Brexit and bargains: what to look out for in Intellectual Property in 2017

Dispute Resolution Festive Forecast: today, Jeremy Dickerson and Jennifer Gibson look at upcoming issues in intellectual property.

20 December 2016
Bauble in the snow

There’s plenty to look forward to in 2017 for intellectual property litigators.

Brexit

While the impact of Brexit for IP rights holders has yet to crystallise, there are growing signs that the impact on Intellectual Property will be minimal. Despite the expectation that Article 50 will be triggered early in 2017, the UK recently announced that it would in any event ratify the Unified Patent Court Agreement, paving the way for the introduction of the Unitary Patent, which will enable UK businesses to protect and enforce their patent rights across Europe with a single patent and through a single patent court.

Nonetheless, the UK Intellectual Property Office has reported an 18% year on year increase in UK trade mark filings, suggesting that applicants both in the UK and overseas are covering all bases by filing both EU and UK trade mark applications. This trend could well result in an increased burden from opposition proceedings over the course of the next year.

Unjustified threats

The Intellectual Property (Unjustified Threats) Bill is currently making its way through the House of Lords and is expected to receive Royal Assent next year. If passed in its current form, the new statute will increase consistency across the various IP rights in relation to unjustified threats, reducing the cost of seeking related legal advice and encouraging the amicable resolution of disputes in relation to issues where potential claimants, particularly SMEs, might have otherwise been discouraged from pre-action correspondence due to the risk of a threats action.

The Bill also removes the liability of professional advisers for making unjustified threats when acting on instructions, which will remove the opportunity for defendants tactically seeking to drive a wedge between a claimant and their legal advisers at the outset of proceedings.

Boxing Day bargains?

The transitional arrangements following the repeal of section 52 of the Copyright, Designs and Patents Act 1988 will come to an end on 28 January 2017. While the duration of copyright in industrially exploited artistic works (2D and 3D) had been limited in duration to 25 years from first marketing by s.52, they now benefit from an extended period of protection of 70 years plus the life of the author. As a consequence, some copyright works that no longer had copyright protection have once again gained protection.

By 28 January 2017, businesses that have to date relied upon s.52 to make and sell copies of artistic works will no longer be able to deal in those copies and any copies must be sold, destroyed or licensed by that date. Since mere possession of an artistic work created and previously sold in reliance on s.52 will not infringe, savvy shoppers should keep an eye out for bargains on, for example, replica furniture, as the deadline approaches. Copyright owners will be raising a glass to their reinvigorated revenue streams in 2017.

Chocolate!

It wouldn't be Christmas without chocolate and early 2017 seems likely to deliver with an appeal anticipated concerning Nestlé's unsuccessful application to register the shape of the four-finger KitKat chocolate bar as a trade mark. The Court of Appeal is expected to further consider the test for establishing whether a trade mark has acquired distinctiveness and the evidential threshold that must be met by would-be registrants.

Should you wish to discuss any of the issues raised in this article further, please contact Jeremy Dickerson, Jennifer Gibson, or your usual Burges Salmon contact.

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Jeremy Dickerson

Jeremy Dickerson Partner

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