It’s been a week since the ECTA 40th annual conference kicked off in Copenhagen and what a pleasure it was to meet colleagues and friends in the IP industry in person again.
This year’s theme was ‘Designing The Future’ and futuristic concepts like the metaverse attracted most attention, as many brands are now looking to protect their IP rights in connection with an array of metaverse-related goods and services before anyone else does. This matter was in fact discussed across a variety of topics, such as IP in relation to both fashion and the food industry.
NFTs, IP, the metaverse and the fashion industry
In the fashion industry, NFTs (non-fungible tokens) and the metaverse were discussed in the wake of the notable Metabirkins case (Hermès International, et al. v. Mason Rothschild) which gives us an indication of how courts might assess IP rights in connection with NFTs and digital products, what will constitute originality and what would constitute IP infringement in the virtual world. In the Metabirkins case, Hermès sued the artist Mason Rothschild in the US federal court for producing and selling NFTs called ‘MetaBirkins’, which are basically digital images of the renowned Hermès Birkin handbag depicted by the artist as if made of colourful fur and sold online.
Hermès argued this activity infringed upon its own mark and falsely indicated the NFTs originated from Hermès. In a nutshell, the court held that even if the MetaBirkin qualified as an artistic creation, it was directly misleading even if this was used in the virtual world. Hermès provided sufficient evidence in support of this misleading activity together with evidence of actual confusion among the relevant consumers.
As digital assets and NFTs gain more popularity among traders, the parameters of the metaverse and what would constitute IP infringement in the virtual world need to be defined more clearly. In fact, the metaverse coupled with blockchain is considered a powerful tool for brand owners and can create a feasible outlet for the protection of unregistered trade mark rights. There can be a recorded time stamp of their use in the market, making it easier to protect through these accessible online records. This could change the future of how we deal with passing off cases.
Further discussions and similar cases to the #metabirkin case are foreseeable in the future as brand owners are tempted to tap into the metaverse which presents IP practitioners with an exciting new challenge as the metaverse evolves and brand owners learn to wield its powers. Louise Unmack from #Pandora followed up on this theme and gave an exceptional presentation on how the Pandora brand manages its IP and uses it to its advantage, i.e. How IP rights are used as a ‘weapon against counterfeits’.
Hygge and Mediation
Another topic which has been gaining interest over the last few years is mediation and the opportunity of having out of court settlements and more interest-based solutions to IP-related disputes. At the conference we learnt the meaning of the Danish and Norwegian word ‘hygge’ which refers to the cozy feeling you get when lighting candles or wearing fluffy socks. While you wouldn’t imagine cozying up with an opponent in a dispute, mediation offers an efficient platform for dispute resolution and should be put back on the table with the view of creating possible solutions which will accommodate both parties.
The restaurant industry and IP
There was more food for thought in the 8th Session, ‘Bacchic North – Food, Roots and Arts: Restaurant Industry, Pandemic Crisis and IP’. The different forms of IP available to protect various aspects of a food business, everything from the appearance of the food, the food products, food recipes, restaurant design were discussed. However, the restaurant industry has changed during the pandemic and a shift was seen as restaurants took their business online where there is an increased counterfeit problem especially in relation to food products.
This gives rise to the need of more certified products such as Geographical Indicators (GIs) and certification marks. Blockchain food traceability has also gained momentum during the pandemic in the global agri-food sector and it is a relatively new way of ensuring food authenticity. There is however, a lack of guidance and enforcement at present in the EU with regards to food traceability and authenticity of products, as there is no way of checking whether products labelled and certified as organic for instance, are in actual fact organic. This also gives rise to further issues as consumers buy certified organic products thinking they are sustainable when, in actual fact, they can originate from far away countries and have to be transported to their new destination, making the end-product unsustainable.
Finally, a point to follow is climate change and sustainability which was also a topic for discussion at ECTA , particularly the way in which protected designs can aid in the fight against climate change and its effects.
Overall, it was a busy three days at the event buzzing with fellow IP colleagues who were busy networking and eager to be out in the world again, discussing common issues and new challenges. What a thrilling time to be an IP practitioner.