Nobody can fail to notice the ever-increasing presence of the internet in almost all aspects of daily life, with seemingly everything now having some level of connectivity. Medtech is clearly no exception and in fact, is one of the technology sectors to most embrace the opportunities that Internet of Things (IoT) brings – with the interconnection of devices and systems via the internet (IoMT). However, innovating in the IoMT world may involve stepping into other areas of technology that are different to those with which the medtech community are familiar, bringing new challenges, new competitors, and the need for a new way of thinking, especially with regards to your intellectual property (IP) strategy.
In recent years, medtech companies have been developing ways to enhance products using the IoT. Just a few examples are wearable monitors that send data to a connected device or to a healthcare provider; smart medications that record how and when they are used and provide feedback for improving efficacy; data tags in manufacturing and packaging to monitor batch quality, shelflife, shipping and returns, etc. Each of these, and the many other applications being developed, requires transfer of data between devices.
A mistake I have often seen made in the medtech sector, even by otherwise IP savvy companies, is incorporating known communications technologies into devices without checking whether this is covered by existing IP. Whilst it may seem surprising, there is often problematic IP held not only by known competitors (whose own IP strategy you may be comfortable with), but more frequently by companies with whom you previously did not compete, since many big-name IT companies are now moving into the medtech space, and they may have a very different approach to IP. Should they enforce their IP rights, it can be very costly and damaging to a business, to the point you may have to remove your product from the market, and the accompanying compensation payable to them may be significant.
Therefore, it is important to rethink and modify your IP strategy if you want to take advantage of the IoT. One of the biggest changes I recommend is to consider the IP landscape at the earliest stage in development and as frequently as possible, since the technology sector is very fastpaced (compared with MedTech) and new IP can arise even when you think you have cleared a product. Tech companies are extremely prolific when filing IP, so it can often seem like there is a huge amount of IP covering what you want to do and no way through it. However, much of this IP is speculative and unlikely to be valid in broad terms, so its existence does not necessarily prevent you from doing what you want, but you will need clear, practical advice to help you make strategic decisions.
Another aspect that is quite often neglected by medtech companies is filing your own IP. Medtech is generally a very innovative sector, with developments that stand out as being inventions. Therefore, it’s common for medtech companies to see communications technologies as not adding anything particularly innovative to a product and to not seek protection for the new IoMT device. You are missing out on valuable protection that not only can be used to stop competing products, but can also be a bargaining and commercial tool should you find yourself within the IP protection of another company and in need of a licence for example.
Another area that must be considered is data protection, especially with the recent legislation changes such as the EU General Data Protection Regulation (GDPR) which came into force in 2018. How you implement GDPR may lead to IP opportunities and again, commercial opportunities with regards to licensing.
Timely and appropriate IP advice throughout your development cycle is essential. You can spend large amounts and still not avoid the pitfalls, whereas getting it right from the very start can save costs over time. As you are moving into another sector, with big name players that are typically more aggressive with their IP, and whilst it can be daunting, the rewards can be significant. As Facebook’s Mark Zuckerberg said: “In a world that’s changing really quickly, the only strategy that is guaranteed to fail is not taking risks”.
This article was first published in the March/April 2019 edition of Med-Tech Innovation Magazine.
Mathys & Squire will be exhibiting on stand F58 at the Med-Tech Innovation Expo on 15-16th May.
Why is Facebook Suing Over Trade Mark Infringement and Cybersquatting?
Legal action and Facebook is nothing new, but why – and who – is the social media giant suing over trademark infringement and cybersquatting? At the start of this month, Facebook released a short blog post confirming it was taking legal action against a small cluster of Chinese websites. This legal move was prompted by the fact that these websites were selling fake accounts, followers and likes on Facebook and its sister company Instagram.
In the blog post entitled Cracking Down on the Sale of Fake Accounts, Likes and Followers, the company said it was enforcing its “rights under US intellectual property law” based on the websites “illegal use” of its trade marks and brand. It concluded by saying: “Inauthentic activity has no place on our platform. That’s why we devote significant resources to detecting and stopping this behaviour, including disabling millions of fake accounts every day. Today’s lawsuit is one more step in our ongoing efforts to protect people on Facebook and Instagram.”
What is Trade Mark Infringement?
Trade Mark infringement is the unauthorised use of a trade mark by a company offering a related or competing service or product. That being said, it’s important to know that a trade mark need not be identical to constitute an infringement. It comes down to whether the use of the trade mark is likely to confuse consumers. In this case, the explicit use of the word ‘Facebook’ in the domain names, along with the fact that the sites were offering fake accounts, likes and followers (a breach of Facebook’s terms of service) was deemed sufficient for the company to decide to take action.
What is Cybersquatting?
Cybersquatting is defined under US federal law as the practice of registering, selling or using a domain name with the intention of profiting from a trade mark belonging to someone else. In the case of this particular lawsuit, Facebook is alleging that the companies in question are using its trade marks by using web addresses such as ‘facebook88.net’, ‘myfacebook.cc’ and ‘infacebook.cc’. By using the ‘Facebook’ name, these sites are attempting to profit from the goodwill and reputation that has been built up in the brand.
The Facebook Lawsuit
The lawsuit that Facebook has filed alleges that four Chinese companies and three individuals based in China have been operating a number of websites since 2017, and that by promoting the sale of bogus accounts it is infringing Facebook’s trade marks and terms of service. The companies implicated are Xiu Network (Shenzhen) Science and Technology Company, Xiu Feishu Science and Technology Company, Xiufei Book Technology Co. and Home Network (Fujian) Technology Co. Ltd.
Facebook is asking for the companies to be banned from creating misleading sites and fake accounts, and for the profits derived from the activity to be awarded to Facebook along with $100,000 for every infringing domain name.
The lawsuit is an unusual move for the company, which already purges millions of fake accounts every day; 2.1billion were disabled between January and September 2018 by its own account. So, the move to file a lawsuit is likely due to the extent of infringement in this particular instance. Regardless of the outcome, other companies operating in the same manner would be wise to keep a close eye on the verdict. In issuing of the lawsuit, Facebook is sending a clear message that illegal activity will not be tolerated.
Mathys & Squire is one of Europe’s most highly regarded intellectual property firms. Contact us to find out how we can help ensure your business grows legally, and how we can help enforce your intellectual property rights.
Chimeric antigen receptors (CARs) are artificial proteins that are used to redirect immune system cells to attack targets that are normally invisible to them, such as cancer cells. CARs are typically made by fusing the antigen binding domain of an antibody specific to a target of interest to the transmembrane and intracellular signalling domains of receptors normally found on the surface of immune cells. When a T-cell or other immune cell expressing the CAR encounters the target, the CAR binds it and stimulates the cell to attack.
Interest in CARs has rocketed following reports a few years ago that patients with refractory blood cancers were achieving complete remission after CAR cell therapy. Even a single dose of CAR cells can be highly effective, and for a very long period of time, because unlike conventional drugs, CAR cells are able to live on and patrol inside the body, much like normal immune cells. Due to its impressive effects in treating blood cancers, an anti-CD19 CAR-T therapy called Kymriah (tisagenlecleucel) became, in 2017, the first genetically modified cell therapy approved by the FDA. The Kymriah approval was shortly followed by FDA approval of a second anti-CD19 CAR-T therapy called Yescarta (axicabtagene ciloleucel). Both drugs gained approval in Europe in 2018, and it is likely that more CAR cell therapies will be approved, particularly in relation to blood cancers.
Current Challenges
One of the main challenges of CAR cell therapy is manufacture. ‘Foreign’ cells are normally rejected by the host immune system, so it is important to manufacture CAR cells that are a suitable match to the recipient. In the case of Kymriah and Yescarta, this is achieved by using the patient’s own T-cells to engineer the CAR cell therapy they are going to receive. Both drugs are thus a form of ‘personalised medicine’, the manufacture of which for patients in different countries presents a logistical challenge that increases the cost of therapy. In the US, for example, the list price of Yescarta is reported to be $373,000.
Patent Landscape
The growing interest in CAR-T therapy has been accompanied by massive growth in the number of CAR-related patent filings, see figure 1.
The biggest PCT filers by applicant name include Cellectis, Juno Therapeutics, Novartis, the University of Pennsylvania, and the US Department of Health and Human Services. Juno, which has been acquired by Celgene, has a candidate anti-CD19 CAR-T therapy called JCAR017, and Celgene has a candidate anti-BCMA CAR-T therapy called bb2121 (developed in collaboration with Bluebird Bio), both of which are in clinical testing against blood cancers. Novartis owns the Kymriah product, which it developed in collaboration with The University of Pennsylvania. Other significant players include Kite Pharma, now part of Gilead, which owns the Yescarta product. Both Kite and Novartis also have candidate anti-BCMA CAR-T therapies that are undergoing clinical evaluation.
The patentability of CAR cases is often based on aspects of CAR design. The choice of target antigen or binding domain may give rise to patentability, much like in conventional antibody cases. Other design aspects include the choice or combination of transmembrane and intracellular signalling domains, and the format of the CAR, which may be presented e.g, as a single molecule or as a split structure in which the target binding and intracellular signalling functions are partitioned into separate molecules that can associate.
Patent protection can also be sought for aspects of CAR cell manufacture. For example, Gilead highlights Kite’s European and US manufacturing patent applications as relevant to its Yescarta product. Particular medical applications of CAR cells may also form the basis of patentability.
With an increasingly crowded patent landscape comes litigation. Kite has already tried – unsuccessfully – to invalidate a US patent relating to Sloan-Kettering’s CAR technology, and further disputes seem inevitable.
The Future
It is likely that approval will soon be given for the treatment of further forms of blood cancer using CAR cell therapy, and it is hoped that this new class of drugs will also prove effective at treating solid tumours. Much research effort is also going into the development of ‘universal’ CAR cells – an off-the-shelf product that does not require personalised manufacturing. Cellectis and Celyad both have universal CAR-T therapy candidates in clinical testing.
This article was first published in the March 2019 edition of Intellectual Property Magazine.
In 2016, a group from academia, industry, funding agencies, and scholarly publishers produced a paper on how the infrastructure supporting the reuse of scholarly data could be improved, with the underlying objective of extracting the maximum benefit from research investment.
The paper outlined the FAIR guiding principles for scientific data management and stewardship: findability, accessibility, interoperability and reusability. The principles aim to bring clarity to the goals of good data management and stewardship, and to define simple guideposts to inform those who publish or preserve scholarly data.
One of the key benefits in increasing the availability of data is that it helps improve its accuracy. For instance, data from different studies may be combined to create large data sets for analysis by the scientific community. It will also be subject to greater levels of peer review thereby allowing any assumptions used in creating the data, or conclusions that are drawn from it, to be informedly challenged.
While an increase in the accuracy of data is undoubtedly a good thing for the scientific community, there is a question of whether improvements in the availability of data will inevitably lead to innovators losing control of their intellectual property.
What Are the FAIR Principles?
The original 2016 paper elaborates on what is meant by findability, accessibility, interoperability and reusability. However, one of the clearest interpretations has been set out by the Association of European Research Libraries (LIBER), an early endorser of the principles. According to LIBER:
What is absolutely clear from the original 2016 paper is that the FAIR principles are intended to apply not only to ‘data’ in the conventional sense, but also to the algorithms, tools, and workflows that led to that data.
And What Is Their Impact?
The FAIR principles reflect the movement in recent times towards open science values. Many of the FAIR principles had already been adopted in the scientific community.
In the original 2016 paper, the following initiatives were highlighted as examples of systems in which at least some of the FAIR principles were already being implemented: Dataverse (an open-source data repository software), FAIRDOM (integrating the SEEK14 and openBIS15 platforms in a FAIR data and model management facility for systems biology), ISA16 (a metadata tracking framework to facilitate collection, curation, management and reuse of life science datasets), Open PHACTS (a data integration platform for information pertaining to drug discovery), wwPDB (an intensively-curated data archive about experimentally-determined 3D structures of proteins and nucleic acids) and UniProt (a comprehensive resource for protein sequence and annotation data).
Since the publication of the original 2016 paper, the term ‘FAIR’ has been gaining traction.
The European Commission is establishing the European Open Science Cloud (EOSC), an initiative to provide a digital infrastructure that brings computing and data storage capacity to scientists across the European Union. As part of this initiative, the Commission in 2018 published a report entitled Turning FAIR into reality. One of the suggestions for funding a FAIR data system is the introduction of a requirement that a certain percentage e.g. 5%, of funding be allocated towards managing and stewarding data.
If initiatives such as the EOSC are implemented, then it seems likely that the FAIR data principles will be adopted in the scientific community on a large scale. This will enable ‘old’ data to be innovatively reused, thereby maximising the value of the original research investment and paving the way for developments in fields in which large, accurate data sets are of paramount importance such as personalised medicine and diagnostics.
Compatibility
Patenting is compatible with FAIR principles. Many open science resources are open in the sense that they are non-discriminatory, i.e. anyone can access and use the information that they contain, but nonetheless require the user to take a licence. Patents and other intellectual property rights can be hugely useful in defining the framework of the licence.
For instance, the Biological Innovation for Open Society (BiOS) initiative makes technology covered by certain patents – e.g. the TransBacter™ biological gene transfer system for eukaryotic cells – available for non-exclusive use by any entity that agrees and conforms to the terms of a BiOS licence. The licence allows both research and commercial use but encourages sharing of improvements among all licensees.
Rather than frustrating the open science movement, intellectual property rights may, therefore, be seen as a key instrument for promoting and propagating the FAIR principles of data management and stewardship.
This article was first published in the March 2019 edition of Intellectual Property Magazine.
Food and drink companies face a multitude of challenges in their quest to attract and retain customers. In the search for a competitive edge, companies invest heavily in research and innovation in order to produce items with the requisite taste, mouthfeel, appearance and nutritional value whilst simultaneously controlling production costs. In addition, there is the added pressure of changing consumer trends, such as the rise in vegetarianism and veganism, alcohol-free drinks, and healthier versions of comfort foods, whilst meeting new governmental policies and requirements: quite the raw deal.
The ability to meet such requirements can provide companies with a competitive advantage. The question then is how can they maintain this advantage, and how can they prevent competitors reaping the rewards of their research and investment?
There are typically two methods used within the food and drink industry to protect intellectual property: trade secrets and patents. Trade secrets can be useful where it is difficult (if not impossible) to derive the ingredients or process used to produce the food or drink product.
However, trade secrets provide no protection if another company legitimately produces the same product, manufacturing process or simply reverse engineers the product produced.
Patents may therefore provide a better form of protection where it is possible to derive the recipe (or method of manufacture) from the food or drink product itself e.g. where a recipe or composition could be determined by simply analysing the end product.
So, what can be protected within the food and drink industry; and what steps can you take to protect the IP on your plate?
Suitable food and drink products may include those with an improved taste, texture or appearance whilst reducing fat or sugar content; combinations of ingredients producing a synergistic effect; a non-obvious substitution for a commonly used ingredient (e.g. a reduction in E-numbers); and methods of altering the flavour profile of food and drink products, to name just a few examples of eligible contenders.
Processing methods within the food and drink industry can also be protected, whether these relate to more cost-effective manufacturing methods; methods of providing improved mixing of ingredients; or new process steps which provide an unexpected result in the product. Given the increased desire to produce environmentally friendly products, new environmentally friendly or biodegradable packaging may also be patentable.
A patent is an intellectual property right granted by a specific country’s government for a limited time period, typically 20 years from the filing date. A patent enables the owner to prevent third parties from making; using; offering for sale; selling; keeping; or importing the patented invention within the territory for which the patent has been granted. For a specific process, the owner has the right to prevent third parties from using or offering for use that process within the relevant territory without the patent owner’s consent.
Before filing a patent application it is advisable to review your business strategy and consider how your IP ties into your commercial aims.
Patenting inventions can be a costly process, especially as the number of territories in which you require protection increases, and so it is worth considering which territories can most effectively support your business. For example, where are you planning to sell your product or use the process?
If you do not wish to exploit the IP yourself, where might you wish to licence the product/process? In considering the actions of third parties, are there particular counties in which you wish to prevent a competitor from exploiting your invention?
Applications in Europe can be filed via a European patent application at the European Patent Office (EPO) enabling patent protection in up to around 40 countries on the basis of a single application. An alternative route is the Patent Cooperation Treaty (PCT) which covers over 100 countries in a single initial patent application, and allows delayed selection of countries such as US, India, China and Japan as well as the EU.
In general, to obtain a patent, the IP must be novel, inventive and capable of industrial application.
Novelty
A claimed invention cannot have been publically disclosed before the date on which the application was filed. The assessment of novelty can be based on any public disclosure including scientific journals, published articles, presentations, sale of the product itself or displaying the product at a trade show (where it would be possible for someone to determine the novel features from the product itself). For this reason, it is essential that no details of the invention are publically disclosed before the date on which the patent application is filed. However, if disclosure is unavoidable, for example in investment meetings, it is advisable that non-disclosure agreements (NDA) are used.
Inventive Step
The claimed invention must also be inventive, i.e. not obvious in view of what was known at the filing date of the patent application. The assessment of whether something is inventive is based on the knowledge of a skilled person within that field.
Industrial Application
The claimed invention must be capable of exploitation within an industry. Most products and processes within the food and drink industry will meet this criterion.
Filing a Patent Application
A patent application contains a description of the invention for which patent protection is sought and typically includes:
• a discussion of the background art;
• a statement of invention;
• examples;
• claims; and
• any relevant figures.
The background discussion outlines what was known in the field at the filing date of the application and any issues associated with the known products, processes and uses. If the claimed invention suggests its use will overcome or at least provide an improved effect on existing products, it is useful to know what existing issues there are.
The statement of invention defines the claimed invention. This section defines each feature of the claim and may also discuss possible alternatives to these features.
Examples are often provided to illustrate that the claimed invention can be put into practice. Where a particular advantage associated with the invention has been discussed, for example an improved taste with reduced sugar content, the examples can illustrate the improved effect compared to previous products.
The claims define the boundaries of the invention for which protection is sought. Typically, the first claim broadly defines the invention in order to obtain the broadest scope of protection possible.
Subsequent claims further define the features of the invention or include additional features, thereby narrowing the scope of protection.
Figures can also be included. These can include graphic illustrations of the claimed invention, flow diagrams illustrating a particular process or graphical representations of data produced through the analysis of the claimed product (or a product produced by a claimed process) compared to products and processes already known in that field.
Once the application has been filed, it is generally not possible to amend the application to redefine the invention, include addition information or correct errors. As such, if the application is poorly drafted, it can leave the applicant with little or no protection for their invention. The drafting of the patent application can therefore be almost as important as the invention itself and so it is always recommended to hire a patent attorney with the requisite qualifications and experience to ensure that the application is of value to your business.
Examination Of the Patent Application
After filing, the application is searched and examined by a Patent Office Examiner. If the Examiner does not consider the patent application to meet one or more of the criteria required to grant a patent, a report detailing the objections raised is issued. One of the main roles of a patent attorney is to assess any objections raised by the Examiner and advise how best to address the objections raised, particularly in light of your business strategy.
Once a response has been filed, the Examiner reassesses the application. If the Examiner considers the application to now meet the necessary requirements, a patent will be granted, if not the Examiner will issue a further report.
So Your Patent Is Granted: Then What?
It is a common belief that once a patent has been granted, there is no bar from manufacturing and selling the claimed product or using the claimed process – this is not always the case! A patent is a negative right, meaning that only allows you to prevent third parties from doing these acts within the territory for which the patent has been granted. It is possible that there may be other third-party patents which could prevent you using your product or cover upstream or downstream processes which you are planning to use.
Accordingly, before commercialising your product or process it is advisable to consider such third-party rights. This can be done by requesting a freedom to operate search (FTO). If any potentially relevant patents or applications are found, a patent attorney can analyse these documents in view of your commercial products and/or processes. If these documents are considered relevant it may be possible to design around them; seek a licence from the rights holder; seek to invalidate the third-party rights or even, depending on the age of those rights, simply wait for them to expire.
If you believe you have developed valuable commercial IP, it is highly advisable to consult a patent attorney for more detailed information on identifying and protecting the intellectual property in your innovation.
This article was first published on New Food Magazine in March 2019.
In a recent High Court decision (Eli Lilly & Company vs Genentech, Inc), Mr Justice Arnold referred the following question to the CJEU: “Does the SPC Regulation preclude the grant of an SPC to the proprietor of a basic patent in respect of a product which is the subject of a marketing authorisation held by a third party without that party’s consent?”
The referral arises in the context of Genentech’s European Patent EP1641822 B1 and Lilly’s marketing authorisation (MA) EU1/15/1085 for Taltz® (ixekizumab) – Genentech pursued a supplementary protection certificate (SPC) based on its EP patent and with reference to Lilly’s MA.
The referral in this case may come as a surprise to many, since the practice of applying for ‘third party SPCs’ is now relatively common, and is usually accepted by national patent offices. This practice follows an earlier CJEU decision (C-181/95 – Biogen) which indicated that the SPC Regulation did not require there to be a relationship between the holder of the basic patent and the holder of a related MA.
However, the practice of applying for ‘third party SPCs’ without the consent of the MA holder can be problematic – the MA holder must then either take a licence under the SPC, or seek to invalidate the SPC, in order to commercialise the product for which they have obtained the MA. In view of this, the practice is not without criticism and, moreover, comments from both the CJEU and the Advocate General (in C-493/12 – Lilly and Teva v Gilead, respectively) have implied that an SPC should only be granted to a party investing in research relating to the authorised product.
Parties will now discuss the wording of the question before a final referral is made to the CJEU.
The outcome of this referral will be of significant interest to the biotech community and may have an impact on patent proprietors seeking ‘third party SPCs’, particularly if no legal relationship between the parties exists and/or if consent from the MA holder has not been obtained. We also note that the referral question has interesting parallels to the paediatric extension provisions recently enacted in Switzerland, which appear to suggest that the documentation required in order to apply for a paediatric extension of a Swiss SPC may only be requested from Swissmedic by the MA holder.
If you have any questions about this article, please contact Jonathan Israel for more information.
Beyond trademarks, protectable intellectual property (IP) is not necessarily the first thing that comes to mind when one has developed a new food or beverage product. However, novel and non-obvious technical aspects of food products, packaging and manufacturing methods/recipes can be patented, while registered design protection can be sought for striking visual features.
Some very familiar products, such as rice cakes (Quaker Oats – EP1025764), granola bars (Quaker Oats – US4451488), and orange juice (Tropicana – WO 2004/060083) have been the subject of patent protection.
Moreover, recipes, such as those that produce bread with improved texture or size (Warbutons – GB2545647) have attracted patent protection. This effectively debunks the common misconception that recipes are not patentable, in reality they are so long as they solve a technical problem.
Obtaining a patent allows the proprietor to stop a competitor from directly or indirectly copying their products/process as well as importing such products. Put simply, a patent allows the proprietor to enjoy the just rewards of its R&D labour and to be the exclusive provider of the product/process, thereby providing a competitive edge in the market.
The team at Mathys & Squire has a wealth of experience in protecting its clients’ food and beverage innovations, including those of many household names, such as Warbutons, PepsiCo, Quaker Oats, and Müller.
This article first appeared in Food And Drink Matters in March 2019.
Mathys & Squire is celebrating World IP Day in April and hosting a party on Thursday, April 25th 2019.
Faster, stronger, higher – this year’s theme is ‘Reach For Gold: IP and Sports‘, celebrating the ingenuity, creativity, drive and performance of athletes, and all those working in the world of sports. We look at how sports businesses use patents and designs to foster the development of new sports technologies, materials, training, and equipment to help improve athletic performance and engage fans worldwide. We find out how trademarks and branding maximize commercial revenue from sponsorship, merchandising and licensing agreements. We look at how sports personalities are able to generate earnings from sponsorship deals with brand owners and by leveraging their own brands as athletes.
The 2019 theme is an opportunity to celebrate our sporting heroes and all the people around the world who are innovating behind the scenes to boost sports’ performance and its global appeal. Join us in celebrating the power of sports to engage and inspire, to innovate and unite us all in pushing the boundaries of human achievement.
When: Thursday, April 25th 2019
Time: 18:00 – 21:00
Where: Mathys & Squire, The Shard, 32 London Bridge Street, SE1 9SG.
Click here to RSVP by Friday, April 19th or email our marketing assistant, Juli Woi on [email protected] for more information.
We hope to see you there!
Mathys & Squire is delighted to announce a number of recent exam successes.
Technical assistants Michael Charlton, Sally Gao, Lionel Newton and Daniel Goldberg are also on their way to becoming qualified attorneys after passing some of their UK exams.
Technical assistants Dylan Morgan, Oliver Parish, Alex Elder, Peter Humby and Leo Wright all passed their Queen Mary Post Graduate Certificate exams, which cover modules in trade marks, copyright and designs, plus a brief introduction to the fundamentals of law and professional ethics. The next step for these candidates will now be to take their UK Finals exams to become qualified patent attorneys.
Caroline Warren, a Mathys & Squire partner who leads on training and development, commented: “We are very proud to announce such excellent exam results, which are testament to these individuals’ hard work and dedication to their studies. As a firm, we offer an extensive training programme and professional development opportunities, with a focus on nurturing the talent of each of our trainees, so it is rewarding to see these results which will help these individuals progress to the next step in their career paths. Congratulations to all!”
Further congratulations go to Mathys & Squire secretaries Danielle Hanson, Donna Egan and Yiemun Ng, as well as patent administrator Liddy Chen, who all passed the Patent Administrators Course.
Many companies in the food and beverage industry will not fully understand how nonconventional trade marks such as colours, shapes and smells can be protected by law. However, a large number would undoubtedly strive to obtain monopoly rights for such things in the hope of protecting customary characteristics, while also preventing competitors from doing so. But, whether this is legally and commercially viable is a complex question.
This was undoubtedly Cadbury’s aim when it protected its well-used colour purple as a trade mark in 1995. However, in December 2018 the Court of Appeal rejected Cadbury owner Mondelez International’s attempt to widen the scope of that protection. It said an application seeking protection for the colour as the ‘predominant colour’ on product packaging was imprecise and could include a whole range of different marks within one application. In contrast, it was implied that an application requesting protection for the colour applied to the whole surface of product packaging might be acceptable. Arguably however, this would have limited commercial use to Cadbury as its packaging is never just purple.
Businesses striving for such protection should not only consider whether protection is likely, but also question whether that protection would provide the commercial advantage they desire, having considered the associated cost of obtaining it.
The Court of Appeal decision makes it clear that aspirational ‘one fits all’ protection will not be granted. So, multiple narrower applications would probably be required for packaging that would undoubtedly be redesigned and reinvigorated on a regular basis.
This article first appeared in Food Manufacture in March 2019.
