The first post-prandial session, "The External Environment", was chaired in erudite fashion by Philippe Pèters, who described the importance of putting brand activity within its wider context: commercial, legal and social phenomena shape the market more powerfully than the aspirations of IP owners ever can.

Mireille Buydens (Liedekerke Law) began by running briefly through the legal environment, in terms of the EU legislation and European Court of Justice case law -- illustrating her points with some examples drawn from the Benelux countries from which, she maintained, the modern law is derived [note: whether the old Benelux law is relevant to the understanding of the current EU law is a matter of respectable debate]. Mireille also raised the paradox that, where an earlier trade mark is well known on account of its use, the likelihood of association with a similar later mark is higher but the likelihood of confusion is lower.

What role should "likelihood of association" play? Is it merely one element among others that must be considered when determining whether there is a likelihood of confusion, or is it a separate criterion, effectively an alternative to "likelihood of confusion"? The EU case law, from Sabel through to this year's Adidas/Marca Mode decision, suggests that the ECJ has adopted both positions but is currently closer to the first, while Court of First Instance case law appears to have operated the second, refusing Community trade mark applications where confusion per se is unlikely but an association of the respective goods or services bearing marks as coming from the same or related businesses is likely. This question is of obvious importance regarding the ability of retailers to place look-alike products on their shelves.

Speaking second, Hans Voorberg (Sara Lee) gave a forceful account of the future propects for so-called "A-brands" even in an environment in which private labels are doing so well. He explained the economic attractions of private label products for retailers, in result of their increased internationalisation, better use of consumer data bytheir owners, wider selections of products and flavours, and so on. In some cases, retail brands are product leaders, innovating with products before the independent brand-leaders develop comparable products. The ability of retail chains to spread into different formats (small shops, internet sales etc) also assists them. Retailers can also offer space for explaining their products, their ecological credentials etc within the same space, thus emphasising their own-brand credentials too.

So how do brands respond? They can still offer often superior quality, authenticity, the "brand experience" (which can be enhanced by internet) and distinctiveness of design. mass production combined with individual choice (as with Nike design-it-yourself footwear) and -- blurring the differences -- opening their own retail outlets. Hans sent out a very positive message for the future, particular for A-brands that keep ahead of the game.

Alex de Jong (Sara Lee), speaking as a last-minute replacement for the billed Hans Blom, gave another perspective on private label branding. How big is private label as a phenomenon? In the Asia-Pacific region it remains small, but in Europe own-brands account for 23% of sales (that's 40% in the UK); the fgure for the US is just 16% -- and the tide is rising at the rate of around 1% per year. Since the biggest users of private labels are also the biggest customers for the leading independent brands, tactical approaches to the assertion of private brands are problematic.

Alex emphasised that private-label works both ways: the retail chain supports its own brands and the private labels market the retailer. This enables retailers -- particularly in the UK -- to get into all sectors of the market: budget, upmarket etc. Tesco was cited as a supreme example of a proponent of this means of promotion. In short, he reminded us, the only way to drive growth within a given category is through constant innovation; packaged salad segments is a huge market that has been entirely captured by the retailers, because the independent brands didn't develop it -- and even today they have not entered that product sector. Though eight out of 10 innovations fail, the success of the other two is what drive profits, which is a key reason for protecting those successful innovations adequately.