Brand Power: Are consumers losing their right to choose?

At an iPolitics Live event in Ottawa on Thursday morning, a panel of stakeholders discussed the ways in which the consumer landscape is changing, with traditional advertising becoming less effective, and governments taking a more restrictive approach to things like alcohol, sugary drinks, and snack foods, and how they market and package themselves.

“We all use brands in several different ways – brand owners use their branding to distinguish their products from their competitors,” said Cynthia Rowden, a trademark and copyright lawyer with Bereskin & Parr LLP. “Consumers use brands to choose the ones that they want. Brands are also used by retailers to assist consumers in making decisions.

“Unfortunately, brands are also used by counterfeiters who select their brand indicia of popular products and reproduce them to their advantages,” said Rowden.

Rowden noted that there are currently three bills before Parliament – amendments to Tobacco Act, the Cannabis Act, and the Child Health Protection Act – all of which can restrict to how brands can be used. While most don’t specify plain packaging, they leave the restrictions up to regulations that won’t be brought forward until the bills have passed.

Rowden noted that plain packaging will mean a loss of rights for trademark holders, given that trademark legislation operates on a “use it or lose it” basis, which makes it harder to protect the trademark against people using it on things like t-shirts, or against counterfeiters.

“We consider [intellectual property] to be the fundamental part of a knowledge-based economy,” said Lorenzo Montanari, executive director of the Property Rights Alliance. “If you consider that between North America and the European Union, 40 percent of the GDP is related to IP in terms of industry. This means more than 127 million jobs are created thanks to the IP industry, and affecting trademarks means affecting jobs.”

Montanari said that affecting branding also affects fundamental rights like freedom of speech, which is why the Property Rights Alliance is trying to promote international coalitions against any type of plain packaging. To that end, Montanari says that regulations against branding hurts the free-market economy.

Jordan Sinclair, director of communications and media for Canopy Growth Corporation, said that while he recognizes the importance of branding, there is a recognition that a company like his, in the cannabis market, has a responsibility to be good stewards of public health.

“I do think that public health and public safety matter when it comes to branding,” said Sinclair.

With that in mind, he doesn’t see cannabis as the same risk as tobacco, which is why he doesn’t believe that they should be lumped together, and they are making policy recommendations to that end.

“We want to come out of the shadows in an orderly way, and let Canadians and the rest of the world know that this can be done right, that we can strike the right balance between public health, public safety and a brand’s ability to express itself,” said Sinclair.

Ron Cregan, founder of the industry group Endangered Species, notes that brands emerged as a measure of a trusted product, much in the way that Royal Warrants on certain products in the United Kingdom indicated that the producer was trusted by the monarchy.

“Most successful brands are the brands that we trust in, and that’s grown up over time,” said Cregan.

Cregan notes that he set up his firm because there is no awareness in the marketing and branding industry when it comes to creating the sensory experience of their packaging, and how that becomes endangered by the imposition of plain packaging, including on things like alcohol.

“Can you imagine sitting in a beautiful restaurant or bar, and the back bar is a kind of visual desert, and it’s no character or creativity – it’s all dull, uninteresting, sanitized packaging, and all of that poly-sensorial experience goes out the window,” says Cregan. “I want designers and creative people to be proactive and not reactive.”

To that end, Cregan wants the creative field to approach governments to discuss how they can create packaging to be responsible without the plain packaging implications that someone is doing something wrong.

Panellists tended to agree that education was a better approach than plain packaging.

“The trademark is not necessarily the problem,” said Rowden. “It’s the product and its impact on consumers, and that’s the message that needs to go to consumers.”