UKIPO’s report on “Emerging public perceptions of intellectual property in UK media”

 

On 29 February 2024, the UK Intellectual Property Office (UKIPO) released a report on “Emerging public perceptions of intellectual property in UK media” authored by fellow Kat Hayleigh Bosher. This report follows a report on “The impact of complicit social media influencers on male’s consumption of counterfeit goods in the UK”, commented by The IPKat here, and a pilot report focused on same matter from the perspective of female consumers, commented on The IPKat here.

The findings

The initial findings considered UK news reporting on Intellectual Property, Copyright, Design, Patent and Trade Mark issues over five years and some of the key findings can be summarized as following:

-    Intellectual Property was mentioned with regard to key themes related to scope of rights, registration and IP disputes;
-   Copyright was mentioned especially regarding its scope, management and infringement;
-   Patents were mentioned with regard to Covid-19 vaccines, emerging new technologies and AI;
-   Trade Marks themes covered Brexit, disputes and scope of registration;
-   Design was mentioned especially with regard to infringement and cultural appropriation of indigenous design.

One of the key points of the report is the emerging trend in the use of social media in a strategic way and namely as “backlash” against IP rights holders’ enforcement initiatives. The report recalls two clarifying examples. The first case involved the claim by Marks and Spencer against Aldi for infringement of the “Colin the Caterpillar” trade mark. After a social media campaign by Aldi, including jokes, Marks and Spencer decided not to go ahead enforcing its rights and the parties settled the matter. The second case concerned the trade marks registrations of some iconic Welsh words by a Welsh company. The rights holder finally opted for the withdrawal of said trade marks registrations (even if accepted by the UKIPO) after the negative public perception caused by  a backlash from social media (see The IPKat here).

Another interesting point raised by the report concerns the possible issues related to the so called “David v Goliath” narrative often used by media to emphasize the description of IP disputes.  According to this kind of narrative, individual creators or inventors are perceived by the public as the weaker parties, thus benefiting of the favour of the public as the IP rights holder is perceived as giant Goliath regardless of the validity of the enforced IP rights.  This “backlash” may happen also in cases where “David” is not a proper less powerful party. This is the case cited above where Aldi was perceived by the public as David, even being a big company of well-known supermarkets.

Comment

The power of social media is constantly increasing and has an incredible impact on the perception of IP rights. This impact reflects on the management and enforcement policies of rights holders, who can no longer rely on the effective scope of protection of Intellectual Property but have now to consider the possible perception by the public as influenced by the (social) media to avoid any possible “backlash”, both in the registration and the enforcement phase.

Although at first glance this backlash might intimidate rights holders, it can be observed that this strategy can be a boomerang too if not well managed, especially where it contains inaccurate information on the enforcement of IP rights and related legal proceedings, which may amount to unfair competition practices and defamation. As in the past press releases and public relations were occasionally used as a strategic tool in some litigation’s strategies, we have now to consider that this role has been acquired by social media.

Photo by Antonio D’Agostino