[Guest post] The IP world in the time of Coronavirus - Episodes 1 to 3 of the Retromark: Live podcast

There have been certain obvious impacts on the IP industry as a result of the Coronavirus outbreak. In a series of Retromark: Live! podcasts, Katfriends Darren Meale (Simmons & Simmons) and Rosie Burbidge (gunnercooke) have brought a number of them to the attention of the IP community. In this post, Darren and Rosie detail a number of the key impacts before looking ahead to their next podcast this Thursday.

Here’s what they write:

The IP world in the time of Coronavirus - Episodes 1 to 3 of the Retromark: Live podcast

There’s been a sharp fall in filings

There’s been an unfortunate trend in trade mark filings since Coronavirus lockdown has stricken most of the world, with the graph below representing the only graph we’ve seen of late which is pointing down. Reflecting the significant downturn in economic activity across the globe, trade mark filings have taken a nosedive. The week of 16 March saw the biggest hit, with a dramatic 43% fall in filing in the UK from the week before. EUTM filings also fell around 20% in the same week with around a 10% fall in the US. Things have calmed down since, with a gentle rise, but weekly numbers are still significantly depressed. Here’s hoping for a major upswing as soon as we are all released back into the wild. All data is from TMView - so will be accurate so far as TMView is.

What about patent filings? Those aren’t so easy to track - there’s no simple equivalent tool like TMView we are aware of - but anecdotally they appear to be holding up better. If readers have any data, we would be interested to know.

Coronavirus themed filings are plugging some of the gaps

Plenty of people are seeing a business opportunity in this crisis - many of them anticipating the celebrations to follow the world’s future recovery. Filings over the past two weeks have featured some amusing applications, such as these (most of which have been filed at the USPTO):

• The Corona Diaries - diaries
• You touched it, you got it, Corona – cleaning products
• I survived the Coronavirus of 2020 – clothing
• The Coronavirus Blues – “gel caps for reducing symptoms related to emotional and psychological issues”
• Love in the time of Coronavirus – a whole bunch of stuff
• Santize you’re thirst with a Corona – Serving of food and drink/beverages

The applicant for the sixth mark (which is not the owner of the eponymous beer) is going to regret not running their mark through a grammar checker. Or a clearance search.

Everything is on hold at the UKIPO (well maybe)

As regards the UKIPO’s response to the Coronavirus, there has been a certain lack of clarity regarding deadlines and a lot of issues due to the technical set up (everyone at the UKIPO is working from home). Listeners have messaged conflicting interpretations of the measures introduced by the UKIPO (see for example here) and individuals at the UKIPO do not always provide the same answer when called.

In theory, all deadlines are currently extended due to the application of open-ended “interrupted days” [see IPKat post here]. Some consequences of this include:

• Although it should be possible to file a TM7A - Notice of Threatened Opposition - after the initial 2 month opposition period has expired, this is not currently technically possible because of limitations with the UKIPO’s IT system.
• The apparent open extension of the opposition period must mean that no published marks will be granted registered status for the time being.
• Where the UKIPO doesn’t have an email address for earlier trade mark holders, they are having to track down the details via phone (and, we assume, Google), because of a statutory obligation to notify these holders prior to publication - this slows the process down considerably and may put publication on hold for some marks.

Something similar is happening at the EUIPO

At the EUIPO, all existing time limits have been extended to 1 May 2020 (in practice Monday 4 May, as Friday 1 May is a public holiday).

This applies to everything, including opposition deadlines - although be careful if you are considering a non-EUIPO deadline, such as a deadline before the EU General Court - the extension does not apply to those. More details are here.

Whether a further extension will follow in a couple of weeks remains to be seen.

The UK courts are doing their best and adapting quickly

It’s still a bit of a mixed bag but virtual hearings are both possible and happening [see IPKat post here]. Skype for Business is the video conferencing platform of choice as the hearings are recorded. Early indications are broadly positive.

Not all litigants or law firms are adapting to the new normal. Some are attempting to score points by refusing email service or similar. The judges will not be impressed by this approach, notes Darren (who has a second life as a Deputy District Judge).

There is now all sorts of published commentary and guidance on remote hearings, including the official Remote Hearings Protocol, available here.

Mental health awareness

While the economic and physical impacts of quarantine and lockdown are highly visible, the mental health toll is not and the stigmas around mental health continue to mean that many people will try to deal with the exceptional circumstances in silence.

There are some great resources out there and it’s important to share them as widely as possible. For a comprehensive list, this Law Society article has some great links.

Donate!

Rather than just being an excuse for filling lockdown time, Retromark: Live also had philanthropic goals, with the aim to raise £2,700 for Age UK, a charity caring for the elderly at a time when they are at their most vulnerable. At the time of writing, £400 has been raised from various listeners. Prizes are up for grabs: episode 2 gave away a valuable loo roll while episode 3 offered up a pack of Corona beer (what else?).

Donations can be made here.

Coming up next

The next episode, Episode 4 (which in the Star Wars timeline is A New Hope) takes place this Thursday 16 April at 5:30pm UK time, with the sign-up link being here. This time we will be joined by a guest speaker, Victoria Baxter (Senior IP Counsel at King), who will bring her in-house wisdom to the show.

Expect a rundown on the past week of IP developments, a look at how the industry is responding to the virus and the much anticipated Memes of the Week.