On 14 November, Charlotte Wilding, Senior Associate at Keltie, attended and spoke at the Managing Intellectual Property’s IP Enforcement Forum 2018, which took place in the beautiful Le Méridien, Piccadilly.

The theme of the day concerned how best to deal with IP enforcement in view of the ever-expanding online world. Presentations included a range of topics relevant to IP and covered both the legal aspects of protection, as well as perspectives from marketing experts and academics.

The first talk discussed how best to protect IP throughout multiple jurisdictions and the dreaded Brexit. The panellists felt that Brexit created a good opportunity for a review of portfolios to ensure that adequate protection was in place, where protection was needed. Whilst there are no finalised plans regarding Brexit (given our Irish office, Keltie will be unaffected in any case) we certainly agree that it is a great chance to review portfolios.

The next topic focussed on tackling anti-counterfeiting and how artificial intelligence can be used to identify fake products and assist in fighting the counterfeits. This flowed nicely to the next session which concerned online infringement and how to ensure that the relevant individuals understand how consumers are using and searching for a brand. For example, in China, brands that are difficult to pronounce are often given nicknames by their consumers and it is important to be aware of such nicknames to obtain protection before a third party does.

The panel also made an interesting point that social media is being increasingly used to try to prevent infringement, for example using social medial for cease and desists. Further, whilst it was noted that the majority of social media platforms have their own IP take down requirements, it would be more efficient for the various companies to work together to create one platform in order to save time and inaccuracies.

Before breaking for lunch, we looked at blocking injunctions and in particular the Cartier v BT case. After lunch and networking, the forum considered enforcement trends in luxury and fashion brands, as well as why consumers knowingly buy counterfeit goods. It was felt that it would be impossible to eradicate counterfeiting, but reducing counterfeiting by ensuring that a company has a successful online enforcement strategy is key.

Finally, Charlotte chaired the last talk of the day, ‘looking to the future of IP protection and enforcement’. In particular, the panel were tasked with understanding the role of IP in the digital economy, enforcement budgets for the future, blockchain and copyright in the digital world.

The panel were of the opinion that IP will clearly play an important role in the digital economy, with tech businesses in particular housing IP as their key asset. It was also felt that further education is required in respect of the ‘new players’ which do not appear to be as sophisticated when it comes to IP. For example, the panel had experienced some start-ups not knowing the impact of using open source or checking the App Store to see if a brand is trade marked.

With regard to enforcement budgets, it was noted that whilst budgets themselves have not changed, the way the money is spent has altered. For example, companies are now putting more of a focus on enforcement analysis prior to action, considering settlement options, rather than simply entering in to litigation from the outset. Essentially, a more commercial approach is being taken, with legal assistance when required.

Moving on to blockchain and how it can be used to manage IP rights, the panel all agreed that there is plenty of potential for a blockchain solution to act as an IP right repository. This has been demonstrated by a real life example where a French film company used a blockchain solution to mange their film rights and the IP surrounding it. There were multiple copyright holders, which meant multiple royalty payments to be met, which could be a paperwork nightmare. However, blockchain was used to develop a smart contract to track and distribute revenues.

Blockchain could also be used to deal with a number of transactions relating to IP, such as assignment of rights. It could mean that processes can be sped up and automated (as far as possible).  A smart contact is verifiable and traceable, without the need for third party validation. This could be used outside of IP as well, in insurance policies, supply chains and real estate, for example.

In terms of copyright application, as blockchain could be used to create a digital footprint to easily demonstrate copyright ownership/dates, this could be extremely useful in countries that do not register copyright.

The panel’s opinion was that internal blockchain solutions would work best for businesses where IP is the money making asset of the business, as it would help justify the cost and time hurdles to creating such a solution. However, where IP is more of a protective right (e.g. trade marks for a bank), an external solution to outsource to could have value. In this regard, it was noted that the HM Land Registry are exploring blockchain for registry documentation and therefore it is not inconceivable that the UK IPO may also wish to do so in the future.

Moving on to the final point of the talk, the panel noted that as the digital world relies heavily on ‘sharing’, this means that the line of copyright infringement vs admiration is even more blurred.

For example, Elon Musk used an image of a unicorn farting rainbows in his car to promote the sketch pad feature, without consent of the owner, and felt that this was acceptable as there was no financial benefit for Tesla. Musk claimed that the image was used in admiration and would in fact bring the owner financial benefit from future sales, so effectively didn’t see an issue with use. Whether this is becoming more frequent is one issue, but certainly smaller players do not seem to be willing to allow third parties to use their IP rights, even in admiration, without consent.

The digital world seems to both help and hinder this process. One the one hand, IP can be put out to the world and therefore a date of creation easily identified, but on the other hand it is easy to search for an image, for example, and use it without consent.

Overall, the forum was extremely informative and interesting, and well attended!

Charlotte Wilding 19 November 2018