Intellectual property in a post-pandemic future part I – The world has become more IP-intensive

A great deal has also happened in the field of intellectual property assets during the pandemic. I will discuss these, perhaps to some degree surprising, changes in the following series of articles, the first part of which concerns IP protection activity and its effects during the coronavirus era. In the second part, I will proceed to address the IP cultures of businesses which are nowadays seen as an increasingly significant part of the IP strategies of corporations. The third and final section of the series is dedicated to IP issues regarding sustainable development. All the themes mentioned show that even in the field of IP rights, only change is permanent and succeeding in a changing IP field requires companies to adapt a considerably more active and conscious frame of mind.

Part I – The world has become more IP-intensive

In terms of IP rights, one of the clearest surprises of the coronavirus era has been the fact that trademarks and patents have been applied for extremely actively, despite the uncertainties created by the pandemic. Multiple national and international registration authorities have even reported record high numbers of filed applications. For instance, in 2020, the highest amount of trademark and patent applications were filed in the Finnish Patent and Registration Office in five years, and the increase in the number of EU trademark applications, which has been going on for several years, did not reverse as a result of the pandemic.

High IP protection activity may be regarded as part of a broader international trend, as WIPO reports also show that trademark and patent applications have been clearly filed more around the world during the pandemic than in previous years. In Finland, the eagerness to protect IP assets has not shown signs of plateauing until the second half of 2021, whereas at the EU level and globally, the upward trend only seems to continue.

The trend has been surprising, to say the least, so where does all of this stem from?

Although financial support measures have been considerable during the pandemic, the most logical explanation for the high numbers of IP applications may be the fact that coping with the pandemic has simply forced companies to innovate: ways of working and communicating have changed – perhaps permanently – not to mention unprecedented amounts of R&D investment to defeat the pandemic. With these matters considered, it is logical that new innovations have also followed, and that especially digital and pharmaceutical products as well as business services have been well presented in the statistics of IP applications.

Another noteworthy fact shown by the statistics is the IP activity of the Chinese. This is reflected not only in the number of applications filed with the Chinese registration authority, but also the applications filed by Chinese businesses with registration authorities of other countries. In terms of statistics, China dominates most top positions, the United States coming second and Germany coming third. Certainly, this may partly be explained by the strengthening of the Chinese economy, but despite the reason, the IP activity of Chinese businesses is a factor that now affects the activities of many national businesses and those operating in the international markets.

IP activity has also been high outside the field of registered IP rights during the pandemic.

The importance of data and its IP protection has been discussed for years, which is why questions concerning the protection of trade secrets, and trade secrets in general, have gained essential significance during the pandemic. In Finland, things have been speeding up partly due to our new Trade Secret Act, which entered into force on 15 August 2018 (which my colleague Tom Vapaavuori has written an excellent series of online articles on).

For us attorneys, the increased role of trade secrets has been reflected into a growing demand for training on trade secrets, and various organisations have launched special programs to protect trade secrets. Moreover, the transfers of top experts and entire teams of experts from a competitor to another, of which there has been perhaps more examples during the pandemic than normally, has raised questions on both sides of the table – that is, not only from the viewpoint of protecting trade secrets of the previous employer but also on the new employer’s side and from the viewpoint of ensuring freedom of action and protecting existing research and development from so called contamination of data.

Another question brought about by the increased IP activity is the perhaps somewhat comical-sounding concern of trademarks running out.

According to one study, over 75 % of the most common 20.000 English words correspond to a registered EU trademark and the remaining words are connected to negative meanings. As regards the Finnish language, similar studies have not been conducted according to my understanding, but it is clear, that internationally operating Finnish businesses should pay even more attention to the trademarks of third parties whilst designing new product launches and market conquests. Failure to do so may result in legal proceedings or a change of name, which may be taken as a sign of business problems.

The many concerns inflicted by the high numbers of trademark registrations may, of course, be prevented in various different ways. As regards Finland, some examples are the definitions of goods and services which need to be much more specified than before, as well as the introduction of administrative revocation of trademarks, and, overall, the fact that the Finnish registration authority performs an ex officio examination of whether a filed trademark is to be confused with previously registered trademarks. Of course, this latter arrangement only protects the Finnish trademark register from “filling up” and in fact creates a reason for many Finnish businesses not to apply for Finnish national trademarks: instead, trade mark protection covering Finland may also be obtained through applying for an EU trademark with EUIPO, where previous trade mark registrations are not ex officio set as obstacles to a new application.

In addition to exploiting the said loopholes, succeeding in a more IP-intensive world also requires businesses to monitor IP rights even more efficiently (for instance, to prevent infringing trademarks from being registered as the said EU trademarks) and more generally, to value its own IP assets and use them efficiently. The above discussed statistics indicate that many businesses have used the pandemic to create new innovations and increase the weight of their own IP portfolios. Thus, if such moves have not been made in your business, would now be the time also for you to gear up your IP?

References

PRH 17.1.2021: Tilastot tavaramerkeistä ja patenteista: Koronavuonna hakemuksia eniten viiteen vuoteen (https://www.prh.fi/fi/uutislistaus/2021/P_22589.html)

EUIPO 2021: EUIPO Statistics for European Union Trade Marks 1996-01 to 2021-10 Evolution (https://euipo.europa.eu/tunnel-web/secure/webdav/guest/document_library/contentPdfs/about_euipo/the_office/statistics-of-european-union-trade-marks_en.pdf)

WIPO 8.11.2021: World Intellectual Property Indicators Report: Worldwide Trademark Filing Soars in 2020 Despite Global Pandemic (https://www.wipo.int/pressroom/en/articles/2021/article_0011.html)

PRH 2021: Tilastot kansallisista tavaramerkkihakemuksista ja Suomeen kohdistetuista kansainvälisistä rekisteröinneistä (https://www.prh.fi/fi/tavaramerkit/yleista_tavaramerkeista/tilastoja/tavaramerkkihakemukset_ja_kansainvaliset_rekisteroinnit.html)

WIPO 2.3.2021: Innovation Perseveres: International Patent Filings via WIPO Continued to Grow in 2020 Despite COVID-19 Pandemic (https://www.wipo.int/pressroom/en/articles/2021/article_0002.html)

WIPO 2021: World Intellectual Property Indicators 2021 (https://www.wipo.int/edocs/pubdocs/en/wipo_pub_941_2021.pdf)

Tom Vapaavuori 2021: Näkemyksiä liikesalaisuuslaista I-VIII (https://www.twobirds.com/fi/news/articles/2019/finland/nakemyksia-liikesalaisuuslaista-viii)

Anu Leena Koskinen: Entisillä työntekijöillä oli tuhansia Nokian Renkaiden tiedostoja – hovioikeus lievensi hieman tuomioita Suomen suurimmassa yrityssalaisuusjutussa, Yle Uutiset 19.6.2019 (https://yle.fi/uutiset/3-10837850)

James Nurton: Is Europe Running Out of Trademarks? Professor Beebe Talks EU Trade Mark Depletion, IP WatchDog 19.11.2021 (https://www.ipwatchdog.com/2021/11/19/is-europe-running-out-of-trademarks-professor-beebe-talks-eu-trade-mark-depletion/id=140170/)

Saara Koho: Ei nimi yhtiötä pahenna, Talouselämä 43/2021.