1 Respecting indigenous rightsFriday at the Annual Conference was a special occasion: the first time the subject of indigenous rights was the subject of a session in the main hall. The US Ambassador to the UN Human Rights Council Keith Harper, the first Native American of a federally recognised tribe to be appointed a US Ambassador, opened the discussion.
He welcomed the willingness to “take on and discuss a challenging subject” and emphasised the need to focus on implementation in the real world of business and society: “We want to avoid these kinds of conflicts. We want to do the right thing. My experience is people also want to do the right thing." He added: "Businesses want settled expectations – what the rules are – and for those to be fair and clear and that everybody follows them.”
He provided a number of examples where brand owners had caused hurt and offence to indigenous peoples, either by using their names in products (such as Cherokee or Navajo) or by using artwork such as tattoos and feathers, which are an important representation of achievement in some cultures. “Wearing feathers you didn’t earn is like wearing a medal you didn’t earn,” said Harper.
He also welcomed the “affirmative steps” taken by a number of brands including Nike and Adidas, who have engaged with indigenous communities and offered support to them: “It’s incumbent on people of goodwill to work with indigenous communities to identify these fault lines and navigate them.”
In the same session, Daphné Zografos Johnsson of WIPO outlined efforts at capacity building - helping indigenous communities to use IP rights to protect their traditional knowledge and cultural expressions. Marion Heathcote of Davies Collison Cave discussed case studies including the Maori in New Zealand.
2 Latest news from EUIPOWith the conference taking place just down the road from EUIPO's headquarters in Alicante, many of the Office's staff took part in the programme, and three workshops were held at the Office itself.
Opening the conference, EUIPO Executive Director António Campinos said the Office expects to receive about 145,000 trade mark applications this year. He also discussed cooperation initiatives, the Strategic Plan 2020 and the Office's growing role in other areas of IP. “We are adapting to an increasingly inter-connected, globalised world. What happens in one area of IP has consequences in another,” he said. “We want a future in which IP rights are accepted and recognised for their important role in society and the economy.”
Speaking in another session, the Office's Deputy Director (ICLAD) Dimitris Botis revealed that there has been a surge in so-called Article 28(8) declarations ahead of the deadline at the end of this week. Up until last week, it had received a total of just 6,000 declarations. Since last week, it has been receiving 1,000 a day!
3 Brands versus trade marks
The tension between brands and trade marks was the theme of the conference - a tension summed up by Shane Smyth of FR Kelly who said: "A brand can have attitude. A trade mark cannot." One brand that certainly has attitude is Specsavers, with its sports sponsorship, parody, humour and slogan "Should've gone to Specsavers". (It has recently filed a UK trade mark application for "Should've".)
In an entertaining presentation, its in-house counsel Antony Douglass set out how the brand remains agile and fun. He emphasised how it has transformed the way it uses social media. "Social media used to be quite reactive. Now it’s turned on its head – we take it very seriously. We have teams of agents responding and we’re looking to engage with customers," he said.
On the same panel, Ricardo Pérez of Millward Brown set out 10 action points for building valuable brands:
1. Be purposeful.
2. Be authentic.
3. Be in the conversation.
4. Grow the triple bottom line (finance, social responsibility, environment).
5. Refine the brand experience.
6. Talk to individuals, not generations.
7. Use data respectfully.
8. Simplify the value exchange.
9. Change the transaction mindset.
10. Widen the competitive set.
4 Madrid Protocol
WIPO is listening to users' feedback on improving the Madrid protocol, judging by a session at which Director Debbie Roenning spoke. "There is progress coming, there is discussion," she said in a panel on replacement, dependency (central attack) and transformation. Moderator Michael Leonard of Fox Rothschild welcomed this news, saying these were all beneficial but under-used procedures.
5 GIs and designs
In keeping with the overall theme, two panels looked at tensions between geographical indications and trade marks, and at the effectiveness of design rights in protecting brands and fighting counterfeits.
On the latter, Erik Lindevang Madsen of lamp maker Louis Poulsen said “counterfeiters don’t care about borders”, adding: “We try to be very reactive. You can’t hit every time but where there is adequate legislation we file criminal complaints where possible.”
The strategy has been successful, with several cases resulting in prison terms and confiscations. In the latest case, involving 15 IP rights holders which took 10 days in court, a decision is due on October 7.
6 MARQUES expansion
In his final Annual Conference as MARQUES Chair, Uwe Over of Henkel announced what he called "an expansion of the MARQUES family" with a new Copyright Team - the association's 20th team - and a Leadership Meeting, which will involve Team chairs and be held twice a year.
7 Litigation at the CJEUDid you know that appellants are only successful in about 20% of appeals of EUIPO decisions before the General Court (and only 10% in ex parte cases)? Arnaud Folliard of EUIPO set out seven common errors parties make in bringing cases:
1. Thinking the chance of success is high.
2. Bringing an appeal to correct mistakes.
3. Underestimating the intervenor.
4. Lodging an appeal at the General Court to gain time.
5. Thinking that winning the appeal means winning the case.
6. Believing that an appeal to the Court of Justice is just another round of review.
7. Expecting that court proceedings are cheap.
Other speakers encouraged litigants to take account of the low level of trade mark knowledge among judges, the strict procedural rules and the importance the Court places on the internal consistency of its own case law.
In the Conference's final session, there was a wide-ranging discussion of recent CJEU case law - including the Nestlé v Cadbury and Tommy Hilfiger cases - which benefited from a number of people with first-hand experience of these cases being in the audience.
8 Scholarship winners
Each year, MARQUES awards scholarships to students at the local university. This year's winners from the University of Alicante were:
1st place: Sara Navarro Joven for her paper “A judicial approach to colour trade marks: international, European and national perspectives”.
2nd place: Rubén Cano Perez for “Pharmaceutical patents in the TPP: The more things change the more they stay the same?”
3rd place: Lesly Laura Capucine Nowak for “Big Data and the challenge of protecting your assets”.
9 David Goldring
Many readers will know that David Goldring, who had been involved with MARQUES since its founding in the 1980s and served for many years as Treasurer, died suddenly earlier this year. Uwe Over paid a tribute to him during the Gala Dinner on Thursday night, and announced that the MARQUES Council had decided to establish an award for voluntary service in his honour.
The first winner of this award was, fittingly, David Goldring, and it was presented to his wife Dee, who was attending the Dinner.
10 Dress code
From their arrival at the Melía Villaitana resort, attendees were confronted with a challenge: how to dress appropriately for a business conference in the midst of pools, palm trees and bright sunshine?
Uwe Over provided the answer in the opening session, declaring it a "tie-less conference" as he removed his neckwear. In his final speech of the week, he went even further - removing his shoes and putting on flip-flops.