Intellectual Property

The Intellectual Property Office (IPO) has this month launched a consultation seeking views on the UK’s future regime for the exhaustion of intellectual property rights.

The consultation comes after the UK left the European Union this year, paving the way to create an independent intellectual property system.

Luke Morgan, a Director with Palmers who specialises in Intellectual Property matters, explained: “The exhaustion of IP rights are the laws that govern parallel trade between two jurisdictions – ‘exhaustion’ is defined as rights that cannot be used to stop the further distribution or resale of those goods.

“Any business that moves, sells or relies on goods – such as literature, automobile parts or cleaning products – that have already been first placed on the market in another territory will be affected by any potential changes to the rules.”

Prior to the end of the transition period, parallel goods were able to move freely in both directions between the UK and the European Economic Area (EEA).

But since 01 January 2021, the UK no longer participates in EU legislature and has reverted to the legal default.

The IPO warned businesses exporting protected goods from the UK to the EEA to check the new rules for parallel exporting to avoid infringing on other’s rights.

According to the regulator, IP rights in goods placed on the UK market by – or with the consent of the right holder – after 31 December 2020 may no longer be considered “exhausted” in the EEA.

In practice, it means that businesses parallel exporting these IP-protected goods from the UK to the EEA “might need the rights holder’s consent”.

The IPO said businesses affected by these changes should “check whether they currently export legitimate, IP-protected goods to the EEA” and contact the rights holder to “get permission to continue exporting these goods after 01 January 2021”.

It has been confirmed, however, that goods placed on the EEA market after the transition period will “continue to be considered exhausted in the UK” – meaning parallel imports into the UK from the EEA will be unaffected.

Luke added: “Regardless of the outcome of the consultation, businesses should continue to take all necessary steps to protect their intellectual property rights by seeking expert legal advice.”

To find out more, please contact us.

Over the past year, as a result of the pandemic, millions of workers have experienced working from home for the first time.

Post lockdown, many businesses have indicated that they are open to the idea of more flexible home working practices on either a part or full-time basis.

However, it is important to consider the long term practicalities and, in particular, the implications regarding data protection compliance.

Here, Palmers’ Associate Solicitor, Matthew Johnson, provides an overview of the issues business owners may need to consider, particularly in relation to the General Data Protection Act (GDPR) rules:

Working remotely can make a business more vulnerable to cybercriminals and open up the possibility of data misuse.

The Information Commissioner’s Office (ICO) has made it clear that home working does not alter the expectations for protecting personal data under the Data Protection Act (2018).

As such it has called on employers to check the following to ensure that personal data remains secure by eliminating some of the common IT vulnerabilities that are often exploited.

General principles 

Businesses must have a clear set of policies, procedures and guidance for staff who are remote working, which should include best practice on topics such as accessing, handling and disposing of personal data.

Employers should also send regular reminders to staff to:

• Use unique and complex passwords, which are regularly updated and changed;
• Keep their software up to date;
• Minimise the storage of personal data on their device and insecure storage such as USB sticks;
• Ensure staff understand when and how they can internally report personal data breaches;
• Put print outs and devices away at the end of each working day;
• Be extra vigilant about opening web links and attachments on emails or other massages which are unfamiliar;
• Use communication facilities provided by the organisations; and
• Consider confidentiality when holding conversations or using their screens if they live with other people.

When it comes to IT, businesses should make sure they are using the most up-to-date version of remote access solutions and have provided staff with devices or software that prevents malicious activity.

Businesses should also consider implementing multi-factor authentication, which ensures that criminals cannot access sensitive personal data.

Cloud storage

Working via the cloud has become essential in many sectors, as it allows users to access data away from the office on any device.

The ICO says that they can also help prevent staff from using personal storage or messaging services, which can present additional risks.

However, when using cloud storage technology, businesses should ensure that it is not set to public or accessible without a username or password or another type of authentication.

Businesses may also want to consider just giving key staff full access to the storage area while allowing all other staff members to read, write, edit or delete, where appropriate, so that users can be carefully monitored.

Businesses should also not be using any default root or administrative accounts for any day-to-day activities and should check that all accounts are appropriately secured.

Remote desktop

Remote desktop applications have proven to be an essential tool when working from home, but they can be vulnerable to cyberattack.

Criminals often try to access remote access solutions using well-known privileged accounts, such as an administrator account.

As such, employers should check that staff, in particular privileged users, have account lockouts in place, for example, software that disables an account after a certain number of failed logins.

Businesses should create generic usernames for privileged accounts and should disable any built-in or default administrator accounts where possible.

To limit misuse, remote desktops should only be accessible for staff that require them and each account should have a unique identity and password.

For long-term strategies, employers should consider if remote access solution should be behind a gateway or virtual private network (VPN).

Short-term fixes can be applied, for example by changing the listening port of your remote access solution, but this should only be viewed as a temporary measure.

Remote applications

Businesses may want to consider investing in remote applications that provide staff access to the corporate applications they need whilst working from home, which can help prevent staff from using personal applications to process personal data.

However, employers should check that:

• The remote application solution does not allow access to Windows administrative tools such as PowerShell or Command Prompt.
• The remote application solution does not allow access to shortcut keys or help keys that could be used to open non-authorised applications or features.
• Plain text usernames and passwords are not included in any files, folders or scripts.

Emails

Email communication is an essential part of most people’s workday and is an important part of working from home.

However, emails can also be vulnerable to cyberattack or misuse of personal data.

To protect data businesses should consider either blocking the ability to add forwarding rules to external email addresses or have a method in place to detect forwarding rules.

Staff should also be advised and reminded to only use corporate email solutions and not rely on their own email or messaging accounts for the storage or transmission of personal data.

Businesses may also want to review and implement the NCSC guidance on defending against phishing attacks, which can be found here.

If you need help reviewing your data protection processes or procedures in light of the changes brought on by new working practices, please contact us.  

Firms with intellectual property rights perform better and pay higher wages, major Companies that own intellectual property rights (IPRs) have typically greater business performance than those that do not, a major study has revealed.

The research, published by the European Union Intellectual Property Office (EUIPO) and the European Patent Office (EPO), aims to raise awareness about the value of intellectual property.

To carry out the study, the researchers compared the economic performance data of companies that own intellectual property – such as patents, trade marks and designs – against those that do not.

It was found that companies who own IPRs have, on average, 20 per cent higher revenue per employee than businesses that do not.

This rises to 55 per cent after correcting for significant factors, such as sector, company size and country, and even higher among small and medium-sized enterprises.

According to the paper, around 60 per cent of “large companies” own IPRs, while just nine per cent of small businesses can say the same – suggesting that those who do can make significant gains on competitors not investing in research and development.

The data also shows that employees who work for companies that own IPRs are paid 19 per cent higher than peers working for firms who do not own IPRs.

This rises to 68 per cent among small businesses – underlining the importance of IPRs on economic growth and recruitment.

The study, found here, is based on the financial data of “millions” of companies from all 27 EU member states and the United Kingdom.

Luke Morgan, a Director with Palmers Solicitors, who specialises in IP matters, said: “The findings highlight the fact that there is a direct correlation between businesses that take steps to protect their value IP rights and their overall profitability which certainly makes sense.

“By protecting your trading name and documenting ownership of the copyright contained in images, written works and sound/moving image clips, as well as applying for patents to cover relevant products and processes, businesses can ensure that others do not unfairly benefit from their creations.

“They can also generate maximum profit from these assets through licensing or, in some instances, “selling” these rights to others.”

To find out more about protecting your business IP rights, please contact us.

Re-registered international designs may not immediately appear in the UK’s official intellectual property register after the Brexit transition period ends, it has been warned.

According to the Intellectual Property Office (IPO), there will be a “delay” in updating UK systems after the UK leaves the EU on 31 December 2020.

However, holders of these rights will “not be disadvantaged” as re-registered UK designs will still have “effect in law” from the end of the transition period.

The announcement comes after the IPO confirmed that international designs designating the EU will continue to have protection in the UK under the terms of the Withdrawal Agreement.

This will be achieved by recreating a UK design for every International design (EU) that retains “identical rights” to the original design.

Commenting on the changes, the IPO said: “Where an international design designating the EU has been applied for, but is not yet protected or where the publication has been deferred, the holder will have a period of nine months to apply for the same right as a UK design.”

Businesses can choose to “opt out” of the re-registering process by following this guidance.

Luke Morgan, a Partner with Palmers who specialises in Intellectual Property matters, said: “It is important for UK businesses to ensure that the intellectual property right are fully protected post-Brexit.

“At Palmers Solicitors, we provide clear and frank advice on protecting, licensing or transferring IP rights, along with the action that should be taken if a dispute occurs relating to your brand.”

For help and advice with all aspects of Intellectual Property, please contact us.

The Government has launched a consultation exploring how artificial intelligence can be used to protect intellectual property (IP) rights holders.

The ‘call for views’ forms part of the Research and Development (R&D) Roadmap, which sets out the UK’s vision and ambition for science, research and innovation.

As part of this process, the Government will examine how AI can keep the country at the “forefront of the AI and data revolution”.

Defined as “technologies with the ability to perform tasks that would otherwise require human intelligence”, this could include the ability to use smart visual perception, speech recognition, and language translation to identify products, works or services potentially in breach of IP laws.

For example, existing machine learning systems have been programmed to listen to music and identify when it has been used without permission. These types of systems are common on music and video streaming services, such as YouTube.

The paper will also look at whether AI systems can be identified as the sole or joint inventor of original works. For example, some AI machines are capable of creating music or literature. The same question has been posed about protected designs.

Commenting on the consultation, the Intellectual Property Office (IPO) said: “In this call for views, we want to understand the implications AI might have for IP policy. We also need to understand the impact IP might have for AI, in the near to medium term.

“We want your ideas, expertise, and insight. This call for views sets out how we believe the IP framework relates to AI at present. It also poses a number of questions which we believe are of central importance to the future of AI and IP policy.”

Luke Morgan, a Partner with Palmers, who specialises in IP Law, said: “These proposals for the use of AI to protect IP rights is to be welcomed although it would appear that the technology is still in its early stages and a full roll out would appear, realistically, to be some way off.

“In the meantime, it is important for businesses to take the same care with protecting their IP rights as they would with other valuable commercial commodities. After all, your IP property is valuable and allowing a third party to infringe your rights, is rather like allowing them to dip into your bank account.”

Luke added: “IP infringement can be both confusing and complex so it’s worth taking advice from a specialist IP solicitor so that you are fully aware of your rights and the protection the law affords your business.”

For help and advice with all aspects of intellectual property law, please contact us.

You can find out more about the Government’s consultation here.

For help and advice on all aspects of IP law, please get in touch with our expert team.