Brands, influencers, social media and AI were discussed in part 7 of the MARQUES Annual Conference in Berlin, “Next generation content”, which was chaired by Magdalena Borucka, Taylor Wessing, UK.

Linda Marquardt, Interbrand, Germany described how brands need “ongoing incremental change” to stay in the game and “iconic moves” to leap ahead. This means developing new skills and capabilities. Micro-influencers can play an important role in this, as in the recent Hugo Boss “Be Your Own Boss” collaboration with Khaby Lame.

For Nike, influencers include trainers and coaches that create human and close connections with different audiences. “Authentic empathy” comes from connecting with customers through a common culture.

Some brands are also using digital influencers – for example, Samsung and Lil Miquela – across social media channels. “Users get more inspiration from virtual influencers than from humans,” said Linda. Brands such as Jacquemus, Heinz and Nike are using powerful AI-generated advertising campaigns. “It’s amazing and perplexing what AI can do for us,” she added. “We are able to create unequalled experiences while retaining integrity … We call this brand leadership.”

Gala Dinner and dancing: On Thursday night, delegates enjoyed a four-course Gala Dinner at the Intercontinental, followed by dancing, with MARQUES Chair Antony Douglass acting as DJ. The Annual Conference closed with a short video showing highlights from the week. Antony thanked everyone who had taken part and contributed to the success of the Conference and introduced the 38th Annual Conference, which will take place in Stockholm from 24th to 27th September 2024.

Shona Tennant, William Grant & Sons, UK discussed how influencers are used and managed in the alcohol industry. Her company has 140 brand ambassadors globally and many of them have now become lifestyle influencers in their own right. “We influence groups of people who can influence other groups of people. We’re looking bigger rather than smaller,” she said. “It’s a very effective way of marketing … there is excellent ROI on working with influencers.”

However, it's important to ensure that corporate values and influencers align, and everyone understands the boundaries: in the alcohol industry, that means responsible drinking and protecting minors. This requires diligence checks on demographics, quality and local law restrictions. For example, William Grant & Sons does not use TikTok or Snapchat as these are aimed at younger demographics. It also has the right to terminate immediately where the brand is brought into disrepute.

Matthias Weiden of Meta expanded on the risks of influencer marketing/branded content. He highlighted the importance of transparency by using the #brandedcontent tag. “We want creators to be honest with their community,” he said. Influencers on Instagram can tag business partners only if they have approval to do so. A recent change enables users to tag multiple brands or no brand at all.

Julia Mischke, Media Authority of North Rhine-Westphalia, Germany provided a guide to media regulation, which is conducted by national or regional authorities in Europe. She stressed that every form of compensation (whether financial or otherwise) matters when it comes to regulation. Germany’s 14 regulators carry out random sampling and research, and also investigate complaints from users.

Its actions range from sending letters of advice to bringing administrative proceedings and issuing penalties (up to €500,000). “Luckily we do not have to use the procedures very often. In 90% of cases we can resolve things just by talking,” said Julia.

EU case law update

The final session of the Conference focused on recent EU case law. Two cases concerned counterclaims:

• Bodman-Ludwigschafen (Case C-256/21) concerning the trade mark Apfelzügle. “The most interesting part of the judgment is not that the counterclaim went ahead … but the Court made a clear statement that it is autonomous EU law and not subject to national procedural law,” said Verena von Bomhard, Bomhard IP, Spain. Sven Stürmann, Chairperson of the 2nd Board of Appeal, EUIPO (but speaking in a personal capacity) noted however that when a main appeal at EUIPO is withdrawn, any counterclaim also falls. “If you are a defendant, you may want to file your own appeal,” he said.
• LM v KP (Case C-654/21) concerning the trade mark Multiselect, in which the Court said the scope of the counterclaim “cannot be restricted to” the subject matter of the infringement action, and a counterclaim is not a mere defence. As session chair Roderick Chalmers, AKD Benelux Lawyers, The Netherlands said, there are arguments for and against this position.

The following cases concern the relevant point in time for assessment and legitimate interest:

• Basmati, Ape Tees and Shopify (Case C-751/22 P pending) which all arose from Brexit but have wider implications. These cases have led to different outcomes at the General Court regarding the significance of the date of the Board of Appeal decision, and are all pending at the CJEU. “It’s not only because of Brexit. It’s the fundamental question of: when do you need to have an earlier right?” said Sven. These cases prompted considerable discussion with the audience.
• Bioplak/Biolark (Case T-459/22) in which the International Registration died between the Board of Appeal decision and the General Court hearing. Surprisingly, the Court took the IR into account.

Sven said there are almost 700,000 figurative EU trade marks registered and recent cases on figurative marks show a shift before the General Court:

• The former approach was typified by Case T-151/17, in which signs depicting mythical animals were held to be dissimilar at the Board, but the Court said there was a low degree of similarity.
• More recently, in Cases T-596/21 and T-491/22, signs resembling wolf heads and comic figures with hats were found to be dissimilar. “This is surprising as there is a greater trend towards stylisation of brands,” said Verena.

Finally, the panel looked at reputation:

• Case T-639/21 CB v CCB: in an earlier judgment in this litigation, the CJEU said reputation must not be taken into account when comparing signs. “I dislike the notion that you cannot take into account reputation of the earlier mark when assessing similarity,” said Verena, adding that public perception is key. “We need an empirical study on how consumers perceive reputation in a mark as well as weak marks,” said Sven.
• Cases T-4/22 PUMA and T-509/22 BIMBO v BimboBIKE indicate the General Court is becoming more restrictive when it comes to trade marks with a reputation.