The battle for Iceland and other cool IP news

Although half of academic patents in Europe originate from just five percent of universities, the total of more than 1,200 institutions included demonstrates the richness of scholarly pursuit in the region. Germany and France came out ahead in having both the largest numbers of patenting universities and the most applications produced, with the United Kingdom and Italy following. However, smaller countries showed very concentrated innovation – with the Netherlands, Switzerland and Denmark creating an average of more than 200 applications per university. 

One purpose of the EPO-Fraunhofer study was to shine additional light on the "European paradox," whereby the continent struggles to translate its world-class scientific research into commercial reality. Contributory factors cited are dissonant policies and markets, insufficient funding for knowledge sharing and "an overall sentiment that is risk-averse." While conceding that any remedies sought must necessarily be highly complicated, the report recognizes that avenues are available and progress has already been made. In particular, the Unitary Patent system was lauded for enhancing "cross-border research collaboration and the harmonisation of technology transfer practices." 

Ice-cold trademark clash 

As Europe creeps from autumn into winter, a well-preserved trademark dispute shows no signs of thawing. Since 2016, a frozen-food retailer in the United Kingdom has been at loggerheads with the Icelandic government over the invalidation of a European Union trademark (EUTM). Iceland (the country) vs. Iceland (the supermarket) conjures up imagery of frosty looks across boardrooms at the European Union Intellectual Property Office (EUIPO), but the issue cuts deeper than national or company pride.

Founded in 1970 by Malcolm Walker in Oswestry, England, Iceland specializes in selling low-cost frozen foodstuffs, receiving an EUTM for its name in 2014. That changed two years later when the mark's validity was challenged by the Icelandic government on the grounds that it could mislead European consumers into believing related goods originated from the island nation while preventing Icelandic businesses from signaling their provenance. 

In a 2019 ruling, the EUIPO revoked Iceland's registration, a decision that was upheld by the Grand Board on appeal in December 2022. Now, the third round of proceedings has begun. On October 16, the founder's son and current executive chairman, Richard Walker, delivered his opening pleas for a further appeal before the General Court of the European Union in Luxembourg. Writing on LinkedIn, Richard Walker emphasized the company's prominence in the UK and expanding presence in the European Economic Area (EEA), of which Iceland is a member. He went on to stress his commitment to preserving the brand image as already constructed. "[W]e of course will protect our business and identity - but have never tried to stop Icelandic businesses from using 'Iceland' descriptively to promote their products."

Margrét Hjálmarsdóttir, head of legal affairs for the Icelandic Intellectual Property Office, has another view. When asked by national broadcaster RÚV what would happen if the country lost the case, she opined in 2022 that it "would mean that Icelandic companies might not be able to use the word 'Iceland' in their trademarks to designate the products they are selling."

And so the chilly relations continue, but in this contest of cool heads, legal arguments will decide whether the supermarket trademark comes in from the cold or remains frozen out of the EUIPO's books.

Copyright move blocks AI from mining books

Rarely does a month go by without the clash of artificial intelligence (AI) and copyrights coming to the fore. This September, the Hamburg Regional Court ruled in favor of LAION-5B in a watershed decision that underscored the limitation of exclusive rights to facilitate scientific research and text and data mining. In that case, a German stock photographer objected to his copyrighted pictures being processed by the image-text dataset behind various generative AI systems, including Stable Diffusion and Midjourney.

Crucially, there was insufficient evidence of a direct commercial influence on the LAION research organization despite the fact that monetized AI services are built upon its store of visual works paired with language.

With this exception in mind, one of the "Big Five" English-language publishing houses, Penguin Random House, has elaborated its copyright notice to withhold explicitly the use of works for the training of AI systems. As reported by The Bookseller, the added wording reads: "No part of this book may be used or reproduced in any manner for the purpose of training artificial intelligence technologies or systems. In accordance with Article 4(3) of the Digital Single Market Directive 2019/790, Penguin Random House expressly reserves this work from the text and data mining exception."

The reference to Digital Single Market Directive 2019/790 could be interpreted as a direct response to the Hamburg Court's ruling, which drew heavily from the regulation alongside § 44b of the German Copyright and Related Rights Act.

This change is particularly timely in light of an essay published this month by Suchir Balaji, a former researcher at OpenAI, claiming the company behind ChatGPT has violated U.S. copyright law wholesale. In his personal blog, he alleges that OpenAI has failed and continues to fail to satisfy any of the four criteria for a "fair use" exemption. These being, in brief, whether the copying is for commercial or non-profit purposes, the nature of the original work, the amount or substantiality of the work used and the effect on the original's commercial value, i.e., whether the copying causes monetary harm or creates a substitute.

Speaking with The New York Times recently, Suchir Balaji remarked that the outputs of generative AIs "aren't exact copies of the inputs, but they are also not fundamentally novel." The UC Berkeley graduate, who left OpenAI in August, sees this as damaging creators and ultimately contributing to what he deems "is not a sustainable model for the internet ecosystem as a whole."

The AI genie is well and truly out of the bottle, and instead of trying to force it back inside, a larger, more transparent IP container needs to be constructed around it. This can only consist of a combination of carefully formulated, ad hoc regulation, increased copyright awareness and precedential court decisions.