As technology advances, its impact on intellectual property continues to grow.
In the past, technological change was slow to impact consumer behavior. However, that is no longer the case as various innovations are impacting consumer behavior at an unprecedented rate.
To further discus how advanced technologies can impact consumer behavior and lead to IP litigation, we connected with Dr. Eli Seggev, an IMS Elite Expert in consumer behavior.
IMS: How has technological advancement impacted IP litigation?
Most disputes are prompted by a brand’s actions, but the resolution of these legal disputes ultimately hinges on consumer behavior principles. These principles are often called on to explain consumer perception and motivation, along with the alleged infringement’s impact on purchasing decision-making.
Likelihood of confusion, false or misleading advertising, materiality of claims, ect., are all issues that depend on: (1) How consumers get exposed to information; (2) How and where they perceive the content of the communication symbols they encounter; and (3) How they interpret incoming messages. All of these factors impact consumer decision-making which ultimately determines the merits of individual cases.
The advanced technologies that brands employ for identifying likely customers, targeting “good” prospects, tailoring specific messages to target selected segments, and offering economic and motivational incentives to purchase should impact the “legal theory of the case” adopted by litigating attorneys. The technologies should certainly affect the approach, design, and implementation that experts choose to deploy for their surveys."
IMS: With the advancement of technology, what are some new elements of consumer behavior to acknowledge?
I have encountered two major factors in my last several cases that illustrate the point. First, the effect of new marketing programs employed by many brands is based on advanced internet technologies that affect the marketplace characteristics. These characteristics need to be reflected in consumer surveys in order for the results and the conclusions derived therefrom to be useful to the finder of facts. Wrong or incomplete market definitions bring into question the validity of survey results when the affected population is misrepresented or underrepresented in sampling.
Second, most cases hinging on what a brand communicates to its intended market via advertising, packaging, PR, ect., only focus on the direct communication between marketer and consumer. However, social media—which has a global audience exceeding 3 billion users—has added another very important communication source. Influencers are paid or volunteer social media users who talk about specific products online. It is impossible to estimate the number of influencers operating online at any point in time, simply because anyone can be an influencer. Anyone can cause someone else to generate revenue by virtue of their mentioning the brand in their posts. Influencers are evaluated by businesses on the basis of three criteria: (1) Number of followers; (2) The profile of those followers and the content that they generate; and (3) The engagement rates—the volume of comments, reactions, or responses to their posts promoting a product."
IMS: What should litigators take into consideration?
Influencers fundamentally change the way consumers are impacted, yet our surveys do not take that into consideration at all. In a case of allegedly deceptive claims appearing on a shampoo bottle, the litigants focused exclusively on what the label said without paying any attention to how buyers interpreted the message or to what extent influencers contributed to their likelihood to purchase the product.
We are still driven by the postulates of old technology, while the judgements we impose on companies are supposed to take effect in an environment that has been totally transformed by advanced technology."
IMS is ready to support your IP and commercial litigation needs by providing consumer behavior experts who understand the changing technological landscape. Contact us today to initiate a search.
About Eli Seggev:
Dr. Eli Seggev is an elite expert, consultant and former professor with decades of experience in consumer behavior and psychology. He specializes in branding strategy, retail sales management, new-product development, and consumer perceptions of brands.
Seggev has founded two marketing research companies that analyzed advertising and branding campaigns in several industries, including consumer products and children’s products. He has testified in many cases and has opined on marketing and consumer research, consumer behavior, and likelihood-of-confusion. Over the course of Seggev’s career, he has been involved in many cases in which advertising claims were the central issue.