The pandemic has changed the ways we work, shop and socialise. This will have knock-on effects for the management and protection of IP rights, as attorneys explain in our final article on the impact of COVID-19.
If you have found yourself doing more socialising and shopping online since the pandemic started, you’re not alone. Online retailers such as Amazon as well as service providers such as Zoom have boomed. But this is not all good news for IP rights owners.
Sales of counterfeit goods are increasing, and these sales are now more likely to be in cyberspace than in street markets – making IP enforcement much more difficult. “The latest estimates are that the global market for counterfeits is worth about $500 billion a year,” says senior associate Rachel Harrison.
Catching up with the counterfeiters
Tracing and stopping these sales presents a huge challenge for brands, especially when many sellers use false identities and addresses, and send goods in small parcels via independent fulfilment warehouses. Moreover, says Rachel: “The law has not yet caught up with online marketplaces and the liability of online providers.” The EU took a step towards regulating online service providers with the Digital Markets Act, published by the European Commission in December 2020, but it is likely to be two years before this comes into effect.
While systems such as eBay’s VeRO programme help rights owners, they do not work perfectly and it can be hard for rights owners to monitor everything – especially with social media trends constantly changing (one of the latest challenges is posed by influencers on TikTok). In a very relevant example of the danger posed, there are already examples of counterfeiters and fraudsters offering fake COVID-19 vaccines, treatments and protective equipment.
But Rachel is optimistic that creative solutions can be found: “PIPCU and Trading Standards in the UK are very effective, and we have had some success working alongside them where counterfeiters have committed criminal offences, such as money laundering.” In addition, she says, improved data can help with tracking illicit sales: “We are working with a software company called Diginius to monitor online sales and take down those that offer infringing goods, and this is a very promising initiative.”
A higher profile for IP
The growth in online shopping is a striking example of the impact the pandemic has had on society. But there are more subtle ones too. The disruption to business is, sadly, leading to bankruptcies and restructurings. This is likely to result in branding changes. For example, in January, Marks & Spencer bought the Jaeger brand, along with stock and supporting marketing assets (but not its stores or staff). The retailer plans to grow online by offering more third-party brands.
Another change is the prominence in the media now of debates about the availability, access to and pricing of medicines. “There is increased awareness of these sort of moral questions, and that may have an impact on patent strategy,” says partner Nick Bassil, adding: “For example, the role of public debate may be a factor in deciding where to enforce biopharma patents.”
More positively, innovation in general has probably never had such a high public profile as it does today, thanks to the efforts of pharmaceutical and device researchers. Partner Marco Morbidini says that he is seeing growing interest in investment in R&D across Europe, notably from smaller universities in countries such as Italy, Spain, Poland, Croatia and Slovakia: “The innovation gap between the big and small players is narrowing, thanks partly to the Enhanced European Innovation Council pilot. I think smaller universities will be a big source of technology transfer in the future.”
IP is also set to be increasingly prominent in bilateral and regional free-trade agreements, such as the RCEP recently agreed by 15 countries in Asia and Australasia, and those being negotiated by the UK government following Brexit. “IP is an important part of these agreements, often with a dedicated chapter. The UK government even has a thematic working group focused on IP aspects of free trade agreements, which shows how importantly it is viewed,” says chair Gwilym Roberts.
Contact Gwilym if you would like to have a word him about his writing, IP or the Welsh countryside.
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