Intellectual Property and The Future of Multi-Experience Commerce
Rayyan Mughal

We are certainly in the midst of unprecedented times, not only because of global pandemics in the modern age but also as the technological revolution continues to drive forward at an incredible pace. Technologies which were yesterday at the forefront of innovation and novelty are now commonplace and consumer facing businesses which fail to incorporate them are often left behind. However, the global pandemic has largely reset the playing field by accelerating digital innovation, and it is important to ensure that intellectual property rights relating to such innovation is not overlooked.

The adoption of new technologies such as Augmented and Virtual Reality (AR and VR), wearables and Artificial Intelligence (AI) devices, has led to consumers being thrown into a multi-experience. In previous years, we envisaged an omni-channel approach which would allow businesses to tap into user touchpoints across all channels; now we are speaking about a way to develop fluent customer experiences across a wide array of technologies and platforms with modalities of immersive visuals, voice, touch and text. Ultimately, the future of commerce is all about creating new and unexpected ways for customers to interact with businesses both across digital platforms as well as physical destinations.  Intellectual property rights such as patents, registered designs and trademarks can provide a real competitive advantage in this regard, posing serious obstacles to competitors in trying to utilize or replicate new and innovative technologies and platforms relating to the buying experience.

Business to Consumer (B2C) business strategies themselves must fundamentally be focused around their respective consumer bases. As technological innovations are being increasingly adopted by people through media such as smart phones, meaning that people are more tech-savvy than ever before, businesses are now finding themselves focusing their efforts mainly on people and consumer behavior rather than having to invest time and money in making customers technology literate. The emergence of the multi-experience has allowed businesses to go beyond the traditional ways of connecting with users by themselves adopting established and new technologies in support of their digital business. This has led to businesses finding themselves back in the driving seat; businesses are able to now predict new behaviors and enable change through the very same advancements in technology.  By protecting new developments in technology and design through intellectual property rights, businesses can stay ahead of their competitors.

The next phases of retail have been coming for many years. The pandemic has certainly fast-forwarded this and has proven that brands which are rooted in traditional ways of retailing and not flexible enough for change have in many cases collapsed over the last 12 months. Looking at the resistance to change at the top-level, for example as with the Arcadia Group who fell into administration after its top tier management proved unable to fully embrace modern technologies, we can see how this causes major issues in terms of a brand’s ability to survive in modern times – pandemic or no pandemic.

It is not only the online space which is a bastion for technological innovation in the consumer sector; the high street itself is evolving from a place where people primarily went to shop into a whole experiential destination. In modern times, most consumer purchases start somewhere online. This being said, it still doesn’t remove the consumer desire for real and tactile experience: enter the multi-experience within physical stores. Whether it be the use of AR technologies on smart phones or otherwise, consumers are finding themselves wanting to visit shops that offer them a multi-experience in that many expect more than just a stroll into a store and picking out whatever was displayed on a shelf.

Nike has recently been testing a new experiential store format in China called “Nike Rise” which serves as a hub for sports enthusiasts. It offers in-store events and new app features in an attempt to boost its direct-to-consumer sales with an increase in both foot-fall as well as consumer insights via their app. The emergence of a cashless society is seeing banks reimagining their branches into coffee shops with complimentary lounges for their members. The repurposing of high-street spaces into a social space with staff on-hand should they be needed, is showing an evolution with the times and is proving to be a great tactic in boosting membership and brand loyalty.

Tesla has proven this when it comes to car showrooms. You visit a Tesla showroom to experience the vehicles rather than buy them. Should you show an interest in buying one, you’ll be given detail via email on how to purchase it online. This approach to utilizing data in order to educate and excite a consumer base, as opposed to a generic sales strategy, is well established as a means to create buyers rather than ‘brand advocates’.

It doesn’t appear to be brands alone which are turning to ‘live-shopping’ and social media commerce. The online fashion publisher, Highsnobiety, has blurred the lines between entertainment, editorial and shopping experience, by introducing e-commerce functionality into its own media brand. This allows it to provide an end-to-end experience for its audience by connecting the products they reference in their content with a digital gateway to purchase. It also allows for the launching of new and limited product drops on a continuous basis which in turn drives consistent web traffic and sales.

In light of the broadening of the customer sales experience, brand owners should consider carefully whether their existing trademark protection encompasses these new offerings – whilst many retailers have protected their brands in relation to the provision of retail services and the goods sold from their retail stores, few appear to have extended their existing protection to the new range of services that make up the new multi-experience commerce offering.  Such gaps in protection could potentially be exploited by third parties to the detriment of the brand owners.

Many claim that current circumstances are what have accelerated the next phase of retail and that legacy brands will be completely swept away by digital-native brands which have thrived during the pandemic once we emerge out of the other end. However, the pandemic as well as relatively recent changes on the high street have proved how critical it is for brands to continuously innovate to retain their market positions.  The importance of protecting those brands and their innovations cannot be overemphasized.

We are in an age of experimental retail and the multi-experience commerce strategy has emerged as one which truly allows businesses to facilitate transactions across multiple consumer touchpoints. Technology that facilitates the promotion of products and the enabling of sales are finding themselves being rolled out into both digital channels as well as physical locations.

Whilst technology has indeed had a massive impact on advancing consumer expectations through the power that is very literally in their hands, it has placed added pressure on businesses to adapt operations and reinvent strategies to keep up with emerging demands.  Ensuring that the intellectual property in such developments is adequately protected is imperative to ensure that businesses can retain a competitive advantage in today’s fast-moving world of multi-experience commerce.

Rayyan Mughal is an Associate at Marks & Clerk Law LLP. Rayyan advises IT multinationals, life science sector, technology and creative industry clients based in and around Cambridge, nationally and internationally.