TRADITIONAL ENFORCEMENT KPIs: FIT FOR PURPOSE?
KPIs focus on activities and outcomes but does that really measure the commercial impact of the activity? When measuring the outcomes of IP enforcement programmes it is critical to take a more holistic approach.
Should a brand owner be encouraged by high quantities of infringing goods seized, or is this an indication that a programme is failing to have much impact? Do declining seizures indicate that past actions were successful, or are they a symptom that enforcement tactics are no longer fit for purpose?
Challenging traditional KPIs
We have supported clients develop enforcement programmes that have delivered significant outcomes: millions of infringing goods seized, hundreds of responsible persons arrested, large fines awarded, significant compensation recovered etc. Over time, as these programmes matured, ‘good’ seizure figures often became harder to come by and narrow metrics began to suggest failure, not success.
Traditional enforcement KPIs have tended to focus on activities and outcomes:
What have we done? Market surveys, market sweeps, investigations, customs applications, administrative actions, criminal raids and prosecutions, cease and desist letters, civil litigation, online take down requests etc.
What were the outcomes of those activities? Targets identified, stock located, seizures, arrests, fines, imprisonment, undertakings, disclosure, delivery up, injunctions, publicity orders, online listings removed etc.
At best, looking only at activities and outcomes fails to measure what is of real value to a business, commercial impact. At worst, this approach can create incentives that perpetuate, not deter, counterfeiting and other forms of interference.
Measuring impact requires a good understanding of commercial ambitions and competitive advantage. Enforcement activities that do not defend or enhance that competitive advantage arguably deliver little or no commercial impact.
We challenge clients to take a more holistic approach to KPIs, exploring how activities and outcomes have changed the behaviour of different groups of stakeholders:
Competitors. Does feedback suggest that past infringers have an increased sense of risk? Are known targets re-offending? How are enforcement efforts changing the behaviour of these competitors? Are infringers’ business models becoming more heavily costed? How is the wider adversary ecosystem adapting and evolving to enforcement efforts?
Consumers. What does the competitive landscape look like through a consumer’s eyes? How do unfairly competing products interfere with the brand proposition? What can we learn from consumer surveys, feedback and complaints? Are customers making well-informed decisions when buying competing products? How to assess feedback from sales teams?
Trade partners. How clean is the authorised supply and distribution chain? Do trade partners understand what behaviour is acceptable and what is unacceptable, and do they act accordingly? Do technical, legal and educational measures reinforce these desired behaviours? Do intermediaries support or frustrate enforcement efforts?
Employees. Do employees and contractors act responsibly, ensuring that unfair competitors are not given an unnecessary advantage? Do technical, physical, legal and educational measures reinforce desired employee behaviours?
Public bodies. How has engagement with public bodies improved the legislative and political environment, if at all?
Fundamentally, are efforts to influence the behaviours of these stakeholder groups minimising interference from counterfeits and copycats and so enabling a business to focus on selling more genuine products, at a higher margin?
I’ll explore some of these issues in more depth over the coming months. In the meantime, I’m always interested in any feedback on novel approaches to KPIs.