The 2022 Intellectual Property Almanac

2021 saw some interesting intellectual property related issues hit the headlines. There was the “Free Cuthbert” movement when everyone got excited about the intellectual property in chocolate caterpillar cakes, parliamentary hearings on music streaming, a consultation on trade mark exhaustion, and even time for Monopoly to get into trouble with its trade mark. With it being the start of a new year, what better time for some predictions on what is going to happen with intellectual property rights in 2022 (not to be taken too seriously).

M&S v Aldi again (again)

We’ve had #freecuthbert and now M&S has sued Aldi over its festive gin given the overall similarity in the shape of the bottles and metallic flakes. 2022 is the year that battle lines are drawn and Percy Pig goes on trial. You will either be team Percy or team Perkins (or whatever name Aldi chooses which is completely different and not inspired by Percy).

Aldi will release Perkins the Piglet and the trotters will be too similar, the overall impression will obviously be inspired by Percy Pig and there will be a genuine argument that Aldi are riding on the pig shaped coattails of the reputation that M&S has built. The public will be up in arms as the media reports that M&S is trying to own all pig snacks and muscle out Aldi. Aldi will launch a social media campaign to highlight the injustice of designing similar products and having competitors call them on it and a judge will be asked to rule on the extent of protection that M&S have in their design. Peppa Pig will have to get involved to clarify that all pigs are equal, but some are more equal than others and moments before the judgement is handed down the case will settle.

A rock legend will sell their back album for a billion dollars.

Bruce Springsteen recently sold his back catalogue of music for a record amount, so it could be time for another legend to do the same and cash in on their life’s work.

The sale, which encompasses Springsteen’s recorded work and his songwriting, will give Sony ownership of one of the most admired bodies of work in pop and rock: over 300 songs spanning 20 studio albums plus other releases.

Artists who have sold their music catalogue to date includes Bob Dylan, Paul Simon, Stevie Nicks, Lindsey Buckingham, Mick Fleetwood, Jimmy Lovine, and Shakira.

Netflix will (but might not) acquire the rights to Tintin

A streaming giant will acquire the IP rights to a beloved series, perhaps the Famous Five or Captain Scarlet, Biker Mice from Mars, Tintin, or Asterisk (ok maybe not Biker Mice from Mars) and a potentially bingeworthy series will be in the works. If its a Seven Bucks Production and Dwayne “the Rock” Johnson is involved it will guarantee that it’s a hit and a franchise will be born all thanks to the IP rights being sold.

Nike will expand its offering in the Metaverse

Nike know that the only type of trainer that will never be recalled is the one that doesn’t exist in real life. Gone are the days that the shoes don’t fit right or that fashion is pain. Nike has the FOOTWARE trade mark that it registered earlier in 2021 and when you combine it with the recent acquisitions of RTFKT Studios, the options for ‘wearing’ Nike trainers are significantly expanded. A Jordan’s filter for Snapchat and Instagram will be available for those who want to pay for it. Just as well because Nike is cutting its distribution channels so it may be easier to own a pair of Jordans via a filter.

The ASA will call out an influencer for a competition that wasn’t competitive enough and an ad that wasn’t an ad.

Molly Mae is likely to be the culprit and a new clothing range launch will get the added publicity of the complaint going to the ASA. With limited sanctions available other than the purported reputational damage this may well happen again in the future despite the guidelines that have been provided by the ASA.

Influencers have an impact on spending habits, particularly driving counterfeit product purchases. The IPO released a report into influencers and counterfeit products and found that influencers endorsing counterfeit items does encourage purchases. The ASA also recently released a name and shame list of influencers who were repeatedly not clear when an ad was an ad. Let’s see if standards improve this year.

TM infringement will take place in Augmented Reality.

Following on the Nike’s business moves which appear linked to products in a metaverse, 2022 could be the year we see an attempt at enforcing a trade mark right in an augmented reality space. The dispute between Hermes and Metabirkin has signalled a new frontier for IP infringement/ enforcement and we may well see a further case. It could be counterfeit virtual trainers or something similar to the Nike swoosh that are made available online. Nike is the likely candidate at enforcement given the high value of its TM and its steps taken in the metaverse already. The courts will have to grapple with a question of whether TM use in the metaverse counts.

The government consultation on parallel imports will return recommendations

The UK has completed the first stage of its consultation on parallel imports and in 2022 it is hoped that the results and recommendations will be published.

Parallel imports and the exhaustion of TM rights relate to when a product is sold legitimately in one country and then imported into another country. In the EEA, if a product is sold in one member state, then the TM right is exhausted and the product can be exported into another country within the EEA. The UK left this system as part of its withdrawal from the EU and now has an asymmetric parallel import regime with the EEA. Any goods first sold in the EEA will have its TM rights exhausted if then imported into the UK, but this is not reciprocated the other way around.

The prediction is that we remain with the asymmetric EEA parallel import regime (as consistency makes the most sense). A 2019 report by EY stated that the current regime saves the NHS £100 million a year on pharmaceuticals so there are some good reasons to stick with it or at least something similar.

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