Autumn Conference 2023: Insights for a changing profession
Some 150 delegates, speakers and exhibitors came together at The Library of Birmingham to get practical insights into how the profession is changing and how to tackle the challenges.
Delegates were treated to a full day of networking and knowledge sharing, answering questions including whether AI will replace humans and deciding whether to appeal to the Appointed Person or High Court.
At lunchtime some 30 delegates were treated to a walking tour of Birmingham. It was a chance to get outside and learn a bit about their surroundings, including how canals shaped Birmingham and the influence of Black Sabbath.
Will AI replace humans?
Philip Morris International’s Jess Axelson and the UK IPO’s Oliver Morris sat down to explore the future of AI in the IP profession, identifying a series of the opportunities and risks that lie ahead.
As with any profession, the main benefits of AI for IP lie in its ability to complete some processes much more efficiently than humans are able to.
For example, the UK IPO has implemented a more sophisticated search tool which can identify possibilities for confusion or similarity, using some AI capabilities.
Phone answering chat bots are also now a common occurrence, allowing firms to speed up how quickly a caller can reach the person they need to speak to or get the information they need.
Additionally, it is becoming increasingly common to make use of AI tools to create transcripts, speeding up minute taking. However, it is common for these tools to incorrectly record names, which can cause significant problems in sensitive meetings or in a litigation context.
In short – the panel concluded that while AI is very unlikely to replace humans any time soon, we are seeing a growing number of useful tools that complement the work people do.
IP infringement: real cost of fakes
The UK IPO’s Dan Hughes and PIPCU’s Ceri Hunt set out the possible dangers posed by the ubiquity of counterfeit goods, and the steps their organisations are taking against them.
While many of us may simply picture perfume or handbags when asked to imagine fake goods, they are spread across all industries. Recently, reports emerged of counterfeit aeroplane parts and car tyres, representing serious danger to the consumer.
The UK IPO’s role in enforcing the UK’s strong IP regime takes several forms:
- Overseeing the legal framework for accessing justice related to counterfeit goods
- Funding the IP crime unit, including links to the Border Force
- Supporting other parallel agencies for preventing IP crime
- Outreach campaigns on the dangers related to counterfeit goods
The IP crime unit is funded by the UK IPO, working on the ground to remove counterfeit products from circulation.
With hundreds of millions of pounds of counterfeit goods currently on sale, this is a very active area. Additionally, PIPCU works with advertisers and online domains to undermine pirating activities.
The UK IPO and PIPCU work together to protect the integrity of the UK IP system and continue making the IP environment better for genuine rights holders.
Deciding between Appointed Person and high court appeals
Tim Bamford and Andrew Marsden from Collyer Bristow and Wilson Gunn respectively dug into the factors which might play into the decision between the Appointed Person and High Court routes.
The pair remarked that the Appointed Person route is often perceived to be a more affordable option for clients, although it is possible for costs to escalate as the case continues.
Furthermore, the Appointed Person is an IP specialist, and therefore might be best placed to consider a body of evidence related specifically to IP law.
They pointed out that an Appointed Person tribunal is often seen as a less formal route, the formality is heightened at the High Court – for example, the expectation to wear a gown.
The High Court offers the benefit of being better suited to cases that cover a variety of different areas of the law, although it still offers no direct route to the Court of Appeal.
The decision between the two routes depends on the exact nature of the case at hand, and both have their own benefits. Keeping an open mind to the different possibilities is key.
UK case update
Kendal Watkinson from Hogarth Chambers provided delegates with a look at some of the key outcomes from recent high-profile UK trade mark cases.
Kendal discussed the “crowded marketplace” for polo logos involving horses in light of the recent Lifestyle Equities v Royal County of Berkshire Polo Club dispute.
It “shows that pre-existing co-existence agreements with third parties are relevant in the assessment of the distinctiveness of a mark in a crowded marketplace, such as polo-themed apparel brands,” Kendal remarked.
“It serves as a reminder to brands that co-existence agreements can be used against them in the English courts.”
The unintended consequences of Brexit
Kate O’Rourke from Mewburn Ellis, who leads CITMA’s working group looking at rights of representation, helped bring delegates up-to-speed on the latest fallout from Brexit.
Kate looked at how the system could be improved – focusing on the impact unregulated representatives are having on the UK’s IP system and the abuse of address for services rules.
Bad faith claims, requiring declarations of use on renewal and limit to specifications were some of the points Kate raised in her interactive session.
Kate concluded by saying: “It is unlikely that the UK will go back into the EUIPO system in the foreseeable future, so we do now have the ability to think about what we can do as a nation to make sure that the UK is the best place to do business and the best place to protect and enforce your IP rights.”
Anti money-laundering
Anti Money-Laundering expert Amy Bell from Teal Compliance discussed some of the challenges, pitfalls and consequences of money laundering activity and things trade mark legal practitioners must be aware of.
Delegates heard that the prison sentences for involvement in money laundering could be up to 14 years, and failure to disclose five years.
Intellectual property can be exploited for money laundering activity. Amy outlined a number of ways this can happen.
Over or under valuing IP assets is one method used to deliberately to move funds illicitly.
Another is opaque valuation methods – this is especially true of items that are quite difficult to value such as art or tech.
So called ‘underground banking’, which works off an ‘IOU’ system can be used to complete these transactions.
It is hard to move money internationally, so IP can be used for cross-border transactions. This can come in the form of IP being held, sold or licenced internationally too.
Complex ownership structures can help to hide money laundering activity.
Amy discussed the importance of due diligence and pointed out that you may only spot the criminal behaviour if you are doing the due diligence on clients.
Greenwashing in advertising
Tom Nener from Pinsent Masons provided insight into compliance issues around greenwashing in advertising. He started out explaining that a green claim “is any claim about a product or service which says that it has a particular environmental benefit.”
While traditionally greenwashing was a term reserved for high polluting industries like oil and gas, it has evolved to include any green claims from businesses.
A survey by the Competition and Markets Authority (CMA) found that worldwide 40% of green claims made on websites could be misleading.
Tom warned that there are high risk terms that there is no set definition for, so could be picked up. These include terms like sustainable, eco-friendly and wholly biodegradable.
All terms where there is no set definition, are high risk terms for clients.
There are a number of terms to be aware of:
Greenlighting: when company communications (including advertisements) spotlight a particularly green feature of its operations or products, however small, in order to draw attention away from environmentally damaging activities being conducted elsewhere.
Greenshifting: when companies imply that the consumer is at fault and shift the blame on to them. This could be a net zero target for example.
Greenhushing: where a company does not talk about, or hides, their sustainability credentials to avoid scrutiny.
The risks for companies of falling foul of these come from reputational damage, activism and protests directed at the business, litigation by organisations such as Client Earth and regulator action.