Nick Redfearn, head of enforcement at Rouse, looks at what brand owners should do to protect their intellectual property
Q: In your prolific career, you have practised not just in Indonesia, but also in Vietnam, the UAE and China. What makes these jurisdictions stand out?
A: When Rouse was set up, we very much focused on emerging markets. I know that term may not be the correct term anymore, but that was really the history of Rouse. Particularly, we tried to support brand owners who needed enforcement expertise on the ground in countries like China, Indonesia and so on.
I was lucky enough to travel to some of the offices, and then trademark, patent prosecution, litigation, and commercial IP work tended to follow as we grew these different businesses around the world. Nowadays, most of these countries are quite sophisticated and running some kind of modern systems. So, it’s less of a focus on emerging markets, and more on important markets, growth markets for large corporations who want to trade across the world. These high-growth markets are typically the ones that we operate in.
Q: Many Asian markets are seeing a record number of IP filings. Which ones stand out the most to you?
A: Well, I think there are several aspects to that. Let us maybe leave aside Japan, which has historically been a huge source of IP around the world. But China has particularly led the way because so many Chinese companies have been very focused on developing IP portfolios. They had some domestic help from the government, sometimes in the form of grants that enabled more than filing IPs around the world.
Also, Southeast Asia now is starting to catch up a little bit, in terms of big businesses here that want to develop internationally. All over Southeast Asia, you can see new local champions going global, which is creating growth in filings around the world.
Q: What advice can you give companies on IP protection in Asia, as well as litigation, if it comes to it?
A: Planning is the most important thing to start with. A company may set up some commercial operation, or they may, do manufacturing but not much in sales, which was a common way that companies ended up trading in Asia, with sales following later. So, sometimes the business process and the traditional IP process don’t map to each other.
Plan ahead as soon as a company is thinking about trading in Asia and start to figure out which markets are important? Where is manufacturing? Where are the sales? Where are the regional centres, like Singapore and Hong Kong? And then plan the IP around that. There are some markets where you have to take care because there are trademark pirates, for example, people who will register your design patents. So, one must also look at the markets with a high risk.
Of course, if you do get into trouble, gone are the days when you couldn’t do anything in a country, now you can. Every country has different levels of sophistication in its enforcement and litigation systems, but in most places, there is something you can do, even if it’s just self-help. There are cases where people have turned up in Indonesia and they found that someone has already registered their trademark, and they do some kind of covert buyout, and then they can enter the market that way.
Q: How is the IP landscape being morphed by emerging technologies and what are Rouse’s plans to help companies navigate it?
If you talk about Web3, blockchain and the metaverse, all those new technologies that have appeared – the excitement around cryptocurrencies seems to have died down – the IP aspects will maybe take a bit more time to develop. But digital environments, closed worlds, the metaverse and all these different private worlds that are being created have a strong attraction for corporations who are looking at how to establish some kind of function in those worlds. What kind of IP issues are they going to face? That’s what we’re talking to clients about.
Non-fungible tokens, I would say, fall into that category. Of course, that’s part of wider blockchain technology and blockchain domains are now an issue. So, companies are looking at this, still trying to figure out the commercial value. I don’t think there’s a huge volume of work to flood in, but you’ve got to be aware of it and start to get yourself ready so you can talk to people and say, well, what is your commercial opportunity?
Artificial intelligence (AI), of course, is probably the biggest of all that everyone’s talking about. The most interesting thing to me is probably what’s going to happen in the IP industry with AI, because we all worry, as professionals, that our jobs will be on the line one day, whether a journalist writing articles or an adviser giving advice. I don’t think generative AI like ChatGPT is a problem because it is too risky for anyone to really rely on. It’s a nice toy to have, it is clever, it can do some stuff. But if you’re looking for certainty, you can’t really rely on ChatGPT because it’s too easy to confuse it. But there are going to be AI trained on datasets specific to IP, and that will have applications for our industry.