Do you remember what you were doing in 1998? Here’s a few hints: the Winter Olympics were held in Nagano, Japan; Microsoft released a new Windows operating system; France won the soccer World Cup final; Hong Kong opened a new airport at Chek Lap Kok; and a company called Google was founded in California. The INTA Annual Meeting was held in Boston (it rained a lot) and the keynote speaker was then WIPO Director General Kamil Idris.
That was the year that Alan Drewsen joined INTA as Executive Director, succeeding Robin Rolfe. Now, 15 years on, as he prepares to move on to new challenges, he reflects on the development of the Association in that time. Asked what the biggest change has been, he picks out “growth” – both in measurable terms such as the number of members, size of staff, and Annual Meeting attendance, all of which have close to doubled, and also in the “the impact and influence of the Association internationally”, which is harder to measure.
The whole world in his handsIt’s the international aspect that has probably been most prominent. Drewsen says there was an emphasis on “internationalization” throughout the interview process in 1998. “The search committee put a considerably emphasis on it and I knew the Board was interested in it.” It was just five years earlier, in 1993, that the name of the Association was changed from USTA to INTA to reflect the growing diversity of its membership and activities.
A lot of the growth in INTA over the past 15 years has been international: two Annual Meetings have been held outside of North America (in Amsterdam and Berlin) and two more are planned (Hong Kong next year and Vienna in 2018) while the percentage of Annual Meeting attendees from outside the United States has grown, as has the number of associate (law and service firm) members. Drewsen notes that the growth in corporate members has been more selective: there are many more from Europe, and some from China, but he believes there is scope for growth in other areas of the world: “In countries like China national brands are seeking international markets and are interested in joining to see how to do that from an IP point of view.” The next challenge is to extend that to more regions, he adds: “We haven’t made so many inroads with corporate members in India yet; southeast Asia is a huge opportunity for growth; and so is Korea – that’s a bursting economy.” Another area with potential is Latin America, where Drewsen believes the expansion of the Madrid Protocol “will help to open things up a little bit.”
But further expansion also raises new challenges. INTA now has offices in Brussels in Shanghai as well as New York and Washington DC, and Drewsen says “more local offices will make a difference” to international growth. Another question raised is that of language, and the extent to which INTA increases its non-English publications. At present, there is the INTA China Bulletin and there have occasionally been publications and meetings held in other languages, such as Spanish. But, says Drewsen, using more languages also raises questions such as: “To what extent is the cost offset by the benefits? And, at the Annual Meeting where most people communicate in English, are you shutting off more people than you are inviting in?”
The journey to INTADrewsen arrived at INTA in September 1998 with some experience relevant to trademarks. As Senior Vice President and General Counsel of Empire Blue Cross and Blue Shield (the largest of the Blue insurance plans), he had served on the Board of Directors of the Blue Cross and Blue Shield Association, which owned the marks and licensed them to the plans. “There was some worry about ownership and genericism,” he recalls, noting that he had more dealings with IP through serving on that Board than as general counsel: “We didn’t have that many trademark issues. I knew who on the legal staff would handle them but I wasn’t too much involved in IP.”
Prior to working in-house, Drewsen had been in private practice as an antitrust and commercial litigator and had gained some experience representing industry associations where antitrust issues arose. When approached for the INTA role, therefore, he had both some understanding both of IP and of how associations work, and so the move was logical. “There was also an attraction to being the head of an association, the staff leader,” he recalls.
Among his first efforts were to make some changes to the corporate governance of the Association to improve management – changes that are probably invisible to members but which meant that when INTA conducted a self-audit several years ago, its processes were found to be ahead of the curve on association management. He also pays tribute to the expanded team of full-time staff employed by INTA in New York and its other offices which now numbers some 65: “We’ve managed to build a very strong staff. I’m very pleased with the accumulated expertise and experience. A lot more people have made this a career – they stay for a chunk of time and contribute to the success of the organization.”
The result is that, today, the Association has influence worldwide. For example, it has recently been invited to comment on the new Chinese Trademark Law and was also the only organization asked to comment on a new law in Burma which Drewsen describes as “an indication of the strength and influence of the organization”. Other notable achievements in the policy area during the past 15 years have included the U.S. Trademark Dilution Revision Act (which Drewsen adds has “spilled over to the protection of well-known marks outside the United States”), the takeup of INTA’s model statutes and examination guidelines, and the growth of the Madrid Protocol, including the accession of the United States and European Union and more recently of Mexico, Colombia and India. INTA looks forward to progress on the accession of more countries, including Brazil and Canada, and the impact this will have on harmonization.
Drewsen says he welcomes the latest accessions, noting that the clear consensus among INTA’s corporate members is that Madrid is a more efficient way to get international protection, but he acknowledges that trademark attorneys (including some of INTA’s associate members) don’t always see the benefits: “There has been some skepticism among the law firm members about Madrid but we’ve tried to articulate the benefits to their clients so that they understand this.” The goal, he says, in all policy-making is consensus rather than unanimity, and most of the time that’s not difficult: “I would hate to have an association where you can’t take a position because there’s disagreement.”
On many topics of course, such as anticounterfeiting, INTA members are always going to be pretty much aligned. But one issue in particular things are slightly more complex – the Internet.
Three challengesThe trademark issues arising from the Internet are one of three topics that Drewsen identifies as the biggest trademark challenges for the future. The other two are broadly described as anticounterfeiting and public awareness (both of which of course are also related to the Internet).
Drewsen describes the introduction of new gTLDs as “challenging, and made more challenging by Icann.” Although he doesn’t say so specifically, you suspect this subject has been one of the biggest frustrations of the past decade – though he adds that important safeguards have been won for trademark owners. “I’ve said publicly that Icann started with where they wanted to end up without doing sufficient analysis of the earlier expansions of the gTLDs – why some were successful and why some failed; to what extent IP was protected? How could it be better protected?” he says. The impact is going to be extra expense for brand owners – for those applying to operate gTLDs but also those forced to make defensive registrations without the benefit of an educated guess about which domains will succeed and which will fail.
The work of INTA staff and volunteers on this issue has been considerable, but it’s also been difficult. “We always hoped to get more brand owners to attend the Icann meetings than we were able to. Given the pressures of daily jobs, a lot of people said, ‘this is in the future, there’s a lot of uncertainty and we don’t have time to get engaged’.” He encourages this year’s Annual Meeting attendees to attend the various sessions on gTLDs, so they can be prepared for their bosses’ inevitable questions.
Some of the issues arising from the Internet also have the potential to divide INTA’s membership, which can make policy-forming more difficult. For example, there are members on both sides of the recent closed-generic TLDs issue. And with members including search engines and auction sites, there are also different views about how best to deal with counterfeiting online. “As time goes on maybe that challenge will increase. The world and the issues become more complex, especially as regards the Internet,” says Drewsen.
That’s true of anticounterfeiting too – probably the oldest problem afflicting brand owners, but one where the challenge is changing, argues Drewsen: “There are two kinds of buyers of counterfeits – people who know they are getting counterfeit products and seek them out and people who don’t know. That balance shifts on the Internet – counterfeiters can mimic a site so easily and so persuasively that buyers don’t know they’re getting counterfeits.” For example, he says, if as a consumer you see a $2000 watch on sale online for $500, you might just assume the website has different distribution: “The anonymity of the Internet and the fact that you can take down and restart sites so easily compounds the problem. Plus Icann and the registrars have not maintained up-to-date Whois information and counterfeit merchandise can be sent in small packages. That makes it more difficult as well.”
Young people and counterfeits is the focus of one of INTA’s latest initiatives, the Unreal Campaign launched at the Annual Meeting last year. It is designed to highlight the consequences and potential dangers of buying fakes, particularly among young people – these are consumers who will become more significant but don’t always see the threat from counterfeiting.
Related to this is the third major challenge – the attitude of Generation X (or Generation Y – pick your label) towards IP rights and counterfeits, and the greater need to explain the value of IP. Drewsen points to the vote against ACTA in the European Parliament last year, following a popular campaign: “I’m not sure whether the defeat of ACTA was a one-off or an indication of some changing societal attitudes towards IP. It will become very clear a decade from now what it was but it’s not so clear right now.” Either way, he says, companies need to consider how young people view IP, just as they do with green issues – it is not something that can be ignored.
Having said that, Drewsen adds that trademarks are not in the firing line as much as copyright. When INTA held a Board meeting in Brussels last year, a representative of the Swedish Pirate Party was invited to address it. While the speaker was dismissive of copyright, he said he understood the need for trademarks, and their role in protecting consumers. Drewsen adds that he recently saw a letter from 50 organizations asking that IP issues be excluded from E.U.-U.S. trade negotiations. “But every one of those 50 organizations has a logo. That tells us something.”
Some critics have however targeted brand owners, leading to the allegation of trademark bullying. Drewsen says he doesn’t believe bullying is “a significant issue”, describing it as over-blown: “The fact it draws publicity shows it doesn’t happen that often, and brand owners are more conscious of the PR aspects of enforcement these days.”
A future of culture and travelDrewsen will step down in July, when Etienne Sanz de Acedo takes over as chief executive officer of INTA. He says he hopes to stay in touch with the “very compelling” trademark issues that have become so familiar to him, but he won’t be interfering: “I don’t want to hover outside the office begging someone to take me for lunch.” He will however be staying in New York for the foreseeable future, catching up on the various cultural activities – museums, galleries, theater, movies – that he enjoys, as well as reading and writing (hobbies that have been neglected in recent years). He also hopes to revisit some of the places he has been to with INTA, such as London, Paris, Vienna and Shanghai, and some of those he has missed – St Petersburg, Istanbul, Scandinavia.
This is an extended version of the article appearing in the INTA Daily News, Saturday May 4 2013
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