Ragnar Gustafsson (BOIP): "Brands are now linked to a form of ethics"

Successful marketeers today create a story around their brands, as well as a meaning and a set of values with which consumers can associate themselves, says Ragnar Gustafsson of the Benelux Office for Intellectual Property.

Successful marketeers today create a story around their brands, as well as a meaning and a set of values with which consumers can associate themselves, says Ragnar Gustafsson of the Benelux Office for Intellectual Property.

Leaders League. Tell us about the history of BOIP – how does it differ from other IP offices? What is the composition of your team?
Ragnar Gustafsson.
BOIP is different from most IP offices in a couple of ways. First, we are the only example in the EU – probably in the world – of independent countries unifying their territories in relation to trademark and design protection. Since 1971, the Netherlands, Belgium and Luxembourg have applied uniform rules in relation to protecting entrepreneurs’ trademarks. As of 1975, as the Benelux Economic Union, the countries have also applied uniform legislation for design protection. Not only was this legislation the springboard for the current Benelux Convention on Intellectual Property, it was also the inspiration for today’s EU trademark legislation. Since 2006, both trademark and design law have been governed in an easily comprehensible and systematic fashion by a single treaty, the Benelux Convention on Intellectual Property. Under this treaty, entrepreneurs operating in the Benelux can acquire exclusive rights to their trademarks or designs and use those rights to take action against unauthorised use. Our competencies are thus comparable to those of EUIPO [European Union Intellectual Property Office], except that there is no “smaller” level of protection, the Benelux territory is indivisible.

Secondly, BOIP is solely financed by the revenues from its own activities. We do not receive any funds from our member states. That is why we have to be very careful with our investments.
In addition, unlike most national offices, BOIP is solely responsible for trademark and design registration, and thus not responsible for the processing of patents. This has financial as well as operational consequences. On the one hand, we have no income from the patent system, on the other hand, our customers´ interests are more uniform. Trademark owners and patent owners have different concerns and priorities when it comes to protecting their IP rights.
Finally, we serve three countries and thus deal with different cultures, which influence entrepreneurship, as well as different languages. In our case, three languages can be used before the office: Dutch, French and English, of which the latter is not an official language in the Benelux. These characteristics make working at BOIP a challenge: we seek to comply, in everything we undertake, with the wealth of cultures and languages that exist within the Benelux.

•  BOIP receives approximately 22,000 trademark applications on average per year

•  99.5 per cent of trademark applications are filed online     

•  Approximately 6 per cent are refused definitively and 4.5 per cent are opposed

•  Approximately 1,000 designs are applied for at BOIP each year

•  Finally, BOIP receives approximately 5,000 i-DEPOTs per year

What are the characteristics of the Benelux market in terms of IP compared to other European markets? 
The Benelux economy is very dynamic – with three relatively small countries, it is naturally turned towards export. While there is always a slight difference between countries, the Benelux countries share a service-oriented open market, in which entrepreneurs and consumers are used to adapting to new developments. This makes it the ideal place to bring something new to market, which is reflected by the presence of many innovative entrepreneurs. This has consequences for the IP landscape we work in and we are always ready to help entrepreneurs innovate.

That is why we also launched the i-DEPOT, a service which offers a solution for the phase between having an idea and launching a new product or a new company. Entrepreneurs and inventors can record their creative work, such as a new idea, concept, format or software, in an i-DEPOT. This service allows users to get their documents officially signed and timestamped in accordance with the eIDAS Regulation of the EU.

How do you collaborate with EUIPO?
We have close contacts with EUIPO as a member of the European Intellectual Property Network, the EUIPN. Many activities are carried out in the context of this European cooperation network, which consists of EUIPO and the national Intellectual Property Offices in the EU. These activities go from e.g. joint development of tools, to cooperation on harmonisation of the Trademark Directive. 

‘‘Successful marketeers today create a story around their brands’’ 

How can trademarks be used to increase consumer trust? Why is it important to do this?
Nowadays, IP is often at the centre of attention and social debates. It is certainly the case for patents or copyrights, less for trademarks. However, this does not mean that trademarks automatically inspire trust in our society. We know that counterfeit issues play an important role here. Besides, there is a growing gap between, on the one hand, this legal heritage of monopolistic and territorial rights, and, on the other hand, the globalization of trade through the internet and the sharing economy. We continuously need to monitor current market developments and their impact on the IP system

Speaking of consumer trust, we have to go back to the root, namely the classic trademark function: the indication of origin. The brand is the ultimate market ordering instrument when it comes to consumer confidence.

On the one hand, consumers look for brands to find the products they trust, and, on the other hand, to prevent the repetition of a previous negative experience. All the trust in a producer that consumers have built up, comes together in brands. The importance of brands therefore exceeds the importance of the advertising that a producer has done. The brand also includes all the consumer’s own experiences and its value is determined by the end consumer’s own objective judgement.

Can trademarks be used to promote greater diversity, inclusion and sustainability in wider society? 
Successful marketeers today create a story around their brands, a meaning, a set of values, that consumers can associate themselves with. Brands nowadays link to a form of ethics. 
By doing so, they show that they have a role to play in the broader discussion, that they do not stand outside social developments, but instead participate fully in them. Ignoring these developments will put them at a disadvantage. This also explains the commercial success of eco-friendly brands, fair trade companies or socially responsible businesses. 

What are the currently the biggest challenges but also biggest opportunities with regard to IP rights? 
The first trend we currently see is that intellectual property is evolving away from absolute property rights and towards functional rights, mirroring changes in our society, which increasingly favours use over possession. Obvious examples are legislative trends in trademarks regarding plain packaging and goods in transit.

Secondly, trademarks are evolving in line with technological developments in the business world (for example, new types of mark). At the same time, legal complexity in the trademark world has been increasing dramatically (for example, EU case law).

Thirdly, trademark law affords new opportunities for businesses, but trademark owners must also meet the associated obligations, including making genuine use of their marks for all registered goods and services and in the territory for which protection was granted. Administrative procedures for trademark cancellation are a welcome development in this respect. 

Read the full Special Report: Marketing, Brands, Trademarks & Copyright (2020 Edition)

Covid-19 will lead to a greater risk of online counterfeiting, and significant commercial damage for brands that don’t get their pandemic response right.
Summary Maud Robert (Galderma): "Blockchain could be vital in the fight against counterfeiting" Catalina Morales (Bayer): "Regulators are getting stricter every day" Charles Tiné (SafeBrands): "We’re not just a service provider: we really focus on client service" Claudia Pappas (Thyssenkrupp): "China represents a big challenge in terms of detecting infringement" Justin Picard (Scantrust): "The access we provide to trustworthy information could save lives" Nina Buchholz (Columbus Drinks): "Fail early, fail cheap" Interview with Ana Pellegrini (General Counsel – Uber Brasil) Ayala Deutsch (INTA): "IP practitioners need to broaden their horizons" Market Analysis: Brands’ Reaction to the Coronavirus Could Make or Break Their Future


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