The Authors' Take - Trademarking “COVID” and “Coronavirus” in the United States: An Empirical Review
The editors of the Journal of Intellectual Property Law & Practice (JIPLP) were very honoured when Prof. Dr. Annette Kur accepted their invitation to join the journal’s editorial board a couple of years ago. I too was delighted when Annette agreed to talk to me recently for the second in a new series of conversations with leading figures in the IP community…
The effects of chance or coincidence – perhaps serendipity? – were a recurrent theme of our conversation, a retrospective survey of Annette’s distinguished career. With characteristic modesty, Annette described how she first developed an interest in the Nordic countries, leading the Nordic Department at the Max Planck Institute for Innovation and Competition in Munich. Annette first arrived at the Institute, drawn initially by the favourable conditions in which to write her PhD, not with a background in IP, but from a competition and consumer protection perspective. This desire to protect consumers and the socially weaker has persisted ever since. It was Annette’s (rudimentary to begin with) knowledge of the Swedish language that was instrumental in establishing her at the Institute – the first defining moment of her illustrious career. Annette proceeded to master (passively) not only Swedish, but also Norwegian and Danish, and spent significant amounts of time translating, which was a key task in the country departments at the Institute. The Nordic community became and remains precious to Annette’s heart.
Annette referred to the Institute as a microcosm of the wider IP community, which also holds a special place for her. It is unique. A small community in the early days, the Institute became a hub for IP internationally and is still a family. Annette described the appeal of IP intellectually: copyright and its affinity with the arts, and patents, though very different, still connected with ideas. Annette loves the playfulness and flexibility of the IP system. Its rules may be rigid, but at their core is a genuine dynamism as nothing is cast in stone. As Annette put it, “everything moves”. It struck me that Annette, as a true comparativist, enjoys the intellectual stimulation provided by contrasts; she compared the German system, with its rigidity and hierarchy, with the Nordic academic landscape and its non-hierarchical style of communication. Within the Max Planck Institute, as people come together from so many different countries, it is impossible to impose a strict hierarchy or a strict dogma. According to Annette, this accentuated the openness and playfulness at the Institute, especially in the Nordic Department.
Known as a guiding light in design law, having been instrumental in the creation of the system of Community designs, Annette shared with me how further serendipity influenced the next phase of her career. Having previously focused on unfair competition and trade mark law from the consumer’s point of view, Annette was invited by the then director at the Institute to participate in a new interesting research project. This was subsequently adopted by the Commission as a blueprint and European design law was established. With typical self-deprecation, Annette attributes her then being viewed as a “design person” to several more amazing coincidences, and even confusion between the Hague Conference on Private International Law and Hague – the International Design System!
As Annette said, “Coincidences play a role in influencing one’s life and one’s academic output”.
In a final strange coincidence, I was lucky enough to take delivery of the recent festschrift published in honour of Annette by Cambridge University Press. This arrived by chance about an hour before we had arranged to speak and provided me with the opportunity to read more about Annette’s history and to note some of the distinguished names whose chapters have been included in the book, a further sign of the high esteem in which Annette is held. Prof. Eleonora Rosati will shortly be reviewing the book, and readers can look forward to reading her review in a forthcoming issue of JIPLP.
The Authors' Take - Governing the fashion industry (through) Intellectual Property assets: systematic assessment of individual trade marks embedding sustainable claims
Governing the fashion industry (through) Intellectual Property assets: systematic assessment of individual trade marks embedding sustainable claims
A critical review of intellectual property rights in the Kenyan tea sector
The Authors' Take - Final decision from a UK Community Design Court clarifies how to interpret a registered design
Final decision from a UK Community Design Court clarifies how to interpret a registered design
The Authors' Take - The Commission’s vision for Europe’s Digital Future: Proposals for the Data Governance Act, the Digital Markets Act and the Digital Services Act – A critical primer
The Commission’s vision for Europe’s Digital Future: Proposals for the Data Governance Act, the Digital Markets Act and the Digital Services Act – A critical primer
In honour of the INTA 2020 Annual Meeting, OUP has made available some specially-selected free content. This features several JIPLP articles, along with chapters from key OUP books, including Copyright and the Court of Justice of the European Union by Eleonora Rosati and Enforcement of Intellectual Property Rights in Africa by Marius Schneider and Vanessa Ferguson. The featured content will be free to read until 7 December 2020, so do take a look! See here for more information!
The Authors' Take - Meet My Artificially-Intelligent Virtual Self: Creative Avatars, Machine Learning, Smart Contracts and the Copyright Conundrum
Meet My Artificially-Intelligent Virtual Self: Creative Avatars, Machine Learning, Smart Contracts and the Copyright Conundrum
by Eugene C Lim
Artificial intelligence (AI) technologies have triggered a dramatic paradigm shift in how we conceive of authorship and creation. Intelligent machines, such as those powered by the new GPT-3 neural network technology, are capable of generating human-like creative expressions, composing text, performing translations and producing other creative outputs once thought to be beyond the ability of computers.
This article focuses on intelligent applications (or “creative avatars”) that are programmed to replicate the style of a human author (such as Shakespeare, Rembrandt or J.K. Rowling), and the regulatory challenges flowing from the generation of such works. The challenges surrounding the production of such content relate not only to questions of ownership and authorship, but extend to issues of how, if at all, these works can be treated as copyrightable subject matter.
While much of the literature in the field has proposed significant modifications to traditional copyright rules to accommodate the emergence of AI-generated content, this article highlights the limitations of relying on copyright law in regulating rights in AI-generated derivative works. In developing this argument, the article adopts a novel approach by suggesting that interim solutions, in the form of alternative business and technological models, can be found outside of the “copyright box”. In particular, the article proposes a consent-based contract framework, featuring digital watermarks, Creative Commons licences and blockchain technologies, as part of an interim solution to regulate rights in relation to works generated by “creative avatar” programs. It is suggested that existing contractual and technological tools, drawn from current practices in the software licensing and cryptocurrency industries, can be useful to stakeholders in the AI industry, especially in the early years of emerging neural network technologies. In this regard, the article offers a utilitarian justification for the proposed consent-based framework by explaining how it can help to facilitate the dissemination of AI-generated derivative works in the absence of clearly-defined copyright rules, and promote the eventual enrichment of the public domain.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]
In conversation with…
Etienne Sanz de Acedo, CEO of the International Trademark Association
In the first of a new series of conversations, I recently caught up with INTA’s CEO, Etienne Sanz de Acedo, to discuss plans for the upcoming virtual meeting and to hear Etienne’s thoughts on the current IP landscape and the Association’s key policy priorities. The background of the current pandemic was never far from our conversation, but Etienne, ever the optimist, was always keen to highlight opportunity and appears to be facing the situation with calm resolve.
Consumer trust and behaviour and how these have evolved since the start of the pandemic were a key theme of our conversation. According to Etienne, internet usage is expected to rocket by 160% among new or low frequency users alone, whereas consumers are becoming more frugal in their consumption with a shift in focus towards home and family. The online marketplace will inevitably continue to grow, but consumers will increasingly seek to engage with transparent, fair and ethical suppliers – a major consideration for brand owners and their advisors. It seems that the pandemic is either exacerbating or accelerating trends that were already apparent, including increased consumer fatigue around certain brands and trade marks. Consumers are benefitting from better access to information, which is aiding their desire to interact with brands whose ethos lends itself to a relationship of trust and transparency. It is no longer enough for brands to be seen to talk; they also need to act.
We also discussed brand restrictions: advocating for the right of brand owners to use their trade marks and related IP rights where governments seek to prohibit, misappropriate or significantly restrict those rights. Tobacco plain packaging is the most obvious example, but this also now affects other products such as infant formula, and sugary snacks and beverages. There is unease that a desire to address public health concerns has led to unwanted side-effects, impinging on consumer choice, impeding market competition and, perhaps most worryingly, benefitting counterfeiting and other illegal trade. Such restrictions inevitably erode brand value and arguably restrict freedom of expression. Whilst proponents of such measures argue that their aims are beneficial in seeking to reduce exposure to and use of products and services conventionally deemed to be unhealthy, INTA maintains that legislation and regulation restricting branding and use of trade marks must be driven by clear and convincing evidence of efficacy. They support balanced regulation that addresses public health concerns whilst respecting private property rights.
And finally, the burning topic of the Annual Meeting: education, advocacy and business development form INTA’s DNA and the meeting plays a key part. This year would have marked the twentieth anniversary of my first INTA Annual Meeting in Denver, Colorado, in 2000. Sadly, the meeting planned for April in Singapore was not to be and the 2020 Annual Meeting will be held virtually in November. For me, the elephant in the room was always the question of how to tackle diverse time zones but, as Etienne explained, INTA has addressed this with a three-pronged approach. Sessions are mainly timed to start early in the morning on the US East Coast, allowing for the largest number of attendees to participate at a comfortable time. There will also be live sessions in China standard time zone in Mandarin and English, plus on demand sessions and “Watch Parties”, allowing registrants to view recorded sessions with interaction via live chat.
I look forward to catching up with many familiar faces over the virtual platform and thank Etienne for taking the time to share his thoughts with our readers ahead of the meeting. As has been customary in previous years, OUP will soon be launching a free INTA collection of content, including several key articles from JIPLP, so keep an eye out!
Managing Editor, Journal of Intellectual Property Law & Practice
A few months ago we announced a Call for Articles for our forthcoming special issue on Geographical Indications (GIs), which will be published in 2021.
We would like to remind interested authors to submit articles in the range of 3,500-6,000 words on a topic of their choice within this theme for consideration for publication in JIPLP. The issue will focus on several aspects of GIs with specific emphasis on recent developments in Europe and at the international level. Submissions addressing the topic from a comparative perspective are also welcome.