Friday, 9 July 2021

Culture and Trade Marks

Author WaynaQhapaq  Public Domain Wikipedia Commons  

Jane Lambert

Yoruba is a language spoken by a large number of people in Nigeria and neighbouring states of West Africa.  It is also the collective name of the people who speak that language.  Between the 13th and 15th centuries, it was the home of a brilliant civilization centred on Ife that produced art of exceptional beauty an example of which appears in the photo above.

When it was discovered that an English company called Timbuktu Ltd, had registered the word YORUBA as a trade mark for a wide range of goods and services there was an outcry on Twitter.  Many people of Yoruba heritage and others were hurt and I commented on their reaction in Traditional Knowledge and Trade Marks in NIPC News on 30 May 2021.  A few days later the Intellectual Property Law Association of Nigeria invited me to speak at a webinar on the topic that they had organized on 2 Jan 2021 and I prepared The UK YORUBA Trade Mark presentation for the discussion.

Although the issues were different I was reminded of the Yoruba controversy when I read that the Welsh Language Commissioner had criticized the Intellectual Property Office for registering SNOWDONIA as a trade mark for a large English clothing retailer but not registering ERYRI for a small Welsh clothing manufacturer (see Language commissioner criticises decision to not grant Welsh trademark 7 July 2021 Nation Cymru).  The story was also pointed out to me at different times by two individuals who are prominent in Welsh economic development who could not be described as partisan or reactionary but I detected the same hurt in Wales as there had been in Nigeria.

I was asked for an explanation which I can't give as I am not privy to the discussions between any of the parties to the dispute and the Intellectual Property Office but I can state the law.   One of the grounds upon which a trade mark can be refused registration under the Trade Marks Act 1994 is that it consists exclusively of signs or indications which may serve, in trade, to designate the geographical origin of goods or services (see s.3 (1) (c)).   That may have been the ground upon which the Welsh clothing company was refused registration.  However, that prohibition is not absolute.   There is a proviso that a trade mark shall not be refused registration by virtue of paragraph (c) above if, before the date of application for registration, it had in fact acquired a distinctive character as a result of the use made of it.  

I made a search of SNOWDONIA on the Trade Mark Registry website and found a very large number of registrations ranging from "Rubber Boots" by J.D. Williams & Company Limited from 8 April 1954 under trade mark number UK729050 to ice cream by Loseley (Manufacturing) Limited from 9 Oct 1998 under trade mark number UK2179272. Both J D Williams and Loseley are big companies that advertise their goods extensively so I guess that they would have persuaded the examiner that they fell within the proviso. 

I also made a search of ERYRI and found that the word had been registered in combination with other words or devices ranging from Hafod Eryri for education and exhibition services all relating to National Parks cultural activities and the provision of food and drink and temporary accommodation by the Snowdonia National Park Authority to Eryri Snowdonia Gin.

In both Nigeria and Wales, it was felt that the law ought to be changed. Many in Nigeria and elsewhere have expressed the view that nobody should be allowed to register the name of a people, language and proud and ancient civilization as a trade mark. That would probably require a diplomatic conference. In Wales, there has been a drive to dispense with English names for Welsh geographical features even when they are over 1,000 years old. The registration of Snowdonia but not of Eryri has been seen by many as a gratuitous slight. While that is unlikely to have been the IPO's intention it is a sentiment of which legislators should take note. It is a topic that a Welsh law and innovation network could usefully consider.

Anyone wishing to discuss this article may call me during office hours on +44 (0)20 7404 5252 or send me a message through my contact form.

Saturday, 12 June 2021

"Where the Coffee is strong, and the Company has the Sparc"



 







Jane Lambert


On Wednesday, Pryderi ap Rhisiart, the managing director of M-SParc (the Menai Science Park) posted the following message to Linkedin:
"Gwerth Cymuned // Value of Community
Braf cael brecwast gyda’n tenantiaid am y tro cyntaf ers dros flwyddyn a diolch iddynt am gefnogi a chreu cymuned yn M-SParc. Rhaid dweud mod i wedi colli hyn yn fawr, er bod y cyfnod wedi bod yn brysur ac yn arbennig o dda o ran arloesedd bu i mi gollo’r ymdeimlad o gymuned yn ystod y cyfnod clo. Dyma ofod pwysicaf y Parc, ble mae’r coffi’n gry a’r cwmni’n dda. Dwi’n edrych ymlaen i’ch gweld chi yma!

Great to have breakfast with our tenants for the first time in over a year and huge thanks to them for supporting and creating a community at M-SParc. I must admit that l’ve missed it, although lockdown has been incredibly busy and particularly good in terms of innovation, I lost the sense of community during the period. This is the most important space in the Park, where the coffee is strong, and the company has the sparc. I'm looking forward to seeing you here!"
The headline "Value of Community" resonated with me because I had visited Nant Gwrtheyrn earlier that day.  It is now the home of the National Welsh Language and Heritage Centre but it was once a port for the export of granite "setts" or slabs.  There had been strong demand for granite throughout the 19th century as it had been used for cobblestones.  Several hundred workers had been employed in the extraction, dressing, loading and transportation of the mineral. Most of those workers will have married and brought up children in Nant Gwrtheyrn,  There was a school for those children and a chapel for Sunday worship and the big milestones of life such as baptisms, weddings and funerals.  

The community at Nant Gwrtheyrn declined in the first half of the 20th century.  The last visit by a minister to the chapel took place in 1914.  The school closed in 1948.  The last family left the port in 1949.  The reason for the decline is that the world's highway authorities stopped using cobbles in road surfacing.   There are still a few cobbled streets and lanes here in West Yorkshire.  It is very uncomfortable to drive over them and I worry about my suspension whenever I do.  The growth of motor traffic inversely diminished demand for granite setts  Much the same happened to slate extraction as ceramic tiles and other materials began to be used for roofing.  In the South of Wales as in my part of England, steel making and coal mining also began to decline.

Wales contains areas of outstanding natural beauty which has attracted visitors from every part of the world. That has brought employment and facilities such as swanky restaurants, specialist retailers and tourist attractions that local residents can enjoy as well as tourists.  But they have come at a price.  Last week I stayed at Criccieth which I have visited more or less every year of my life since 1951. Outwardly the town has changed very little over the last 70 years but the big change is in the talk on the streets and in the shops and cafés. Welsh was everywhere when I was a child and teenager.  Now I have had to look for it in order to practise conversations in that language.  Sure, every street has a Welsh name and every kid in Wales has to learn at least some Welsh even in English speaking schools.  But when you hear them talk to each other their conversation is almost always in English.

Now I find that very sad and before someone protests that I am as English as John Bull and this blog is sentimental twaddle let me explain why.  First, tourism leads to depopulation because falling prices encourage outsiders to buy dwellings that locals can no longer afford.  These properties are unoccupied for much of the year.   Even if the new owners move to Wales they bring their language with them. This is not confined to Wales.  The same trends are to be found in the Peak District, Dales and Moors of Yorkshire.  It is also happening in the Spanish Costas, Bali and the Caribbean.

If Welsh ceased to be used in everyday business the loss would not be confined to Wales.   The North of England and Southern Scotland are sometimes referred to as the Hen Ogledd.   Welsh or a language very closely related to it was spoken there for many hundreds of years. There are still reminders in place names such as Pen-y-Ghent for one of the highest points in the Pennines and shepherds' counting systems.   Modern Welsh links to that time.

So on seeing Mr ap Rhisiart's post, I congratulated M-SParc and its tenants on their resilience during lockdown and their emergence.  He responded by thanking me for my congratulations and commending my contribution to building an ecosystem for the M-SParc community.  That's certainly my hope and my intention.  The laws that protect investment in innovation and creativity are complex.   Inventors and entrepreneurs need specialist professional advice and representation when protecting their brands, designs, innovations and creativity, raising funds for research and development and licensing their products and services.   Events like our webinars on World IP Day introduce M-SParc's tenants to such expertise.

M-SParc is an initiative of Bangor University.  The University was partially funded by small donations from working people across North Wales.    On the day that the University (then known as the University College for North Wales) opened in 1884, there was a procession of about 3,000 quarry workers who  had donated £1,200 to its formation (see "Early Years" in the Wikipedia entry on the University).  There is, therefore, a direct link between M-SParc and the mining and quarrying and other communities of which everyone connected with it should be very proud

Anyone wishing to discuss this article (though please not today as I am still in Wales) can call me on 020 7404 5252 or send me a message through my contact form. 

Monday, 17 May 2021

Supporting Innovation and Creativity in North Wales

Jane Lambert

 








I have just started a new LinkedIn group called "ERGC/NWIP". "EDGC" is short for "Eiddo Deallusol Gogledd Cymru" which means "North Wales Intellectual Property".  I shall not insult readers' intelligence by telling them what the letters "NWIP" stand for. This new LinkedIn group is intended to be a forum and resource for everyone who is interested in innovation and creativity in North Wales in any capacity.  

Both the name of the group and its logo are provisional.  I am no graphic designer or branding expert. If anybody has a better idea for a name or logo I am open to suggestions.  I took the photo of the countryside near Caernarfon from the castle battlements under a lowering sky on a typical August day.  

The idea of a LinkedIn group is not mine but Sean Thomas's.  Sean is a patent attorney and inventor who was born and brought up on Anglesey and holds a degree from Bangor University.   He suggested the group at a seminar at the Menai Science Park which I chaired on 20 Sept 2019 (see Building an Enterprise Ecosystem on Anglesey 25 Sept 2019).

I was prompted to set up this group by an enquiry about trade marks from a company that already knew a lot about intellectual property,  It had previously instructed a patent attorney who used to practise in North Wales but has now retired to Scotland.  I also saw a report in the North Wales Chronicle about an project that combines artificial intelligence with drone technology that reminded me of the Welsh aviation pioneer William Frost who filed his own patent for a flying machine that he had invented in 1894 (see In William Frost's Footsteps 15 May 2021 LinkedIn and Patent Design and Trade Mark Filings in Wales  28 Nov 2019).  

The thought that crossed my mind was whether Frost would be able to access specialist IP advice if he were alive now.   He lived at Saundersfoot which is over 90 miles from Cardiff and Newport where most of the expertise in Wales on IP is concentrated.  Not a lot has changed in that regard since 1894.   

A LinkedIn group could help.  It is a great place for making contact with folk with skills and connections that you need. It is also a great place for gathering resources.  Every time I publish an article, deliver a presentation or even see an article that could be of value to knowledge-based businesses in North Wales I shall mention it to the group and encourage others to do the same.  At present most of those articles will be in English because I started learning Welsh from an online course only last summer.  I shall try to contribute in Welsh as well as English as I master that language. 

Anyone seeking more information about the group can visit it at https://www.linkedin.com/groups/9060289/, I shall gladly answer enquiries through LinkedIn or by phone on 020 7404 5252 during normal office hours.

Tuesday, 11 May 2021

Gogledd Creadigol

Caernarfon from the Castle Battlements
© 2018 Jane Lambert: all rights reserved 

 














Jane Lambert

Last month I was privileged to take part in a short webinar organized by Gogledd Creadigol (Creative North Wales) on Copyright Licensing and ICT.  Gogledd Creadigol describes itself as a voice for the digital creative industries of North Wales at the centre of "the creative corridor from Dublin, through north Wales to the Northern Powerhouse region."

The strength and diversity of the creative sector are recorded in the 2018 North Wales Creative Audit.  The region's assets include the University of Bangor with its Applied Design Centre. Wrexham Glyndwr University with its Creative Arts Research Centre, the Pontio Arts and Innovation Centre with its FabLab and Bryn Terfel Theatre and the Menai Science Park which hosts Ffiws and works closely with Gogledd Creadigol.  According to Gogledd Creadigol's home page, there are over 1,100 businesses in the sector in North Wales which has helped to create 10,800 jobs paying an average of £711 each week.

Gogledd Creadigol works with Bangor and Wrexham Glyndwr Universities, the North Wales Economic Ambition Board and North Wales Business Council, the BBC and S4C, CREAD, RONDO and many other arts and business institutions.   In addition to my contribution, it has held several very successful event including Powering Up the Games Sector which I attended and thoroughly enjoyed.  Details of those events appear in the News section.

My contact at Gogledd Creadigol is Sofie Roberts of the Menai Science Park who can be contacted through its website and Linkedin.  Anyone wishing to discuss this article or the creative industries generally may call me on 020 7404 5252 or send me a message through my contact page.

Sunday, 25 April 2021

Menai Science Park's Contribution to World IP Day 2021

Author  Jonathan Calugi  © 2021 WIPO, all rights reserved Licensed courtesy WIPO



 Jane Lambert

For the last 2 years, the Menai Science Park has hosted Wales's main contribution to World Intellectual Property Day (see World IP Day 2021: "IP & SMEs: Taking your ideas to market" 21 Jan 2021). Emily Roberts and I have been discussing this year's contribution since Autumn and we hope it will be the best ever.

Each year, World IP Day has a different theme.  The theme for 2021 is IP & SMEs: Taking your ideas to market. It could not be more appropriate for the Menai Science Park because that is what it does all through the year.  Making full use of the park's expertise and that of its tenants, Emily had invited a panel of world-class experts to discuss this year's theme in an online webinar starting at 12:10 and ending at 13:50 tomorrow.

The speakers will be 


Time

Speaker

Topic

12:10- 12:15

Jane Lambert
Barrister

4-5 Gray’s Inn Square

Introduction and Welcome - Cyflwyniad a Chroeso


12:15- 12:30

Andrew Davies Intellectual Property Office

IP and Funding for Growth

12:30 -12:45

David Wooldridge
Welsh Government Innovation Team

Welsh Government Assistance for Startups and SME

12:45-13:00

Alison Orr
Inngot

Valuing startups; intellectual assets

13:00 -13:15

Mark McGowan
BIC Innovation

Arranging funding for startups

13:15- 13:30

Andrea Knox
Knox Commercial Solicitors

Due Diligence and shareholders agreements`

13:30 -13:45

Steve Livingston
IP Tax Solutions

Tax incentives for startups and SMR

13:45 -13:50

Jane Lambert

Thanks and Closing Remarks - 


If you would like to attend this event, please register here.

If this webinar is successful we hope to hold subsequent ones on scaling up the business covering angel and private equity investment and Stock Exchange flotation later in the year possibly in cooperation with a Wales law and innovation network on the lines of the Scottish Law and Innovation Network (see Does Wales need a Law and Innovation Network? 14 April 2021),

Anyone wishing to discuss this article or any of the topics arising from it may call me on +44 (0)20 7404 5252 or send me a message through my contact page.

Tuesday, 20 April 2021

Wales Law and Innovation Network

Llewellyn the Great

























Jane Lambert

On 14 April 2021, I asked: "Does Wales need a Law and Innovation Network?"  The answer was a deafening yes for all the reasons set out in my article and more. However, as I also said in my article, such a network will not come into existence of its own accord.   We need an initial event to launch it.

As it happens, an important anniversary is coming up.  On 15 June 1215, Prince Llewellyn the Great extracted important concessions for the governance of Wales from King John of England.  I can think of no better way to celebrate that event than by holding the first meeting of the Welsh La\w and Innovation Network.

The event will take place online.  It will begin at 16:30 with a talk from me on Welsh geographical indications after Brexit and finish with a short business meeting at which I hope we shall secure general support for the project and some volunteers to prepare proposals for its mission, governance, funding and initial activities.   We aim to finish by 18:00.   If you want to attend you can sign up here

Anyone wishing to discuss this proposal is welcome to call me on 020 7404 5252 during office hours or send me a message through my contact form.

Monday, 19 April 2021

Copyright Licensing and Information and Communications Technology


 














I am delighted to have been invited to contribute to a short webinar on Copyright Licensing and ICT hosted by Creative North Wales and North Wales Tech on Wednesday 21 April 2021 between 15:30 and 16:00.  The other contributor will be Carwyn Edwards of North Wales Tech, He is a systems architect and software engineer.

Copyright is defined by s.1 (1) of the Copyright Designs and Patents Act 1988 as 
"a property right which subsists in accordance with this Part in the following descriptions of work-- 
(a) original literary, dramatic, musical or artistic works, 
(b) sound recordings, films or broadcasts, and 
(c) the typographical arrangement of published editions."
Unlike a patent, trade mark or design there is no need to register a copyright with the Intellectual Property Office or any other government department.  The only conditions for the subsistence of the right are that it should be created by a citizen or resident of the United Kingdom or some other state with which the government has concluded an agreement to protect the works of British nationals. Since most countries of the world are party to the Berne or Universal Copyright Conventions, that is pretty much everyone.  By virtue of those Conventions the books, broadcasts, buildings, choreography, compositions, computer programs, films, plays and sound recordings of British artists, authors and publishers are protected automatically everywhere,

Those rights last a very long time.  In the case of an artistic dramatic, literary or musical work copyright subsists for the life of the author plus 70 years.  Thus, copyright still subsists in the wedding photo of Dylan Thomas taken in 1937. It came as a nasty surprise to the owner of a website advertising holiday cottages in Southwest Wales who had used the photo to underscore the region's associations with that great literary figure  (see Pablo Star Media Ltd v Bowen [2017] EWHC 2541 (IPEC) (13 October 2017)).

The consequences for infringing copyright can be draconian.  In addition to compensatory damages for the depreciation of the value of the copyright as a thing in action, a court can award additional damages under s.97 (2) of the Copyright, Designs and Patents Act 1988 where the justice of the case so requires or art 13 of the enforcement directive (Directive 2004/48/EC on the enforcement of intellectual property rights),.  In some circumstances, an infringement of copyright can be a criminal offence carrying heavy prison sentences and unlimited fines.  Even that is not the end of the story because the photo of Dylan Thomas was protected in the Republic of Ireland by Irish copyright law and in the USA by the Copyright Act of 1976  The unfortunate holiday cottage website owner faced demands for massive statutory damages that are available in those countries.

Most of the creative industries, artists and their publishers regard copyright as a very good thing.  Many of them have established organizations known as collecting societies that sell licences for the performance or other use of their members' works.  Pubs, cafés, restaurants, retailers and other businesses that pipe muzak to the public often display decals with the initials "PRS" which shows that they have been licensed by the Performing Right Society and the Mechanical Copyright Protection Society to play such music. Most of those organizations have agreements with collecting societies in other countries so the works of British artists and publishers are protected around the world and those of other countries are protected here.   Failure to obtain such licences and pay the licence fee can lead to litigation or worse.

In contrast to other creative industries, there has been a measure of ambivalence towards copyright and other intellectual property rights in the computer industry.  While many have been quick enough to asset their rights, others regard it as an unwelcome interference with their work.  

Until the early 1980s, nobody paid much attention to intellectual property in software because there was no way of copying software. In the very early days of computing, software was bundled with hardware. Even after unbundling software was recorded on very bulky media such as punch cards or later heavy magnetic drums the size and shape of fruitcakes. Programmers tended to share handy little programs for calculating dates and similar tasks.  That was the original meaning of "freeware" and it was an issue in Ibcos Computers Ltd v Barclays Mercantile Highland Finance Ltd and others  [1994] FSR 275 as late as the early 1990s.

The coming of personal computers in the early 1980s  changed all that.  Applications could be distributed on floppy discs or even online.  There was for a time some doubt as to whether copyright could protect software but the Copyright (Computer Software) Amendment Act  1985 settled such uncertainty in the UK.   As a result of this legislation and advances in technology informal collaboration between programmers was no longer possible.  

It was in response to such challenges that the Free Software Foundatiion was established in the early 1980s. It promoted mass collaborations such as the GNU project that enables users to run, copy, distribute, study, change and improve their software.  The Foundation was joined by the Copyleft movement from which Prof Lawrence Lessing established Creative Commons.  In the last 20 years, there have been many other projects that have enabled copyright materials to be made available to the public free of charge. Some are operated by national governments such as Open Government licence in the UK.

Carwyn and I have only 15 minutes each on Wednesday, .  I shall stick to the legal issues and Carwyn to the technical ones.  That is not enough time to explore the topic in any depth but if the talk goes well we may hold another longer one with experts from the industry and academia.

Anyone wanting to sign up for the talk should register here.  Those wishing to discuss this article or its contents should call me on 020 7404 5252 during office hours or send me a message through my contact form.