You can now book your place at the 37^th MARQUES Annual Conference, which takes place in Berlin, Germany form Tuesday 19 to Friday 22 September 2023.

The theme of this year’s Conference is “In Brands We Trust: The Next Frontier” and sessions will address issues such as how diversity and the cultural environment will affect brand authenticity

There will be panel sessions on topics including piloting brands, the metaverse, people power, brands in a time of crisis, e-commerce, and next generation content.

Key activities for those interested in design law include a workshop hosted by the MARQUES Designs Team on the new EU design law and its practical impact and a session on recent CJEU and EU General Court trade mark and design case law.

Social events include a Welcome Reception (Tuesday), Cultural Reception at the Arminius Markthalle (Wednesday) and Gala Dinner (Thursday). There will also be a choice of tours on Thursday afternoon.

Registration is now available for both MARQUES members and non-members. There is an Early Bird discount available for MARQUES members until 30 June, so it may be worth joining MARQUES to take advantage of that.

There is a non-accommodation option and modular registration are also available.

Berlin is an iconic city with a unique history and MARQUES looks forward to returning there for the 37^th Annual Conference. We hope you can join us!

WIPO is hosting a webinar on 11 May on multi-factor authentication in the Hague System online services.

Multi-factor authentication is a new system that will add security when logging in to file and application, submit a change request or renew an international registration.

The webinar will include an explanation by WIPO specialists and a live demonstration. It is recommended for anyone who files and/or manages international design registrations through the Hague System, which now covers over 90 countries.

The webinar is free and takes place on 11 May 2023 at 16.00 Geneva time. You can find out more and register on WIPO’s website here.

The MARQUES Designs Team hosted a webinar on recent CJEU rulings and their practical implications on 3 May.

The webinar was presented by Eva Maierski of Lubberger Lehment in Germany and Hanna Held of Held IP in Germany.

The speakers started off by summarising the key changes proposed as part of the EU design law reform, including changes in terminology and definitions, representation, 3D printing, fees, amendments and the new repair clause.

They then discussed three recent CJEU cases. Eva looked at the dispute between Ferrari and Mansory over unregistered design protection for component parts of complex products. She noted that the CJEU judgment (Case C-123/20) had been a landmark decision that appeared to open up options for unregistered Community designs.

In a poll of webinar attendees, 65% thought that Ferrari’s design should be protected following the ruling. However, Eva said that, somewhat surprisingly, the German courts have ruled that the design is not protected; detailed reasons for the ruling are awaited.

Hanna analysed the Monz judgment (Case C-472/21) concerning bicycle saddles and the visibility requirement and said the Court had given a broad interpretation of “normal use”. Based on this decision, 58% of the audience voted that the design should be found to be valid.

The final case covered was the recent judgment concerning a design for a paper dispenser (Case C-684/21), which concerned technical function and the DOCERAM guidance. In the audience poll, 63% of people expected the design to be found valid by the national court.

The speakers also discussed how the proposed reforms would impact each of the cases, and took questions from the audience on some of the issues raised.

Anyone who registered for the webinar can log in to access the resource pack, including the recording and slides, on the MARQUES events page – where you can also find details of all future MARQUES events.

In the latest article on artificial intelligence (AI) and IP by the MARQUES Cyberspace Team, Michael Zoebisch discusses copyright, creativity and AI.

In 1998, international DJ WestBam released the song 'Save the Robots', which became the official anthem of that year's big techno party called Mayday. A couple of decades later, those robots could easily have written this (house) song and probably even some of the playlists of famous DJs at that party. More precisely, such software can now 'create' and could have programmed a list of sounds to make that tune. We call this software artificial intelligence (AI) and every day we can read the amazing news about AIs such as ChatGPT and DALL.E.

Of course, Mr Maximilian Lenz (aka WestBam) enjoys copyright protection for his song and many others he has created. But what if an AI had created the song first and the robots had asked for help? Is there any protection at all for those songs or are they free to use?

Can AI creations be protected?

In most jurisdictions, including Germany where WestBam was born, the act of a human being is required to create a work of art protected by copyright (Section 2 Subsection 2 of the German Copyright Act requires a personal act of creation). The same applies to the USA (US Supreme Court of 27.3.1991, Feist Pubs. Inc. V. Rural Telphone Svc. Co., Inc), Australia (Federal Court of Australia of 2.3.2021, Acohs Pty Ltd. V. Ucorp Pty Ltd.) and China (Nashan District People’s Court of December 24, 2019, Shenzhen Tencent v. Shanghai Yingxun). However, there are still questions as to whether and under what conditions AI-generated and/or AI-implemented inventions can be protected. In other words, if we dance on the outcry of help made by the robots, it would be free to use, while the work would be protected all over the world if a human created the same song?

You do not have to look closely at what AI is now capable of creating to feel uneasy about this. There is a project by Deutsche Telekom in Germany where an AI is composing the end of the 10th symphony that Ludwig van Beethoven was unable to finish. The first results are astonishing. In the Netherlands, an AI is continuing the work of master Rembrandt, called 'The Next Rembrandt’, creating works of art so close to the originals that experts have difficulty distinguishing them from paintings by Rembrandt himself. Christie’s auction house sold the painting 'Portrait of Edmond Belamy' for US$ 432,500. Nothing special, you might say. But the painting was created by a computer program.

Humans versus AI

To save time and money, the music in computer games is often created by AI, as are the beautiful designs of landscapes (such as those provided by Unreal Engine 5), people, and even whole scenes. An AI wrote a chapter of Harry Potter, and while some fans of the heptalogy were disgusted, others were very surprised by the creative result.

However, we humans have largely denied robots their copyright. Why do we feel different when an AI creates a work of art that touches us emotionally and even puts itself in Beethoven’s shoes, while we do not care how many times a computer program replies to a query, if we can get the sneakers cheaper? Maybe it is because AI is getting closer to us humans, and that feels disturbing. Creating and being creative was something very human, as far as we can remember, and machines were not able to be creative until very recently.

Other means of protection

If the work of an AI is not protected by copyright, what other means of protection are available? There is always the possibility of registering a particular shape as a design or trade mark. In particular, images or sounds could be protected in this way. Unfair competition law might also be a direction to think about. But these rights require applications and – unlike copyright protection, which comes into existence with the act of creation – are costly. In the UK, there is copyright protection for work created by an AI (Section 178 of the UK Copyright, Designs and Patent Act of 1988); if you are in the EU, the Database Directive might help, a directive that has been widely criticised, and the AI boom might give it a second (some might say any) life. But all these legal bases are not designed for the works of AIs, except for the regulations in the UK.

Time to rethink

So, it may be time to rethink copyright (and, as a next step, patent law) when it comes to AI. We cannot give an AI the right to copyright since such software cannot be the subject of rights and obligations. This is reserved for humans in almost all legal systems. An object cannot itself be the holder of rights. Therefore, if a software does not have its own consciousness and thus its own personality, which would justify qualifying it as a subject of (fundamental) rights, the AI cannot be the owner of the copyright.

But how is the situation to be assessed regarding the copyright owner of an AI? The creator of the software, i.e. the AI, certainly has a copyright. How will the investments of OpenAI and other companies be protected in the long term if the software itself may be protected, but not its results?

It would therefore be worth considering, as in patent law with the process patent (see Section 9 German Patent Act), whether the owner of the process should also be granted protection for the result. The owner of the rights to the AI could therefore have a derived copyright in works 'created' by the AI. It would thus be recognising a kind of derivative or indirect copyright that comes into play in these cases. This consideration is foreign to the system of most copyright laws, which all start from the basic idea of one’s own creation and creative effort. Nevertheless, it may be an idea that we will increasingly be dealing with in the years to come.

Maybe it is time to save them: the robots.

Michael Zoebisch is a lawyer and partner of rwzh Rechtsanwälte, Germany and a member of the Cyberspace Team.

Picture: Travelarz, CC BY-SA 3.0 PL, via Wikimedia Commons

Franz Gernhardt, Chair of the MARQUES Copyright Team, discusses an interesting recent copyright case in Germany.

A German Court ruled that a photograph of wallpaper is considered a reproduction of the copyrighted work on the wallpaper in accordance with Section 16 of the German Copyright Act.

In its decision on 18 August 2022 (available here), the Regional Court of Cologne applied the so-called “Zweckübertragungslehre”. According to this legal theory, only the necessary rights that are required for the specific use of a copyrighted protected work are granted when acquiring a work.

This specific requirement should always be taken into account when granting exploitation rights or licences to copyright protected works for Germany.

Background

The background of the case was that the defendant bought wallpaper with pictures of flowers on it from the plaintiff for €13.50 and placed them on the wall of his holiday apartment.

The defendant offered this apartment for rent on websites. To show other people the apartment, the defendant put pictures of his apartment on his website (see photo).

In these pictures you could see the wallpaper he bought from the plaintiff. The plaintiff sued the defendant for copyright infringement.

The Court considered the action was well-founded. The photographs are reproductions of the flower pictures on the wallpaper. The reproduction is at least given at the time, when the photographs were uploaded to the server to upload it to a website.

The defendant had no right to upload the photographs of the wallpaper to this website. He had neither an oral nor a written agreement nor conduct implying permission to do so. Also a very specific exemption to the German Copyright Act with respect to insignificant accessory work was not given.

Important decision

The decision is of particular importance as the Court held that the mere purchase of the photo wallpaper, in the absence of a contractual agreement, contains neither a licence (even implied) for the reproduction of the of the photo wallpaper in the form of a photograph nor for making it available to the public.

According to the “Zwecksübertragungslehre”, only the necessary rights for the use of a work are granted, which in the present case do not include the rights of reproduction and making available to the public on the internet.

For Germany, this means that rights holders and the acquirers of rights must very carefully review all possible rights and include in a contractual relationship all those that are required for the exploitation of the right.

Franz Gernhardt is Senior Counsel with Bird & Bird in Munich and Chair of the MARQUES Copyright Team.

The MARQUES Designs Team will host a webinar on EU design law on Wednesday 3 May from 15.00 to 16.30 CET.

The webinar is titled “EU Design Law: Front Kit, Monz, Paper Dispenser – what the most recent ECJ rulings mean in practice”.

The Monz (bicycle saddle) case will be discussed in the webinar

It is organised by the Designs Team’s Case Law Task Force and will be presented by Eva Maierski of Lubberger Lehment in Germany and Hanna Held of Held IP in Germany.

Topics covered will include the visibility requirement for parts of a complex product, the protectability of designs having a technical function as well as the protection of component parts of unregistered Community designs.

The webinar will also give a brief update on the status of the EU design law reform and on possible changes to jurisdiction that the reform may bring.

Registration is €100 (MARQUES members) or €135 (non-members) and can be made on the MARQUES website here.

Sign up now to ensure you don’t miss out!

Demand for international designs grew significantly in 2022, with 25,028 designs included in international applications – according to data published by WIPO.

The 11.2% growth compared to 2021 was driven by the accession of China on 5 May 2022 . Applicants from the country sought protection for 2,558 designs putting it in second place behind Germany. Italy moved up to third place, followed by the United States and Switzerland.

The top filer was Procter & Gamble with 687 designs in published applications, followed by Philips Electronics; Samsung Electronics (which was number one in 2021); Wenko-Wenselaar GMBH; and I Paleohorinos Fotistika.

Six of the top 10 filers were in Europe, two in Korea and one each in China and the US.

The increase in design applications in 2022 contrasts with other international IP rights: PCT filings grew by just 0.3% in the year, and use of the Madrid System for international trade marks fell by 6.1%.

Read more, and view an animation about the data, on WIPO’s website here.