The EU-UK Trade and Cooperation Agreement (TCA) was convened between the EU and the UK, setting out some ‘preferential arrangements’ in some areas, including those with – trade in goods and services, digital trade, intellectual property, public procurement, aviation and road transport, energy, fisheries, social security coordination, law enforcement, and judicial cooperation in criminal matters, thematic cooperation and participation in Union programmes.

The agreement has been championed with a ‘level playing field’ and mutual respect for fundamental rights. In a nutshell, the TCA offers some potential free-trade benefits, representing an end to most aspects of the free market access that the UK previously enjoyed as an EU member state.

The economic integration between countries is nearly unmatched with the pre-Brexit era, however, the TCA goes beyond traditional free trade agreements and provides a solid basis for preserving our longstanding friendship and cooperation.

TCA was signed on 30 December 2020 and was implemented on 1 January 2021, coming into force on 1 May 2021. The agreement consists of three layers of agreements – ‘Free Trade Agreement’, ‘Close Partnership on Citizen’s Security, and ‘An Overreaching Governance Framework’.

Aftermath

It was predicted that the following main changes might occur in primary branches of IP – with the Brexit being effective– which have been proven right.

EU Trade Marks and Registered Designs

From 1 January 2021, EU trademarks (EUTMs) and registered community designs (RCD) severed from the UK. However, collaterally very similar UK trademarks and the UK registered designs were automatically created concerning UK trademarks and UK designs registries. The new cloned UK rights stepped into the shoes of previous UK trademarks or registered design laws, depicting filing, priority, UK seniority, and renewal dates of the original EU rights, etc.

The situation is slightly different for any applications for EUTMs and RCDs that have been pending as before or on January 1 2021. Those applications were not automatically considered for the UK, therefore applicants needed to file for application again in the UK, paying required fees; in case they required or needed to maintain the filing, priority, and UK seniority dates, it was that the condition that they must do so within 9 months (from January 1 2021).

Unregistered Design Rights

From January 1 2021, unregistered community design right (UCDR) is no longer available, especially when the question of the first disclosure in the UK comes into practices. Likewise, if the first disclosure of a design takes place in one of the 27 remaining Member States, the design will not be covered by UCDR in the UK. So, unless a design is made available to the public in the UK and EU simultaneously, there could be unauthorised copying of designs.

Patents

On the other hand, quite unlike other branches of IP, the protection of patents remained largely unchanged. Following the enforcement of laws in the UK, EU patents have, exactly the legal effect identical with the UK, which has been made effective by the UK Intellectual Property Office.

For both the UK Intellectual Property Office and the European Patent Office (EPO), applications can be filed directly with either body or can be made under an international patent application filed under the Patent Cooperation Treaty.

Not only that, the UK shall continue to be one of the 38 contracting states to the European Patent Convention and, if an application is filed with the EPO, on grant an applicant will be able to request validation in the UK as well as other countries of interest.

In addition to that, the UK would continue to be a member of the Paris Convention. Applicants of UK patents will still be able to subsequently claim the priority of that application for patent registrations in other countries, and vice versa.

Plans are still underway for the Unified Patent Court, which would enable proprietors of inventions to implement a uniform pan-European Unitary Patent covering most of Europe, incorporating a single court to hear and determine patent disputes on a pan-European basis.

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During mid-May 2021, the Biden administration announced that they would support the initiative of waiving the Trade-Related Aspects of Intellectual Property Rights (TRIPS) protection for Covid-19 vaccines. This notion, according to the government of many countries, would expedite vaccine production across the globe during the pandemic.

United States Trade Representative Katherine Tai mentioned this incident as an “extraordinary measure” for “extraordinary incident”. Now, the question is whether the relaxation of TRIPS rules for the production and distribution of Covid vaccines could ease off the situation, increasing the supply of the Vaccines whenever and wherever necessary.

The argument in favour of waiving TRIPS rules seems relevant to some extent. This movement started with the proposal by India and South Africa last year in the WTO. With the rise of the second variant in India, which may lead to a further rise of the second or third wave across the globe, rapid vaccination is being sought.

Brazil is also creating fear with Covid-spread, which may be worsened due to the South African variant. Meanwhile, 120 countries including France supported this notion, intending to spread the vaccination in the world.

Causes of the Waiver

There are likely interesting effects of this waiver. For instance, it could open up space for the rapid production to open up a space for the emergency use authorizations (EUA), which may be developed by pharmaceutical giants, such as, Pfizer, Moderna, AstraZeneca, Johnson & Johnson, and Bharat Biotech, etc. for the rapid production especially in developing and the Least Developed Countries (LDC).

Presently, most of the production is being carried out in high-income countries, whereas vaccine production in middle-income countries is being done through licensing and technology transfer agreements. However, simultaneously, according to some experts in this field, “the widest possible” accessibility to this possibility may be hindered with the motive of acquisition of the lion share from supply by the high-income countries.

Global Oppositions

While France is supporting the US notion, many EU leaders are expressing their doubts on the fulfilment of the policy, and they have condemned the US for not adequately exporting the jab. The proposal has been blocked by diplomatically influential and high-income countries, such as UK, Switzerland, Japan, Norway, Canada, Australia, Brazil, etc. Very importantly, it has been observed that the US is ensuring first that the country shall have sufficient doses before sending shots abroad, utilizing its legislation.

Few questions have been paved by this notice – are they appearing philanthropic as they are trying to show themselves as, while they haven’t yet exported a single dose of vaccine considering that they have an excess of the Covid doses? According to Emanuel Macron, the President of France, “100% of the vaccines produced in the United States of America go to the American market”.

Other Challenges

Pharma companies also opposed the US proposal. According to a few, for instance, Pfizer and AstraZeneca, the waiver may not be very effective since the elimination might “undermine the global response to the pandemic”. In a joint letter to Biden, according to them, the public may lose confidence due to this waiver regarding its safety.

Not only that, the necessity to share substantial questions may be impacted due to this step, rather than increasing production scale. Tech giant Microsoft, on the other hand, opposed this initiative, negating the waiver in the hands of middle-income countries like India, hinting up to retain a monopoly over vaccine technology, production, and distribution.

There are some other challenges as mentioned by The International Federation of Pharmaceutical Manufacturers & Associations (IFPMA). In addition to the questions of whether the patent restrictions may be lifted, there may include trade barriers, bottlenecks in supply chains, scarcity of raw materials and ingredients in the supply chain, etc.

With the scarcity of raw materials expediting very rapidly, many manufacturers from the middle and low-income countries need to rely upon specific suppliers and alternatives, while the US blocked exports of critical raw materials using the Defense Production Act, 1950.

The Likely Future Steps

It’s very difficult as of now to predict what we can see in the future. However, without the consent of EU members, any significant step may not be taken. Mr Biden may release his vaccine to meet the international needs; on the other hand, it may also be possible that he may donate more doses to middle-income countries, using the patent waiver strategy with the US supporters.

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In December 1961, John Lennon, Paul McCartney, George Harrison, and Ringo Starr entered into a management contract with a Liverpool-based record shop manager, Brian Epstein, for securing bookings, advising them, and helping them win record contracts. Mr Epstein subsequently formed a company, called NEMS Enterprises, Ltd.

In 1963, The Beatles were formed, with the four persons being its co-owners. Due to their overwhelming tax burden and increasing popularity, they wanted to launch a company called Beatles & Co., but the process stagnated later on.

They formed Apple Music Publishing in 1967 for signing and promoting rising songwriters, in exchange for half of their royalties. ‘Apple’ was named after René Magritte. In the same year, an umbrella company called Apple Corps Ltd. was formed, with the same group members, adopting the operations of the Beatles Ltd.

Before 2005, Apple Corps sued Apple Computer and EMI, for selling music downloads online and arousing royalty issues respectively. However, Apple, Inc., took full ownership of Apple Corps and later licensed them back, in exchange for $50 million to $100 million, settling all disputes.

AppleJazz is owned by Charles Bertini, an American Jazz musician, and the mark has a connection with the Cortland Region of New York, which is famous for apple. AppleJazz Records started to advertise “AppleJazz Brand” in the 1980s.

However, the Trademark Trial and Appellate Board (TTAB), while pronouncing judgments, didn’t find anything special in the name AppleJazz. According to them, the word ‘Apple’ is only related to the fruit, which otherwise could have been Apple Country Jazz, had the company wanted to have a geographical connotation ab initio.

The Opposition Facts (Causes of Action)

Apple, Inc., decided to enter into the streaming business in 2015 as ‘Apple Music’, successfully registering and without making variations with the Apple iTunes brand. In 2016, Mr Betini opposed the trademark registration and stated that he had been staging shows and undertaking other projects from the 1980s under the AppleJazz brand.

According to him, the similarity of the Apple Music brand with AppleJazz was creating confusion amongst the consumers. Bertini’s use of AppleJazz pre-dated long to the use of the Apple Music brand by Apple, Inc.

Apple, Inc., on the other hand, poorly argued that Mr Bertini failed to establish priority since AppleJazz is geographically descriptive under Section 2(e)(2) of the Trademark Act, 15 U.S.C. § 1052(e)(2). However, Apple argued that since they had acquired the trademark rights from Apple Corps. concerning the sound recordings and films, Apple, Inc. has the priority for the services which are “closely related to the production and distribution of sound recordings”, as mentioned within the application.

Tacking – A Game Changer

‘Tacking’ played a cameo role in this case. In limited circumstances, a new trademark may be clothed with a priority position, availed by the older mark, and this is a doctrine of ‘tacking‘. However, the new and older marks should be legal equivalents, and create an identical commercial impact on consumers, maintaining similarity between goods or services of two marks.

The Road to Triumph – The Board

Apple Music has priority for the services, in addition to its acquisition of Apple Corps and registration concerning certain services. Based on the pieces of evidence submitted before the board, the Board found that the Apple Corps had been continuously using the mark Apple in connection with music, sound recordings, and films, since 1968.

The TTAB was of the view that the term ‘Music’ is generic, and it does not create a separate commercial impression, when used with sound recordings, production, and distribution of sound recordings, etc. Therefore, Apple Corps applying Apple variations and working as a licensee to Apple Inc. since 2007, ‘Apple’ itself has a strong brand value.

The consumers would know that they are using the Apple Corps since it has been licensed back by Apple, Inc., and the applicant is using Apple Music for advertising, producing, and distributing the sound recordings.

According to the TTAB, Apple Corps’s long association with Apple brand and design let the customer identify Apple Corp’s brand and services, and its modernisation, as a result of adding the word ‘Music’ with Apple, would not significantly impact trade and business.

TTAB found that the concept of tacking in respect of sound recording has been satisfied, whereas tacking for production and distribution of sound recordings for Apple, Inc. has been opposed to. Yet, since Apple, Inc. proved their priority over the use of Apple Jazz for entertainment services, the board quashed opposition.

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Applying licensing deals, UK universities are now leveraging their IP. Licensing deals are helping universities protect their IP, retaining ownership. Spinout deals allow buyers to use a spinoff product, leading a UK university to sell its spinoff product and/or a research outcome to another company.

In 2015, Apple Inc. purchased a vocal IQ, a University of Cambridge spinoff, for its AI-based natural language skill. In 2017, ARM Ltd purchased a University of Warwick spinout at £18 million. This is how UK universities encourage students in their IP researches and make money.

Intellectual Property Awareness Network (IPAN) is working across the UK for championing the commercial understanding of IP and IP-related workforce, beyond the bookish knowledge. Its members include professional and academic organisations.

IPAN is also working for UK Higher Education Institutions (HEIs) and ensured that the IP is also a part of education for the Engineering Council UK and the Association of Chartered Certified Accountants. UK business school are also training their postgraduate students, getting them equipped with job-oriented IP skills and knowledge.

Best Universities to Watch Out For

LLM Guide website picked few Universities where studying postgraduate taught law course (LLM) in IP may be beneficial. Amongst them, the London School of Economics and Political Science (LSE) secured the first rank. What do they offer?

Interestingly, their IP course includes media law and regulation, competition law, and cultural property and heritage laws. According to them, this academic structure shall help society translate economic, cultural, and political pressure into legal initiatives. Some of their modules are, Competition Law, Technology and Intellectual Property, Regulation: Strategies and Enforcement, The Legal Protection of Inventions, etc.

King’s College London (KCL), a Russell group university ranking second in the list, emphasises innovations, creative works, collections of data, and communications infrastructure, with their Intellectual Property and Information Law pathway. With this course, they would like to ensure that the students have the proper skills and knowledge to evaluate and analyse how those areas work.

Their optional modules include International and Comparative Copyright Law, Privacy and Information Law, Arbitration of International IP Disputes, Patents, and Trade Secrets. The course also helps practitioners and prospective practitioners understand what ‘brand’, ‘brand management and ‘innovation’ mean, according to the university.

The University of Edinburgh, ranking third in the list, offers an in-depth study on contemporary issues with their Intellectual Property Law course in LLM. The study tends to address pressing issues relating to IP policies and investigates those with national legislations and international frameworks.

At Edinburgh, students avail themselves an opportunity to publish their articles through SCRIPT-ed, a peer-reviewed journal. Similarly, extra-curricular activities varying every year, such as Annual Oxford International Intellectual Property Law Moot Competition, an art exhibition at a 3D printing studio, may increase student’s interest. The core courses include Intellectual Property and Human Rights, International Intellectual Property System, etc.

The University College London, which is also a Russell Group university and a League of European Research Universities, offers a law LLM programme with an Intellectual Property Law degree. In their IP specialist degree, they offer only four modules – Competition Law, Regulation and the Intangible Economy, Copyright and Designs, Law of Patents, Trade Marks and Unfair Competition in the UK, Europe and the United States.

The Queen Mary University of London, a Russell Group university and a member of the University of London securing 5th place in the list, offers a cutting edge insight into the business of a patent attorney or a litigator, with their Intellectual Property Law LLM study. The students also avail an opportunity of a year-long paid traineeship in IP under the Pan-European Seal Profession Traineeship Programme, helping students stand out with their internship and job applications.

University Testimonials

The University of Kent, which is also widely acclaimed for its IP modules and researches, opines that it is important to know how the software, computer, music and other IP-related industries work, and how IP shapes and drives the economy.

The Edinburgh University considers that IP-intensive sectors do contribute to the GDP and national employment, and they should be studied very well. However, in a nutshell, the universities are helping students increase their skills in understanding, analysing, and developing their knowledge in IP and skills which they could apply to legal practices.

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Before the Covid-19 pandemic setting in, Brexit sponged the substantial attraction of the world. Now, with the European students (except Irish pupils) losing ‘home’ status from the academic year 2021-22, as a result of imposing visa restrictions on EU students (for undertaking academic courses for more than 6 months), or increasing the Immigration Health Surcharge from £300 per year to £470 per year, the UK universities are set to lose almost £62.5 million ($85.9 million) per year.

The Covid-19 pandemic has set more serious challenges for UK universities. For instance, the annual tuition fees for ‘Home’ students for the Law-LLB (Hons.) programme is £9250 at most of the UK’s top universities, whereas the full-time tuition fees for EU and International students varies from £13500 and £18000 respectively at the University of Kent, to £22,430 for overseas students at LSE.

Accommodation and living costs have soared as well. This together with the tuition fees, paid by non-home students, are lost to the UK. The universities have potentially lost the international students, who contribute roughly 14% of the universities’ annual revenue. Institute for Fiscal Studies (IFS) claimed that the gross loss incurred by struggling universities in the UK may be around £11bn, leaving few universities insolvent.

Impact on Applicants and Students

According to the UCAS report, 65% of prospective undergraduates and 59% prospective postgraduates from India are still looking very optimistic, with their higher education planning in the UK; they do not want to cancel or postpone their studies.

According to a survey report from the British Parliament, amongst 25000 responses accepted from the students across the UK, the majority was dissatisfied with the quality of the education they had received during the lockdown, whereas many of them complained about the unnecessary accommodation costs being paid. Complaints concerning inaccessible university resources, such as library resources, laboratory and advice centres etc., have also been common.

One of the most daunting problems is mental health issues, and many students found university wellbeing services almost unreachable. Moreover, during the lockdown, universities have maintained their academic standard, keeping their assessment procedure almost unchanged. Therefore, marking and assessment also left the students anxious.

Changes Introduced

NUS called for the ‘no detriment policy’ for the students to attain “at least their average grade so far”. According to the safety-net/no-detriment policy, every student who has suffered or may likely suffer due to the ongoing pandemic shall be considered. The safety-net policy creates adjustment to the marking, irrespective of the course level. The ‘safety-net-marks’ started being effective from 14th March 2020.

Another policy, ‘mitigation’, applies to every student, irrespective of the status of their coursework, considering that their performance has been affected, due to pandemic. The ‘mitigation’ policy considers written and scheduled timed written works, providing students with a range of relaxations, such as extension, approval for late submission, a 48-hour schedule for the online examinations, and a three-month extension for the postgraduate taught students.

NUS has also called on a six-month extension for the postgraduate student’s coursework submissions. This year, many universities have conducted virtual open days and career fairs. UK’s higher education has also ensured that every student would be prioritised, to keep them physically and mentally healthy; accordingly, National Health Service (NHS) would provide medical treatment and free testing services for international students, without charging any upfront costs.

The government allowed for an ad hoc distance learning programme for the international students during the academic year 2020-21, without affecting their visa status. In the UK, the ‘Graduate Route’ scheme has also been started, allowing a two-year post-study work visa to the international graduates and postgraduates.

For students undertaking a PhD, the ‘Graduate Scheme’ will be valid for three years. Besides, international treaties are on the way to promote research and education in the UK. For instance, the Government of Telangana and Wales signed a Memorandum of Understanding (MoU) for furthering bilateral research, entrepreneurship, and innovation, primarily in Science and Technology.

Likely Future Changes

There will likely be much less money for providing facilities, including the teaching facilities, for the students. The admission criteria and scholarship requirements may likely be more stringent. For instance, the real value and/or the number of scholarships available with a university may be reduced, emphasising more on promoting teaching facilities and online resources, upgrading software and data protection technologies etc.

The research budget may also plummet. The Government is committed to spending 2.4% of the GDP, on the Science, Research and Innovation sector. During the pandemic situation, most departments need funding. For the research sector, for example, many students said they found this period to be difficult to attain an excellent stipend or scholarship.

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