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Without the name, would
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The final session of "IP and Retail" kicked off with a refreshing blast from
Alexander Carter-Silk (Speechly Bircham) on the psychological and cognitive aspects of product recognition in the context of independent brands and lookalike own-brands. "If we can't explain what we mean by deception and confusion, we shouldn't be in court", he concluded, having first ascertained that the assembled registrants at this event could not. Heuristics -- mental short-cuts -- are the means by which we identify products via their brand ciphers.
Lookalikes poach those ciphers and force us subconsciously to make the association between the brand leader and a competing product. Judges usually get this right, but the evidence before the court is usually wrong, Alex asserted, to the general surprise and genuine interest of all present.
Over and above the commodity itself, the presence of a brand shifts the supply curve to the right, shifting more product or enabling the brand owner to ask a higher price, Alex said. The adherence of ciphers to a generic product has the same effect, since it does not so much confuse the consumer as cause him to associate the one with the other. Alex took his spellbound audience through the celebrated
Jif lemon and
Puffin/Penguin cases, to demonstrate his point. The heuristic cipher is the basis for an irrational decision by the consumer as to which products to exclude from his consideration and which to include. Only after that phase will rational decision-making, such as price comparison, be made. This is established science which can be proved in the laboratory, Alex reminded us, drawing attention to the
paper of the British Brand Group on this topic.
Final speaker was
Paul Joseph (RPC), wrapping up the day by summarising all the possible bases on which an unfortunate retailer might find itself liable for IP infringement. Going right back to the actual text of the relevant legislation, he asked registrants to consider which possible primary and secondary infringing acts might be committed by a shop in the normal course of its activities. Essentially, the less direct the infringing act, the more knowledge of infringement, or reason to believe that goods were infringing, had to be proved. Fortunately there's some helpful law on this, drawn from 2004 litigation involving alleged infringement of copyright in a fabric design featuring repeated architectural pineapples. Once a shop receives a letter from the IP owner, it has grounds to suspect infringement --- but if it takes steps to ascertain whether it has been supplied with infringing goods, that's not converted into a reason to believe the goods are infringing until it has received a response. However, the retailer that just sits on a letter from an IP owner and does nothing will find that its suspicion is automatically turned into grounds for belief.
Paul then addressed innocent infringement defences in patent law, reviewing
Schutz v Werit, but mercifully skipped trade marks since quite enough had already been said by other speakers on trade marks today. Design law defences for retailers were then touched on, with the aid of a helpful PowerPoint frame or two -- and with Paul posing some pertinent questions in the process. Financial remedies, including extra damages for flagrant infringement of some intellectual property rights, and the UK's threats provisions also got an airing. Beware the small supplier, was Paul's final piece of advice.
