A follow-up on brand governance: can we use data governance to protect brands?
You are not all set when you receive your patent or when your mark appears on the register!
My article in May explains the value of working with lawyers to help brand owners protect their brands. It illustrates why trade mark registration is just the first step.
My initial thoughts about leveraging brand health trackers (audits), which brand owners are already doing to monitor their brands’ performance vis-a-vis competition, as evidence to be used in courts has been “approved” by a practising barrister. Indeed, the barrister told me a problem he often encountered was that his clients needed to scramble around to look for evidence to support their case when they needed to sue. Therefore, he backed my idea of designing the brand health tracking audits with brand protection (i.e., to be used in courts) in mind.
We went on to discuss data integrity and how to ensure that the defence team (e.g., offending party of trade mark infringement) would not attack our data — how they were collected, the ethics of the persons managing the project, the quality assurance process, etc. He suggested to use accountants to audit the process of collecting and QC’ing data. He also talked about a trick that could be used to make it such a hassle for the defence team that they would agree to our demands and would not defend their case — it will of course be legal (e.g., playing around with the legal procedures).
I am now working with sample and data collection suppliers (e.g., panel companies) on the details.
There is another possibility for ensuring that the brand tracking data will be able to withstand challenge in courts, and I shall welcome feedback from lawyers or other relevant professionals. My idea borrows from the legal concepts of trusts and is inspired by data trusts which big data professionals are creating for their brand owners for data governance purpose. Separate trusts can be created for different industries or markets. For these trusts, the trust property will be the big data while the benficiaries will be brand/data owners who will contribute to the pool of big data so that they can tap into the data at the industry/market level. The trustees will have both trustee duties and fiduciary duties towards the beneficiaries.
Food for thought
Can we manage the brand health tracking audits as a trust to ensure its credibility and thus integrity in courts?