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Abstract - consulation on AI

IP Annual Review 2024: Trade marks, copyright and designs

Posted on 29 April 2024

Mishcon's IP Annual Review, held in our offices on 14 March 2024, offered an in-depth analysis of the current state and future direction of trade marks, copyright, and designs. Attendees along with speakers David Rose, Sally Britton, Nina O'Sullivan, Cassandra Hill, Gareth Dickson, Alice Berkeley and Chloe Hamilton explored and discussed significant case law, the impact of legislative changes, and the strategic management and enforcement of IP rights. The event underscored the importance of staying abreast of the evolving legal landscape and offered advice on navigating the complexities of intellectual property effectively.

Generative AI and IP rights

A significant portion of the seminar was dedicated to discussion around the intersection of generative AI and intellectual property rights, for example, the legal challenges posed by the use of AI tools, particularly in relation to copyright issues. The training data and outputs of these AI models have become a point of contention for rightsholders and for developers point, with ongoing litigation such as Getty Images v Stability AI serving as a prime example. The case highlights what claimants have to establish copyright infringement when dealing with AI-generated content. The legal community is looking forward to increased clarity on these issues, although many expect years of court proceedings before concrete answers emerge, and so legislators may need to step in.

We are tracking the various cases and policy developments relating to generative AI and IP across the world. Sign up to receive regular updates.

Design rights and copyright

The relationship between design rights and copyright was another area of focus. The discussion included an examination of cases such as WaterRower, which raises interesting questions on whether certain functional products could be protected as "works of artistic craftsmanship" or on the basis of some other test. Additionally, the EU's forthcoming reforms to its design framework were highlighted, suggesting a move towards modernisation and flexibility.  Whilst this could lead to differences in design protection between the UK and EU jurisdictions, the UK is expected to be considering proposals to reform its design laws later this year.

Trademark infringement and passing off

Recent cases such as Thatchers Cider v Aldi, Lidl v Tesco, and Iconix Brand Group v Dream Pairs were analysed to illustrate the courts' approach to trade mark infringement and passing off. The importance of the overall impression and the context in which marks are viewed was emphasised. These cases demonstrate the nuanced considerations that courts take into account when determining the likelihood of confusion and the potential for a trade mark to take unfair advantage or be detrimental to another mark.

Online enforcement and newcomer injunctions

Online enforcement remains a challenge for rightsholders. The reality of platforms conducting content reviews was noted (in the context of the claim brought by Swatch against Samsung), as was the potential for such reviews to affect their ability to rely upon hosting "safe harbour" defences. The potential for newcomer injunctions to provide relief against unknown defendants before any infringement occurs was also discussed, particularly in the context of the digital environment.

Exhaustion of IP rights and parallel trade

The seminar also addressed the topic of exhaustion of IP rights and parallel trade, particularly in the post-Brexit context. The UK has maintained the pre-Brexit position on the exhaustion of IP rights, allowing for the parallel importation of goods from the EEA, without having to obtain a rightsholder's authorisation to do so (a position that is not reciprocated by the EEA, and so parallel trade into the EEA of goods imported from the UK may infringe IP rights). However, the potential for future reforms, which could significantly alter the current framework, was also noted.

Impact of the retained EU Law (Revocation & Reform) Act 2023

The seminar concluded with a discussion on The Retained EU Law (Revocation & Reform) Act 2023, known as REULA, which was identified as a potentially significant factor that could introduce changes to the interpretation of UK IP laws that have their roots in EU legislation. REULA could lead to divergences in case law and create a degree of legal uncertainty, and the seminar highlighted the need for practitioners to consider how these changes might affect their approach to IP law in the UK.
For businesses seeking clarity on IP protection and enforcement within this evolving landscape, our Generative AI and IP guide provides key knowledge to integrate generative AI into businesses and products smoothly while safeguarding valuable IP and mitigating risk.

Please click here to download our Generative AI and IP guide.

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