The time after 12th March 2020 when Norway more or less closed down as an infection control and public health measure has seemed unreal. Many enterprises have in fact been prohibited to do business, and self-employed tradesmen in many business sectors have experienced a work ban. Some will have to close their doors for good, while others will manage to turn around and adapt to the new situation and meet the needs that will arise. Below, we will illustrate some of the questions that may arise in connection with intellectual property rights (IP), such as trademarks, patents and designs, as a result of necessary development and adjustment in a crisis or time for possibilities as this.
From panic to reaction
For many enterprises, the Norwegian Government’s infection control has led to closed doors. For some the changes will be permanent, while others have speedily adapted, and seen possibilities for new products and services. Very many hotels and restaurants have been forced to close down their businesses overnight. Some catering businesses that previously delivered food and beverages to meetings, parties and other events, have turned their production into smaller portions, and started home delivery of ready-made meals. In the fitness industry, closed gyms and fitness studios have prompted many to start online fitness classes. The same has happened to course- and training centers within various area of expertise. Distilleries have from one day to the next changed their production from producing gin, aquavit and other alcoholic beverages to produce disinfectants. In the textile industry, manufacturers and importers have turned to import, development and production of infection control equipment. For many, necessity has proved to be the mother of invention, to use an old expression. I would think that many of the new services are sought after also under regular circumstances, and that there will be a marked for them also after the end of the Covid-19 pandemic.
IP – intellectual property rights
Even if we in many ways find ourselves in a state of emergency, there is no reason not to think of the intellectual property that arise as a result of the rescue- or adaptation measures initiated by companies. There is every reason to assess whether the results of the innovative thinking, i.e. the IP that arises, can and should be protected for the company. Further, one must decide if the new measure or new product will represent infringement in IP that already is protected for others – it would be sad if one survived the Covid-19 pandemic just to go under because of a compensation claim resulting from infringement of other’s patents.
Trademark related questions
Both registered trademarks and trademarks established by use relates to particular products. One should ask oneself if the company’s existing trademarks will be valid also for the new products or services that the company will offer. It is also possible that a company may infringe the rights of others by using their existing trademark on new products. One may also consider establishing new trademarks for the new products or services.
Questions related to Industrial designs
Further, a manufacturer of e.g. infection control equipment instead of or in addition of their usual products, might manufacture something that is new for this company. If something completely new arises, there is a good reason to consider seeking design protection. Luckily, the Norwegian design law makes it possible to apply for registration, and thus obtain exclusivity to the design up to 12 months after the design has been made publicly available. This means that there is time to wait with design registration for new products, but the 12 months pass quickly, so one should not wait longer than necessary. New products that are manufactured may represent infringement of others registered design rights. We have seen several TV reports about 3D printing of visors and face masks. If the original products enjoy design protection, the 3D printed copy may represent an illegal copy, unless one has received consent for the production from the owner of the design.
Patent related questions
Innovative thinking often leads to completely new products or methods, or to new ranges of use or functions for existing products or methods. Examples of this can be that drugs developed for use in treatment of one disease also proves to be effective against other conditions. Similar parallels may occur also in other fields. In such events, one should first assess whether the new product or method may infringe patent rights for others. If this is not the case, one should consider securing exclusive rights to the invention through a patent. In that case it is crucial not to disclose the invention to others, as the requirement for novelty is absolute. There is no additional time limit to apply for a patent after the invention has been made publicly available, as it is for a design right.
Acapo is here to help
In Acapo, we see that many of our customers in remarkable ways have received positive attention in adapting existing products and services to the current market situation. Others have adjusted their production to meet the needs within other branches than the one they normally operate in.
In Acapo, our operation is running as normal despite the Covid-19 situation, and our highly qualified consultants with legal and technical background may assist with advice and guidance in all situations mentioned above. Please get in touch if we can be of assistance.