Exclusive WTR benchmarking survey reveals increasing focus on diversity in-house, but law firms lag behind

For over a decade, World Trademark Review has surveyed thousands of practitioners through our annual Global Trademark Benchmarking Survey. This ambitious project takes the pulse of the IP landscape and aims to identify how practice, strategies and threats are evolving over time.

As well as taking a deep dive into the financing, structure and development of trademark operations, this year we have canvassed opinions on additional issues – including diversity in the industry. In total, we received almost 400 responses, all of which were confidential (while they may be used in editorial, this is only ever anonymously).

The research revealed that at corporate level, diversity and inclusion programmes are now the norm – with 73% of respondents stating that their organisation has a formal policy in place. While in the past these were more internally focused, companies are increasingly requiring their external partners and stakeholders to ensure that they too are doing more to address these vital issues. A quarter of respondents noted that the trademark department always requires external partners to adhere to diversity or inclusion commitments as a pre-condition to working with them, with another 18% stating that they sometimes do. Crucially, 14% are considering such a policy. It will not be long before those not demanding demonstrable progress on diversity and inclusion by law firm partners will be in the minority.

When asked about the requirements currently in place, some respondents reported that they are gathering data on the diversity of vendors “to encourage diverse staffing”, while others “have started inserting provisions in some agreements requiring a diversity criteria to be reached”. Additionally, even if not an official requirement, a number of corporate trademark professionals confirmed that it is “strongly encouraged and considered when hiring firms” and that “we favour working with law firms with good gender diversity”.

One company leading the way in this is Intel, which has issued the so-called ‘Intel Rule’, refusing to retain or use external US law firms that score average or below average on diversity (for more on this, see “Why Intel is demanding more from its external law firms”). 

But on the law firm side, only 52% of respondents reported having a formal policy in place, although a further 21% are considering implementing one. In some organisations, this manifests as “positive discrimination for the recruitment of women employees”, while elsewhere diversity is at the core of “an aggressive recruitment, hiring, and retention plan”.

Interestingly, where there is no formal policy in place, respondents self-reported positively, with comments including “diversity and inclusion are part of our firm culture”, “we have no formal policy due to our size but are very sensitive to LGBT and ethnics and gender”, “there is growing awareness of the need for an environment that is culturally diverse and inclusive” and “our firm respects diversity and inclusion with no formal policy”.

While encouraging, this may no longer be enough if clients (and potential clients) continue to demand concrete and demonstrable diversity and inclusion policies and initiatives on the part of their law firm and vendor partners. 

Mixed up in all of this is the need to retain talent and ensure that they can perform to the highest level without compromising their health and wellbeing. In this area, law firms seemingly still have a long way to go – with only a third of respondents admitting to having a formal workplace wellbeing or mental health programme in place. Thankfully, though, 25% are planning such a programme (for tips on achieving this, see “Five practical steps to improve wellbeing in the workplace”).

Where programmes are in place, they are varied in nature – from free gym and dance classes to weekly drop-ins from a licensed health specialist, offering lawyers individual appointment-based consultations.

A complete breakdown of this year’s Global Trademark Benchmarking Survey, along with a thorough analysis of the findings, will be published in the next issue of WTR – available to subscribers in early April.