Issue #2 – 2019

GUEST EDITORIAL PREFACE

Food is a subject that all of us can relate to. While reading this you might be thinking about where to go for lunch or what to make for dinner. Maybe you remember those perfectly matched tastes of your favorite dish–a dish that might have been composed by a star chef or by your own mother. Food, and well-matched drinks, is truly a source of great value and enjoyment. At the same time we all know that everyone does not have sufficient access to food, even though few of us can fully comprehend the individual and global tragedies of starvation. Developed nations spend a decreasing share of their income on food. In the United States the share has decreased from roughly 25% of disposable personal income to roughly 10% over the last century.1 In Sweden, the share has dropped from roughly one third in the 1950s to roughly 17% today.2 So while some of us spend a decreasing share of our income on food3 due to a combination of personal income growth and agricultural productivity growth, others struggle to find enough to eat in order to survive. In 2018 an estimated 820 million people did not have enough to eat, according to WHO.4 There are other challenges as well. While the productivity growth of the industry has on the one hand helped to lead the way out of poverty, it has on the other hand been enabled by the use of pesticides, antibiotics, and additives in agriculture and food production, with consequences for nature, wildlife, antibiotics resistance, and health. The productivity growth has also led to an increasing consumption of what has historically been expensive food, such as beef meat, which is related to a relatively large CO2 footprint. And despite all of this, local farmers struggle to compete and reap sufficient returns due to price pressure, while consumers struggle with food-related health issues such as obesity, type 2 diabetes, and increased risks of various types of cancer. Thus, while food is the source of many valuable consumer experiences, it is also related to large individual, business, and societal challenges, meaning that there are ample opportunities for improvement on various levels. For example, Stanford Food Design Lab conducts research and teaching to address the interaction between food and human via technology and innovation. In particular, the lab explores innovative ways of reducing food waste and negative environmental impact by introducing the concept of upcycling, or in other words creating quality products from what was previously considered waste. Now, even though food is clearly a relevant subject area for society at large, is it really relevant for this journal focusing on intellectual property (IP)? We believe that it is. For example, California-based Impossible Foods has several patents on its plant-based Impossible Burger and the related production process. The company has researched what makes meat taste like meat, and been able to invent around the actual use of animal products and replaced it with plant-based ingredients. After trying it at the faculty club at UC Berkeley we can confirm that the result is a very tasty and meat-like burger. Investors seem to agree, with a $300 million funding round this spring, partly driven by the company’s IP position, which thereby also functions as an enabler of the transition from meat-based to plant-based food products. A more well-known case is Coca-Cola. Coca-Cola’s competitiveness is highly dependent on one of the most valuable trade secrets (the Coca-Cola formula) and one of the most valuable trademarks (with an estimated value of $63 billion in 20195), and it has maintained its competitiveness over decades despite several strong competitors and imitations. Some other examples are provided in this issue. The articles by Tsirtou and Sfetsiou both focus on the use of trademarks and geographical indications and their role for tracing the origin of products and goods, an issue that is of growing interest to consumers as a reaction to the increasing distance between consumers and food producers. These articles are focused on the cases of Cyprus (and halloumi cheese) and Macedonia, respectively. The article by van der Merwe takes a totally different approach, focusing on fine dining and asking the question if IP law offers protection for signature dishes and novel plating. He studies the case of the internationally acclaimed restaurant Alinea in Chicago, where Mike Beagle created a unique and edible balloon that quickly rose to fame on social media, in turn leading to several imitations. This issue is not only about food, however. The article by Ghidini examines the intricacies of IP law relating to products that are both useful and aesthetically beautiful, involving both design rights and copyrights. The article by Gerrish and Molander Skavlan analyzes the recent Digital Single Market (DSM) directive in the European Union and its implications for text and data mining, possibly inhibiting the European data science and artificial intelligence industry. Finally, the case note by Ljungblad covers the invalidation of European Union trademarks due to applicants having acted in bad faith. More specifically the case note describes a case involving the word mark ‘MONOPOLY’, (re-)filed by Hasbro. With this short appetizer we hope that we have raised your interest for the rest of this issue. Enjoy the read.

Marcus Holgersson & Soh Kim

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Sequential cumulation of copyright with protection of products of industrial design.

A critique, and an alternative proposal

– By Gustavo Ghidini –

Until the second half of the twentieth century, copyright protection of works that at the same time had a practical use and an aesthetic appeal was based on the premise of ‘separability’, meaning different sets of rules for protecting its aesthetic and utilitarian features. This premise was coherent with the typical mode of production consisting of artistic elements added to the functional ones. This approach evolved in a more organic functionalist conception of the aesthetics of material goods under the activity of industrial design, i.e. series production of objects for practical use, where functional and aesthetic profiles are merged into one. This rendered separate legal protection inherently problematic, but also resulted in negative impacts to competition. Against the currently dominant view of most interpreters and adopted by the European Court of Justice, I propose an alternative interpretation in the scope of EU law to allow for the parallel (but not cumulative) coexistence of the two types of protection, each with its own specific scope to be determined on the basis of the difference in the objective market use of the work of design, which could favour dynamic competition and ultimately benefit the majority of consumers.

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Food for thought

– By Regardt Willem van der Merwe –

The purpose of the article is to assess which areas of IP law, if any, and under which criteria, offer legal protection for signature dishes and plating arrangements that are identified and commonly associated with a specific chef or restaurant. The two main concepts explored in the article are: (i) the question whether food can be considered as art for purposes of copyright; and (ii) whether the avenue of trade dress as suggested by scholars in the U.S. hold equal promise under EU trade mark and design law. The outcomes within the respective spheres of copyright, trade mark and design law have proven in the affirmative; i.e. in principle protection is available for signature dishes and plating, subject to certain qualifications. However, it is found that potential IP right holders in the culinary industry elect not to acquire and/or enforce these rights. The question whether IP offers protection for signature dishes and plating remains answered from a theoretical point of view and legal certainty will only be achieved once the CJEU gives a decision on the matter – which in turn would only occur if the identified potential IP right holders start to litigate in an attempt to potentially enforce their rights.

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Unravelling the story behind the Intellectual property of Halloumi Cheese;

a ‘State Affair’ for Cyprus

– By Kalia Tsiourtou –

ABSTRACT

This article evaluates the intellectual property (IP) protection of Halloumi Cheese, as an authentic traditional product of Cyprus focusing particularly on trademarks (TM) and Geographical Indications of Origin (GIs). In examining the protection afforded under these two spheres, the challenges that the Halloumi cheese has undergone are analysed. The main purpose of this article is to untangle the confusion regarding the intellectual property (IP) of the cheese of Cyprus while establishing the current stage of IP protection of Halloumi and achieve a better suited ‘intellectual property protective scheme’ for the culinary product. The essentiality of this lies in its need to be valued and recognised properly for the benefit of Cyprus and Europe’s heritage.

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THE “MACEDONIAN” SAGA

– By Anna Sfetsiou –

ABSTRACT

Rights about the commercial use of the name“Macedonia” have been the object of an ongoing dispute between Greece and North Macedonia for almost three decades. The issue was partially settled on 12 June 2018, when both countries agreed upon the terms of the Prespa Agreement. However, despite representing a long-awaited improvement, core aspects of the commercial use of the name “Macedonia” as trade mark and geographical indication are yet to be discussed. Even though the Agreement states that North Macedonia is required to change the name of all the official government and government related institutions, there is still uncertainty about how private companies may explore the name and its association with their products. In such cases, the Agreement relies on future negotiations between the two countries, an issue further clouded by North Macedonia’s plea to join the European Union. Specifically in the case of commercial names, trade marks, brand names and all relevant matters, it also provides for establishing an international group of experts, with representatives from both countries and transnational organizations. As the negotiations unfold, the future is still unclear.

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European copyright law and the text and

data mining exceptions and limitations

– By Charlotte Gerrish and Anders Molander Skavlan –

ABSTRACT

The newly adopted European Union (EU) Directive on copyright and related rights in the Digital Single Market1 (DSM Directive) provides for text and data mining (“TDM”) exceptions for the first time at an EU legislative level. The TDM provisions are a step in the right direction, but the situation remains uncertain for innovators and researchers alike.2 The DSM Directive’s TDM provisions demonstrate the EU legislature’s lack of understanding of the technical realities of TDM, and the financial and contractual limitations which are faced by those performing such processes, especially companies etc. in the start-up phase. Through these provisions, the EU has made it difficult for valuable TDM output to originate from European-based operators. To drive innovation in the EU and further the commitment to the digital single market, it would have been more desirable for the EU to implement a broad, all-encompassing TDM exception, not been capable of being overridden3 nor subject to caveats, as is the case in other key innovative jurisdictions. By creating and maintaining a restrictive environment for TDM, which is often a key component of Artificial Intelligence (“AI”) and machine learning, the EU runs the risk of losing a foothold in a growing industry, and causing an exodus of key talent to other TDMfriendly jurisdictions. However, the TDM provisions contained in the DSM Directive are at least one step in the right direction and one can hope that future legislative development in Europe and a sensible approach by Member States will take place in the foreseeable future.

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The Monopoly case –

EUTM re-filings and the concept of bad faith

– By Sofia Ljungblad –

ABSTRACT

An European Union Trade Mark (EUTM) can be declared invalid if the applicant acted in bad faith when filing the trade mark application. The concept of ‘bad faith’ is not defined in the EUTM legislation, but the Court of Justice of the European Union (CJEU), has in several cases interpreted the meaning of bad faith and the concept is constantly evolving. On 22 July 2019, the Second Board of Appeal at the European Union Intellectual Property Office (EUIPO) delivered a decision in which the EUTM ‘MONOPOLY’ was partially invalidated (case No. R 1849/2017-2). Most importantly, the Board stated that the applicant acted in bad faith when re-filing an already registered word mark, for goods and services covered by its earlier EU registrations.

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