In addition to the wealth of information and knowledge in Kemp Little’s coronavirus hub, we have been considering the likely impact on intellectual property rights.

It is a challenging time for everyone, and consumers and business partners are keeping a close eye on how companies are responding: what are the values that a company holds most dear, and are they living those values (this table, widely shared on Twitter, is a good example). The first priority is to communicate a clear (and ideally humane) strategy to staff, stakeholders and the wider market; the second is to capture the value that arises from this.

It is vital that you continue to protect your intellectual property during this pandemic. At some point, it (likely) will pass, and in the meantime brands will continue to be important. Normality for consumers is in itself an asset in this difficult time and brands can be developed during this period to encourage loyalty and habit from consumers. In the same way as it is not “business as usual” for operational teams, now may be a good time to look afresh at your current IP portfolio.

Typically, IP rights provide the owner with an exclusive right. Whilst this is likely to continue to be the case in respect of trade marks, we are seeing an increase in copyright, designs and patents being ‘shared’ in the community in order to speed up overcoming COVID19. For example, the new Dyson “CoVent” ventilator will be supplied on an “open-book” basis.

This sharing needs to be carefully considered to ensure that this can be ended as soon as feasible (unless sharing is to be continued perpetually – which may not be a bad thing depending on what is being shared). For example, premature public sharing of patentable material will destroy the opportunity to obtain a patent.

The risks of remote working

More (hopefully most) people working from home and online means more Internet traffic. Combine this with less opportunity to get creative teams together in person to develop new products, logos etc. (and therefore potentially greater temptation to copy) means that there is a potential for a rise in online IP infringements. There is no guarantee that this will stop once the pandemic has passed – the current thinking is that more people will continue to work from home on a regular basis.

Online (infringing) activity is difficult to monitor in a systematic way, but it is important for a company’s reputation and consumer trust/safety that it does so. This difficulty persuaded Kemp Little to create a proprietary AI monitoring tool, Dupe Killer. This software scans the Internet for copycats (not just counterfeits) and is sufficiently adaptable to follow new forms of infringement as the world changes.

Having more employees working from home may also give rise to breach of confidence concerns, for two main reasons. First, it becomes more difficult to monitor employees’ actions out of the office. Second, sensitive data/information becomes available outside of the office, which raises the risk of unauthorised third party access. In both cases, there is a heightened risk of data loss/theft.

The courts and registries: (almost) business as usual

Given the widespread shift to operating from home, it is no surprise that the civil courts are also maintaining business as usual as far as possible. E-filings have been mandatory for some time in the Business and Property Courts (which is where IP disputes are heard) and hearings can now proceed (and already have proceeded) video-link.

In the UK and EU the majority of trade mark registry actions are already dealt with online at the UK and EU Intellectual Property Offices, meaning that the disruption to everyday proceedings is, in theory, likely to be minimal (not taking in to account illnesses, children being home, bandwidth and working from home capabilities, to name a few issues being faced at this very difficult time). The current climate may also spur a number of IP Offices to speed up any planned changes to online systems.

However, due to the difficulties in obtaining instructions, information, signatures etc, as well as a limited number of staff, many IP Offices have extended deadlines, postponed or cancelled face to face hearings or closed altogether.

What next?

Should employees and businesses be unable to continue to work as they once did due to the pandemic, and the many issues that it presents, a temporary solution may be to look at virtual secondments. This will allow work to continue as before, ensuring that no rights are lost during this challenging time. If a virtual secondment is required (which can be provided at a fixed price), please do not hesitate to speak to your usual contact at Kemp Little for further information.

Don’t neglect your IP; you will need it in order to come back stronger once ‘normal’ life can resume.

Kemp Little. We’re here whenever you need us.

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