How to Fully Mitigate IPR Infringement Risks regarding Product Content?

What are the typical IPR infringement issues that we encounter in the ecommerce channel? Both from the perspective of a brand and its channel partners. And how can these risks be fully mitigated?

Brands Should Fully Secure the IPR from Creatives and Models

Some smaller brands forget to secure the unlimited copyrights of product photos or other creative materials that they ordered. Subsequently, respective photographers or other creatives are claiming money from any other website owner re-using these materials. The remedy is simple: always secure IPR transfer from the creatives that you hire. Whenever we encounter such cases, we will block the brand in Icecat.

Another issue is that brands use human models in images and typically acquired only picture rights for a limited time period. As a consequence, the model might claim damages for use after this period. In general, this will give issues when such content is disseminated through the channel. Because a brand can remove affected digital assets from its own PIM and site, but how to ensure that also channel partners remove that content without delay? The solution that Icecat offers is to indicate the period till which an image is valid. A more fundamental solution is, of course, to secure unlimited picture rights from models a brand is working with.

Avoid Trademark Infringement and Update Timely

Brands might, accidentally, infringe on trademarks of others for the categories and markets that they are active in. In the EU context, an infringement only occurs if one advertises, sells, or offers products while mentioning the infringing trademark. Whenever a brand becomes aware, it will tend to update its content. But, often forgets to inform its channel partners. A brand also needs to take care that its channel partners update their content as well to protect them against claims. A connection to Icecat, or update through Free Vendor Central, to push updates throughout the channel, is for this a must. Alternatively, it’s an option to orchestrate the annulment of potentially infringing trademarks, for example when they are of a more descriptive nature.

Set a Syndication Policy

Finally, brands might want to restrict the syndication of their digital assets to authorized channel partners only. Or, to the contrary, opt for a ubiquitous syndication policy. To set such policies, Icecat offers digital rights management. This is a tool to ensure that digital assets are syndicated conforming to the syndication policies that a brand sets. It reduces the risk that copyrighted materials end up in the applications of non-authorized channel partners. Furthermore, under the General Terms and Conditions Icecat, a brand owner grants Icecat a license to use and syndicate its content, which gives comfort to the brand’s (authorized) channel partners.

How channel partners can reduce IPR litigation risks

How can channel partners reduce their exposure to litigation regarding copyrights or trademark infringements?

Use Open Icecat

First of all, using Open Icecat reduces such risks as Icecat has secured syndication rights from the sponsoring brands. Therefore, it will further reduce risks, if channel partners require their supplier-brands to formally join Open Icecat as well. So that also their content becomes available under the Icecat Open Content License.

Secure usage rights

Secondly, it is best practice to add clauses to purchase contracts with suppliers in which the supplier provides usage rights to the respective channel partner, and promises to timely update its product content via Free Vendor Central. If the supplier is not a brand owner, it can be still required to obtain content usage rights via its suppliers, and so on, and so forth.

Request Permission to Full Icecat brands

Thirdly, we urge Icecat users to request authorization through our front-office to – especially – non-sponsoring Full Icecat brands. To get permission to use their copyrighted materials, as these are excluded from the Full Icecat Content License. In this way, we keep track of the permissions granted through our authorized reseller overview. This helps to mitigate conflicts.

Require brands to timely update content via Free Vendor Central

Finally, when brand owners are required to upload their product content through Icecat Free Vendor Central, the respective brand editors are bound by the Icecat user terms, which also covers usage rights and a certain level of protection against IPR infringements on the brand representative level. The Icecat team will actively engage with brand representatives to formalize the relationship and secure the necessary content usage rights.

Risks fully mitigated?

In summary, both brands and their channel partners can almost fully mitigate the most common copyright infringement issues by diligently following the strategies and policies mentioned above. Of course, there can always be the odd case where, for example, an unexpected or accidental trademark infringement occurs. Or a creative supplier has used infringing content without the knowledge of the brand client. But, such cases will be sporadic, and the legal burden for the average channel partner will be reduced compared to the unmitigated situation.

Martijn Hoogeveen

Founder and CEO of Icecat NV. Investor. Ph.D.