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The Impact of COVID-19 on the Intellectual Property Field

16-04-2020

Intellectual Property field reflects the commercial and social circumstances that have been conducted worldwide during a period of time. Matter of fact, the major event that is catching all attention lately which is COVID-19, has a direct effect on all fields including Intellectual Property. We would herein discuss the impact of this pandemic on the IP field.

Opportunistic Applications

Many opportunists have sought to “cash in” on the global pandemic and took advantage of the situation, upon submitting applications to the trademark offices in the USA, UK, and Europe, attempting to register marks containing CORONAVIRUS or COVID-19 therein.

For example, ‘’Kenyonken Productions LLC’’ has filed applications for COVID-19 SURVIVOR and COVID-19 INFECTED for t-shirts with an alleged first use in commerce of February 14, 2020. Another application, filed by an individual, seeks registration of FXCK COVID-19 for “Hats; Shirts and short-sleeved shirts; [and] T-shirts” and FXCK CORONAVIRUS for “Hats; [and] T-shirts.” There are also numerous plays on I SURVIVED CORONA VIRUS (or COVID-19) that many are attempting to register for clothing or apparel. In addition to ‘Coronavirus’ for classes 9, 25 and 41 which are the class of the musical recordings and merchandise.

In fact, the main purpose of the trademarks is to distinguish the goods and the services in order to protect the consumer from being misled. Applying that here, COVID or CORONA VIRUS would only be a proper trademark for someone (or some business) claiming to be the origin of the virus. Given that, no one can make that claim, these applications, in the opinion of many IP experts should be denied. As neither COVID nor CORONA VIRUS serve as the identifier of a source of either goods or services.

Pursuant to the above, if our client wishes to register a mark which contains the word ‘Coronavirus’, we advise to use the said word descriptively (but not deceptively) in the context of the mark as a whole, so that the applications would hopefully not be refused.

Cyber Counterfeiting

In addition to the applications submitted to register COVID-19 as a trademark, many dishonest opportunists, have exploited the quarantine and the lockdown imposed by the governments in order to display and promote their counterfeit goods through online platforms where they think no raid actions could be carried out by the authorities, as in the cyberspace, there is no existing physical shop or warehouse that contain the counterfeit to be confiscated. Hence, they avail the desire of the consumers to get what they need through the online shopping. Therefore, with bad intentions, they deliver counterfeit goods to the consumers who fall victim to infringing websites that use legitimate pictures and misleading pricing strategies to fool the public.

However, we would like to point out that trading online does not mean that there is no control directed by the authorities, or no fines to be imposed against the counterfeiters. Meanwhile, both the Dubai Economic Department (DEDD) and Dubai Police have cybercrimes departments. Moreover, we, at TLG, have acted on behalf of our clients in various online counterfeiting actions conducted against their IP rights and we stood beside them to protect their trademarks.

Patent Related to COVID-19

Talking about the impact of the COVID 19 on the IP filed, will lead us by all means to discuss the patent of the potential vaccination or medicine. Unfortunately, at the time of writing, no vaccination has been invented to eradicate the virus. Meanwhile, pharmaceutical and medical technology companies around the world are performing their utmost to help alleviate the impact of the coronavirus pandemic. One of these ideas that have been mooted is “Patent pooling”, while there are also backstop powers written into patent laws around Europe that might enable manufacturers to make use of life sciences patents to help address the challenges posed by COVID-19 should the need arise. So, the question now is: Which pharmaceutical company will win the IP historical battle and firstly register the vaccination patent?

To summarize, COVID -19 has a direct impact on the IP field, either from the application submitted to register the virus as a trademark or from the counterfeiters who always figure out and develop ways to infringe others’ IP rights. Yet as long as you are consulting your IP lawyer, you can be confident that your IP rights would be protected from any infringement conducted by other parties.

Article by:

Dema Khafaji
Legal Consultant
Intellectual Property Litigation Department