IP@OC | November 2017


Written on 3 November 2017

Welcome to the latest edition of Osborne Clarke’s international Intellectual Property update.

In this edition we focus on trade marks. With cross-border commerce and international expansion increasingly causing international brands to come up against local business that already use the same or a similar sign, is it possible for brands to peacefully co-exist? We look at some of the issues that can arise in different EU jurisdictions.

Rob Guthrie and Becky Crawford in the UK have also authored the UK chapter of the “Getting the Deal Through” guide to Trademarks, which is an essential guide to the fundamentals of trade mark law in the UK.

We continue to monitor the impact of Brexit, and include in this edition an article on the European Commission’s position paper on IP. For more on Brexit, including an analysis of the UK government’s recent white papers on customs and trade, see our Brexit Insights page.

One area of EU IP reform that is looking less likely to be implemented (at least at a national level) by the time the UK leaves the EU is the long-awaited copyright directive. In September, we reported on a leaked Council compromise document. Since then, the Council has made further efforts to find a compromise, but the major sticking points – the proposed press publisher’s right and the obligations on sharing platforms relating to unauthorised content on their platforms – remain.

Meanwhile, an EU IP right that is becoming increasingly important in the “data is the new oil” age is the Database Right. We report on a recent CJEU case that seems to indicate a more generous approach to upholding Database Rights.

Finally, we look a little further into the future, to ask whether the ubiquity and increasing sophistication of artificial intelligence may eventually lead to the abolition of copyright.

We hope you enjoy these articles. If you would like to discuss any of the issues raised, please contact one of the experts listed below or your usual Osborne Clarke contact.


Trade marks in a crowded world

Entering a new market can mean an otherwise well-established trade mark coming up against opposition from local competitors that may already use the same or a similar brand. Care needs to be taken at the outset to understand the available options and local variances in law and practice.

Osborne Clarke’s international IP team highlight some of the key considerations that businesses trading in the EU should be aware of.

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Getting the Deal Through | Trademarks

Rob Guthrie and Becky Crawford set out the essentials of trade mark law in the UK, as part of a global guide to trade marks.

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Intellectual Property post-Brexit | The European Commission’s proposals

On 7 September 2017, the European Commission released its initial position paper on intellectual property matters, for discussion with the “EU 27” remaining Member States. It represents an attempt to begin reducing the uncertainty that may affect holders of various EU IP rights once the UK ceases to be a Member State.

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Database Right | Is the tide finally turning?

In the 20 years since the Database Directive was enacted there have been relatively few cases asserting the sui generis database right against a third party. However, a recent CJEU case indicates that the works covered by the Database Right might be broader than first thought.

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Can copyright survive artificial intelligence?

From teaching itself to play Go in just three days to producing original artworks and composing musing, AI is increasingly able to produce truly original compositions.

This brings two questions into sharp relief. Should copyright protection be given to works that were independently created by a computer? And if computers can produce works equivalent in originality to much workaday literary, dramatic and musical material, does it make sense to confer copyright on such work, even if it happens to be produced by a human?

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*This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.