I recently attended a lecture about the difficulties of protecting Intellectual Property (IP) rights in a digital era. I believe it would be a disservice to the Hon Mr Justice Arnold, Arty Rejendra and Frederick Mostert if I didn’t attempt to relay some of the issues raised.
This post primarily focuses on trademarks (TMs). Much to many Brexiters’ dismay, the TM protection available in England and Wales is heavily legislated for by the European Union. ‘TMs’ are signs traders use to differentiate their goods from those of other traders. TMs can consist of words, slogans or even shapes. Traders are keen to protect TMs because they are often a large contributor to the success of a company. Some recognisable TMs are highlighted in the photo above. A TM can indicate the origin of a product, and most importantly, it can also give consumers some guarantee as to the quality of the goods. For example, Apple are notorious for retaining customer loyalty, despite charging considerably more than their competitor companies who sell almost identical products, simply because they have a reputation for being of high quality. In order to benefit from a TM it must be properly registered. Once registered the proprietor (owner) has an exclusive right to use that TM, and bring an infringement action against anyone who misappropriates that TM. In theory, anyway.
What’s the problem?
Technology is advancing at such a rate that it is now possible for businesses making counterfeit products to become more successful and easily accessible worldwide. The international element exacerbates the problem because, while there are stringent IP regulations in European Union Member States, countries such as China are not subject to the same level of regulation. Therefore, whilst you may not be able to buy TM infringed products from your local shops in England, access to websites such as Taobao and Alibaba over the web make it possible to purchase counterfeit products anyway.
Laser technology already exists that can scan a TM and replicate it with exact precision onto a different product. This means that there can easily be a mass production of counterfeit trademarked goods in factories. These products are usually of a substantially inferior quality to the real products, which dilutes the reputation of the registered TMs. Dilution occurs when the general public starts to associate the registered TM with the quality seen in the counterfeit goods. Such as the standard of fake Louis Vuitton bags and Moncler coats you may have seen.
The main issue in my view is the bad faith attitudes of society generally. As previously mentioned, in order to have an infringement claim the proprietor must have registered the TM. There have been instances where Chinese companies are registering a known TM in China before the actual proprietor has a chance to register its TM in China themselves. Therefore, the real TM proprietors are then having to buy the Chinese registered TM of their own TM back. Also, the use of 3D printers means that it might be possible in the not too distant future for you to print your own counterfeit products. Why buy the real product for thousands of pounds when you can just print your own, right? You wouldn’t even need to leave the comfort of your home for a new Rolex, Mulberry bag or Gucci sandals.
I believe that the only way IP rights can truly be protected in a digital era is to change people’s social attitudes about misappropriating TMs. Obviously people will continue to find innovative ways to create replicas of branded products for as long as there is a demand for them. The point of being able to register TMs and copyright works is that it encourages innovations and investment in ideas, which enhance our society. Quite rightly so, why shouldn’t someone get financial benefits for their creations? By purchasing counterfeit goods, you are encouraging businesses to continue to misappropriate IP rights, depriving the proprietor of the rewards of their creation. While this article has focused on TMs, rights such as copyright and passing off also ways to protect IP rights and are equally important. Would people still write novels, create films, music and technology if they were unable to rely on their IP rights to reap the rewards of their creations?
The protection of IP rights is becoming increasingly difficult, and one day might be impossible to protect, given the increasing amount of technology and the discrepancy in regulation laws throughout the world. Although, as the title of this article suggests, you may not feel responsible for the downfall in TM protection, you are contributing to the problem. If every individual contributed to the problem then it will have a snowball effect and it will be a futile attempt to prevent IP right from being infringed. The only way to stop IP rights becoming redundant is to take a stand against misappropriation.