I read today in the newspaper that a company well-known for a brand of skin cream was seeking to assert its IP rights concerning a very particular shade of blue. To the average person this may sound a little bizarre, but such disputes should be no surprise if we consider the advanced state of Intellectual Property Law. Apparently the German Patent and Trade Mark Office (Deutsche Patent- und Markenamt) has already allowed over 95 colour marks (Farbmarke) to be registered. What I was not aware of is that we also can protect smells (Geruchsmarke) in the form of an olfactory mark. Leaving aside the images of judges and lawyers smelling their way to a decision on conflicting odour claims, an interesting thought jumped into my mind as to whether any political parties would be interested in a particular shade of blue, too. Probably in the Bavarian context the associated smell would be that of beer.
But excuse the flippant comments. The point is not to belittle the complex and hard work of patent attorneys and IP colleagues protecting authors, inventors, R&D work and commercial development. Nor is it intended to comment on the merits of the current “shades of blue” case. But the issue is surely how far IP rights should go. I must admit my personal amazement at the range of IP rights available for protection. I can, of course, see the commercial purpose and the necessity for many such forms of protection. And, of course, as an author I have nothing but the deepest respect for concepts of copyright etc. But it is often difficult for the archaic “man on the Clapham omnibus” to see what could be protected and what is still available in our world for free access. I support the thought of reasonable limits being put on the potential for licensing, patenting and protecting.
If IP rights are to work, it is important that business people and customers alike have an understanding of and respect for the limits of intellectual property. The recent history of the entertainment industry and music rights in the internet is a clear reflection of this need.
Not being a specialist IP lawyer myself and not claiming any particular expertise, I would prefer to live in blissful ignorance. But this is a luxury legal professionals cannot afford. As a general commercial and contract lawyer I must be aware of the potential difficulties hidden in contract agreements.
But let there be limits! There were recent reports in the media about taking photos of famous landmarks and monuments leading to IP claims. And I remember the publicity not so long ago surrounding patent rights on genes. Against this background, my dystopian nightmare would be a religious institution starting to twitter under #genesis, #creation and #universe, claiming a licence fee from patients (and partners) at maternity hospitals for the use of patented reproduction, conception and gestation methods and the Vatican suing Apple Inc. for IP infringements arising from first use in the Garden of Eden.
But, then again, I have just found God.com…perhaps the end is indeed nigh!