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:
- 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