There is no doubt that we are living through an unstable time. The pandemic has changed daily life for everyone. Politics are far from stable – this impacts many things, not least international trade. The origins of established brands are coming under the microscope. The economic good times (such as they were in the wake of the global financial crisis) are over.
With recession set as the new normal, it is clear that things will be in flux for a long time to come. It is hard to know what the future will mean and impossible to predict the impact that these changes will have on intellectual property (IP). Nevertheless, sometimes it is worth attempting the impossible.
For IP in the UK there appear to be two dominant trends: slashed budgets and the spectre of Brexit.
Whilst IP is central to the success of many (if not all) businesses, in a time of crisis, the business world’s focus is, quite rightly, on paying the bills, maintaining trading routes and supporting its people. IP understandably moves down the agenda. With financial pressure on all sides, it is inevitable that the budget allocation will decrease. Obviously, as an IP lawyer, I think this is a mistake. But the experience from past recessions supports this apparently partisan conclusion.
Reducing budgets now will lead to expensive court and registry procedures in the future to invalidate rights which were filed in the interim, whether in bad faith or otherwise. In some circumstances, such as for patents or designs, it may mean that the rights are never available (or, at the very least, that there may be a prolonged battle to prove that a right has not been self-anticipated). In addition, it may mean that key decisions around renewals may not be taken.
Recessions are also a boom time for counterfeits and close copies. In the case of close copies, this is partly due to increased competitor pressure and partly because of to smaller internal design teams and a greater reliance on freelancers. With fewer designers working in a more pressured environment the likelihood of “inspiration” moving closer to the “copying” line is extremely high.
Counterfeits are well known to thrive in recessions due to a combination of significantly less disposable income amongst consumers and businesses alike, thus making the lower price of counterfeit products more appealing and brand protection and enforcement programmes being significantly scaled back. In many cases, the purchasers may not realize that the goods are counterfeit which, depending on the product involved, could lead to serious manufacturing flaws in physical products or computer viruses getting free reign in many more electronic devices. IP is an important weapon in preventing these sorts of issues from arising. But like all weapons, it needs to be maintained, otherwise it will decay and may not withstand combat.
It is still far from acte clair exactly what impact Brexit will have on IP in the UK and EU. Whilst the process for cloning of rights sounds simple, in practice there is any number of complications that could wreak havoc. Cloning the registered EU trade marks as at the end of the transitional period sounds simple in practice but for all the known unknowns (such as the impact on the exhaustion principle) there will undoubtedly be unknown unknowns which will only seem glaringly obvious problems in retrospect.
Let’s not forget that the process took place on 31 December 2020 – a day of the year when offices (virtual or otherwise) tend to be understaffed. What could possibly go wrong?
Whilst the future may not appear particularly bright, there is always hope on the horizon. For example, COVID-19 has proven how adaptable the legal profession can be to rapid technological change. Virtual meetings, mediations, hearings, etc may not be universally loved but there is no doubt that they have offered a much more cost effective means of resolving disputes and facilitating commercial transactions. The fax machine looks like it may have finally given its last gasp improving the legibility and machine readability of documents in many registry and court proceedings. “Paperless” and “flexibility” are no longer buzzwords but a successful way of working.
As we move forward into this uncertain decade, private practice and in house lawyers alike would do well to embrace these changes whilst being wary of hasty decisions regarding rights management or enforcement, which could significantly limit future business opportunities and growth. Maybe the future can be rosy after all.
To find out more contact Rosie Burbidge, Intellectual Property Partner at gunnercooke LLP in London – firstname.lastname@example.org
You can see the original article at Journal of Intellectual Property Law & Practice, Volume 15, Issue 10, October 2020, Pages 765–766, https://doi.org/10.1093/jiplp/jpaa133