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Using IP as security: key issues—checklist

Using IP as security: key issues—checklist This Checklist is drafted from the lender’s perspective, and it is designed to highlight the key issues to consider and steps to follow when using IP as security, such as to: • consider the nature of the IP right • consider the type of security • consider ownership, duration, and third-party rights • consider validity and maintenance of the right • value the IP right • consider associated rights and property • register the security at the appropriate registry For further information on taking or perfecting security over IP, see: • Practice Notes: Taking security over intellectual property rights, Taking security over intellectual property—practical points, Perfecting security over intellectual property rights and registering security at an intellectual property registry and Effect of registering security at IP registries on priority of security interests • Precedents: Assignment of intellectual property by way of security, Agreement for assignment of patent by way of security in pursuance of loan agreement: Encyclopaedia of Forms and Precedents (21(1)) [1172], Mortgage...

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Comparison tables for design protection available in the UK

Design rightsThe tables in this Practice Note set out the key differences between the various unregistered and registered design rights available in the UK, both before and after the UK’s exit from the EU.The design rights currently available in the UK are as follows:•UK registered designs (including re-registered designs and re-registered international designs)•UK unregistered design right (also known as ‘design right’)•supplementary unregistered design right (SUD)Each of the above rights differs in terms of qualifying criteria, scope and duration of protection. For more information, see the table below and Practice Note: UK registered and unregistered designs.Prior to Brexit, the UK designs regime was significantly harmonised with the EU regime.The Designs Directive (Directive 98/71/EC) harmonised the requirements for national registered design protection across the EU. It was incorporated into UK law through amendments to the Registered Designs Act 1949 (RDA 1949), which governs UK registered designs.However, UK unregistered design rights operate under a separate regime under the Copyright, Designs and Patents Act 1988 (CDPA 1988).Regulation (EC) 6/2002 established the registered Community design...

Doing business in: Poland

Doing business in: Poland Updated March 2023 Introduction The European Commission forecasts that Poland's GDP growth this year will be lower than the average in the EU. This will happen for the first time since Poland joined the EU. According to a preliminary estimate by the Central Statistical Office, GDP in 2022 was 4.9% higher in real terms than in 2021, compared to an increase of 6.8% in 2021 (in constant previous year's prices). However, GDP in the fourth quarter of 2022 grew by 2% year-on-year. This was by far the weakest reading in all of 2022. Quarter-on-quarter, the Polish economy contracted by 2.4%. In summary, the weaker performance of the economy was the result of a decline in consumer spending, caused by both a drop in real wages and an increase in interest on loans, while the economy was held in shape by investments and exports. Economists predict that the Polish economy will continue to decelerate this year. The business environment Poland’s legislative power is...

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Manufacturer/sales distributor (A) with UK/EU design registrations and marketing rights worldwide demands a UK reseller of similar products (B) to cease and desist from infringing A’s IP rights and requests other remedies including details of B’s manufacturers, suppliers and distributors. What defences and solutions are open to B, an unintentional infringer, if it saw design product similarities but understood the non-EU manufacturer had all necessary permissions, rights, licences, etc to manufacture the goods B bought ‘off the peg’ for resale?

Manufacturer/sales distributor (A) with UK/EU design registrations and marketing rights worldwide demands a UK reseller of similar products (B) to cease and desist from infringing A’s IP rights and requests other remedies including details of B’s manufacturers, suppliers and distributors. What defences and solutions are open to B, an unintentional infringer, if it saw design product similarities but understood the non-EU manufacturer had all necessary permissions, rights, licences, etc to manufacture the goods B bought ‘off the peg’ for resale? This Q&A assumes that B’s reselling activities are limited to the UK. UK Registered Design Rights The putting on the market, importing and/or using of a product incorporating a design which does not differ in its overall impression from a UK Registered Design will, absent any defence, infringe a UK Registered Design (sections 7 and 7A of the Registered Designs Act 1949 (RDA 1949)). All remedies available for infringement of other IP rights are available to Registered Designs. In proceedings for infringement of a UK Registered Design, ...

In what circumstances is a design 'made available to the public' under the Community Design Regulation?

In what circumstances is a design 'made available to the public' under the Community Design Regulation? When is a design made available to the public? Under article 7(1) of the Council Regulation (EC) 6/2002 on Community Designs, a design is made available to the public when it has 'been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed…except where these events could not have reasonably become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community. The design shall not, however, be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality'. The wording of the Designs Regulation with reference to 'the circles specialised in the sector concerned' suggests that the disclosure of the design should be to an audience greater than one person or one undertaking (potentially, if not in actual fact). This is in...

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IP rights and the new EU Packaging Regulation

IP analysis: Valérie Corbiau, senior Trade mark and Design attorney, and Michael Shaw, partner, at Marks & Clerk LLP review the new EU Regulation on Packaging and Packaging Waste from an IP rights perspective. The EU is now close to finalising new legislation on packaging and packaging waste, placing an obligation on manufacturers and importers of products in the EU to minimise the volume and weight of product packaging, and to reduce packaging waste. In the interests of environmental sustainability, any product packaging that does not comply with these requirements is prohibited. The measures aim to increase the use of recycled content in packaging, especially in plastic packaging where the uptake of recycled content is very low, as well as higher recycling rates for all packaging. The requirements apply both to the composition and volume of the product packaging. By 1 January 2030, the manufacturer or importer must ensure that any packaging placed on the market is designed so that its weight and volume is reduced to the minimum necessary...

Res Judicata offers IP rights refuge post-Brexit (Praesidiad & Guardiar v Zaun)

IP analysis: This case is relevant to defending UK-cloned IP rights created on IP completion day (31 December 2020). The defendant previously attempted to invalidate the first claimant’s RCD before the European Union Intellectual Property Office (EUIPO). The General Court then held the RCD valid and denied the defendant permission to appeal to the Court of Justice. Those EUIPO proceedings began pre-Brexit and concluded post-Brexit. Thereafter, the parties re-commenced their previously stayed UK court proceedings. In those proceedings, the defendant then filed a counterclaim against the claimants for invalidity of the RCD and its newly registered UK clone (re-registered design). The claimants applied to strike out the defendant’s counterclaim, relying on (1) Article 86(5) of Regulation EC 6/2002, which prevents invalidity counterclaims against an RCD where the RCD’s validity has already been determined in a final EUIPO decision, and (2) the English law principles of res judicata and abuse of process. The High Court held in favour of the claimants. Written by Lakmal Walawage, partner and Head of Intellectual Property,...