The Big Deal in the Realm of Patents: From TPP to CPTPP

 The provisions concerning Intellectual Property Rights (IPRs) were rationalized by the enforcement of the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS). In addition to this Agreement, since all countries, developed and developing, alike have substantially grown and witnessed development in the manner of implementing provisions for providing in times of health crisis, TRIPS-plus measures have been adopted by some member states. To remove any barriers obstructing access to medicines, the Doha Declaration on TRIPS and Public Health and the WTO 2005 Ministerial Declaration introducing Art. 31bis in the TRIPS Agreement were implemented. For fostering better protection, preferential trade agreements (PTA) have also been concluded, of which the Trans-Pacific Partnership and later, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) have been adopted.

What is the Trans-Pacific Partnership (TPP)?

The Trans-Pacific Partnership is essentially a Trade Agreement that is wide in scope to include within its ambit twelve Pacific Rim countries, inclusive of the United States. The Agreement was the master plan of US President Barack Obama; however, it lingered on until Trump assumed presidentship. Due to Donald Trump's decision to withdraw the United States from the world's largest free trade deal, which comprised about forty percent of the entire global economy, the other eleven countries moved ahead while embracing a few changes in the original deal. The new deal came to be known as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

The TRIPS Agreement provided for minimum and common standards of protection of IPRs. It also provided that any additional protection may be afforded to complement the provisions within it. In such light came the TPP, which contained provisions on patentability, patent extension, test data exclusivity, and patent linkage that could adversely affect access to medicines. It had the following characteristic features:

• It broadened the protection for smell, sound, and color trademarks. It also limited marking to protect the use of common food names.
• It gave additional protection to the trade secrets by proposing criminal sanctions for cyber theft and theft of other trade secrets.
• It extended protection over undisclosed test data submitted for regulatory approval of pharmaceutical, agrochemical, or biological patents.
• It also emphasized that the term of protection for copyright shall be set to a minimum of seventy years after the life term of the author of the original work.
• It also expressed that the patents surrounding biotechnology shall be given extended protection since a majority of the patent term is lost in getting prior approval. Thus, for pharmaceuticals, at least five years of protection shall be mandated, and for agrochemical, the duration shall be at least ten years.

Delving into the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) or the TPP11 is a trade agreement between eleven countries, namely, Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam, marking up to 13 percent of the world's Gross Domestic Production (GDP).

The CPTPP can be realized as an improvement of the TPP Agreement since it sought to regain a balance in the provisions dealing with IPRs to serve good not only to the interest the United States may have had but also to the other eleven members. It contains a comprehensive chapter on IPRs that establishes the standard of protection of IPRs across the Asia-Pacific region at a regional scale. It aims to provide for a common set of IPR rules to encourage investment and procuration of new ideas and cater to the growth of creative and innovative industries while also addressing the issue of piracy and counterfeits. The obligations are introduced in the following areas:

• In the Field of Patents: The parties to the CPTPP agreed to introduce flexibility provided for in the TPP that allowed patent-term adjustment and its tenure restoration to make good for the delays in obtaining marketing approval. However, it did not define what would constitute an act leading to curtailment of the actual term of the patent, which may lead to ambiguity in the enforcement of such measures. It marks the first Free Trade Agreement (FTA) to have included biologics within its ambit to ensure a longer duration (05years/07years) of protection in line with its objective to ensure data exclusivity.

• In the Field of Copyright: It suspended the obligations provided for in the TPP concerning the term of copyright and related rights. It also suspended the provision dealing with the payment on copyright and related rights, the provision on technological protection measures, and rights management information. The CPTPP also agreed to suspend the provision concerning encryption programs carrying satellite and cable systems. Therefore, the CPTPP does not require Internet Service Providers (ISPs) to monitor, report, or penalize Copyright Infringement.

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and Public Health

The major impact of CPTPP is aimed at public health and nutrition, thereby aiming to promote access to medicines. It impacted innovation in the pharmaceutical sector. The key features that facilitate access to health and the facilities thereof are as follows:

1. Patentability Criteria:

In addition to the requirement of the invention being new, involving an inventive step, and having some industrial utility, there are a few additions required to be made in a signatory's domestic legislation. Parties are required to make patents available for either of the following if not all:

• New uses of a known product;
• New methods of using a known product; or
• New processes of using a known product.

It enhances the scope of protection, which may be available to pharmaceuticals.

2. Redefining Pharmaceutical Patents:

Concerning pharmaceuticals, a new pharmaceutical product means a "product not containing a chemical entity previously approved in a member state." It also provides that any unnecessary delays in seeking the approval of pharmaceuticals shall be avoided, and therefore, such measures shall be adopted that would help expedite the processing of marketing approvals.

3. Provision Regarding Test Data Exclusivity:

For maintaining the test data exclusivity, the Partnership Agreement provides that such information shall be safeguarded from any third person who has not obtained the consent of the originator of such information to market the invention or a similar product for at least five years. 

It may have significant loopholes and pitfalls in addition to the possible gains since, on the one hand, it enables and furthers the idea of public health by ascertaining Patent Protection in favor of the patent holder; however, it may prevent or delay the entry of generics. The few takeaways of the CPTPP are summarized below:

• Low Patentability Standards - It is also known as secondary patenting. Such low standards may be alarming as one single Active Pharmaceutical Ingredient (API) or product may be protected by several patents.
• Patent extension guarantees that there is no adverse impact of delayed implementation of patents. However, if the term of the original patent is extended by such a partnership agreement, the availability of low-cost generic products may be delayed. Also, such a provision will not enable any improvement for developing countries having unequipped Patent Offices.
• The provision of patent linkage that provides a member party with the option to deny the generic version to market the patented product where the same is in force unless the act is authorized by the patent holder can be observed as the grant of additional protection to pharmaceutical companies against generics. It may, on the one hand, hamper the introduction of generics into the mainstream market, while on the other hand, it may also prevent substandard products from entering the market by regulating effective control. Furthermore, it may also slow down the Patent System by enforcing stringent measures to curb Patent Infringements, which may not work in favor of developing countries.

Concluding Remarks

The CPTPP is a TRIP-plus standard that has practical implications on the member states. However, since the CPTPP is an agreement laying common grounds, it may act as a level playing field. It would be interesting to observe in the coming years how such preferential trade agreements turn out to be in the long run in their endeavors of achieving healthy and affordable medicines since it is clear how the entry of generics and biosimilars may be delayed. The cost of enforcement may be affordable for developed nations, but it may be an additional challenge for other signatories.

TRIPs vs. Convention on Biological Diversity: Rivals or Partners?

The Convention on Biological Diversity (CBD) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) have significant implications for the nexus of Intellectual Property Rights (IPRs), biodiversity, and associated knowledge systems. CBD requires parties to safeguard biodiversity and the traditions and knowledge of the indigenous and other local communities associated with this biodiversity. It also lays down the basic elements for access to biodiversity resources and associated knowledge systems. The TRIPS Agreement obliges member states to modify their national IPR regimes to meet much-enhanced international standards, which can have significant implications for biodiversity and the associated knowledge systems. It is often said that there is a direct conflict between TRIPS and CBD. It needs to be checked whether the two threaten each other or work hand in hand.

Objectives of the Agreements

The TRIPS Agreement

The main objectives of the TRIPS Agreement are:

1.     Establishing adequate and effective levels of protection for IPRs; and

2.     Reducing distortions and impediments to international trade from differing standards of protection. 

The TRIPS Agreement lays down minimum standards for Intellectual Property (IP) protection in several areas. As to inventions, Article 27.1 requires Member Countries to grant patents in all areas of technology without discrimination. Article 27.2 provides a general exception to this. A WTO Member need not grant patents for inventions objected to as being contrary to public order or morality, which includes inventions that would damage the environment. 

Nevertheless, such objections must be serious enough to make it necessary to ban the exploitation of the inventions in the Member's territory. Article 27.3 further allows exceptions for plants, animals, and essentially biological processes. However, TRIPS requires some effective protection for plant varieties, whether by patents or otherwise ('Sui Generis' protection, such as plant breeders' rights under UPOV).

 

CBD

The main objectives of CBD are:

1.     Protecting the biodiversity; 

2.     Promoting its sustainable use; and 

3.     Sharing the benefits of such use equitably between providers and users. 

CBD recognizes that some genetic resources have commercial potential. The Convention's measures go further than encouraging benefit-sharing. They are designed to vigorously promote activities (including co-operation in research and development and private investment to develop genetic resources) needed to create the products or technologies that will give rise to benefits to be shared. Thus, the Convention includes provisions that are based on voluntary co-operation and voluntary licensing of rights and which require respect for IPRs (i.e., Article 16).

The Convention also explicitly recognizes and supports "adequate and effective protection" for IPRs (Article 16.2). It reflects the understanding reached during CBD negotiations, as per which, in technology transfers under CBD, IP must be respected. CBD was explicitly tailored to avoid a conflict with the other major instruments dealing with IP Protection, namely, the then-nascent TRIPS agreement.

Areas of Conflict

The primary area of conflict is that while CBD assigns sovereignty in biological resources to the countries that possess them, TRIPS allows these resources to be patented. Within one country, the state's sovereignty takes precedence, and the CBD framework may prevail. But between a foreign IPR holder and a sovereign state, the state's jurisdiction is limited and cannot countervail the IP rights holder. It is, therefore, argued by many that TRIPS takes away rights that are given by CBD. Furthermore, the concern is that patenting of genetic resources encourages unsustainable use and also encourages 'biopiracy.'

Also, TRIPS states that patents must be provided for all fields of technology; therefore, the use or exploitation of biological resources must be protected by IPRs. There is no mechanism for sharing benefits between a patent holder in one country and the donor of material in another country from which the invention is derived. CBD, on the other hand, gives developing countries a legal basis to demand a share of benefits. TRIPS does not have any provision requiring prior informed consent for access to biological resources, which may subsequently be protected by an IPR. CBD gives states the legal authority to diminish the incidence of biopiracy by requiring prior informed consent. TRIPS ignores this authority and thus promotes biopiracy.

The safeguarding of public health and nutrition, and the public interest in general, shall be subject to the private interest of IP rights holders as reflected in the provisions of the TRIPS Agreement. Parallelly, CBD places the public interest and common good over private property and vested interests. TRIPS is directly contradictory to this.

Resolving the Conflict

IP protection per se does not contribute to the preservation of biological diversity (except perhaps in a few instances where the deposit of biological material for patent purposes helps to preserve ex situ what subsequently becomes lost in situ). However, it seems beyond doubt that it can help to encourage uses, including sustainable uses of biological material, in the same way as IP protection helps to encourage all novel uses. Above all, it can contribute to equitable sharing of the benefits of such use. Economists tell us that most of the benefits of innovation (particularly agricultural innovation) go ultimately to consumers. IPRs provide a method of recovering some of these benefits from consumers by way of higher prices. These benefits are then available, at least in principle, not only for paying for research and development but also for sharing with the providers of essential biological materials. Without IP protection, such benefits cannot be recovered.

Finally, it should be noted that if any of the provisions of CBD and the TRIPS agreement were found to conflict, it would be the TRIPS Agreement that controls for state parties to both treaties. Under the Vienna Law on Treaties, the agreement either later (in time) or clearer and more specific on the issue will control. In the case of the TRIPS Agreement and CBD, both factors would result in the TRIPS Agreement controlling for state parties to both treaties.

Best Practices

TRIPS and CBD can work as partners in the long run. For ensuring that both the agreements work hand in hand, the following best practices need to be followed:

• Recognize that CBD has primacy over the WTO, specifically in biodiversity and traditional knowledge systems.
• Ensure that the review of the TRIPS Agreement allows sovereign states to exclude all life forms and related knowledge from IPR systems. 
• Urgently recognize a priori collective rights of indigenous people and local communities over their biodiversity and related knowledge.

 

 

 

 

 

Opting for Open Innovation

In the present times, where technology has advanced another foot forward and taken a leap in the future, the interdependence of rights to arrive at innovative solutions is nothing unfamiliar. It is a common practice that allows Research and Technological Developments (RTDs) and Research and Technology Organizations (RTOs) to learn from others and implement better ideas. In such a scenario where open innovation models are becoming a common trend of how companies deal with their Intellectual Property (IP) assets, it becomes crucial to analyze the modus operandi of such models.

What is Open Innovation?

There are two models of innovation, namely:

• A Joint and Collaborative Model: In such a model, the assets of an entity are limited in number, and for developing knowledge, an exchange of information for the benefit of both parties is sought by creating a collaborative community. It is usually witnessed in many IT companies and even in consortia of universities to accomplish their common research goals.

• A Competitive Model: As the name suggests, this model focuses on extensive and robust protection of all assets held by the entity, tangible and intangible, to prevent any exchange of information to maximize monopoly and personal profits accruing to it. This model is a competitive approach to keep third parties at bay, as is observed in the industry related to video gaming.

The open innovation model is the exact opposite of a closed model, where the enterprise relies on itself and its resources to conclude an entire innovative process internally. Open innovation is not synonymous with the "Do It Yourself" (DIY) mechanism. It instead utilizes resources gathered through internal operations and external absorptions from different sources of knowledge by collaborating and joining hands with R&D participants other than itself to develop creative solutions. It is also called 'crowdsourcing' or 'co-creation' projects. The concept was the brainchild of Henry Chesbrough, who wrote the book titled 'Open Innovation: The New Imperative for Creating and Profiting from Technology,' in which he observed:

"Open innovation is a paradigm that assumes that firms can and should use external ideas as well as internal ideas, and internal and external paths to market, as the firms look to advance their technology. Open innovation combines internal and external ideas into architectures and systems whose requirements are defined by a business model. The business model utilizes both external and internal ideas to create value."

Since there is a multiplication of several Intellectual Property Rights (IPRs) belonging to different proprietors, there is no true monopoly of any individual actor, and the contributions are shared. It is a useful alternative to conventional internal projects since the sophistication of technology has led to a substantial rise in the cost of R&D activities and production. Therefore, in simple words, open innovation helps make use of the external knowledge made available for better management of the internal knowledge to extract benefits out of IP assets.

Comparing Open Innovation with Closed Innovation

Open Innovation Model	Closed Innovation Model
It aims at building a better and strong business model rather than being the first to market goods.	Extensive protection of IP assets could lead to commercial advantage for making the first move in the market.
It helps utilize internal and external sources of knowledge to build innovative solutions through collaborative efforts.	Internal knowledge is rigorously protected and safeguarded without any external influence.
Since there is a multiplication of the source of knowledge, the field experts having varied knowledge must be brought together to realize the entire operation.	Since the source of knowledge is central and internally held, there is a need to protect and utilize the same strategically.
External R&D practitioners hold a significant value as it is a collaborative venture.	There is complete control over the R&D process, starting from the first stage of discovery to commercializing the same.
The returns or benefits are shared as per a pre-stipulated contract.	No third party can control or benefit from the innovations emerging out of a closed innovation project.
It easily shortens the time it takes to innovate since there is a substantial division of labor.	As all the operations are governed under the auspices of a single coordinator, there is a substantial investment of time.
Since the benefits are shared, at the culmination of the project, the losses, risks, and failures are also shared.	There is no sharing of benefits since the model of close innovation promotes the creation of a monopoly. Therefore, all profits and losses are borne by the same entity.
It also reduces the cost of bringing innovation to the market as there is a pooling of resources.	The cost of bringing innovation to the market is increased as the capital on trial and error is paid out of the credit of a single enterprise.
It also helps in getting preferential access to markets.	It may or may not help in getting preferential access to markets, depending on the entity's image controlling the operation.

 

Examples of Open Innovation

1. Google's TensorFlow: Google came up with its automated learning tool known as TensorFlow that is available to the public under open-source license, namely Apache 2.0, which allows third-party developers to utilize and modify the code. The precursor to such use is that any important or useful modification can be converted into a Google product.

2. ARM Processors: ARM Processors strategically used their plan of leveraging their IP assets by reducing the control over their development and manufacturing process and giving that control to giants like Apple and Samsung by not selling their processors as finished products infused in silicon. They took another approach by simply licensing independent manufacturers to use the architecture only, as has been developed but allowing other additions to be customized, thereby enhancing flexibility.

 

Modes of Managing IP Assets in an Open Innovation Project

Although there is a considerable amount of advantage in sharing information, there is also a great possibility of leakage of such assets along with the risk of free-riding where the IP is not managed up to the mark. Therefore, it is imperative to ascertain the right of each party and the nature of exchange along with the allocation of ownership of what is a result of such collaboration. The many ways of adopting open innovation can be as follows:

• Creation of independent spin-offs, which work towards the development of a new project;
• Entering into a licensing agreement;
• Gaining membership of a specific patent pool;
• Networking and crowdsourcing; and
• Collaboration and R&D alliances, whether under the form of a research joint venture or an R&D project.

While pursuing such routes of utilizing open source innovation, the following strategic measures can be adopted to ensure that IP assets are managed well and that the information thereof is guarded and spill-proof.

1. Non-Disclosure Agreement: Although open innovation focuses on the exchange of information, it seeks to maintain such disclosures only with parties to the transaction. Therefore, to avoid any misappropriation or unaccredited use of such information, it is preferable to have a Non-Disclosure Agreement (NDA) in hand. It specifies the terms of disclosure and the conditions upon which such confidence has been transposed between the agreed parties.

2. Consortium Agreement: A consortium is an association of two or more parties that may consist of individuals, companies, organizations, governments, etc., which come together for the performance of a common goal. Therefore, a consortium agreement is helpful when entities of different sizes and nature come together to collaborate. The same could include Multi-National Companies, Small and Medium Enterprises (SMEs), or even Research and Technology Organizations, which streamline their R&D. The agreement clearly demarcates the nature of the relationship between all the parties and their rights and obligations. It also goes on to define the entire management scheme and course of performance of the work undertaken.

3. Joint Ownership: Herein, the parties to an open innovation project agree to collaborate in the form of a joint venture. It may not essentially be for a long duration, instead only until the termination of the contract period or until the innovative solution is arrived at. A joint ownership agreement can help manage IP assets and the parties to such agreement by specifying the terms about the ownership rights, the extent of use/exploitation, and the terms of disposal of such assets. It shall also specify how a dispute shall be mitigated by taking recourse to courts or through alternative dispute resolution mechanisms.

4. Licensing Agreement: A much more sought-after and frequently adopted approach is that of licensing the IP asset. It can include a reciprocal set-up of licensing in and licensing out whereby in the former, the entity can access the knowledge held by a third party, while in the latter, the entity is obliged to share its own knowledge with a third party. It is the most preferred approach since the proprietor still controls the asset and how another party makes use of it without making a transaction of a permanent transfer of rights and duties.

 

Conclusion

The use of open innovation can take many diverse forms by incorporating IP assets from multiple actors acting with heterogeneous interests as well. For ensuring that such endeavors gather positive outputs, it is necessary to have proactive private ordering with proper legal agreements and contracts in place. It can accelerate the growth of an entity by influencing the rate of the research and development process while also limiting the cost and time to create productive assets. There is no straight-jacketed formula for implementing it, and therefore, to succeed in such an innovative process, the parties to the transaction should have an unambiguous understanding and plan of action to enhance cooperation.

Ambush Marketing: A Battle for Sponsorship

What is Ambush Marketing?

Ambush marketing is popularly known as coat-tail marketing or predatory ambushing, which is a practice of hijacking or co-opting another enterpriser's campaign to raise awareness of the ambushing company itself. It may occur by independent attacks in furtherance of attracting consumers' attention in general or may occur concerning a particular event where there is no clear divide between the sponsors and non-sponsors. The main aim of ambush advertisers is to deceive the customers into believing that they have an official association with the event without using the trademarks of third parties. Another aim is to attack the other for stealing its spotlight and liquidate the capital, effort, and resources spent by it.

 

In simple words, it occurs when a particular brand owner makes an attempt to associate himself or herself with a particular event without paying for a sponsorship fee or tries to stifle the competition by intervening in the market practice adopted by that other. The same is generally observed during giant sports events like Super Bowls, IPL, World Cups, Common Wealth Games, etc., which can cause a hurdle for those who are the genuine sponsors of the said event. Consider the example of the Cricket World Cup where companies race for the tag of an 'official sponsor,' which costs them about $1.1 billion. PepsiCo got the deal of being a 'Title Sponsor' at a heavy bet of Rupees four hundred (400) crores for a five-year timeline. As mentioned above, it also may be generally deployed. An example of this is the battle between Audi and BMW for establishing billboard dominance. Here, Audi launched its A4 sedan while mocking BMW by saying, "Your move, BMW" - to which BMW responded by erecting a billboard beside the BMW poster saying, 'Checkmate,' announcing its series of new sedans.

The question of ambush marketing as a legitimate marketing practice is often questioned since it impacts and creates negative tension while demotivating official sponsors by violating their rights. It is, therefore, not the best method of marketing to attract consumers through honest business practices.

 

Why does an Enterprise Opt for Ambush Marketing?

1. Enforcement Issues: Enterprises go ahead with ambush marketing for events that generally attract a greater audience for the timeframe of the event, which is usually two to three days. It becomes difficult for the event organizers to exercise their legal options to prohibit such activity and receive quick redressal of their problems.
2. Lack of Legal Jurisprudence: The prevalent laws for ambush marketing are very generic in nature. Moreover, as the judicial process requires a lot of effort and is time-consuming, only a few companies file infringement suits against ambush marketers. Also, since there is a lack of legal precedents and jurisprudence on the said matter, brands are reluctant to file lawsuits due to the ambiguity and uncertainty in the said domain.
3. Use of Disclaimers: Companies are putting up disclaimers stating that they are not the official sponsors of the said event to flee from potential infringement. Therefore, they continuously utilize the option of ambush marketing in favor of attracting the mass populace (consumers) without facing any legal trouble.

 

Kinds of Ambush Marketing

1. Direct Ambushing: The most serious and offensive form of ambush marketing is the one that is direct in nature. In this kind of marketing, a brand intentionally connects itself to an event to appear as though it is affiliated to the event in which it has no rights, which directly attacks the rivals and authorized brands. It may be deployed by making unauthorized use of symbols (trademarks) or marketing elements by the infringing company. An example of this is the marketing strategy deployed by Sprints Communication Co. in the FIFA Football World Cup, as it used the event's official logo without the permission of the governing body. Also, while Nike was not the official sponsor for Olymics'96, it had put up massive billboards outside the stadium to deceive the audience into believing that it was the sponsor. Direct ambush marketing can take various forms, which are explained below:

• Predatory Ambushing: It occurs when a company directly enters into a conflict with the competitor, due to which confusion surfaces around the actual official sponsor of the event. The same happened during the Winter Games'94 when Visa and American Express came face to face. Although Visa had the official sponsorship, American Express succeeded in touching the nerves of Amex, which did create a lot of confusion amongst the masses.
• Coattail Ambushing: It occurs when the official sponsor is over-shadowed by the non-sponsors in a given event. An example of this is when Lindford Christie wore PUMA's eyewear during the press conference while Reebok was the real sponsor. Puma stole the thunder of the authorized sponsor.

 

2. Indirect Ambushing: It occurs when a company attaches itself to another parent advertiser. It is a much more indirect and unaggressive manner of pursuing their marketing ambition. It can also take up many other forms, which are as follows:

• Associative Ambushing: It happens by intentionally using such terms or imagery, which portray that the said company has links to the parent advertiser without mentioning or giving reference to the official sponsorship. An example of this is when Beat Electronics introduced a campaign during Olympic Games in London where it said it would provide free headphones to athletes who wore them at the venue where the event was taking place or tweeted about them.
• Distractive Ambushing: It happens when companies use the main theme and values of the sponsorship holding company to trick people into believing that they're the same company while actually, they're not.
• Insurgent Ambushing: When companies and individuals surprise the public with their unique promotional techniques, it is termed insurgent ambushing. Their indirect presence doesn't hurt the reputation of the prime brand or sponsor. But, they do get a lot of attention for their brand in return.

 

Ambushing Marketing and Trademarks

The trademark legislations generally include a device, brand, heading, label, ticket, name, a combination of colors, etc., within the ambit of a 'mark.' The same should be capable of being represented graphically and be competent to distinguish the goods or services of one person from those of the others and include the shape of goods, their packaging and the combination of colors. It is for this reason that the law allows the companies sponsoring the event and the 'game committees' to register their labels or marks as trademarks.

The intermingling role of trademarks is very obvious when it comes to ambush marketing. It is because of the following two reasons:

 

1. The Trademark Law protects the goodwill of a particular company, which it has garnered and nurtured over the years.
2. The law also protects the common man from being deceived or from probable confusion concerning the origin or source of a particular good or service.

 

Therefore, where anyone makes authorized use of a logo or mark, the question of Trademark Infringement automatically walks in.

The interplay of trademarks was visible in the Arsenal Football Club Plc vs. Matthew Reed case where Arsenal Football club was the registered proprietor of the trademark 'ARSENAL' used concerning the team, cannon devices, etc. The defendant was selling souvenirs and club merchandise bearing the said Registered Trademark without obtaining a license or prior authorization from the Football Club. The Club brought an action against Matthew Reed alleging trademark infringement and passing off. Arsenal lost its claim on passing off since it failed to substantiate its claims through reasonable evidence suggesting the existence of confusion. Mr. Reed's defense to the claim for trademark infringement laid in the argument was that his use of the Arsenal Mark did not amount to 'trademark use' or 'use indicating trade origin' but merely as badges of allegiance. The European Court of Justice ruled in favor of Mr. Reed; however, on appeal to the Court of Appeal, the Court rightly rejected Reed's contentions and ruled in favor of Arsenal.

 

However, the trademark legislation in itself may not sufficiently provide for a remedy against ambush marketing since, in most cases, ambushers do not make direct use of the trademarks or insignias of the legit sponsors. Instead, they usually refer to the sponsors or the games in their products or services ingeniously and creatively to circumvent the law. Therefore, the said issue should be dealt with within the law governing the sphere of Unfair Competition since Article 10bis of the Paris Convention states that "the countries of the Union are bound to assure to nationals of such country's effective protection against unfair competition." There are a few nations that have promulgated legislation to curb the practice. A few of these nations include New Zealand, China, and the United Kingdom.

 

Concluding Remarks:
How to Curb the Practice where Different Sponsors and Non-Sponsors are Involved?

Like patent trolling takes place in the domain of patents, in the same fashion, trademark bullying occurs in the domain of trademarks. Trademark bullying may take many forms, out of which one is 'ambush marketing.' Therefore, when a rightful sponsor pays handsomely for exclusively advertising its products or services under its own trademark/name, it shall have the right to prevent and stop a competitor who is not an authorized sponsor from stealing that benefit. The following are a few steps that a marketer can take against an enterprise pursuing such unfair business practices:

1. It is crucial to anticipate and monitor one's competitors' marketing practices.
2. While negotiating a sponsorship deal with the event managers, it is imperative to agree and address the course of action to be taken in response to such marketing.
3. For deterring such marketers, pre-event publicity by the organizer of the event condemning the practice of ambushing advertising can be pursued.
4. The event managers and organizers should be requested to prepare draft court papers to address the ambushing and snip it from its roots as a cease and desist letter would not solve the issue within such a short period.
5. The event organizers should take into consideration the request of their authorized sponsors by relying on antecedent events and pieces of evidence against their competitors.
6. The event organizer should establish clean zones where the event is happening, which should be beyond the reach of non-sponsor advertisers.

 

As can be observed, the rightful sponsor can help identify the mischievous ambush marketers, but the other end of the rope is hooked by the event organizers only. The reason for imposing an obligation on the event organizers helps in rapport and image formation to attract better sponsors in the future. Therefore, to contain the practice, careful and anticipatory planning in advance to responding to such ambushing or safeguarding one's legitimate premise through preparation by a legal action team can help shift back the focus to the rightful sponsor. Lawyers can help ensure that in the tit-for-tat, the sponsor does not itself stumble into trouble by helping it avoid infringement, unfair competition, and product disparagement claims.

All About Patent Wars

 In the wake of the industrial revolution and rapid diffusion of technology, the rate of acquisition of patents has also increased. Patents are the lifeblood of all technology-driven companies alike, and therefore, the issue of wars and disputes sprout up. Companies need patents to secure their financial edge in the market as well as to prevent third-party actors, including competitors, from entering their exclusive zone. However, many a time, rapid patent accumulation takes place in the form of a defensive strategy in bad faith to entrap competitors in lengthy litigations. Therefore, on many such occasions where the reason for infringement may be justified, competitors may consider not to strike against or sue the same since it may be too difficult and dangerous in the long run.

Large companies use patents and Intellectual Property (IP) assets as weapons to charge against their competitors. Standing against such companies with a large stockpile of patents that include crucial technology in consumer products, a war could mean a sheer knock-down fight where the winner takes it all and the loser has nothing left on his side of the table. Such battles are often observed in smartphone technology but may not always be limited to the same.

Patent Wars: The Good and the Bad

a). Litigation Cost: Patent wars are a costly affair. Companies, big or small, divest a lump sum of their capital towards such expenditure to win patent wars. It is said that the average cost of litigation is about $700,000 for a patent whose worth is evaluated at $1 million, and the same may pitch up to at least $5.5 million in the case of the patent exceeding the estimated value.

b). Unforeseeable Outcomes: Also, like most litigations, the outcomes are generally unpredictable. If the portfolios of big-name companies are evaluated through employing a professionally administered IP team, it may be concluded that most of the patents comprising a part of the portfolio are usually being infringed upon by some competitor or the other as the length and breadth of the portfolio spans every bit of the technology in the sector it deems to explore. The only reason why all competitors infringing upon the patents are not brought to court to sue and challenge their infringing action is that the same is costly and unpredictable. Patent Infringement lawsuits are risky and can get out of hand very quickly. Outcomes in terms of current product sales, future product development, distribution, and market access are generally unpredictable. In addition to the same, the risk of damages and injunctions can be high. Consider the famous Apple and Samsung patent war for which Apple initiated a trial in turn of demand of $2.75 billion.

c). Time and Effort: Another major challenge is that patent wars can take up a lot more time and effort, which otherwise can be diverted for something more fruitful. The same affects the macroeconomics as well as the microeconomics of a company who is either the aggressor or the defender, which will heavily impact the rate of escalation of the said technology and shrinking of sales that may ultimately lead to customer dissatisfaction and also, disbandment of the company, eventually if not certainly.

Famously Quoted Patent Wars

Ever since industrialization took place, i.e., more than 175 years ago, there have been various kinds of patent wars involving high-profile companies, expensive litigation, and maintenance costs. The only major difference is that wherein the 19^th century, the winners were usually genius or prodigy inventors; in the 20^th and 21^st century, they were companies.

a). Patent Wars over Sewing Machines from 1852 to 1856 - These wars gathered force since the said invention became accessible to most people worldwide for various purposes ranging from sewing clothes to providing for interior decor. Singer Corporation had become a huge brand by then. The war began when Elias Howe, the proprietor of the patent on lockstitch, sued Isaac Singer for alleged infringement. The result was the formation of the first patent pool, constituting a total of 9 patents after years of battle.

b). Telephone Patent Wars from 1876 to 1880 - The major milestone of telephonic technology triggered by Alexander Graham Bell, Elisha Gray, Charles Bourseul, Innocenzo Manzetti, Antonio Meucci, and Johann Philipp Reis was next in line for a patent war as every individual's patent was a slight variant with improvements than that of the other. Alexander Graham Bell was alone a litigant in almost 600 cases. He also constituted a foundation stone for the AT&T Corporation.

c). The Incandescent Light Bulb Patent War from 1877 to 1889 - This war comprised multiple parties as inventors, like in the case of the sewing patent war. It included Thomas Edison, Frederick de Moleyns, Henry Woodward, Mathew Evans, William Swayer, etc. Edison's huge R&D program and patenting activities reflected the many opportunities he identified. In 1881, Edison filed 23 applications in total revolving around electric lighting inventions only. And in the following year, he filed 87 other patents covering electric lighting, electric railways, and secondary batteries. Just like Edison, George Westinghouse also understood the contingent requirements of time, which is how he and Edison ended up on opposite sides of the 'War of Currents' table. It ultimately ended in the 1890s with the adoption of alternating current to distribute electricity.

How do Patent Wars Start: The Objective?

• In Furtherance of Protecting the Market Share: Companies do not operate on mere inventions triggered by the research and development initiatives. They are also driven by how well a product incorporating an invention does in terms of the market that helps to keep their shares up and above the competitors. Therefore, a company may have complementary products or a product line and alternative manufacturing processes, which can be safeguarded in the long run. To keep their shares high in the market, companies can either adapt to honest consumer reviews and act thereupon or try to grow in the direction the market is already growing to keep the competitors on their toes. The same will help slow down their constant incline. An example of this is the Jawbone and Fitbit litigation, where Jawbone was majorly dealing in audio devices and seeing its decline in the market it was originally operating. It thought of expanding into new market opportunities, namely, health tracking and thereby, running into a well-funded competitor, Fitbit.
• In Furtherance of Protecting the Product Features and Exclusivity: Patent wars often start when the industry is on the verge of deciding if a certain revolutionary patent count is capable of being counted as a Standard Essential Patent or not. The same would require the company holding such a patent to prove to the other that it is not, and therefore, shall readily at reasonable terms enter into licensing agreements for amicable growth. It will ultimately benefit the proprietor of the invention only through maintaining the exclusive and narrow functionalities. However, if the competitors do not agree to license terms, litigation is the only way out, which means a new patent war.
  
• To Increase Competitors Cost: Much often, competitors create hindrance for one another to excel in one way or the other, which may mean resorting to honest as well as dishonest practices. One such practice involves keeping the competitor busy in stifle matters. An example of this is a war started by Yahoo against Facebook, which was earlier its long-time business partner, alleging that it infringed upon Yahoo's patents relating to advertising, privacy, messaging, social networking, etc. The war intensified when Facebook bought 750 patents from IBM to countersue Yahoo.
• Create Distraction and Slow a Competitor Down: The initiation of a patent war is a useful strategy to restrict and slow down a competitor where a company is running behind its research and development process. The same would make up for the time the R&D would require to come up with an innovative product while the competitor remains busy battling the patent war. Therefore, it is not always necessary to win all battles. Some battles are merely for distracting the opponents and this, therefore, becomes the reason for another patent war.

 

Conclusion

Infringing on patents does not inevitably lead to litigation in all cases, as has been noted above. Also, all litigations do not inevitably take the form of full-fledged patent wars. The question of initiating a patent war involves a rigorous risk management analysis while also taking into consideration alternative options like entering into an amicable licensing agreement at a fair and reasonable royalty rate that is for the benefit of all the competitors alike. Therefore, as witnessed, patent wars can often go out of hand and lead to the drainage of significant resources. Hence, it is advised to resort to a rational-legal counsel specializing in such affairs before impulsively delving into the deathly waters of patent wars.

TRADEMARK AND COPYRIGHT PROTECTION IN BELGIUM

 

 

Belgium, officially known as the Kingdom of Belgium, is a country in Western Europe. 

 

KEY POINTS - TRADEMARK PROTECTION

 

• Trademark Law - The Benelux Convention on Intellectual Property (trademarks and designs), which entered into force on March 1, 2019 
• Classification - Nice Classification, 11^th Edition
• Filing System - Single-Class Filing System
• Opposition Term - 02 Months 
• Registration Term - 10 Years from the Date of Application
• Renewal Term - 10 Years
• Grace Period for Trademark Renewal - 06 Months
• Non-Use Cancellation Period - 05 Years from the Date of Registration

 

KEY POINTS - COPYRIGHT PROTECTION 

 

• Copyright Law - The Belgian Code on Economic Law 
• Copyright Protection Term - Lifetime of the author plus seventy (70) years following his death; however, the duration of copyright protection varies depending on the type of work.

 

Stay tuned for our next post on 'Patent & Industrial Design Protection in Belgium.' 

 

 

Protecting your Brand's Integrity with a Trademark

 In the present fast-paced society and highly competitive environment, establishing a strong brand is pivotal to the success of every other business. Furthermore, protecting that brand deserves your utmost attention too. Yet, a lot of small scale businesses and startups nowadays overlook a crucial step in securing their brand - Trademark Registration.

What can be trademarked?

A trademark is a form of Intellectual Property (IP), which may be any unique name, word, symbol, or device used to identify and further distinguish the goods of one seller from those of others, for instance - Nike's Swoosh (logo). Besides, a trademark allows the seller to safeguard what's trademarked efficiently from both use and misuse by competitors while establishing brand loyalty among the customers. Trademarks also prevent confusion among the customers, who usually come to associate distinct attributes, to be specific quality, with a unique brand.

From a branding perspective, you can protect several assets, including names, taglines, logos, and packaging. However, it is imperative to make a point of the fact that these assets can obtain Trademark Protection only if they meet the subject matter eligibility. A phrase or word that's commonly used or already connected with another service or product in the same industry can't be trademarked. Let's consider an example to understand it. A generic term like "search engine" can't obtain trademark protection; however, a unique name like "Google" can. On the other hand, if your name is generic but used in the industry that's typically not related to the meaning of the term, then you may be able to trademark it, for instance - Apple (tech giant).

As a general rule, you can go ahead with trademarking your business name, if in case you use it while advertising to your target audience directly. If you are not making use of your business name in direct communication with your customers, then you can't obtain trademark protection for it as you are not connecting your name to your brand and also its attributes. Without any second thoughts, if your business name will be a critical part of your overall marketing strategy, then you must consider trademarking it. Additionally, the logo and tagline of your brand can also prove to be exceedingly good candidates for seeking trademark protection. The first litmus test corresponds to whether they are unique or not. The aspects that make a logo unique are the combination of the symbol with the company or brand name, their spatial relationship, and the colors. If the brand's tag line is a unique phrase, then you can consider trademarking it as well. For instance, Apple's "Think Different" connects its brand attribute, that is, quality, to its products.

The Trademark Registration Process

It is not necessarily expensive to obtain trademark protection. In the US, whoever establishes priority in a proposed mark is generally considered as its owner. To keep it straightforward, if you are the first company or individual using a unique mark for identifying your services or products, you don't need to register it for gaining the corresponding Trademark Rights. However, you must add the TM symbol to the brand to which you are claiming rights. Still, it is not a substitute for registering a proposed mark through the US Patent and Trademark Office (USPTO), which indeed establishes ownership to a great extent and beyond a doubt.

It is crucial to keep in mind that everything depends highly on the uniqueness of your proposed mark. In today's digital era, the Internet is undoubtedly a brilliant platform for starting your Trademark Search. You can proactively visit the free websites, like the ones maintained by the USPTO, to make yourself familiar with the already existing trademarks. Besides, you can also consider hiring an attorney specializing in the Trademark Law for conducting detailed searches.

In the US, a trademark can be registered at the federal or state level. State-level trademark registrations are expensive and less potent than the federal trademark registrations. Quite often, a trademark is registered within one industry; however, it may be registered in more than one as well. The best option, without any doubt, depends on the scope of your business and its geographic area of operation. International trademark protection is much more costly, extremely complicated, and expensive to enforce.

If you go ahead with filing a Trademark Application with the USPTO, then it will make sure that no other trademark similar to yours exists. The trademark registration process can take months. Therefore, it is highly advisable to do your homework well, because if your proposed mark resembles an already existing trademark, then your trademark application will face rejection.

It is a matter of fact that yes - the more you try to differentiate your brand from others in the industry, the more convenient it will be for you to safeguard it in the best possible manner. So, pick a name or logo that identifies your brand uniquely and protects it from your competitors.

Ref: https://www.kashishworld.com/blog/protecting-your-brands-integrity-with-a-trademark/