This week in IP: Maersk joins OIN, Waitrose confronts Asda, and more

The EUIPO’s Grand Board of Appeal is preparing to consider an EU trademark application for the term ‘Covidiot’ – one of only a handful of cases to make it to the office’s highest decision-making body.

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• Opinion: Why ‘whiteness’ furore shows importance of university IP

One of the eponymous authors of the Leahy-Smith America Invents Act spoke out against an attempt to change and curtail certain rules at the Patent Trial and Appeal Board in an op-ed on Wednesday, March 30.

Former representative Lamar Smith said in Bloomberg Law that one of the main goals of the AIA was to achieve a balance between small and large businesses, patent owners and challengers and judicial and administrative bodies.

He added that the bill’s authors realised there was potential for large businesses to use PTAB proceedings to harass patent owners, and that companies had done so after the AIA became law.

But he wrote that Senator Patrick Leahy’s Restoring the America Invents Act (RAIA) contained provisions that would “encourage these abuses”.

“Changes like those contemplated in the RAIA would upset the balance we struck and cement the PTAB as a tool for litigation gamesmanship rather than the less expensive alternative to litigation it was intended to be,” he wrote.

He added that instead, Congress should focus on providing “quiet title” – clear ownership that can’t be challenged – to patents.

“The Leahy-Smith America Invents Act was intended to encourage fairness, not gamesmanship. It should remain that way.

“The system we designed can help keep America the strongest and most innovative economy in the world for a long time to come. We don’t need to weaken it,” he said.

Shipping company Maersk has joined the Open Invention Network, it was announced on Tuesday, March 29.

The OIN is an organisation that acquires patents and cross-licences them to its members to enable innovation and collaboration on software inventions, including those related to blockchain and Linux.

Keith Bergelt, CEO of OIN, said integrated logistics companies increasingly relied on open-source technologies as they modernised, integrated, and built new supply chain capabilities.

“We are pleased that an established shipping and logistics leader like Maersk is committed to patent non-aggression in core Linux and adjacent open-source technologies,” he said.

Simone Frattasi, head of global IP, and Paw Martins, head of cloud and innovation platform at Maersk in Denmark, jointly said that as the business continued its digital transformation, it remained focused on building and integrating the best technologies for its logistics platforms.

“Open source may play a pivotal role in the platforms and applications that we build, purchase and integrate,” they said. “We are pleased to join the Open Invention Network and support its role in protecting open-source software innovations.” 

Domain name company Com Laude has partnered with trademark portfolio management tool maker iaidō, it was announced on Wednesday, March 30.

According to Com Laude, the partnership will deliver a first-of-its-kind platform for managing global trademark and domain name portfolios.

The partnership will see enhanced domain-specific features added to the existing iaidō product.

Iaidō was first launched by IP consultancy firm Stobbs at the end of January 2021. It uses big data tools to combine sales figures with intellectual property registrations to track the effectiveness of trademark portfolios. It also provides data on the threat of non-use in different jurisdictions.

The platform was created after drinks company AB InBev set a challenge to its outside counsel to develop a platform for portfolio management.

Lewis Whiting, iaidō founder and IA director at IP firm Stobbs in the UK, said: “Through this partnership, Com Laude and iaidō will redefine domain name and brand strategies, by using iaidō’s automated legal business intelligence approach and Com Laude’s advanced approach to corporate domain name management to de-risk and provide real-time assessment of value.”

Glenn Hayward, chief executive at Com Laude, added: “Domains and trademarks go hand in hand, and there are similar issues that we see across the portfolio management of both asset classes.”

The combined platform will be launched at the INTA Annual Meeting in Washington DC, which takes place between April 30 and May 4.

UK supermarkets Waitrose and Asda could be gearing up for a courtroom showdown over trademark infringement, it was revealed on Wednesday, March 30.

Waitrose said it had sent a legal letter to Asda this week after its rival unveiled a similarly named discount product range.

Asda announced its ‘Just Essentials’ range on Monday, March 28, promising an expanded line of low-cost products. But Waitrose said the branding was too similar to its own ‘Essential Waitrose’ range, launched in 2009.

Waitrose added that it was awaiting a response from Asda over its trademark concerns. If Waitrose’s concerns are not met, then the two could end up fighting it out in court.

Jim Dennis, partner at Simkins in the UK, said Waitrose could have a good claim if it could prove that there was significant consumer recognition of the term 'essential' in connection with Waitrose products only.

"However, this claim is not without its difficulties,” he noted.

“‘Essential’ is not a particularly strong mark, as it’s partly descriptive. ‘Essential’ is also the first element of Waitrose’s mark and the second of Asda’s, which is important, since the first element is usually considered to be dominant.

“Finally, ‘Essential’ is used by Waitrose as an adjective and not a noun as used by Asda, so there is also a conceptual difference.”

Another high-profile supermarket IP dispute between Marks & Spencer (M&S) and Aldi settled earlier this year. That dispute centred on claims that Aldi’s chocolate caterpillar themed cake, called Cuthbert the Caterpillar, infringed trademarks protecting M&S’s own chocolate caterpillar cake called Colin.

German Chancellor Olaf Scholz said on Monday, March 28, that he was opposed to a planned intellectual property waiver for COVID vaccines, arguing that patents were crucial for encouraging companies to continue pushing ahead with new research.

The US, the EU, India, and South Africa agreed on a provisional deal to back a limited waiver of patent rights in developing countries on March 15, ending an 18-month deadlock in negotiations.

The waiver would allow local manufacturers in developing WTO member countries to produce local versions of COVID vaccines without permission from patent owners.

All member countries of the WTO, including Germany, must approve the deal before it can be implemented.

The provisional deal reached is far more limited in scope than the original proposal submitted by South Africa and India at the WTO in October 2020.

It would only apply to developing WTO member countries that accounted for 10% of global COVID vaccine exports. On top of that, the waiver wouldn’t cover technology transfer and trade secrets.

Scholz, speaking at a conference, said transferring vaccine production facilities to Africa would be a better way of making vaccines accessible in emerging economies.

Germany had previously voiced opposition to vaccine waivers in 2021.

In May 2021, the German government said the waiver proposal would have “significant implications for vaccine production as a whole”.

It added: “The limiting factors in the production of vaccines are the production capacities and the high-quality standards and not patents.”

Arvin Patel, former CEO of non-practising entity Intellectual Ventures, has joined Nokia as its head of multimedia patent licensing business, it emerged this week.

“After an incredible two years at Intellectual Ventures working with a world-class team, I'm moving on to lead Nokia's multimedia licensing business,” he wrote on LinkedIn this week. “It's been a tremendous ride and I look forward to this exciting new journey.”

Patel has overseen the research and development and IP operations of several leading global companies, including TiVo, Technicolor, and IBM.

At Intellectual Ventures, Patel headed the commercialisation strategy and execution, business development, and partnerships for the firm’s patent portfolio.

Before that, he oversaw TiVo’s portfolio of approximately 6,000 patents worldwide.

Patel is a leading voice in the multimedia industry and has over two decades of experience in running a licensing business.

Aside from supervising licensing and investment strategies, he is skilled in handling complex patent litigations.
Nokia’s IP licensing business is one of its most lucrative businesses and fetched the company an operating profit of $1.3 billion in 2021.