CSR, trademarks and you

Corporate social responsibility is no longer a niche concern. Instead, it’s gone mainstream. In fact, if your employer or your client is in the S&P 500 and isn’t publishing a sustainability report then it is now in the minority. But what does that mean for trademarks and brands and the attorneys that protect them? Today’s session will provide plenty of information about how CSR is changing the way that companies interact with suppliers, partners, employees, consumers and the wider community and what it means for IP lawyers.

Session moderator Iris Günther of Lapointe Rosenstein Marchand Melancon LLP, who describes herself as “passionate” about the issue of CSR, says that companies should adopt a robust policy on corporate social responsibility for two reasons: not only is it the right thing to do, it is also good for a business’s bottom line. Most obviously, companies can save money by controlling their CO2 emissions and cutting water use. But good CSR can also help make their brands stand out in crowded markets and help keep customers loyal.

Consumer interest in CSR is not confined to consumers in rich countries, says Günther. Research carried out last year suggests that shoppers in important emerging economies are even more likely than their fellow shoppers in Europe and the United States to question the company behind a brand (see chart above).

“As well as asking ‘is the product cool?’ and ‘is it functional?’ they ask, ‘do I like the company behind it?’,” says Günther. “If people in emerging markets are making these choices then engaging in corporate social responsibility really does makes good business sense.”

Attendees of the session will hear from IP lawyers from three companies that champion CSR: Ana Luiza Machado Alves of Brazilian company Natura Cosmeticos, a pioneer of refillable and carbon-neutral beauty products; Victoria Wisener of Virgin, which encourages each of its businesses to produce a “product story” document that outlines the corporate responsibility and sustainable development issues it faces; and Katrina Burchell of PPR, owner of a range of luxury and sportswear businesses, which plans to roll out environmental profit and loss accounts across its brands by 2016.

They will be revealing how their employer’s commitment to CSR impacts their day-to-day legal work as well as the strategic management of their company’s brands. If a business markets itself as a caring, sharing type of community player, for example, its trademark lawyers need to be wary of coming down hard on people infringing the brand if there is a danger that they could open themselves up to accusations of commercial bullying.

“Sometimes there is a fine line between old-school protection and enforcement and questioning whether the infringer is doing any damage,” says Günther.

In-house lawyers at companies with strong CSR policies need to ensure that they streamline internal relationships so that they are in close communication with their colleagues in marketing. Well-intentioned and enthusiastic co-workers who make unsubstantiated claims about a product’s qualities can quickly damage a brand’s reputation in a world where social networking puts the consumer in a position of unprecedented power.

“Before the Internet, when people wanted to express their views about a company’s policies they would send a letter that might get shredded. Now they can create a Facebook page and give the company a really hard time,” says Günther. “There’s nowhere to hide”.

The panel will also explain how in-house counsel can take a more creative approach to patrolling the use of their trademarks on social media (including sites where people criticize brands) and develop a response in line with the company CSR policy.

Ultimately, few companies can remain immune to the commercial pressure on them to be more accountable to their communities, says Günther. While corporate social responsibility might have initially attracted young and affluent customers, a growing number of people in a growing number of markets are taking more interest in the provenance of the products they buy. “Principle doesn’t depend on the age of the consumer,” says Günther.

A growing number of companies want to tout their CSR credentials. But it is vital that their claims are justified. If they are not, then social networkers and government regulators are waiting to hold them to account. The UK’s advertising watchdog, the Advertising Standards Authority, has made a series of rulings over the past three years banning ads that make inflated claims about the environmental and social impact of products. Here are just a selection.

In 2010 the ASA ruled against supermarket chain Waitrose over ads it ran for pork products that showed pigs wandering in fields and celebrity chefs extoling the virtues of the company’s outdoor-bred pigs. “Outdoor bred” is an industry-wide term for pigs that are born in fields and then moved inside after weaning. Waitrose said it was careful not to use the term “outdoor reared” but the ASA ruled that the ads were misleading because viewers were likely to think that the pigs spent their lives outside.

A TV ad for Renault used a voice-over that said: “For us, global warming goes beyond the emissions coming out of the exhaust. It’s an issue we address before, during and after manufacture. From next year, Renault will launch a range of zero emission vehicles to drive the car forward again.” The ASA said that because driving the vehicle would result in CO2 emissions if charged from conventional energy sources, and because Renault could not prove that there would be no emissions from the car from production to disposal, the claim the vehicle had “zero emission(s)” was misleading.

One year after the Waitrose ruling, rival supermarket chain Tesco got into trouble for a similarly porky tale. A TV advert for its Butcher’s Choice sausages contained a scene that showed pigs roaming in a field. Three pigs were then shown in a hay barn and walking with a farmer down a lane. The voice-over said: “Why not try specially selected, British farmed, expertly produced, deliciously fresh butcher’s choice bangers on your barbie? Quality and freshness at Tesco ...” The ASA upheld complaints that viewers were likely to interpret the advert to mean that the pigs used to make the sausages were reared in an unrestricted environment and had access to outdoor pasture, despite the sausages also including meat from animals that lived indoors.

In 2011, the European Fur Breeders Association published an advert in a magazine stating “Why it’s eco friendly to wear fur”. The ASA ruled that readers would interpret the statement as an absolute claim about the product’s “cradle to grave” environmental impact, which it said that the Association had not provided.

CM52 Green, Clean and Powerful: The Impact of Corporate Social Responsibility (CSR) on Trademarks and Brands takes place today 3:30 pm to 4:45 pm in Ballroom D3-4