Memorandum submitted by British Brands
Group
This Briefing builds on the Brand Briefing of
8 December 2008 that outlined the key findings of a Westminster
Business School study on the economic contribution of branding
to the UK. This study found that some one million people are employed
in the creation and management of brands and some £15.85
billion of investment in the UK economy, but that this value is
not being captured in the statistics. Here we develop some of
the policy implications arising from this work.
RESPONSBILITY FOR
BRANDING WITHIN
GOVERNMENT
Despite the large number of people employed
in the creation and management of brands and the significant investment
that is made in the national economy by branding, there is no
Government leadership of ownership to ensure that policies affecting
brands are co-ordinated or indeed that its potential contribution
to economic recovery is being recognised.
This does not mean that Government is inactive. A
number of departments play a crucial role in providing a conducive
environment for branding in the UK:
| BERR | Business Link, in its practical advice to business, outlines the importance of brand and image to firm's success;
The Consumer Law Review (2008) outlines the importance of branding as a means of consumer protection.
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DIUS | The Intellectual Property Office administraters, promotes and supports the enforcement of IP rights which make possible investment in branding;
The Design Council aims to build the UK's capacity to innovate and deliver world-class brands through effective us of design.
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DCMS | The creative industries are integral to the building of successful brands.
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IA Centre | Supported by Scottish Government, the Centre helps businesses derive value from their intellectual assets, including brands.
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Furthermore, the Home Office, Trading Standards, Customs,
Police and the judiciary all play a crucial role in enforcing
the IP rights that underpins brands.
The absence of Government focus and co-ordination on branding
means there is no coherent policy on creating the optimum climate
for brand building in the UK or on deriving the greatest benefit
to the UK economy. This is a missed opportunity and may result
in branding being overlooked as a contributor to the economic
recovery of the UK and a future drive of wealth.
THE CURRENT
ENVIRONMENT FOR
BRANDS IN
THE UK
Building successful brands involves companies making significant
long-term investment in activities that build strong reputations
with "consumers", whether these are citizens or business
clients.
The value created by such investment presents a target for those
that seek unlawfully and illicitly to exploit those reputations
for their own gain, misleading consumers, damaging legitimate
business through increased costs and reduced revenues, and damaging
incentives to invest.
Counterfeits
In the last 10 years, counterfeiting has grown into a global
problem and affects a wide range of everyday as well as premium
products.
Legislation
The UK legislative framework is robust, butr changes to benefit
the environment for brands are need in two areas:
Enforcement
Resources. More resources are required at national
and local level. Local government is not giving anti-counterfeiting
sufficient priority and therefore funding. At national level,
better use of the Proceeds of Crime Act (POCA) would fund TSS
and the police more effectively.
Information. Permission should be given in law to use certain
information disclosed by Customs to rights holders when seizing
suspect goods at borders, so rights holders may take legitimate
action on their own account.
The internet. A code of practice agreed between all
stakeholders is required to combat criminality on the internet.
Counterfeit products for example are flooding cyberspace. Also,
the law relating to the liability for counterfeits of trading
platforms which are not classed as ISP (eg eBay) requires clarification.
Education for the judiciary. A module on IP crime
and POCA in training courses for judges would help address current
levels of misunderstanding and ignorance relating to the law,
deterrent sentencing and the confiscation of assets.
Misappropriation
The Gowers Review of the UK's IP framework highlighted the
shortcomings of the law of passing off (paras 5.84-5.85), concluding
that brands in the UK are not well protected from misappropriation.
A specific example concerns the copying by competitors of the
packaging deisngs of familiar brands. These designs are sufficiently
close to mislead consumers but without infringing IP rights.
The Gowers Review recommended the EU's Directive on Unfair
Commercial Practices be given time to work. This is consumer protection
legislation. However, the UK Government chose not to give enforcement
rights to companies, confining such rights to organisations such
as the OFT and Trading Standards which are already overstretched
and underesourced. Without effective enforcement, branded products
remain open to misappropriation.
To build in the UK an environment conducive to investment
in brand reputations, a new legal provision is required that is
focused on both consumer and brand protection to make it unlawful
for one company to use packaging design or labelling to trade
off the reputation of another company. Such a provision was included
in the Copyright and Trade Marks Bill 2000,[8]
a Private Member's Bill introduced in the House of Lords and withdrawn
at Second Reading.
December 2008
8
www.parliament.the-stationery-office.co.uk/pa/ld99900ldbills/021/00021--b.htm#3 Back
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