AIPPI Congress (Report 3): Soft IP update, wine & IP and the metaverse

A view of the SF sky that many 
Congress attendees did not see
during the panel sessions 
While the AmeriKat was busy with voting machines and preparing
the final draft of the trade secrets resolution, Katfried Hans Eriksson (Partner, Westerberg & Partners in Sweden) was busily attending and taking notes for IPKat readers on the soft IP panel sessions.  

Over to Hans Eriksson:

"On day three of the AIPPI World Congress in San Francisco, following the traditional Cultural Evening spent hobnobbing with IP glitterati and albino alligators at the California Academy of Sciences in beautiful Golden Gate Park while sampling Bay Area street food and sipping drinks, the Congress schedule was filled with interesting panels to attend for the early riser (or the still jetlagged).

While many Congress attendees from around the world lined up for the Unified Patent Court boot camp and mock trial panels, this Katfriend opted to sample the day’s selection of soft IP offerings.

First up was the now-traditional EU and US Case Law Update presented by Jan Bernd Nordemann (Nordemann) and Vanessa Bailey (Head of Patent Policy, Amazon) that took the early morning attendees on a roller coaster ride of recent American and European trade mark, design, copyright and patent case-law.

On the subject of EU trade mark law, the panel concluded from the General Court’s decision in T-65/20 Kneissl that the requirements to prove genuine use of a trademark in the EU remains strict and in line with the EUIPO’s (in)famous BIG MAC decision: It is no longer “use it or lose it” but rather “use it – and specifically prove it – or lose it”.

On the US side, the metaverse fluent Ms. Bailey (look for an avatar with a Gucci jumpsuit in Roblox) identified the flurry of recent NFT related litigation to be her favorite decisions of last year and identified Hermes Int'l v. Rothschild and the case implications for first amendment protection and artistic expression regarding the furry Metabirkins to be of particular interest. The case shows clearly that virtual goods can also infringe in the real world.

Developments in design law was discussed in relation to C-123/20 Ferrari and the question of partial design protection and infringement of a V shape on the hood of the Ferrari FXXK and in C-472/21 Monz, the curious case of design protection for the bottom of a bicycle saddle which it is argued is not generally visible in accordance with Article 3.3.a of the Design Directive. Kats of course generally have no problem viewing the bottom of a saddle from our vantage point, the more pertinent bicycle-related issue being that of tender tails crossing paths with busy humans on wheels.

The question of transformative fair use at the heart of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (see IPKat post here) was discussed and cheered on while the case heads to the US Supreme Court. Returning to the trendy IP topic de-jour, the panel discussed the copyright aspects of NFTs and their application to decades old commercial agreements in Miramax, LLC v. Quentin Tarantino et al. Turning to the EU and the CJEU Grand Chamber’s decision in C-401/19 Poland’s challenge to Article 17 of the DSM Directive, Professor Nordemann discussed this seminal decision from various perspectives and noted that efficient complaint procedures will likely be central to the correct application of Article 17 going forward.

Would You Like Some IP With Your Wine? was a luncheon title this Katfriend could not turn down. Moderated and toasted by Maria Scungio (Robinson & Cole LLP), the jam-packed midday crowd heard about the various IP protections available to wine makers from Dariusz Szleper (Szleper Henry Avocats) and with an in-house voice from Alexis Garcha (E & J Gallo), while tasting some fine Napa Valley vintages. Neither the trade dress protections afforded bottle designs and labels, or the plant variety rights and GIs for grapes and their preparation, could however save the bottles stranded on our table from their imminent demise, which was greatly appreciated by all.

Next on the schedule was a deep dive into the Metaverse: Real World IP Issues, expertly moderated by Marc Richards (Crowell & Moring) and with contributions from Janna Smith (Meta), Valentina Niess (Noerr) and Brian Vogelsang (Augmented Reality Product Leader at Qualcomm).

Brian Vogelsang described what the metaverse is likely to look like and how we will interact with it in the near future through extended reality tools, like Augmented Reality (you play Pokemon Go), Mixed Reality (you feel like a Pokemon) and full on Virtual Reality (you are a Pokemon). Janna Smith and Valentina Niess took a deeper dive into the IP issues in the metaverse discussing among other things issues of ownership and the current flurry of metaverse/NFT related litigation, as well as the proper filing strategies in different countries to protect trademarks in the metaverse. Jurisdiction in the global metaverse was another topic that presented intriguing questions and as of yet few answers.

Marc Richards spoke about patents and the metaverse, tying it back to the earlier discussion about all the new futuristic technology that will have to be developed before we have the real metaverse. Patent law as applied to the metaverse raised several questions regarding enforceability, novelty, obviousness and jurisdiction but as noted, 2000 patent applications have already been filed in this field during the last five year, plus tens of thousands of patents in related fields like the gaming industry, computer hardware, sensors, mobile devices etc.

Lastly law firms were recommended to open law offices in the metaverse in order to go where the client is…a proposition that sounded reasonable to this Katfriend who was already contemplating opening up a one-man Bay Area office for his firm after finishing this wonderful AIPPI World Congress in San Francisco and not being ready to jump on the 12-hour plane ride home just yet."

AIPPI Congress (Report 3): Soft IP update, wine & IP and the metaverse AIPPI Congress (Report 3):  Soft IP update, wine & IP and the metaverse Reviewed by Annsley Merelle Ward on Tuesday, September 20, 2022 Rating: 5

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