The protection afforded by Intellectual Property Rights (IPRs) is crucial for businesses and individuals to ensure that they can protect their brand and monetise their investments of intellect, time and resources.

Every year, the Word Intellectual Property Office (WIPO) celebrates the role that IPR play in incentivising innovation and creativity. This year WIPO, in recognising the growing public interest in environmental issues such as climate change and waste management, has chosen to mark the day with the theme “Innovate for a Green Future”.

In this article, we review certain Intellectual Property Law developments over the past year and look forward to areas of predicted growth and change over the coming months.

Part 1: Round-Up of Key Developments in the Past Year

Significant Court Decisions:

• Supermacs Case: As we reported here, Supermacs tasted victory over McDonalds before the European Union Intellectual Property Office (the EUIPO) in August 2019, significantly narrowing the range of goods and services covered by the “MC” trade mark. McDonalds decided not to appeal this decision.
• Neymar Jr Case: The Brazilian soccer star secured an invalidation of a trade mark registration of his name which was filed in bad faith by another person to exploit Neymar Jr’s renown. We discussed this decision in more detail here.
• Sky Case: The Court of Justice of the European Union (CJEU) ruled that lack of clarity and precision in a trade mark application is not an absolute ground for invalidity. It held that a declaration on the grounds of absolute invalidity may only be brought on the grounds set out under the EU trade mark regulations. The decision also confirmed that an application for a trade mark without any intention to use it in relation to the goods and services applied for could constitute bad faith.
• Coty v Amazon: The CJEU found that providing the storage of goods without knowing that the goods infringe third-party trade marks, does not make Amazon a primary infringer of trade mark rights unless they also pursue the purpose of offering the goods for sale or putting them on the market.
• Cofemel Case: In one of the most significant copyright decisions of recent years, the CJEU smoothed over any remaining gaps in the level of originality required for an object to be protected under EU copyright law.  The decision confirms that copyright protection is available to any original “work”, regardless of aesthetic or artistic value. This decision confirms that the test for originality in the EU is simply for the subject matter to (1) be a “work” under EU law, and (2) be sufficiently original.
• Merck Sharp & Dohme Case:  In this case the Irish Supreme Court reformulated the test for preliminary injunctions. As reported by us here, this decision is a significant milestone in the development of the law on injunctions in Ireland generally, especially for intellectual property enforcement. The Supreme Court’s decision reasserted the essential flexibility of preliminary injunctions as a remedy and is expected to result in injunctions being more readily available to intellectual property rightsholders.

Legislative Developments:

• Copyright and Other Intellectual Property Law Provisions Act 2019 (the Copyright Act): The provisions of the Copyright Act, were signed into law on 26 June 2019, with all provisions coming into effect on 26 December 2019. As reported by us here, the Copyright Act introduced a number of extensive changes.
• Copyright Directive: The new Copyright Directive 2019/790 (the Copyright Directive) was published on 17 May 2019 and the implementation period began on 6 June 2019.  After much debate, the controversial new Directive finally settled on an approach to the so-called ‘value gap’ between the revenue online platforms generate from user-uploaded content and the revenue that is returned to the original creators of that content.

Part 2: Forecast for the Year Ahead

Ireland

The principal area of Irish intellectual property law which is likely to develop in 2020, is copyright law with the transposition of the Copyright Directive. The Copyright Directive shall introduce changes to the copyright regulatory framework across the EU (particularly in an online environment).

Public consultations occurred in 2019 for the Copyright Directive and the Irish Government will need to transpose this Directive into Irish law by 7 June 2021.

Europe

• Digital Services Act:  The European Commission has committed to upgrading the European Union’s liability and safety rules for digital platforms, services and products with a new “Digital Services Act”.  This proposal will be closely watched by online content-sharing platforms, online marketplaces, and intellectual property rights holders.
• Unified Patent Court – Last Chance? All eyes will now turn to Germany whose legislation approving the new court was not been properly passed by the Bundestag. The Federal Government has promised to seek approval again from the Bundestag, to see if the project can be salvaged at the eleventh hour. You can read our analysis here.

Brexit

The Withdrawal Agreement stipulates that, during the transition period, which will last until 31 December 2020, EU law remain applicable to and in the UK.

This extends to the European Union Trade Marks (EUTMs) and Registered Community Design (RCDs) and their implementing instruments. All proceedings, pertaining to the territory of the UK, before the EUIPO will continue to run during this transition period.

Going forward, businesses seeking protection in the UK for new trade mark and design applications will need to file a national application with the UK Intellectual Property Office (UKIPO).

The UK has indicated that it will not adopt the Copyright Directive or participate in the Unified Patent Court.

COVID-19

The COVID-19 pandemic has led to the sharing of IPRs for the benefit of humanity. This is prevalent in relation to medical supplies and equipment. Companies are utilising their 3D printers, manufacturing and engineering departments to produce medical protective gear and equipment for medical staff with face shields and ventilators being just two examples.

Further, as recently reported by us here, the recent shift towards remote working has resulted in valuable IPR such as know- how and trade secrets being developed and discussed outside of the workplace. Businesses may now need to take certain steps such as implementing reporting processes to protect any such sensitive and/or lucrative information from misappropriation.

Part 3: Innovate for a Green Future

“Innovate for a Green Future” was the theme selected by WIPO for World Intellectual Property Day 2020. It is important for businesses to recognise that, along with the social responsibility to promote environmentally friendly business practices, there is also a reputational and potential commercial benefit in doing so. Examples of environmentally friendly products being developed and monetised by businesses include:

• Aurelius Environment creating a zero-waste process to extract the active material in batteries while reducing the carbon footprint by 85%. The business has gone from zero to a £5m plus turnover;
• Swedish start-up Mootral seeking to reduce methane emissions by creating CowCredits, to allow governments, businesses and individuals to offset their carbon emissions from the reduction achieved through using Mootral; and
• The Scottish Whisky Association recognising that a thriving natural environment is vital for Scotch Whisky and launching the Scotch Whisky Industry Environmental Strategy and thereby reducing their use of fossil fuels and improving water optimization.

Businesses may wish to consider the following methods of innovating for a greener future:

• The use of certification, collective or guarantee marks serve to assure customers that the product being purchased emanates from an undertaking or manufacturing process that aims to improve environmental practices. WIPO has launched a number of labels which can be obtained by products and services with a positive environmental impact; and
• Investing in environmentally friendly designed products and using IPR to protect these products and packaging is an effective method of growing a sustainable business. This is not only beneficial reputationally as businesses can also license the design rights for additional income.

William Fry have a dedicated Intellectual Property practice with expertise and experience in both contentious and non-contentious matters.  If you have any queries or would like to know more about how to protect and/or defend your IPR, please contact Leo Moore, Laura Scott or your usual William Fry contact.

Contributed by Anna Ní Uiginn, John Sugrue & Colin Russell