Intellectual property

Written by Joshy Thomas

Since our 2021 Review we have returned frequently to Sky v Skykick, a trade mark dispute that has been ongoing since 2016. In November 2024, the Supreme Court overturned the decision of the Court of Appeal (see here) finding that an inference of bad faith may be drawn if sufficient evidence exists – as there was in this case – that the applicant had never had any intention to supply or provide certain goods or services for which it sought trade mark protection. Once an inference of bad faith has been drawn, this may prove grounds for a mark to be wholly or partially invalidated.

The decision seeks to draw a line under the practice of filing broad-spectrum trade mark registrations to use them as "legal weapons".  Overly broad specifications, registered for less than 5 years, may now be more vulnerable to challenge on the grounds of bad faith especially where they are being used to enforce against third parties in relation to goods and services in which the trade mark owner does not trade and has no intention to trade. There is likely to be an increase in such claims in both the UK IPO and the courts.  While this decision appears to provide for narrower protection going forward, brand owners of well known brands can utilise their trade mark's reputation for protection by arguing that the use of their trade mark on any product (not only the products for which they have a registration) would take unfair advantage of the brand's reputation. 

Artificial intelligence (AI) was topical this year and the Court of Appeal’s ruling in Emotional Perception AI on the application of the exclusion from patentability of computer programs "as such" (a computer-implemented invention is not excluded if it relates to something more than a program for a computer “as such”) to artificial neural networks (ANNs) has left many in the field with huge challenges when protecting ANN developments within the existing IP framework, resulting in a need to rely on alternative rights and strategies to protect and enforce rights in some ANN-related developments. This decision is subject to appeal with a hearing expected in 2025. 

What to look out for in 2025 

The way generative AI models are trained using data sets comprised of IP works scraped from publicly available websites, and liability for AI generated outputs have continued to receive significant attention this year providing for a degree of uncertainty for both AI developers and IP rights holders. 
Content creators such as news providers, authors and visual content agencies allege that their work is being unlawfully used to train AI models. The High Court trial of the Getty Images (US) Inc v Stability AI Ltd case, the most prominent case making these kinds of allegations in the UK, is expected in 2025 with the judgment to follow in 2026. 

Some use of this content is expressly authorised and used under licence and licensing deals now appear to be becoming more prevalent with some high profile deals being reported since the summer. When licensing negotiations break down there is a risk of legal action being taken, such as that reportedly being taken by Mumsnet against OpenAI.

The issues were first highlighted in 2022 when the UK IPO signalled its intention to introduce a new copyright and database exception that would allow text and data mining (TDM) for any purpose including commercial use. The proposal was subsequently withdrawn pending an assessment of the implications for key stakeholders and since then a working group of key stakeholders has tried and failed to agree on an effective voluntary code of conduct to resolve the main issues of labelling and metadata for the outputs of generative AI, transparency of inputs, and licensing and permissions.  

It is now widely accepted that these issues will require government intervention to move forward.  The Labour government has confirmed that it is working with a range of stakeholders to provide a framework and aims to open a formal consultation to get input from stakeholders and experts "shortly" to put the government on a path to resolving the deadlock in 2025.

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