing trend.

To tie these themes to substantive
law, Marion Heathcote of Davies Collison
 led a session on certification marks. Marion is an IP
lawyer during the week, and an organic farmer at the weekends. Marion recounted
how she developed a relationship of mutual trust in supplying Mat Lindsay, chef
Ester (one
of Australia’s top restaurants). This relationship began by virtue of the
strength of Marion’s farm’s brand image (i.e. the business trade mark) and the
reassurance of its certifications, namely the Australian organic and 
AIEA marks.

Giulia Di Tommaso of Elipe provided
a sustainability practitioner’s viewpoint, explaining that certification marks
support mainly voluntary sustainability standards (VSS). VSS and
their associated marks are of growing importance. For example, the Ecolabel Index indicates
that there are currently around 465 different ecological certifications
worldwide. Giulia suggested that growth in VSS is being driven by brand owners’
desire for protection and recognition of their CSR efforts, consumer demand,
the structure of food markets and role of retailers as gatekeepers (e.g. Marks
& Spencer has developed its “Plan A” standards), market reaction to the
competitive advantage gained by early-adopters, the responsible development of
the global south, and government intervention. Giulia believes that VSS
incentivise a “race to the top”, essentially by enabling brands to shout about
their virtues to consumers. From an institutional design perspective, Giulia
suggested that VSS require (i) rigorous standards, which are developed
collaboratively; (ii) a clear system of verification; (iii) transparency; (iv)
a complaint mechanism; and (v) appropriate sanctions. These practical
considerations in many ways mirror the requirements for registration of
certification marks in the EU.

David Stone of Allen & Overy LLP gave an overview of
the introduction (from 1 October this year)
of EU-wide certification marks, 
some 16 years after the Max Planck Study first recommended this
step. Certification marks have been available at a national level in some
member states (e.g. the UK, Germany) for a while, but the lack of EU-wide marks
has led to inconsistent certification regimes/standards, and geographical gaps
in certification. The greatest challenges in achieving registration are likely
to lie in defining sufficiently clearly what is being certified and the
standards for this, establishing a testing/monitoring regime for compliance
with the relevant standards, and developing sanctions for non-compliance.
Giulia speculated, for example, that it would be difficult to certify aspects
of a responsible supply chain, such as respect for human rights. Alexander
von Mühlendahl
 of Bardehle Pagenberg (and former
 OHIM/EUIPO Vice-President) reported that 48 applications for certification
marks are currently pending before the EUIPO (none have yet been approved),
although most, if not all, are marks which are already registered elsewhere
(e.g. TUF marks from Germany). David does not expect there to be a huge rush to
file newly-developed marks, because certification marks have two key
limitations: (i) the proprietor of the mark is not itself able to use the mark
relation to the
goods/services for which it is registered; and (ii) indications 
of geographical origin (GIs) are expressly
carved out from the EU certification marks regime. There was some debate
regarding what constitutes “use” in this context. In practice, the proprietor
of a collective mark cannot use the mark for its own goods/services, but
instead licenses the mark to certified third party traders – this might not
constitute use in accordance with the origin function. The panel also
considered alternative structures for achieving certification – collective
marks (which are collectively owned by members of an association, and not a
certifying organisation), GIs, or registering a traditional mark and licensing
its use to third parties. It will not be possible for one party to register
both a collective and a traditional mark for the same subject matter, because
of the restriction on use of a collective mark by its proprietor, and the
requirement for the applicant to have a bona fide intention to
use at the time of filing.

The next session, featuring Claus
of Bardehle Pagenberg and Wolfgang
 of the German
, looked at some issues of policy and practical
considerations for collaborations between brands and NGOs. Wolfgang noted that
almost all large companies co-operate with charities and/or NGOs in some way.
In principle this is a good thing, but it must be done carefully. For example,
if a collaboration is unnatural, it may not be sufficiently productive to
justify the investment or, worse, the brand owner will face accusations of
inauthenticity and/or “greenwashing”. Wolfgang noted that in Germany
only 36% trust company CEOs to do what is right, compared to 64% in relation to
NGOs – this suggests that companies are likely to come off worse from any
poorly-conceived collaboration. Wolfgang explored three different modes of
corporate-NGO relationship: (i) pressure (i.e. unilateral criticism of a
company by an NGO); (ii) evaluation (an NGO providing consulting services to a
company, or vice-versa); or, optimally, (iii) partnership. A partnership might
include (in relation to the company’s activities) the development and/or
provision of certifications and/or codes of conduct, or support for individual
CSR projects, and (in relation to NGO activities) financial sponsorship and/or
support for specific initiatives. Wolfgang believes that the key is to focus on
credible collaborations. It is important to select an appropriate partner and
project, where the potential synergies are clear. Wolfgang advocated long-term
(three years or more) partnerships, companies providing more than just money,
and detailed and flexible project frameworks and aims, in order to keep both
partners engaged and committed.

The morning’s final session, led by Marion
, covered issues around cultural sustainability (that is, the
preservation of valuable knowledge, traditions and ways of life from generation
to generation). Massimo Vittori of oriGIn argued
that GIs form part of the infrastructure to ensure cultural sustainability: GIs
serve to differentiate a particular geographical origin and its quality; turn
agricultural products into niche products; protect demand for products of a
particular origin; and incentivise intergenerational sharing of local
knowledge, practices and traditions. However, traders benefiting from GIs are
just as exposed to the risks of not adapting to sustainability challenges:
there is the potential of harm to the prestige, attraction and authenticity of
a GI otherwise. Massimo noted that GI stakeholders are in a good position,
however, because they are used to evolving their practices and standards over
time. Kiri Toki of WIPO explained
the work of WIPO’s Traditional Knowledge Division, which is tasked with dealing
with indigenous rights and how these fit into the global IP system. Kiri
detailed the reputational risks for brand owners if traditional cultural
expressions (TCEs) are appropriated clumsily: there is a risk of causing
offence and/or social media backlash in the case of misappropriation. Where a
brand owner is looking to take inspiration from TCEs, WIPO policy is to
encourage collaboration between the brand owner and the indigenous community.
This is a win-win: brand owners get inspiration and insulate against
reputational risks; indigenous communities get economic empowerment and retain
cultural ownership and agency. WIPO publishes a number of “best practice”
guides in this area, and has also begun matching pro bono lawyers to indigenous
communities. Janet M. Fuhrer of Ridout &
 amplified some of these themes, and provided legal
context. She suggested that a sui generis legal regime is most
appropriate to protect indigenous rights and TCEs, although existing IP laws
can help to an extent. For example, in Canada it is possible to register
certification marks (alongside a “traditional” trade mark if desired).
“Official” marks (those registered to denote public bodies) may also assist
indigenous groups. Janet counselled that, at the outset, brands should always
do their research and consult with those knowledgeable about indigenous rights.
Marion also noted that INTA’s Pro Bono Clearinghouse pilot may assist
indigenous groups in protecting their rights.“ 

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