As the world witnesses a shift towards deglobalization and increased protectionism, most notably with the US leaving, or threatening to leave, numerous international organisations and treaties and/or terminating free trade agreements, trade mark practitioners must prepare for significant changes in brand protection and strategy.

In this blog post, the MARQUES Intellectual Asset Management Team anticipate various scenarios and explore the potential implications of these trends, focusing on the challenges and opportunities that may arise for brands and their legal guardians.

The resurgence of local brands

One of the most immediate effects of deglobalization is the potential resurgence of local brands. As countries prioritize domestic industries and consumers become more inclined to support local businesses, traditional local brands may gain prominence.

This shift could mark the end of the recent trend of consolidating brand portfolios to save costs and reduce complexities.

Trade mark practitioners will need to adapt by focusing more on protecting local brand assets, ensuring they are well-positioned in their respective markets.

International collaboration and treaties

The possibility of countries disregarding international treaties, such as the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), poses a significant challenge for trade mark protection.

As countries and governments decide not to feel bound by these treaties, multinational companies may need to reconsider their strategies, focusing on strengthening local brands to maintain market relevance. This could involve:

• Investing in local market research: Understanding local consumer preferences and cultural nuances will be crucial for developing strong local brands.
• Tailoring marketing strategies: Customized marketing campaigns that resonate with local audiences can enhance brand loyalty and market penetration. ·
• Collaborating with local partners: Forming strategic alliances with local businesses can provide valuable insights and facilitate smoother market entry.

Shift from global to national trade mark exhaustion

Article 6 of the TRIPS Agreement allows its members to choose their own exhaustion regime. Although we have not heard about countries considering changing their current exhaustion regime, it’s not unthinkable that in the light of the deglobalization countries that previously adhered to the doctrine of global trade mark exhaustion may now adopt national exhaustion policies.

This shift would mean that once a product is sold in one country, trade mark rights are not exhausted globally, allowing trade mark owners to control the distribution and resale of their products within each country.

Challenges in enforcing trade mark rights

Enforcing trade mark rights as a foreign trade mark owner may become increasingly difficult. Local procedural laws may require bonds or other security before granting access to courts, creating barriers for foreign entities.

This situation may necessitate the establishment of more local entities or licensees who can act as the party taking action against trade mark infringements.

Practical implications for trade mark practitioners

1. Staying informed about international developments: Keeping abreast of changes in international treaties and collaboration efforts is crucial. Practitioners must be proactive in understanding how these changes impact their clients and advising on the best strategies.
2. Adapting to local markets: Trade mark practitioners must develop a deep understanding of local markets and regulations, ensuring that their clients’ brands are protected and promoted effectively within each jurisdiction
3. Strategic portfolio management: With the potential end of brand portfolio consolidation, practitioners will need to advise clients on managing a diverse range of local brands, balancing the benefits of local relevance with the complexities of maintaining multiple trade marks.
4. Navigating enforcement challenges: Practitioners must be prepared to address the procedural hurdles of enforcing trade mark rights in foreign jurisdictions, potentially establishing local entities or licensees to act on behalf of their clients.

This blog post was contributed by Michel Rorai and Mark Devaney, members of the the MARQUES IAM Team

Photo: Intisar Ali/Creative Commons