While it feels like it just began, 2018 is nearing its end. The year 2018 was not an uneventful year and the field of intellectual property was no exception. From Canada agreeing to USMCA, which significantly strengthens some of Canada’s intellectual property laws, to China creating an intellectual property appeal court, 2018 was full of intellectual property landmarks. Below, we will discuss some of them.
Someone has something to smile about. In January 2018, Grumpy Cat Limited won $700 000 in damages for copyright and trade-mark infringement by Grenade, a coffee company. The two parties had entered into a licensing agreement where Grenade would use Grumpy Cat’s image on an iced coffee line. However, without permission, they used the image on a roast coffee line.
Canada and Taiwan announced plans to create a temporary Patent Prosecution Highway (PPH) pilot arrangement. If TIPO or CIPO approve an applicant’s claim, the applicant can ask the other office to process their respective claim faster. This arrangement was particularly interesting because Taiwan has usually been isolated from the international community with respect to intellectual property agreements. They are not signatory to the Madrid Protocol or the Berne Convention. It also occurred when Canada had expressed interest in expanding its influence in East Asia.
Mexico made significant amends to its trade-mark policies. For trade-marks registered after August 10, 2018, a “declaration of actual and effective use” must be filed after 3 years and 3 months of registration, smell marks are now protected, and bad faith registration could be grounds for invalidation.
China granted a patent to MilliporeSigma for its “chromosomal integration” CRISPR technology. CRISPR is a particularly promising, easy-to-use gene-editing technology. It also potentially can reverse organ damage or increase crop yield. This grant also came at a time when China had expressed an interest in importing foreign “innovative” drugs. Such a patent might be reflective of this goal.
For some, Big Brother might be watching. The USA granted Apple a patent for a vein recognition method. Vein recognition has a higher success rate than other forms of biometric recognition. However, some argue that biometric identification threatens people’s civil liberties and they might view vein recognition as particularly invasive. Like many other debates, important goals, like security and civil liberties, might be in conflict.
After a long legal battle over Samsung’s patent infringement of Apple’s smartphones, the two parties finally settle. The settlement amount was kept confidential.
A California circuit judge overrules the state’s “droite de suite” laws. In California, an entity was required to pay an artist 5% of the price of a resale for any work over $1000. The court overturned this law saying that it conflicted with federal law. Now, no state has “droite de suite” laws. It will be interesting to see the effect of this change on auction houses.
Canada says it will join the Madrid System in early 2019. The Madrid System states that when an “entitled party” files a trade-mark with one contracting state, they can then file a registration with the International Bureau of the World Intellectual Property Organization. With the goal of complying with the Madrid Protocol, Canada has proposed significant amendments to the Trade-marks Act. Trade-mark owners will be able to protect sounds, positions and personal names. Distinguishing guises and the “declaration of use” requirement will be abolished. Some might argue joining the System will allow for business growth. Others might argue it opens the door to trade-mark squatters.
On the first day of the month, Canada, the USA and Mexico agree to USMCA, an updated version of NAFTA. Among many other things, this trade agreement contained intellectual property provisions. To comply with USMCA, Canada agreed to extend its copyright protection to 70 years plus the author’s life, from the current 50 years plus the author’s life. A seventy-year copyright lifespan is more common in most industrialized nations. This proposed change is another example of how Canada is re-aligning its intellectual property laws to be more consistent with international norms. In 2017, the Supreme Court ruled Canada’s unique promise doctrine obsolete.
Hopefully, no one finds this cheesy. The European Court of Justice ruled that a cheese spread was not protected by copyright. In favour of this position, they noted that taste was subjective.
The European Union launches its first “Counterfeit and Piracy Watchlist”. This list records websites that infringe intellectual property.
There you have it! These events were just some of the important intellectual property milestones in 2018. With Canada set to implement the Madrid Protocol in 2019, it will be interesting to see what else 2019 has in store.