Some brands were not quick enough to adapt to changes in shopping behaviour sparked by the COVID pandemic and should in future take note of options available to them under copyright law, it was suggested at an EUIPO conference yesterday, July 7.
Eleonora Rosati, professor of IP law at Stockholm University, said brands could better track consumer data and shopping habits by using updates to EU law and a planned change in approach by the UK.
Rosati was speaking at the IP Case Law Conference, which is being held at the EUIPO’s Alicante headquarters this week. The conference marks the 25th anniversary of the Boards of Appeal.
The session covered the intersection of culture, fashion and entertainment and intellectual property rights.
Rosati referenced Articles 3 and 4 of the EU Copyright Directive, which provide a copyright exception for text and data mining. She also referenced plans by the UKIPO to introduce a similar exemption.
The UKIPO confirmed its policy last month as it published the results of a consultation, which ran from October 2021 to January 2022, on IP and AI.
Rosati said fashion brands could use this to their advantage to track consumer spending and shopping habits. Some such as the UK-based Arcadia Group had failed to adapt, she added.
Arcadia Group was formerly chaired by British businessman Philip Green and owned brands including Miss Selfridge and Topshop. It entered administration in November 2020 and by February last year all of the brands it previously owned had been sold off to online retailers, such as ASOS and Boohoo.
Shoot for the moon
Elsewhere, Rosati said there was scope for fashion brands to be creative with the type of IP protection they seek.
She referenced fashion company Tecnica Group’s attempt to register the shape of its Moon Boots, used to keep skiers’ feet warm, as an EU trademark (EUTM).
The EUTM was registered in 2012 but later invalidated in 2017 following a challenge by clothing company Zeitneu. In 2020, the Boards of Appeal found that the applied-for EUTM was not distinctive so the invalidation decision was upheld.
However, in January 2021 a separate ruling by the Court of Milan confirmed that the boots were an artistic creation that warranted copyright protection.
This intersection between IP rights formed an additional discussion point with attendees keen to learn whether so-called ‘evergreening’ of IP was a problem that should be addressed by legislative change.
Panellists heard of some examples where copyright was due to expire on literary or artistic works prompting the owner or heir to the copyright to subsequently file a trademark to expand the lifespan of protection.
Panellists largely agreed that if IP rights worked as intended – namely that copyright and trademark protect different things – then legislation should not be required.
E-gaming gazing
Of course, no conference these days can go by without mentioning the metaverse.
Vojtech Chloupek, partner at Bird & Bird in Prague, looked at how IP sits within the context of online gaming, specifically e-sports tournaments in which gamers compete often at very high stakes.
He noted that this is an industry in which the metaverse could play a big role.
Chloupek said multiple IP rights were at play within the context of an e-sports tournament – a game itself could be protected by copyright but within that there are trademarks protecting the team names. Individual players’ avatars and profiles, as well as those of famous sports stars, could be protected by image rights, he added.
There is also the potential for a vast new licensing collaboration between e-sports and football governing body FIFA, he noted.
It was announced earlier this year that video game developer EA Sports would end its partnership with FIFA at the end of next year. The two have produced the ‘FIFA’ series of video games for more than 20 years.
The parting of ways could pave the way for a new league and competitive systems in the e-sports environment, noted Chloupek.
Finally, panellists considered whether IP owners should change their existing trademark portfolios to take account of any digital offerings in the metaverse.
James Nurton, of law firm consultancy Lextel Partners in London, and who moderated the discussion, wondered if we might one day see a metaverse version of the EUIPO intended to handle specific metaverse-related filings.
Perhaps that’s one for another 25 years’ time!
The two-day conference ends today, July 8. You can read more coverage here.
