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It has been a fantastic year for The Global IP Matrix magazine, thanks to all the efforts made by our contributors and to you, the reader for your continued support. We take great pleasure in putting together each issue of this publication, and we sincerely hope you enjoy this final issue of 2019. We have again, collaborated with
Editor & Head of international liaisons
CONTENTS Page 4
Don’t sugar-coat it: the sweet story of diabetes by Patent Seekers
Page 8
Page 21
Carlos Northon
CEO & Founder Northon’s Media PR & Marketing LTD Publisher of The Global IP Matrix & Women’s IP World carlos@northonsprmarketing.com
Geographical Indications: The African experience Part 1 by Stillwaters Law firm
Page 26
Patent Linkage and Indian Laws by LexOrbis
Three Consonants by Gorodissky & Partners
Page 10
Elvin Hassan
Page 28
Can a thorough search help you gain a granted patent? by Victor Green & Company
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Digital client-acquisition tools bring IP attorneys more cases by WeCrest
The road ahead for autonomous vehicles: a patent report by Minesoft
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Amazon Project Zero NOTES by Brand Enforcement UK
Head of Design for The Global IP Matrix & Women’s IP World info@northonsprmarketing.com
Main Changes of the New Chinese Trademark Law in 2019 by Unitalen
Gabriela Bodden Partner at Eproint www.eproint.com Costa Rica
Ms. Brenda Matanga
Managing Attorney & head of practice at B Matanga IP Attorneys for Africa
www.bmatanga.com Zimbabwe
Editor for The Global IP Matrix & Women’s IP World Head of International liaisons for Women’s IP World elvin@womensipworld.com
Craig Barber
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THE GLOBAL IP MATRIX EDITORIAL BOARD
some of the world’s most influential IP law firms and businesses to bring you another eclectic mix of content, direct from the professionals working at ground level. We are already excited for the coming year and cannot wait to continue growing and evolving in our partnerships to bring you some exciting new features for 2020. Ms. Elvin Hassan
Marek Bury
Managing Partner and Patent Attorney at Bury & Bury www.bnb-ip.eu Poland
Ms. Laura Castillo
Partner at IP Law Firm DR www.iplawdr.com Dominican Republic
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Mr. Afamefuna Francis Nwokedi Principal Counsel of Stillwaters Law Firm www.stillwaterslaw.com Nigeria
Ms. Ruta Olman
Immediate past president of ECTA & Associate partner of METIDA
www.metida.lt Latvia
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PATENTS
Don’t sugar-coat it:
the sweet story of diabetes
An overview of diabetes treatment and its patent landscape. Bio: Filip Silvestre (BSc Biotechnology) is a Senior Analyst on the Biotech team at Patent Seekers (A leading patent research company based in the UK and Canada). Filip is an experienced searcher and has worked on a wide range of casework on a variety of topics. His specialisms are therapeutics, surgical devices, pharmaceuticals, and genetic engineering. Filip took this opportunity to explore the current patent landscape around diabetes treatments and provided an insight into some of the most innovative technologies that are currently being developed.
Filip Silvestre, Senior Analyst, Biotech team at Patent Seekers www.patentseekers.com
How rapidly is innovation taking place in this space? The increasing trend in diabetes frequency is mirrored in the patent landscape, as shown in Figure 1. An increase in diabetes-related patent filings is evident, with a peak in 2015-2016. The increase in patent filings could be explained by an increase in the prevalence of diabetes, which has resulted in a greater burden on the healthcare systems. The frequency of diabetes is predicted to continue increasing; hence, it may be rational to assume a continued increase in patent filings. The recent increase in patent filings further supports this assumption, as approximately 20% of patent filings appear to be in 20152017. The apparent reduction in patent filings in 2018 is most likely explained by applications yet to be published that would be claiming these years as a priority, as there is an 18-month delay between the filing of an application and its publication.
Introduction
Diabetes is a metabolic disorder that is subdivided into two main subtypes: type I and type II. The onset of diabetes is a result of a complex interplay between a range of genetic and environmental factors. While type I diabetes is characterised by the autoimmune destruction of insulinproducing beta cells in the pancreas, type II diabetes is generally a result of insulin resistance or impaired insulin secretion. Both types are characterised by poor glycaemic control, wherein blood glucose levels are frequently elevated for prolonged periods. Recurring hyperglycaemia imposes a higher risk of developing diseases such as cardiovascular disease, diabetic retinopathy, and kidney failure. This article will analyse the patent landscape in the fight against diabetes, along with exploring some of the more interesting, cutting-edge technologies that are being used to treat patients suffering from this disease. The rising occurrence of diabetes is posing a tremendous challenge for healthcare systems around the world. According to the International Diabetes Federation, the number of people suffering from diabetes worldwide has increased by 314 million between 1980 and 2014 and is predicted to continue increasing. A significant portion of this increase is attributable to type II diabetes, or often referred to as diet-induced diabetes, wherein poor diet and sedentary lifestyle are considered to be the leading causes for the epidemic.
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Figure 1. Worldwide patent filings in the last 20 years. In accordance with the increasing demand and patent filings in this field, this area is ranked as one of the most important for the future by the Global Innovation Index (The Global Innovation Index (GII) 2019 ranks and breaks down the innovation performance of 129 countries and economies around the world). We will now explore how the technology landscape has changed over this period of growth and innovation.
What are the trends in technology focus?
Considering the complexity of diabetes, it should be of no surprise to expect a wide range of innovation. Figure 2 illustrates a heatmap showing the number of patent publications categorised in the top 20 CPC classifications over the last 20 years. It is apparent that innovation in this field encompasses a range of different technology areas, focussed on the different challenges posed by diabetes. The two main areas of innovation appear to be pharmaceuticals (A61K & C07) and medical devices (A61B5), with pharmaceuticals dominating the landscape. A look at the recent trend in patent publications may provide us with an insight into the future focus of innovation, the three classes with the most patent publications since 2015 are listed below. Interestingly, most of the identified areas are not related to pharmaceuticals.
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A23V2002/00 Food compositions, function of food ingredients or processes for food or foodstuffs A61B5/14532 for measuring glucose, e.g., by tissue impedance measurement A61K36/481 Astragalus (milkvetch)
use of needles and tubing, thereby lowering patient discomfort and increasing treatment compliance. Such innovative solutions have been shown to significantly lower the risk of developing complications resulting from diabetes through effective glycaemic control. However, these devices are not fully independent, and insulin contained within them needs to be replenished regularly; hence, future efforts may focus on exploiting advancements in stem-cellbased regenerative therapies to overcome these challenges.
2. Keeping an eye on the sugar
Figure 2. A heatmap of patent publications in the top 20 CPC classifications.
Who are the current competitors? Despite the recent potential shift in focus away from pharmaceuticals, most identified areas over the last 20 years relate to medicinal preparations. This is reflected in Figure 3, wherein the landscape appears to be dominated by big pharmaceutical companies, which is not surprising considering its burden upon the healthcare system. The key assignee appears to be Merck Sharp & Dohme, which holds approximately 17% of the total patent filings in the area. However, it faces firm competition from Beijing Lvyuanqiuzheng Technology Development, which may be explained by China having the highest demand for novel solutions, as it has the highest population of diabetics in the world.
An interesting opportunity for easier and more effective glucose management has been investigated by Novartis and Google, wherein glucose is monitored through smart contact lenses. However, its application has been limited due to discomfort associated with the sensors and a lack of reliable glucose readings. Ulsan National Institute of Science and Technology appears to have made progress within this field, as it developed contact lenses comprising sensors made of stretchable and transparent materials, which circumvent previous limitations. The new lenses also comprise an integrated antenna for wirelessly transmitting data in real-time, which makes the previously cumbersome process of blood glucose level monitoring significantly easier.
3. Deciphering the genetic enigma of diabetes The genetic code governs all biological systems. Our understanding of the human genome has huge implications for the future of healthcare, as many patients exhibit a heterologous response to treatment. It also has the potential for the discovery of predictive biomarkers that could improve preventative measures through the development of genotype tailored lifestyle programmes. Despite the potential benefits, developments in this field appear to be ongoing. This is illustrated by a recently granted patent (EP2609218B1) that appears to disclose a method of diagnosing an individual’s genetic predisposition to developing diabetes, while The University of California appears to have discovered genetic variants that affect response to Metformin treatment. These examples provide us with an insight into how a better understanding of our genome could lead to a more personalised treatment approach, which has the potential to be more cost-effective.
Conclusion Figure 3. Diabetes-related patent filings by the top 15 assignees.
What are the innovations with the biggest potential impact? A search of the current literature around diabetes treatments uncovers a treasure-trove of innovation. We will now explore some of the most interesting technologies being developed that might help overcome the challenges posed by diabetes.
1. An Artificial Pancreas?
Enzyme based finger-prick tests have been the standard means of monitoring blood glucose levels. However, this process only gives limited insight into glycaemic changes and has been shown to have low compliance among diabetic patients, thereby translating into a growing need for technology that can improve glucose monitoring. This has recently been addressed by Medtronic’s development of the MiniMed 670G System. It is a smart insulin pump that automatically calculates and delivers an appropriate dosage of insulin, based on glucose sensor readings. A similar product that is particularly interesting has been designed by Omnipod, which is an external device that avoids the
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Worldwide prevalence of diabetes is a growing challenge for the future of healthcare. It is, therefore, no surprise that big pharmaceutical companies dominate the market. While there is an absence of a definitive cure, recent efforts have been made in effectively managing glycaemic levels, which has significantly reduced the mortality rate and economic burden of diabetes. Perhaps the lack of apparent activity in applying genomic data to the development of preventative measures may present a gap in the market that could help overcome challenges posed by diabetes. Nevertheless, the dynamic diversity of innovation within this field makes it difficult to ascertain the direction of future activity. It will be exciting to see the next move of the key players in the fight against diabetes.
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Patent Linkage and Indian Laws Bio: Ms. Swati Gupta is a Patent Agent and holds a master’s degree in Pharmaceutical Sciences, besides holding an advanced certification from WIPO in IP Management. She is also a registered pharmacist. Swati is an Associate, working with the Patents Science team. Patent linkage may be regarded as a link between the marketing approval of the generic product and the patent status of the originator reference (innovator) product. Marketing Approval ensures the safety and efficacy of a pharmaceutical product. However, the patent gives exclusive rights to a patent holder to prevent others from making, selling, using, importing, and offering to sell a patented product. A patent provides exclusive rights to a patent holder for a period of 20 years and no generic could be brought to the market for sale until the patent of the originator reference product is in force. Therefore marketing approval cannot override the patent rights. In some jurisdictions, a link between the marketing approval of the generic product and the patent status of the new product known as Patent linkage has been established. Patent linkage disallows the marketing approval of the generic drug until the patent of the originator reference drug is valid. The US is the first country to adopt Patent linkage as a part of the Hatch Waxman Act (1984). The use of Patent linkage in the US intends to stimulate innovation in the field of pharmaceuticals and on the same side intends to facilitate the timely entry of generic medicines in the market. Under the Hatch-Waxman Act, an Abbreviated New Drug Application (ANDA) now contains the bioequivalence data which facilitates the entry of generics into the US market without any requirement of submitting costly clinical (humans) and preclinical (animal) data to ensure safety and efficacy. All the innovator or generic drugs approved by the FDA are entered in the orange book. However, ANDA applicants must have to certify the following conditions:
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As discussed by Ms. Swati Gupta & co-authored by Manisha Singh, LexOrbis - www.lexorbis.com (1) the drug has not been patented (2) the patent of the innovator drug has expired (3) the generic drug will not be placed on the market until the patent expires (4) the patent is not infringed on or is invalid
If the patent of the reference originator (innovator) product is in force than the Applicant of the generic drug has to either wait till the patent expires or must notify the innovator company of its filing and describe why the generic product is not infringing the patented product or can also prove the patent of the innovator product is invalid or unenforceable. India has not adopted Patent linkage yet. A generic manufacturing company can apply for the marketing approval of a generic product even if the patent status of the originator reference product is valid. However, the approved generic drug cannot be brought to the market if the patent of the originator drug is in force. There are different authorities responsible for the grant of a patent and marketing approval in India. The authority responsible for the granting of patents is the Indian Patent Office, and the national regulatory authority responsible for giving marketing approval to pharmaceutical products is the Central Drugs Standard Control Organisation (CDSCO). The Drug Comptroller General of India (DCG) provides marketing approval in accordance with the Drug and Cosmetic Act 1940. Moreover, the CDSCO does not maintain any register of patented pharmaceuticals like the orange book in the US. There is no linkage between the patent rights and marketing approval of generic drugs in India. Patent linkage is not applicable in India, but a direct attempt to push Patent linkage was attempted by Bristol-Myers Squibb Company (Bristol-Myers Squibb Company & Ors v.
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Dr. BPS Reddy & Ors, I.A.No. 3696 of 2013, I.A.No. 13386 of 2013, I.A.No. 11383 of 2014 in CS(OS) No. 2680 of 2008 prohibiting the Drug Comptroller General of India (DCGI) from granting marketing approval for a generic version of Sprycel (dasatinib, used to treat chronic myeloid leukemia) and secured an ex parte injunction. Next came the High court judgement of Bayer Corporation and Ors v. Cipla of India (UCI) and Ors, 162 (2009) DLT 371, which has given clarity over Patent linkage in India. Bayer has attempted to prohibit the Drug Comptroller General of India (DCGI) from granting marketing approval to Cipla for a generic version of Soranib. The Court has disapproved Patent linkage citing several reasons for its decision: 1) Two state authorities (Indian Patent Office and DISCO) operate solely with different objectives. The Drug and Cosmetic Act has no statute which denies the approval of generic drugs when the patent is in force. Moreover, the DCGI is only responsible for the safety and efficacy of the generic drug and the ensuring of other necessary infrastructural facilities required for the manufacturing of the drug. Furthermore, the market approval of the drug is only liked to the conditions given in the Drug and Cosmetic Act. 2) The Court has further clarified that courts cannot establish or decree a Patent linkage, desired by Bayer as it would be a policy choice avoided by the Parliament. 3) The Court has clarified that Article 27 of the TRIPS agreement clearly states that the patents are to be made available without any discrimination of technology and Patent linkage applies to pharmaceuticals only.
Conclusion:
Patent linkage is favourable for the Big Pharma companies that invest a significant sum of money in the research and development of new and innovative drugs as it provides second-tier protection for a patent monopoly. As discussed, the High Court has already decided that there is no provision of patent linkage in India. However, it can be a beneficial provision, if adopted carefully taking into consideration the public health, interests of big pharma companies and the generic manufacturing companies.
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thorough search granted patent?
Can a help you gain a
At Victor Green & Company, we provide a range of searches and pride ourselves on the quality of our reports. Three types of prior art search have been selected for a closer look; budget pre-filing/novelty, patentability, and validity. Each can affect the likelihood of reaching a strong granted patent. We analysed a sample of patents that had been opposed and considered the searches that may have been done by the assignees. The value of our reports is attested to in our testimonials, and we know that attorneys often reword their claims in the light of our novelty search reports.
Types of search
Atal, Akers, and Hantos have summarised the different types of search that may be required during the patent lifecycle [1-3]. These can be a ‘state of the art’ search conducted before research and development investment or a pre-filing novelty search conducted before applying for a patent. A further patentability search may be done before foreign filing, infringement searching before launch, and validity searching at the time of grant. The usefulness of our searches is described in our client testimonials [4].
by Victor Green, Alessio Brizzi, Davinia Collyer & Jo Shaw of Victor Green & Company www.victorgreen.co.uk
Validity searches
A validity search confirms whether a patent or design (either the client’s or a competitor’s) is valid with respect to the prior art. For patent validity, this may cover both patent and non-patent literature. If relevant previous documentation is found that was not located by the examiner, the patent has a greater chance of being revoked on the basis that it was incorrectly granted. Validity searches on competitors’ patents are therefore useful if the competitor is considering infringement proceedings. Alternatively, if a client wants to take legal action for a competitor’s infringement of a patent they own, or is approaching a company to arrange a licensing deal, a validity search may be required to decide if the patent in question is vulnerable to legal challenge.
Analysis results for opposition set
Oppositions to European patents have been described in two papers by van de Kuilen [5-6]. He found that the main reasons for revocation were lack of inventive step (accounting for 43% of revocations), lack of novelty (22%) or added subject matter (11%). We searched for European patents that had been opposed. The European jurisdiction was chosen due to the fact the European Patent Office (EPO) is rigorous in the way it classifies the source and relevance of citations, providing detailed legal status information. We limited the set to those that had been revoked, amended, or unchanged; the percentages were 31% revoked, 28% amended, and 41% unchanged.
Patentability searches
These assess the patentability of a new product or process and also look for all documents relevant to the novelty, or obviousness of an invention. This type of search is performed before filing or registration, or before seeking commercialisation. It can help a client decide how they should draft their patent claims or whether to file an application at all, thereby reducing unnecessary costs and delays in the filing process.
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When a competent patentability or pre-filing search is done, the prior art identified puts the attorney in the best place to draft the specification. It can help the attorney fulfil the requirements of the patent application, e.g., demonstrate novelty and inventive step, and describe how the invention has addressed problem(s) in the prior art. It also provides sound preparation for the examination and any opposition that might be filed.
(Fig.1) The legal status of opposed European patents to show proportion amended, revoked or unchanged
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We then limited this set of opposed European patents to those which had been revoked and had earliest priority dates between 2001 and 2010. On average, it takes four years for an opposition to reach an outcome, so the date range was chosen to encompass this comfortably. These patents were analysed further in PatBase Analytics. For further information about PatBase, see www.minesoft.com. Results were similar to those found by van de Kuilen [5, 6]. Patents in high-value subject areas were more likely to be opposed. The topics were mainly pharmaceutical and chemical. Harhoff described the patenting strategy of this sector as ‘portfolio optimisation,’ involving high levels of patent filings as well as high levels of patent opposition [7]. The graph of top five assignees showed BASF, Procter & Gamble, Siemens, L’Oréal and Unilever.
Conclusion
There are several reasons why an examiner may not find all relevant prior art. EPO searches are limited to the Patent Cooperation Treaty Minimum Documentation, so searching outside this set could reveal other relevant documents. Furthermore, examiners are allocated a limited time per application to undertake the search. Sternitzke pointed out that there were a variety of reasons why prior art may not be cited by the applicant [10]. Companies may not realise the significance of prior art they are already aware of or may simply withhold it. Furthermore, they may not have the expertise to search for inventive step and novelty in-house. For some families for which the European patents were revoked, it appeared that the applicant could have benefitted from supplying more prior art with their application. It is important that searches at all stages of the patent lifecycle are thorough. Further research could undertake to drill down into the individual Register records for families; thus, this area could be usefully revisited.
Fig. 2 Top 20 jurisdictions by families, applications and grants
(Fig. 2) Top 5 assignees from the set of opposed and revoked European patents with earliest priority dates between 2001 - 2010
Origin of citations
During the life cycle of patents, citations may be supplied by applicants, examiners or third parties. We wanted to see if there were any trends concerning the percentage of citations from the applicant compared with the total number of citations from all sources. We were interested to see if the source of a citation could clarify the value of external patentability searches. Cited documents are coded by the EPO in terms of origin (search, examination, opposition, applicant) [7, 8]. Citation categories include documents cited in the description section of the patent application [9]. We looked at a random sample, consisting of every tenth family, drawn from a single year of our set of families that contain opposed and revoked European patents. Using these EPO codes, we analysed citations according to their origin.
Analysis results for citation set
There are many variables affecting the number and source of citations, as they can be supplied over several years by several parties. Different jurisdictions have different approaches. For example, in the US, applicants are required to submit a comprehensive set of citations, see Harhoff [7]. Furthermore, citations may not have always been fully classified or included in the databases. Thus, several caveats must be applied to any conclusions drawn from citation data sets. However, it is possible to make general comments on our sample set. The number of applicant citations fell predominantly into two groups. For a few families, it appeared that more citations had been supplied by the applicant than by the examiner or by third parties. This set included two outlier families, where each applicant supplied over a hundred citations. Both were multinational companies. The number of citations suggested that they had done their utmost to gain and retain their patents. For other families, it appeared there were many more citations supplied by the examiners and opponents than the applicant. This suggested that for some families, the applicant could have provided more prior art if they had undertaken a higher quality search before the application was made.
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We conclude that at all stages in the patent lifecycle, thorough patent searches will contribute to strengthening the patent application and the resulting patent.
References
1 Atal V & Bar T Prior art: To search or not to search, International Journal of Industrial Organization, 28, (5), 507-521, 2010 2 Akers NJ The European Patent System: an introduction for patent searchers, World Patent Information, 21, (3), 135-163, 1999 3 Hantos S Helping others acquire, license or invest in patents with confidence – A guide for patent searchers to patent due diligence, World Patent Information, 32, (3), 188-197, 2010 4 Testimonials Victor Green & Company, https://www.victorgreen.co.uk/testimonials.html 5 van de Kuilen A Successful European oppositions: Analysis for the patent information professional, World Patent Information, 35, (2), 126-129, 2013 6 van de Kuilen A Successful European oppositions (part II) Analysis for the patent information professional, World Patent Information, 45, 57-60, 2016 7 Harhoff D, et al The strategic use of patents and its implications for enterprise and competition policies Report for the European Commission, 8 Jul 2007 8 Report for the European Commission, Exchange Format EPO - Patent Information Resource Exchange of Patent Information as produced by the EPO from their master documentation database DOCDB, European Patent Office, v2.5.8, PRODUCT-ID: T09.01 PROJECT: DOCDB XML [N], Jan 2018, Notes on contents p103 9 EPO, Guidelines for Examination, 9.2 Categories of documents (X, Y, P, A, D, etc.) https://www.epo.org/law-practice/legal-texts/html/guidelines/ e/b_x_9_2.htm 10 Sternitzke C Reducing uncertainty in the patent application procedure – Insights from invalidating prior art in European patent applications, World Patent Information, 31, (1), 48-53, 2009
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The road ahead for autonomous vehicles:
a patent report Patent landscape reports give a snapshot of the patents in a specific subject area or which cover a type of technology. Generally taking one to two weeks to complete, a landscape report can cover hundreds or thousands of patent families. The reports can be used to visualise and discover existing gaps in relevant areas, gain competitive intelligence by understanding the current landscape, predict where your market is heading and spot trends in areas of interest to aid investment. They are a critical step in research and development as well as competitive or patent strategy for any company or institution.
By Caitlin Kavanagh, Marketing Executive, Minesoft www.minesoft.com This generates a broad discussion of the advantages and disadvantages of these type of cars. On the one hand, all human factors and climate influences can be switched off. However, the human brain identifies and predicts things that cannot easily be automated, like pedestrians and other obstacles crossing the road. Also, cars need to be able to drive in both crowded areas like cities and on highways with rather straight forward traffic; driving a car involves more than just handling the technical equipment in the car, for example, road safety, navigation, traffic lights, road signs, etc.
Is this a growing area of interest
You can execute your landscape search more efficiently and accurately with PatBase, a highquality, comprehensive patent search and analysis platform that uses enhanced data and enables searchers to conduct complex searches across the widest full-text collection available. In the following sections, PatBase Analytics V2 is used to extract insights and answer the questions below for the fast-growing technology area of autonomous vehicles. • Is this a growing area of interest? • What are the fields of current interest? • Who are the key players? • Where are the key players filing their inventions? • Who are the most influential leaders in this area?
Driverless cars: an introduction
Autonomous driving involves the act of propelling and navigating a vehicle without human input when travelling from point A to point B. The Department of Motor Vehicles (DMV) in California has setup strict regulations for testing driverless cars. The autonomous vehicles testing regulations were adopted on 19 May 2014 and became effective from 16 September 2014. Permission has been given to many car producers like Volkswagen, Mercedes Benz, Google, Tesla Motors, Bosch, Nissan, GM, BMW, Honda, Ford, and some others to test driverless cars. However, the first fatal accident involving an autonomous vehicle took place in Williston, Florida on 7 May 2016 where a Tesla Model S electric car was engaged in autopilot mode. Shortly after, a second accident occurred wherein a Google car was involved.
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Most recent 20 years by families, applications & grants Studying the most recent 20 years by families, applications & grants shows that the driverless cars technology area is a fast-growing one. The dip in applications can be explained by the 18-month lag between when patents are applied for and when they are published. In fact, the number of applications has increased almost exponentially between 2009 and 2017. This technology area is continuing to grow globally, with China surpassing the US in 2016. Filings in Germany, Japan, and the European Patent Office have remained pretty consistent over the past 20 years with a recent peak in 2016 – 2018 worldwide, as reflected in this graph.
Most recent 10 years by CPC group and number of families
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What are the fields of current interest?
The most startling growth in a sub-category (calculated by most common classification codes) has been in CPC code ‘G05D1’ – the control of position course or altitude of land, water, air, or space vehicles, e.g., automatic pilot – which has grown from 99 families in 2010 to 2639 families in 2018. Already, this classification code has 2480 families from 2019, and we are only 8 months into the year (at time of writing) which shows it is a technology area that is continuing to grow year on year. Also, worth a mention is the CPC code ‘B60W30’ – purposes of road vehicle drive control systems not related to the control of a particular sub-unit – which increased from 510 families in 2010 to 2618 families in 2018. The other remaining CPC codes in the top 5 for this result set are Y02T10 (road transport of goods or passengers), B60W10 (conjoint control of vehicle sub-units of different type or function) and F16H61 (control for changing speeds or reversing gearings for conveying rotary motion, control of exclusively fluid gearing, friction gearing, gearings with endless flexible members or other particular types of gearing).
Who are the key players?
Considering that Japan has a thriving automotive industry and that 9 of the top 20 assignees are Japanese companies to compared to only 3 US companies, you might expect to find Japan at the top of the list. However, much work in this area is being done in the US, from Silicon Valley companies like Waymo and Uber to traditional automotive companies like Ford Motor. Studying the jurisdictions that the top assignees are filing in most also supports this picture; 9 of the top 10 companies in this technology area are prioritising Germany and the US, with both countries featuring in the top 3 locations that all 9 companies are filing in.
Who are the main opinion leaders in this field?
Citation network for forward citations
Top 20 assignees by families Unsurprisingly in this technology area, the top 20 assignees are dominated by large automotive companies – the majority of which would be considered household names. The top 20 assignees are made up of 9 Japanese companies, 6 German companies, 3 US companies, and 2 French companies. Companies like Bosch and Hitachi might not be considered part of the automotive industry, but as multinational conglomerate companies, their involvement in this area is to be expected. At the end of 2018, Bosch announced their intention to develop “pods,” similar to the small driverless vehicles that Google has tested in California. The idea being that one-day people will be able to hail these pods in the same way they do a taxi. They have also started work on including automated freeway driving and parking in premium vehicles. Hitachi’s experience in IT and operational technology (OT) has helped in launching their “Lumada” Internet of Things platform, utilising AI, security, analytics and more, to support a range of businesses in connected services and autonomous driving from the cloud.
Where are the key players filing their inventions?
Studying the citations for the data set provides a novel way of interrogating the data. For instance, in the citation network above (showing the forward citations by assignee in the driverless cars technology area) the most cited companies by a significant amount – and therefore the most influential – are Nissan (8524 forward citations) and Toyota (5531 forward citations). It makes sense that Toyota is receiving a lot of forward citations as they are one of the biggest filers in this area; however, Nissan Motor is the 5th biggest filer and yet is outperforming Hyundai, Toyota, ZF Friedrichshafen and Bosch in number of forward citations. The number of forward citations is also a useful predictor of patent values as a large number of forward citations suggests industry-wide investment; indicating in this instance that mainly multi-national automotive corporations own valuable patents in this area.
Conclusion Having access to a powerful patent searching and analysis tool can aid companies in discovering new opportunities, protecting their patent portfolio, and monitoring a technology area.
Top 20 jurisdictions by families, applications & grants The top 5 jurisdictions for filing in this area are the US (26,000+ families), Germany (21,000+ families), China (15,000+ families), Japan (14,000+ families) and the European Patent Office (10,000+ families).
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All charts and graphs featured in this article were created in PatBase Analytics V2. Users can visualise a birds-eye view of market trends and key competitors, as well as identification of potential business partners and licensing partners. Visually appealing reports communicate the results of a patent analysis clearly to decisionmakers in a boardroom environment, even those without patent know-how! Go to www.minesoft.com for more information.
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Email: UnitedTrademark@UnitedTm.com Websites: www.utmps.com and www.unitedip.com
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TRADEMARKS
Main Changes of the New Chinese
Trademark Law in 2019 Background
In recent years, with the in-depth implementation of the trademark and brand strategy and the continuous promotion of the reform of trademark registration facilitation, the number of trademark applications in China has been growing continuously. As a result, China has maintained the title of ‘top-ranking’ on new trademark applications, in the world for many years in a row. In 2018, 7.3895 million trademark applications were unbelievably filed nationwide with an increase of 1.416 million over 2017 and a growth rate of 23.72 percent. At the same time, many malicious applications for free ride purposes and a large number of hoarding trademarks for profit for transfer also appeared. This has severely disrupted the market economic order and the trademark management order, caused social attention, and has strongly called for regulation. As for the malicious application of free ride behaviour; the current law is relatively clear, and in recent years, the crackdown has been very strong, so that this kind of behaviour is effectively contained. However, in terms of the regulation against hoarding registration behaviour, there are only provisions in principle in the law, and no direct, clear and operable provisions, leading to an insufficient crackdown in practice. This amendment aims to stop the malicious application at the source so that the trademark application can return to the original source of the system for use.
Written by Mr. Lei Zhao – Senior Partner at Unitalen Attorneys www.unitalen.com
Major change 1: strengthen the regulation against bad faith applications and bad faith litigations First, enhance obligation to use trademark, adding a new provision “bad faith applications without use purpose, shall be rejected” in paragraph 1 of article 4. This new provision could be even applied in the very early examination stage by the Chinese Trademark Office and could be used in opposition and invalidation actions as a reasonable ground by the CTMO and any parties including brand owners.
On April 23, 2019, the 10th session of the standing committee of the 13th Chinese National People’s Congress adopted a decision to amend the Trademark Law of the People’s Republic of China. This revision contains many highlights which have attracted the attention and discussion of relevant practitioners and brand owners. The changes involve six articles and will take effect on November 1, 2019. The National Intellectual Property Administration will study and draft relevant laws and supplementary regulations and departmental regulations to fully ensure the smooth implementation of the revised Trademark Law.
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Basically, “with the purpose of use” it is a kind of subjective ideology on the directive, however, how to show the use purpose in the trademark applications is unclear at this moment. Some think applicants need to provide evidence for use or show the intent to use in future new trademark applications. Some even think defensive applications of famous brands, such as full-class applications, will simply be rejected in the non-used classes. These subjective understandings are not accurate; at least from the perspective of this revision, it should not affect defensive applications of famous trademarks and good faith applications without use evidence.
Second, the trademark agency shall be standardised, adding that “trademark agency shall not accept the entrustment if the trademark agency knows or should know that the entrusting party has engaged in malicious application” in paragraph 3 of article 19. At present, the majority of trademark agencies in the market are very professional. However, there are some bad agencies which assist in and are even directly engaged in malicious application and hoarding trademark applications. Some agencies set up affiliated companies in the field unrelated to the business which file a large number of trademark applications for sale. Some use their professional knowledge to maliciously file applications for the trademark of customers and also ask for high transfer fees. These have had an adverse impact on society. Under the new amendment, the trademark agency shall not accept entrustment for bad faith applications; otherwise, the trademark agency will be punished. Third, enhance the punishment against bad faith applications and bad faith litigations. Pursuant to paragraph 4 of article 68, those who apply for trademark applications in bad faith shall be given administrative penalties such as a warning or a fine according to the circumstances. Where a trademark lawsuit is brought in bad faith, the People’s Court shall punish it according to the law. As introduced, these kinds of bad faith applications will be directly rejected in the first pass of examination, but rejection is still far from enough because of the abuse of trademark rights. Bad faith litigation is not only detrimental to the alleged enterprises but also is a waste of judicial resources; moreover, it
does not comply with the legislative purpose for trademark protection. Therefore, it is necessary to increase the provisions of punishment, which could give bad faith applications and bad faith litigations a real blow. Fourth, as a supporting measure for the revision of the trademark law, the CNIPA is studying and drafting a departmental regulation; “Regulation for Standardising the Trademark Application Behaviour,” which will operate a level of refinement. The content of the law to modify the specific behaviour of bad faith applications and hoarding trademarks and possible punishment measures. For instance, very obvious large numbers of trademark applications beyond a reasonable limit and repeated applications based on improper purpose will be listed. In addition to the possible rejection in examination, opposition, and invalidation, CNIPA also will use the credit record, industry self-discipline measures. Furthermore, if the circumstances are serious, the CNIPA could stop accepting applications represented by the trademark agency which violate the above provisions. At the same time, it stipulates that any organisation or individual that finds any abnormal trademark applications may provide clues to help the CNIPA to identify and punish the violator. The regulation is now closed for public comment and will be improved according to feedback, to implement the revised content of the new Trademark Law.
Major change 2: strengthen the enforcement and raise possible damages for brand owners
In recent years, China has been advocated to strengthen the protection of intellectual property rights and improve the system of punitive damages of intellectual property infringement. In judicial practice, such as the Beijing Intellectual Property Court, it has been gradually enhancing the damages for infringement of intellectual property rights. We have been able to see a few million and more than ten million worths of damages for patent cases. On the trademark side, it is rare to see more than a few million and even ten million worth of damage, which mostly ranges from more than tens of thousands to less than one million, which is far less than the profit of the infringing party. The low amount of damage for infringement has dramatically dampened the enthusiasm of intellectual property right owners. Therefore, a higher level for punitive damages needs to be introduced to substantially raise the cost of breaking the law and make infringers pay a heavy price. To further aggravate the infringement cost, infringers in bad faith should be punished, trademark rights should be strictly protected, and brand owners should be awarded adequate compensation. More specifically, for the statutory damage, it should be raised from 3 million to 5 million RMB. For willful infringement, it could be punitive and be raised once but not more than three times to the one time and not more than five times in total.
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The new Trademark Law also provides that, in the trial of a trademark infringement litigation, the People’s Court may, at the request of the rights holder, order the destruction of the commodities that bear a registered trademark which is owned by brand owners and the materials and tools that are mainly used to manufacture the counterfeits. Counterfeit goods may not enter into commercial channels after only removing trademarks. The above measures to take destruction and prohibition of access to commercial channels greatly increases the illegal cost of the counterfeiters and forms an effective deterrent to them. At the same time, the added provision makes the protection of trademark rights more comprehensive.
Epilogue In recent years, Chinese President, Mr. Xi Jinping, officials and heads from all different levels of courts, the National Intellectual Property Administration and other departments have been implementing and emphasising the system of punitive damages for intellectual property to effectively curb IPRs infringement. The overall trend of this amendment is mainly to strengthen the protection of intellectual property rights, hit bad faith trademark application behaviour without the real purpose of use, improve remedy systems against the bad faith applications and bad faith litigation, and increase the damages for the trademark infringement, especially willful trademark infringement in bad faith. Therefore, illegal cost will be significantly increased.
It can be predicted that the cost of IPRs infringement will be higher in the future. For those who violate IPRs in bad faith, they may be punished until they lose all their money and have “nowhere to continue.” This is also good news for honest and trustworthy operators in China. Therefore, in conclusion, it will undoubtedly be more and more meaningful for operators to actively design and build their own intellectual property rights protection systems; so, they are timely and effectively detect infringements. They should also take vigorous rights protection actions where need be.
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GEOGRAPHICAL INDICATIONS: THE AFRICAN EXPERIENCE-part 1 Written by Mr. Afamefuna Francis Nwokedi, Principal Counsel, Still Waters Law Firm - www.stillwaterslaw.com
Africa as a continent though diverse in many ways has a thread of commonality in its tradition, culture, developmental phase, and economic aspirations. This commonality is highlighted in the significant overlap of kith and kin across borders. Over the years, various attempts have been made to integrate the economic activities of the various African states through bilateral and regional agreements. Most recently, under the auspices of the African Union, over 54 member states signed up to the African Continental Free Trade Area (AFCFTA) agreement as “an instrument to accelerate intraAfrican trade and boost Africa’s trading position in the global market by strengthening Africa’s common voice and policy space in global trade negotiations”. 1 In preparation for the full launch of the AFCFTA the African Union, under its AUC’s Department of Rural Economy and Agriculture (DREA) preempted expectations by setting up a technical workshop for the validation of the draft Geographic Indications Policy Framework in Africa. Ongoing discussions are still being held in this regard. Bearing in mind the existence of a couple of unified Intellectual Property (IP) Offices in the form of OAPI and ARIPO, it is not far-fetched to imagine the establishment of a unified African IP Office similar to EUIPO in the not too distant future.
How do we define GI?
Geographical indication (GI) is an arm of the IP regime that has deep proprietary essence in the African continent. Africa is replete with a geographical heritage that is inherently brandfriendly. For instance, I can imagine Sparkling water produced in Australia under the name of “Kalambo Water”; Kalambo being a 772foot single-drop waterfall hedged between Tanzania and Zambia.
Geographical Indication protection involves recognising a collective exclusive right to the use of a geographical name or sign on goods and perhaps services. The Geographical Indication product represents a public good because its intrinsic characteristics have patrimonial values that belong to no one in particular but to all with the specific environment in general.
The World Intellectual Property Organisation simply defines “Geographical Indication” as:
Geographical Indications are usually geographical names, but they can also be composed of symbols and icons as long as they convey geographical information, the Eiffel Tower in Paris illustrates an ideal example in this regard. Legally, the options for Geographical Indication protection include defense against unfair competition (e.g., through litigation) and positive protection through registration under various forms (e.g., designations or appellations of origin, protected geographical indications or certification trademarks). 3
“a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.”
It proceeds to explain the characteristics of GI as: “To function as a GI, a sign must identify a product as originating in a given place. Also, the qualities, characteristics, or reputation of the product should be essentially due to the place of origin. Since the qualities depend on the geographical place of production, there is a clear link between the product and its original place of production”. A Geographical Indication can encompass information on the origin of the goods or service (the indication of source) and a subset of special qualities (more often referred to as appellations of origin). Products protected by means of Geographical Indications must have qualities linked to the territory from which they are produced or originate. The character and attribute of the quality varies according to the natural and cultural history of the resources and their transformation processes, as well as to the legal framework in which the GI develops. 2
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The nature of Geographical Indications Geographical Indication protection schemes require a description of the product that proves its link to a territory, and the existence of a governing body that oversees compliance with the description. Appellation of origin (AO) is the oldest type of registered Geographical Indication, and it guarantees a closer link between quality, reputation, territory, resources, and culture. The quality conveyed by Geographical Indications to the consumer is defined by the meaning of the protected name, the legal figure used, and the product description with which it complies. Geographical Indications are intended to designate product quality, highlight brand identity, and preserve cultural traditions.
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Examples of well-known Geographical Indications include “Darjeeling Tea,” “Persian Rugs,” “Swiss Watches,” “Champagne” and from Nigeria, (though no provision has been made for the registration of GI), one can think of “Ofada Rice” and “Dongoyaro Tea.” While most often used in food products, Geographical Indications can be used to identify unconsumable products that may be associated with a specific geographic location. 4
is made in Article 1 (2) and Article 10 of the Paris Convention, where the latter Article in dealing with false indications of goods, states that the provisions dealing with goods unlawfully bearing a trademark and their seizure: “…shall apply in cases of direct or indirect use of a false indication of source of the goods or the identity of the producer, manufacturer, or merchant.” Any producer, manufacturer, or merchant, whether a natural person or a legal entity, engaged in the production or manufacture of/ or trade in such goods and established either in the locality falsely indicated as the source, or in the region where such locality is situated, or in the country falsely indicated, or in the country where the false indication of source is used, shall in any case be deemed an interested party.
The use of Geographical Indications allows producers to obtain market recognition and often a premium price. With the increased internationalisation of food and product markets, Geographical Indications have become a vital source of marketing. Geographical Indications are also often associated with non-monetary benefits such as the protection of knowledge and community rights. 5 In order to fully understand the meaning of Geographical Indications and how the term is derived, there are at least two other important concepts linked to the idea of Geographical Indications that must be analysed, these being; “indication of source” and “appellation of origin.” Long before a multilateral agreement was reached on the definition of Geographical Indications, and how they are to be protected, i.e., TRIPS Agreement; the concepts of “indication of source” and “appellation of origin” were incorporated in other international treaties. These are: the Paris Convention for the Protection of Industrial Property of 1883 (Paris Convention), the Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods of 1891 (Madrid Agreement), and the Lisbon Agreement for the Protection of Appellations of Origin and their International registration of 1958 (Lisbon Agreement). 6
Further clarification of the notion of “indication of source” is found in Article 1(1) of the Madrid Agreement: “All goods bearing a false or deceptive indication by which one of the countries to which this Agreement applies, or a place situated therein, is directly or indirectly indicated as being the country or place of origin shall be seized on importation into any of the said countries.” Article 1(2) of the Paris Convention defines objects for the protection of industrial property and refers to both “indication of source” and “appellation of origin,” which may suggest that both expressions could be synonymous. There are, however, distinct differences between the two.
The term “appellation of origin” is mentioned in Article 1(2) of the Paris Convention and is defined in Article 2 of the Lisbon Agreement thus: “Appellations of origin means the geographical name of a country, region or locality, which serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors. The country of origin is the country whose name or the country in which is situated the region or locality whose name constitutes the appellation of origin which has given the product its reputation”. Three elements are identifiable in the above definition: 9 a. The appellation must be a direct geographical name (not symbols or other kinds of expression) of the country, the region or the locality. b. The appellation must serve as a designation of the geographical origin for the product, which means that the product and geographical name must be the same, such as Porto or Bordeaux; c. The quality and characteristics exhibited by the product must be essentially/ exclusively attributable to the designated area of geographical origin. Relative to the Madrid Agreement, these conditions for qualifying appellations are higher, thus narrowing the range of possible indications. An example of protected appellations under the Lisbon Agreement includes ‘Bordeaux’ for wine.
ii. APPELLATION OF ORIGIN The African Landscape This refers to a sign that indicates that a product originates in a specific geographical region only when the characteristic qualities of the product are due to the geographical environment, including natural and human factors. 7 Unlike an indication of source, which is only subject to the condition that a given product originates in the place designated by the indication of source, the use of appellation of origin requires a quality linkage between the product and its geographical origin. This means that certain characteristics of the product should be essentially or exclusively attributable to its geographic origin, such
i. INDICATION OF SOURCE
Geographical Indications, taken as any geographical name or sign affixed to a good which conveys geographical information that is useful in identifying the origin, reputation and qualities of the product can be legally protected in two primary forms in Africa. Defensive protection, which focuses on the prevention of misleading indications and unfair competition and positive protection involving the registration of a Geographical Indication either through a sui generis system or as trademarks. The legal means for obtaining defensive protection would mainly be through unfair competition laws, common law rules on passing off or case law.
There exists the possibility of obtaining positive Geographical Indication protection, in one form or another, in all but six African countries.10
Indication of sources refers
to a sign that indicates that a product originates in a specific geographical region.6 An example being, Ofada Rice, which refers only to geographic origin. It is the broadest concept when compared to Geographical Indications and appellations of origin and appears in both the Paris Convention and the Madrid Agreement. Neither agreement, however, defines indication of source. Reference
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as climate, soil, or traditional methods of production, etc. 8
For these six countries, there is no positive protection available, or there is no reliable information on whether positive Geographical Indication protection can be obtained. Among the 47 countries where there is some level of positive protection, such protection can be obtained under
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one of two legal regimes. Protection can either be through specific Geographical Indication laws or through trademark regimes where protection of certification or collective marks is possible. 11 Also, 23 of the 47 countries mentioned above have specific laws providing Geographical Indication protection while in South Africa, there is sui generis Geographical Indication protection for only wines and spirits pursuant to a bilateral agreement with the EC. 12 Of the 23 countries with sui generis Geographical Indication laws 13, 16 are Members of the African Intellectual Property Organisation (OAPI) and therefore have the same Geographical Indication law.14 In the remaining 24 countries, positive Geographical Indication protection can only be obtained through certification or collective trademarks under national trademark laws. 15
The increased international awareness that exists in the GI space, suggests that many of the countries which currently only provide trademark protection for Geographical Indications are likely to move towards specific sui generis laws. However, though much locally in use, GIs are not generally recognised in Africa as protectable. The free to use communal nature of most African societies work against most attempts to have any form of proprietary right attached to available Geographical Indications. As a predominately agriculturalbased economy, wise counsel will prevail, if most African states incorporate the protection of Geographical Indications into their legislations.
African Union 2 World Intellectual Property Organisation. www.aopi.wipo.net/fr/OAPI/index.htm 3 Larson, J. Relevance of geographical indications and designations of origin for the sustainable use of genetic resources. Food and Agriculture Organization (FAO), Rome, (2007) 4 Uwanna, I. Intellectual Property: A Valuable Asset to Every Company, ‘n.d.’ i.uwanna@ta-ng.com 5. See www.geographicindications.com 5 Papadopoulos, I. An Economic Analysis of the Welfare Implications of Geographical Indications, World Trade Institute, (2003) 6 Blakeney, M. “Proposals for the International Regulation of Geographic Indications,” The Journal of World Intellectual Property, Vol.4, No. 5, (2001) 631 7.Keith, E. M. Observations on the Development Potential of Geographical Indications. U.N. Millennium Project Task Force on Trade. March (2003) 8 Sergio, E. International Protection of Geographical Indications and Developing Countries, South Centre Working Paper 10, (2001) 3 9 Rangnekar, D. The socio-economics of geographical indications. A review of empirical evidence from Europe, UNCTAD/ICTSD, Issue Paper 8. (2004) 10 These countries are Cape Verde, Comoros, Djibouti, Eritrea, Sao Tome & Principe, and
Somalia. 11 In many countries, it is possible to obtain trademarks with geographical references in certain circumstances. However, these are mostly particular types of trademarks which could either be collective or certification marks. There are several reasons for this. These include the fact that trademark law generally prohibits the registration of purely descriptive words and forbids misleading the consumer through the trademark itself. For further discussion see, e.g., Larson (2007) 12see http://europa.eu/scadplus/leg/en/lvb/r12207. htm (last visited on 27 August 2011. 13 Thompson, L. R., and Bukman, P. Geographical Indications. International Food & Agricultural Trade Policy Council (IPC), Washington, DC: USA. (2003) www.agritrade.org 14 Wikipedia, Geographical Indication. Wikimedia Foundation Inc., (2007) www.en.wikipedia.org. Last visited on 8 August 2011 at 2.39 PM. 15 The rationale of the ‘extension’ is that geographical indications for all products deserve the same level of protection, i.e., the one which applies currently is limited only to wines and spirits. In order to establish such uniform protection for all products and extend the additional protection of Article 23.1 of the TRIPS Agreement to other products, it is proposed to remove the reference in Article 23.1 of the TRIPS Agreement to wines and spirits.
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§ Quality | Reliable | Invaluable § IP Right Prosecution & Litigation Corporate Legal & Consulting IP Value-Added Services Focus: Patents, Trademarks, Copyrights, Trade Secrets, Unfair Competition Licensing, Counseling, Litigation, Transaction Territories: Taiwan, Mainland China, Hong Kong, and Macau Fields: Mechanics, Chemistry, Pharmacy, Biology, Electronics, Optics, Telecommunications, and Computer Sciences Address: 13th Floor, 27, Sec. 3, Chung San N. Road, Taipei, Taiwan Telephone: 886-2-25856688 Fax: 886-2-25989900/25978989 E-mail: email@deepnfar.com.tw Web site: http://www.deepnfar.com.tw
Three
Consonants A trademark application No 2016737523 was filed by “Gazpromneft” JSC (a prominent Russian oil company) for the goods in Class 4 and services in Classes 35, 37, 40, 41, 42.
The trademark application included a figurative part and a word part – the letters GPN. The patent office agreed to register the trademark with the three letters being disclaimed. The patent office argued that the claimed designation contains a combination of three letters in the Latin alphabet. This is an abbreviation of the name of the company – GazPromNeft, which is a contraction of three words (Gaz (gas), Prom (industry), and Neft (oil). The patent office insisted that the abbreviation is not a word; it is made in standard font without any graphical features that could influence the positive perception of the designation by the consumer. Hence, it does not possess distinguishing capability. In its decision, the patent office relied on Article 1483 of the Civil Code which sets forth that registration is not allowed if the designation does not possess distinctive capability. This is further explained in the Recommendations of the patent office for examiners. It is stated there that the combinations of letters which are not words are not registrable (an exception to this rule are designations which acquired distinctiveness over use, such as e.g., BMW).
The applicant appealed the decision at the IP court. The IP court did not agree with the patent office, cancelled the decision, and sent it back for reconsideration. The patent office did not reconsider its decision but appealed the judgment of the IP court at its cassation instance. The cassation instance supported the judgment of the 1st instance court (Case No СИП-453/2018 judgment of March 25, 2019) and pointed out that the applicant had initially appealed the decision of the examiner at the Chamber of Patent Disputes and argued that the element “GPN” does possess distinctiveness however he failed in its attempt to prove it. When the decision was appealed at the IP court, it was stated by the court that the patent office did not give credit to the evidence submitted by the applicant. The court pointed out that the patent office had not explained in
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By Vladimir Biriulin, Gorodissky & Partners www.gorodissky.com
its decision why it had declined a linguistic report of the expert and had not examined other evidence submitted by the applicant at the time of filing the trademark application or during the appeal procedure. The applicant did argue that the designation “GPN” has the properties of a word. Furthermore, a linguistic report confirmed this. The designation does have the basic characteristics of a word, and as such, it is a particular unit of the language. Conversely, the patent office argued that the claimed designation is an abbreviation used by the applicant on the market. This is not correct according to the IP court. The applicant argued that the word element “GPN” had been used for a long time and de facto became a trademark; it plays the role of the trademark in that it distinguishes his goods and services from those of other manufacturers. To support the arguments contained in the appeal, the appellant submitted sources of information as follow: a linguistic report, copies of contracts concerning supplies of oil, printouts from the Internet. The patent office declined the arguments contained in the appeal; it did not accept the assertion of the appellant that the combination of letters “GPN” had been used as part of the company names of several companies forming part of the Gazpromneft group. According to the patent office, that circumstance did not confirm the use of that designation for the purpose of individualisation of goods and services of the appellant because company names serve to identify legal persons but not the goods and services. The patent office stated that the appeal did not contain arguments confirming the famous character of the designation nor was there submitted evidence showing that the designation “GPN” acquired distinguishing capability as a result of its intensive use. The court of the first instance cancelled the decision of the patent office because in contravention of Article 1483(1) the patent office did not consider the expert report which opined that an abbreviation, regardless of the alphabet in which it is written, is a word. The patent office simply preferred not to notice the report. Besides, the court also pointed out that the patent office should have taken into account that the designation was used in the company
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names of subsidiary companies and may be used in labor relations of the plaintiff. Thus, the court refuted the assertion of the patent office that the company name could not be used for individualisation of goods and services. Further, the court stated that the patent office had not duly evaluated the fact that the designation was used on documents confirming the manufacture of goods and rendering services by the plaintiff. The court also agreed with the plaintiff who referred to the international experience of use of company names in their abbreviated form, such as BMW, CNN, BBC, WWF, and others. Besides, the court did not agree that the designation consists of consonants only. When being read it would be pronounced as Gee, Pee, eN, i.e., the designation includes vowels as well as consonants.
In conclusion…
The patent office appealed the judgment at the IP court cassation instance; however, the Presidium of the IP court dismissed the complaint of the patent office. The court also made a statement that may not be pleasant for the patent office. It pointed out that the rules of registration of trademarks do not endow the patent office with the capacity to recognise its own conclusions as indisputable without analysis of the plaintiff ’s arguments. The Praesidium also concluded that not every combination of letters is an abbreviation, but an abbreviation is a word. As a result, the Praesidium of the IP court upheld the judgment of the 1st instance of the IP court and dismissed the patent office’s complaint.
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Digital
client-acquisition tools bring IP attorneys more cases Many IP attorneys are seeking to increase their inbound trademark cases and to acquire new clients in the highly competitive IP market. In this article, we explain how IP law firms can significantly grow their revenue by using innovative marketing tools intelligently.
Mr. Pascal Moungouango, Sales & Marketing Director, WeCrest Ltd www.wecrest.com Big Data enables digital client-acquisition Most Madrid member jurisdictions require a local law firm to handle the response to a provisional refusal. Consequently, any provisional refusal can be considered a business opportunity for a local law firm within the designated jurisdiction.
Why are Madrid refusals a key component of a data-driven marketing strategy with digital tools?
To take advantage of this opportunity, the question that must be answered is: Which firms are receiving the most provisional refusals and therefore have the most cases?
Rising numbers of trademark applicants are opting for the Madrid System instead of filing national applications, leading to more provisional refusals than ever before.
Many IP attorneys are familiar with the frequent frustrating experience when a client does not send them any cases after they have invested a significant amount of time and effort in developing a relationship with them.
The Madrid System has never been this popular. In 2018, the Madrid System achieved a new record when trademark owners filed a combined total of over 60,000 applications for international registrations. More interestingly, over 120,000 provisional refusals were issued by Madrid member jurisdictions in the same year (WIPO 2019). The total number of provisional refusals by designated Madrid members increased by 7.6% in 2018.
Trend in provisional refusals of designations in international registrations, 2004-2018
Table 2
Therefore, knowing which filers (trademark holders or representatives) have the most cases in a jurisdiction is crucial in order to concentrate marketing efforts to where the most revenue can be generated. WeCrest’s IP legal marketing solutions include several innovative tools, which operate based on daily-updated data of all provisional refusals issued in the Madrid System. Frequent filers can be identified and located worldwide, in a particular country, or even in a specific city. This enables WeCrest users to set up targeted meetings only with the most valuable clients.
WeCrest Filer Ranking of the top 10 refusal recipients for the US in 2018 Focusing only on valuable clients might sound a bit too calculated. However, following this approach consistently will eventually improve the return on invested (ROI) resources and time from a business perspective.
Table 1
Source: WIPO Statistics Database: March 2019.
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Every IP attorney also needs to be a marketer.
An IP attorney’s job is first and foremost to practice IP law, yet, probably the second most important task is client acquisition. Nowadays, it is hard to find any company, which is not applying data-driven decision making to pursue their business objectives.
So, why are many IP firms not yet tapping into the power of Big Data? With the rapid development of the digitalisation of the IP profession, more and more law firms are focusing their client acquisition efforts on online channels. Compared to traditional marketing, only digital marketing allows sophisticated performance tracking, constant optimisation, and ultimately an effective ROI management. Nearly all marketers use quantifiable and scientific methods. A scientist solves a question or problem by making observations and doing experiments and calculations. The goal is to be able to predict and repeat experiments with desired outcomes. By applying the same approach to IP legal marketing, attorneys can make improvements to their strategies and achieve their desired business objectives more effectively. Based on 2018 data1, email marketing is still ranked as the most effective digital marketing channel, surpassing SEO, social media, and paid advertisement. A major advantage of email marketing is reaching target clients exactly where most of their attention is directed to – namely in their email inbox.
How should IP attorneys use email marketing to offer their services? Delivering the right message to the right client, and especially at the right time, is known to lead to higher conversion rates than non-targeted marketing. This ‘Next Best Offer’ approach essentially reverses the traditional marketing equation, by placing the client at the center and trying to meet the individual needs. WeCrest’s email marketing tool, the ‘Madrid Notifier,’ skillfully implements the Next Best Offer strategy to drive client acquisition for IP firms. With this tool, attorneys can send to provisional refusal recipients a notification email along with an individualised response offer. As the refusal case needs an immediate response by a local law firm to the local IP office, the next best offer will likely be accepted.
Table 3
1 - A firm can have an enticing offer, but it is useless if the client never opens the email. Getting the client to open the email is half the battle. Therefore, it all comes down to the subject line. 2 - When setting a sender name, being as human as possible is the key. Olivia@lawfirm. com is both inviting and unintimidating to people when they open their inboxes. The best impression an IP attorney can make on his or her client is to show they are dealing with a person – not an organisation. 3 - Opens, i.e., the number of emails that are actually opened by the recipient, is an important KPI (key performance indicator), and considering and spending time on not only the subject line but also the preview text, will help to drive opens and engagement with the clients. 4 - Personalisation is essential to marketing as it increases engagement because people want to be seen as individuals. Thus, it is recommended to send the email to a personal email address and to address the recipient using their first name. 5 – Less is more. It might seem as though more Calls-to-Action (CTAs) give clients more options, and hence increase engagement with a law firm, but that is not always, how it works. Using a CTA in IP legal marketing requires a balance between options and simplicity. The best practice is to include only one CTA at the bottom of the email, which allows the recipient to reply with a simple ‘yes.’
Conclusion –
Entering the new era of IP legal marketing The digitalisation of the IP profession has arrived. Now, new clients can be acquired online with a few clicks. Therefore, more and more IP attorneys are increasing their revenue by using digital marketing tools and the latest refusal data intelligently. To get started with digital clientacquisition, please visit www.wecrest. com and open a Free Account. For more information, you can send an email to Pascal.Moungouango@wecrest.com
Footnotes: WeCrest’s email marketing solution: Sending response offers with the Madrid Notifier. Furthermore, a response offer email adds value to the potential client as the offer addresses their current needs.
Email marketing checklist for IP attorneys There are five main success factors, which will further drive client-acquisition through email.
1 - Subject line 2 - Sender name and email 3 - Email preview text 4 - Personalisation 5 - Call-to-Action (CTA)
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1 https://www.smartinsights.com/emailmarketing/email-communications-strategy/ email-marketing-still-worth-takingseriously-2018/
TRADEMARKS BRAND PROTECTION
Amazon
Project Zero NOTES By Lisa Lovell, Brand Enforcement UK Ltd www.brandenforcement.co.uk Amazon’s Project Zero was initially rolled out in February 2019 and covered the USA only. With a current estimate of 3,000 brand participants, the project was expanded to Europe on 5th August 2019; and now includes France, Germany, Italy, Spain, and the UK. “Project Zero builds on our longstanding work and investments in this area. It allows brands to work with us to leverage our combined strengths to move quickly and at scale to drive counterfeits to zero,” said Dharmesh Mehta, Amazon’s Vice President of Consumer and Brand Protection.
What is Project Zero? The initiative, aimed at eliminating the spread of counterfeits on Amazon, enables brands to remove counterfeit listings from the site without the need to communicate with Amazon, and thereby essentially “empowering brands to help drive counterfeits to zero.” “Our aim is that customers always receive authentic goods when shopping on Amazon,” Mehta.
Is Project Zero free? It is free to enrol in Project Zero, get access to the automated protections and use of the free self-service counterfeit removal tool. However, brands that choose to use the product serialisation service incur a cost per unit, based on volume.
Joining Project Zero Currently, an invitation-only experience, brands that are not yet enrolled should join the waiting list. However, it is currently unclear as to how long the wait might be. Once enrolled in one country, brands are automatically enrolled in other countries, therefore avoiding the need to be added to the waiting list or to enrol again.
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Amazon Brand Registry Interested brands must have a governmentregistered trademark and have enrolled their brand(s) in Amazon Brand Registry. Brands not yet enrolled in Brand Registry can get started by visiting brandservices.amazon. co.uk.
• Three-Pronged Approach • Automated product scanning • self-service counterfeit removal tool • product serialisation scheme A three-pronged approach, Project Zero comprises of a suite of tools that combines advanced technology and machine learning with a brand’s knowledge. When a brand joins Project Zero, Amazon turns on automated protections for all, but it’s then left up to the brand as to whether they use the (self-service) removal or (paid for) serialisation tools.
Automated Product Scanning “Our aim is to proactively prevent these [counterfeits] before anyone ever sees them,” said Mehta. The first of these tools, automated protections, continuously scans the online stores, proactively detecting counterfeits by referencing logos, trademarks, and other’ key data’ about a brand and then removes any suspected counterfeits. Mehta continued: “Our approach … is part of what happens in our store, so we can scan and verify before it gets to a customer and stop it if it’s inauthentic. This is much better for the customer and the brand. It also allows us to take the appropriate actions if there’s a broader issue.”
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These machine learning algorithms scan more than 5 billion product listings every day, and for the US brands involved in the programme, the automated protections have prevented more than 65 million products from being prevented and sold in stores. In other words, for each and every suspected counterfeit that a brand has taken down, more than 500 have been proactively stopped by Amazon’s automated protections.
“Part of this is improved data sharing between what customs and similar organisations around the world have versus what they’re willing to share with us. This includes data that different companies can share to identify patterns and create better referrals for law enforcement.” Mehta said.
“We’ve been testing these automated protections with a number of brands, and on average, our automated protections proactively stop 100 times more suspected counterfeit products as compared to what we reactively remove based on reports from brands,” Mehta continued.
Self-Service Tool Amazon has been testing its algorithms for a while, but the self-service counterfeit removal tool is new. Traditionally, if a counterfeit does ‘get through’ the automated protections, the brand would need to submit a notice to Amazon, which would then lead to an investigation and finally appropriate action, which can lead to delays. “If brands are here to help us drive counterfeits to zero and if they’re trying to get counterfeits out of our stores, why don’t we just give them the power to do so?” Mehta.
Media Partner
12th Edition
GIPC
“Disruptive Innovation And Rethinking IP” 8 - 10 January, 2020, New Delhi, India www.iprconference.com
Key Highlights 8th January 2020 - Inaugural Ceremony GIPC Awards Ceremony, Plenary Sessions 9th January 2020 - High Tea & Cocktail Mock Trial, Group Photograph Session 10th January 2020 - Gamification of IP I-HIPP Sessions, Plenary Sessions
Eminent Speakers
Prof. Dr. Heinz Goddar Boehmert & Boehmert
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The self-service tool allows a brand to search the Amazon platform and, if they believe they’ve found a counterfeit, the brand can take it down itself. This gives brands unprecedented power to control and remove listings from the Amazon store directly. “I’m excited about the technology advances underneath the protections... I’m not aware of anyone else that, at scale, is giving brands access to remove products from their store directly.” Mehta.
However, in order to maintain this autonomy, brands must maintain a high bar for accuracy. There are several processes in place to promote accuracy, including required training as part of Project Zero enrolment and ongoing monitoring to prevent misuse of these tools. Some brands who have unfortunately not managed to reach this level of accuracy, have been removed from the programme. Abuse of Power “There’s been a couple of cases where brands [have been] abusing the self-service counterfeit removal tool, so we’ve removed a small number of brands from the project,” warned Mehta.
Product Serialisation Scheme The final tool is a product serialisation capability, which provides brands with a unique code for every product it manufactures and allows Amazon to scan and verify the authenticity of every unit before it is shipped to a customer. Product serialisation is a powerful tool for detecting and stopping counterfeits from reaching customers. Brands also have the choice to determine which of their products to serialise. Brands do not need to serialise their products to enrol in Project Zero. However, the brands that do serialise their products are reportedly seeing the best results. Merchants obtain tracking numbers from Amazon and apply them to their products and packaging, so Amazon’s systems can scan items for authenticity. It builds upon the Brand Registry, for registering logos and trademarks to facilitate detection of infringement, introduced in 2017. “Unlike other companies, Amazon’s product serialisation is more proactive,” said Mehta. “Many other companies will apply a unique code during the manufacturing process, so the customer is able to scan the code after purchasing the project, which is entirely reactive,” he said.
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The Success of Project Zero in the USA Dharmesh Mehta, Vice President, Amazon Worldwide Customer Trust and Partner Support, spoke about the US version of the project and the progress it’s made. “More than 99.9% of the products that consumers view have never received a counterfeit complaint,” Mehta said. He added that while that’s a high rate of authentic products being sold on Amazon, it’s not perfect and it’s not resulting in zero counterfeits. “How could we combine what Amazon has in terms of strengths in technology, machine learning, and innovation with the strengths brands have in the intimate knowledge of their own products and IP? Moreover, how can we work together to drive products to zero?” he said. While Mehta is not an expert in what other online platforms are doing, he believes that each of the components of Amazon’s suite is unique. “More than 99.9% of the products that consumers view have never received a counterfeit complaint,” Mehta said. He added that while that’s a high rate of authentic products being sold on Amazon, it’s not perfect and it’s not resulting in zero counterfeits. Mehta concludes: “The initial results from Project Zero have been promising and we will keep improving – we will continue to refine our technology, expand to more countries, and will continue to work with brands to drive counterfeits to zero.” “A core part of that memo is around the value and impact we can have by government organisations, brands, marketplaces … working together to stop counterfeits. We’re super aligned with that, and I think there’s more we can do there,” explained Mehta. The brands that are using serialisation as part of Project Zero haven’t used the self-service counterfeit removal at all, according to Mehta. Also, for those brands using the self-service tool, Amazon has received zero notices of counterfeits from them.
Deterrent Effect Mehta also believes that while criminal referrals are not the end-all solution, they are a significant deterrent; “If you look at digital piracy and what happened several decades ago in terms of monetary and criminal penalties, I don’t think counterfeiting has kept pace.” He added, “The more we can do to create additional disincentives for the bad actor and get better at detecting them is good for all of us.”
www.gipmatrix.com
Lisa Lovell, CEO of Brand Enforcement UK Ltd, concludes, “As well as online enforcement initiatives such as Project Zero, many brand owners combine these efforts with offline enforcement initiatives. Many of our clients not only want to disrupt online trade; they also want to follow the money to obtain some physical evidence in the form of a product. From this, we can establish far greater intelligence about whoever is operating the online listing. It often leads us to warehouses where all of the stock is kept”. Where physical evidence is found in the United Kingdom, brand owners can also work with Trading Standards so that they may consider bringing a criminal action against the offender on behalf of the brand. “We liaise with Trading Standards on behalf of our clients, provide them with the relevant witness statements and documentary evidence in order that they may pay an informal or even official visit to the trader’s premises. They can make official enquiries as to the source of the supply of the goods and can even bring a prosecution on behalf of the brand which costs nothing but the time it takes to draft the witness statement”. In some circumstances where Trading Standards may not be able to assist due to resource issues, brands may want to consider bringing a private criminal prosecution or a civil action. “Once the physical evidence has been gathered, we are able to utilise this for either private criminal or civil actions. In any event, it is essential that brands must think about their online efforts versus their offline efforts as a combination of both will always bring the best results.” Learn more about Project Zero and sign up to join the waiting list at www.projectzero.com
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