Organizers: Irene Calboli, Texas A&M University School of Law, United States; Dev Gangjee, Faculty of Law, University of Oxford, United Kingdom; Martin Senftleben, Institute for Information Law (IViR), University of Amsterdam, Netherlands; Vera Sevastianova, Hanken School of Economics, Finland
Signs that identify and distinguish products often become important reference points in the societal discourse. Today, consumers are increasingly conscious about whether the branded items they buy are produced with respect to environment, human rights, and laws in general. In short, people have become more concerned with sustainability, i.e., “meeting the needs of the present without compromising the ability of future generations to meet their own needs”, according to the UN.
Brands could embody sustainable values that a manufacturing or service company supports. Therefore, brands could promote sustainability by associations with higher environmental, social, and economic standards. In our globalized and interconnected world, it is more difficult to hide child and forced labour that is involved into the supply chain, and the use of plastic bags is obvious – facts of these phenomena may cause a withdrawal of customers from a certain brand. This makes many brands stick to and improve their principles, including through regulations of collective or certification trade marks or rules of geographical indications.
Despite efforts of businesses to transform the names they use into the sustainability symbols, brands are still viewed by the public as instruments of big corporations and private interests, with examples of how green branding could easily become green washing if sustainability is not a true business priority. Hence, this panel’s proposers believe that there is work to be done to turn the brand-related area of IP law more oriented towards building a better world for the generations to come. With that in mind, this panel will addressed a series of presentations focusing on legal variations of brands and their role in building and maintaining sustainability, including through transparent and accountable communications with consumers and public at large.
Panel Presentations and Presenters’ Details:
– Dev Gangjee Professor and Director, Oxford Intellectual Property Research Centre, Faculty of Law, Oxford University
The Permissibility of ‘Preloved’? Trade Mark Law in an Era of Recycling and Upcycling
During the pandemic DIY or upcycled facemasks ran into the unexpected obstacle of trade mark law. Pre-worn clothing found a new lease of life in the form of branded facemasks sold commercially. However these unauthorised adaptations were under scrutiny as a possible form of trade mark infringement. Preventing needless waste generation is a global priority. So to what extent should brand owners be given the authority to decide when recycled or upcycled products are permissible? This paper explores the extent to which a range of trade mark doctrines in EU trade mark law can impede the sustainable reuse of branded goods and how we might need to rethink their application. These include the exhaustion of rights upon first sale, what counts as trade mark use, what ought to be recognised as harm to trade mark functions and the new referential use defence.
– Irene Calboli, Professor of Law, Texas A&M University School of Law, 2022 Hanken-Fulbright Distinguished Chair in Business and Economics, Hanken School of Economics.
The Potential Role of Certification Marks and Geographical Indications in Promoting Transparency and Sustainable Development
Prof. Calboli will address the topic of certifications, including certification marks and geographical indications, and their ability to increase transparency along the supply chain and, in turn, promote sustainable development. As a part of her presentation, Prof. Calboli will discuss the challenges of developing and consistently applying controlling certification protocols as well as the tendency of some actors to overemphasize “green,” “fair,” and “sustainable” standards for marketing purposes. Prof. Calboli is currently doing research in Finland which is one of few countries participating in the Sustainable Brand Index project, and she will support her research by insights from this Nordic state in addition to her extensive work regarding certification marks and geographical indications in the EU, North America, and developing countries in Asia.
– Martin Senftleben, Professor of Intellectual Property Law and Director, Institute for Information Law (IViR), University of Amsterdam
Brand-Based Communication and Sustainable Consumption Patterns: The Underexplored Potential of AI-driven Behavioural Advertising
Computational advertising lies at the core of a paradigm shift in brand-based communication. While, in the past, marketers designed advertising messages in accordance with a particular brand identity, AI systems nowadays use behavioural consumer data, such as data reflecting prior online searches and purchases, or social media “likes”, to generate targeted, tailor-made marketing messages on the basis of algorithmic content selection processes. Not surprisingly, computational advertising has triggered a debate on transparency obligations. Privacy concerns and the aim to prevent feelings of vulnerability and intrusiveness have led to new EU legislation seeking to empower consumers. The new communication and information tools offered by targeted behavioural advertising, however, can also be employed to draw consumers’ attention to sustainable products and services. Focusing on this underexplored potential of the new technology, the presentation will explore possibilities for implementing policy objectives, such as more sustainable consumption patterns, into computational advertising systems.
– Vera Sevastianova, Doctoral Candidate, Hanken School of Economics
Trade Marks in the Age of Artificial Intelligence: The Need for Sustainability in the Consumer Decision-Making Framework
Ms. Sevastianova will discuss how artificial intelligence (AI) changes consumer behaviour and its possible impact on trade mark law and, in turn, sustainable goals. Trade marks are signs that serve as orienteers in the world of products, but in some instances AI might shift the emphasis from trade marks to products’ parameters, potentially even generating perfect matches to consumer preferences with a reduction of search costs. AI could also suggest alternative choices that consumers might have never discovered, based on the data that AI collected. Yet, while AI is supposed to increase transparency in the marketplace, it can also be used to manipulate consumers’ behaviours and affect purchasing decisions. In this process, notions of consumer freedom of choice and autonomy, being the two sides of the same coin, appear to be of importance. Ms. Sevastianova will address these issues and consider how AI could potentially serve to promote sustainable goals, yet additional regulation may be needed for AI to develop business-to-consumers information flows that effectively promote these goals.