WEDNESDAY, 17 SEPTEMBER 2008
MARQUES in Noordwijk 2
The second session ("Brands in the Business Box: the internal environment") was chaired by Siân Croxon. This session was devoted to "bridging the gap between the demands of the marketing and legal specialists" -- the opposing factions whom Tom Blackett previously urged should be brought together. As Siân indicated, the session was going to deal with the tensions and frictions between marketing -- which is a profitable trading activity -- and brand protection, which Peter Drucker has stigmatised as being merely "costs".
First to speak was Uwe Over (Henkel), who is responsible for Henkel's entire global trade mark and domain portfolio. Uwe took the audience on the customary tour of his company's brand assets before addressing the key issues. First of these was that of "who is the client?" Uwe referred to the eternal triangle of trade marks, marketing and innovation: which serves which, bearing in mind that each has relationships and issues that are unique to it? The tensions between the three may be capable of being resolved -- though they may be necessary and even constructive, particularly if they lead to specialist functions like trade mark law being properly focused on what the client actually needs, refreshing the basic assumptions that underpin the relevanced of professional skills.
In this context, hard questions can be asked, such as (i) "how much of what a trade mark attorney does, in terms of portfolio management, is necessary or worthwhile in terms of cost-benefit ratios?", (ii) "what are the gaps between what a member of the portfolio management team is responsible for, what he/she does and what he/she actually achieves?" and (iii) "do we have standardisation, which may be good -- or a routine, which may suggest lazy thought?" In this context, Uwe contrasted the 'circle of pain' with the 'circle of peace', the latter arising when decision-making leads to freedom to act. Much of his talk was a counsel of perfection: all you have to do is be relevant, prudent, decisive, knowledgeable, sharing, cooperative, perspicacious, forceful and averse to unreasonable risk and things will work out just fine. "Sounds easy, doesn't it?", says Uwe. And remember: "Your client is the product".
Next to speak was Sheila Henderson (Richemont, the luxury goods group whose brand portfolio includes assets such as Cartier, Dunhill and Chloé). Sheila's experiences with Richement, a holding company for a remarkably diverse set of products, are markedly different from those of Henkel -- which makes and sells products directly into the market -- are very different, yet the issues relating to tensions between conflicting aims, budgetary issues [which bit of the corporate budget pays for trade mark portfolio protection -- and which bit receives damages recovered?] and contributors to the product development cycle are very similar.
Another tension-raising topic is IP litigation: corporate counsel may find themselves both suing and being sued, with major consequences in terms of brand image, pushing the envelope in order to position products close to competitors and the balance between a business's risk-aversity and its need to assert itself. At the other end of the scale, Richemont is sometimes a minority share holder in a joint venture that involves exploitation of its IP rights: how does decision-making differ between the situations in which a brand-owning company is autonomous or not? Corporate counsel fulfil a further role, as a form of corporate memory. Coexistence agreements and old settlement agreements may be forgotten if they are not borne in mind -- and they will be unlikely to be at the forefront of the minds of product innovators and marketeers whose concerns lie at the designer level, not at the legal level.
The final topic Sheila tackled was the risk of being sucked into US litigation and the traumatic process of giving depositions. The legal problems relating to discovery/disclosure and privilege as they affect in-house counsel await adequate resolution, which is worrying for businesses which engage in international commercial activity.
Last to speak before lunch was Alec Rattray (Circus) -- an 'outsider' offering an objective view of the in-house relationship issues. Alec highlighted the great divide between project-focused "creatives" and business-oriented "suits". Taking this divide as his paradigm, he demonstrated that this divide is reflected in almost every field of activity: brand function, budgeting, the relation of the brand to (i) the business and (ii) its owner, and so on. Another significant divide exists between the external consultant -- who delivers advice, often at the back end of a project -- and the client company which alone can implement it. In this context too, external legal advisers can be viewed as a block on in-house creativity, even though their advice should have been canvassed before the creative process of branding or packaging is allowed to start.
Alec's main message is this: force yourself into the dialogue before it's too late. Advice is best used when it's needed, not when it's too late to deploy it to best effect.
Posted by: Jeremy Phillips @ 11.59
Tags: MARQUES conference 2008,