INTELLECTUAL PROPERTY: An Introduction to South West

Intellectual Property in the South West 

The South West is a diverse and economically vibrant region that is home to a wide range of industries, from new tech, animation and the arts through to pasties and cider (with even a foray into space exploration).

Location aside, what these players have in common is that intellectual property (IP) is a major asset. Trying to monopolise (otherwise known as “protect”), as well as trying to defend the freedom to originate and develop, from the opposing perspective, is crucial in the sphere of innovation and economic growth.

Opposing perspectives push IP perspectives in opposite directions. One motivation is to seek the exclusive right to have your orange and squeeze it for yourself, or get licensees to pay you licence fees for selling the juice. The other driver seeks freedom to make or sell your own oranges and juice, no-monopoly-no-fee. It’s a push-pull relationship.

Trade marks play a vital role in distinguishing products or services of one business from another. Local businesses in the South West often rely on trade marks to build brand recognition and customer trust. Duchy Originals (originally founded by King Charles III) promotes organic products, including food and cosmetics, and its trade mark reflects the brand's commitment to ethical and sustainable practices. As another example, how valuable is the exclusive right to use Bitcoin for cryptocurrency or Amazon for online shopping?

Research shows that brand-building drives profits, and start-ups should think about brand-building (and therefore brand monopolising) at an early stage. Belts remain tightened and budgets squeezed in the current economic climate, but it is usually false economy to put IP protection on the back burner, not least because, for example, trade mark registrations are generally granted on a first to file basis. Registrations also add value to a company’s assets on rounds of future investment or eventual sale.

The Intellectual Property Office has published guidance on the best approach to the trade mark classification of non-fungible tokens (NFTs), virtual goods and virtual services, including those provided in the metaverse – all terms that are representative of new forms of goods and services in a fast-moving technological field.

Design registrations monopolise the outward appearance of products, including technology. The design economy contributes around GBP86 billion in gross added value (GVA) to the UK (around 7% of UK GVA). The design industries employ around 1.7 million people and are consistently expanding. Designs protected in the South West include vacuum cleaners, marine technology and aerospace components.

Patents monopolise technical advances and provide inventors with exclusive rights to their creations. The South West has a burgeoning technology sector; it has been reported to have overtaken engineering as Bristol’s fastest growing industry, with it now considered to be a top tech-hub. Elsewhere, Cornwall is a hub for agricultural research, focusing on areas like precision farming and agritech.

Individual researchers and organisations (eg, in life sciences and telecoms) often seek to pursue the same or similar goals, so it is vital to secure foundation patents for the base technology as soon as possible. Otherwise, subsequent foundation patents may be liable to challenge on grounds of lack of novelty and/or obviousness over the prior art. As the technology advances with applications in different fields, product-specific patents become important in order to protect and capitalise on investment. The downside is that competition may be stifled in the absence of adequate cross-licensing arrangements and patent pools.

Owners in the South West (and elsewhere) of European patents (including European unitary patents) valid in participating EU member states may benefit from the opening of the Unitary Patent Court (UPC), which took place on 1 June 2023. The UPC was set up centrally to decide within the EU issues of infringement and invalidity otherwise to be determined locally.

Protecting (or rather monopolising) the region's unique agricultural products through geographical indications is crucial for preserving local traditions and ensuring fair competition. Only pasties made in Cornwall can be called “Cornish” because “Cornish Pasty” is a protected geographical food name. Similarly, cheesemakers wishing to use the designation “West Country Farmhouse Cheddar” must ensure they meet the relevant parameters.

Copyright (unregistrable) protects the expression of ideas but not the ideas themselves. The line can be difficult to draw, especially with formats. For the first time in English law, copyright was held to subsist in the character “Del Boy” that was infringed by making an interactive dining show using characters from the TV series “Only Fools and Horses” (which was largely filmed in Bristol).

Given its intention to be a world leader in research and AI innovation, the government is working with users and rights holders on a code of practice on copyright and AI. A working group (from the technology, creative and research sectors) first met in June 2023 to address issues like data mining, with the aim of helping to overcome barriers currently faced by AI firms and users, whilst ensuring sufficient protections for rights holders. If the final code of practice is not adopted on a voluntary basis, legislation could be considered.

Copyright arises automatically, but most of the other forms of IP above need to be registered nationally or regionally in order to obtain a statutory monopoly in the market.

Registration constitutes a powerful warning to others not to trespass on the registered right projected to have been monopolised. It may be several hundred years since the Jolly Roger could be seen frequenting the shores of South West England, but piracy takes a very different form these days, from counterfeit goods to the illegal sharing and use of online material and software.

IP rights are territorial – ie, they are valid and enforceable only in the country or region in which they are registered. There is, for example, no “worldwide” trade mark. However, schemes exist whereby international applications can be made centrally (eg, under the Madrid and Hague treaties for trade marks and designs, respectively), which significantly reduces the administration, time and costs of obtaining and maintaining international IP portfolios.