I’m not going to write “Top 10 IP Law Predictions for 2003″ because I could be wrong (and Google would cache how wrong I was). Better: “Top 10 IP Law Trends to Look for in 2003.” Problem: I can’t think of 10.
1. The Eldred decision will come down eventually. If I were smart enough to know how the Supreme Court would decide, I’d be working at Goldstein Howe. But either way, the decision will force us to confront the copyright term issue. If the Sonny Bono Act is upheld (ok, I predict it will be), then there will be added vigor to movements like Creative Commons and perhaps we will see a drive to amend the Copyright Act. And copyright owners will explore how trademark will protect in the absence of copyright.
2. The Victor’s Little Secret case will be decided and the old jazz standard “What Is This Thing Called Dilution?” will have some new words to go with its ambiguous melody. At issue: whether the plaintiff has to prove actual damage from dilution as opposed to likelihood of damage.
3. Madrid Protocol - Good thing for US trademark owners, as one application will suffice to cover trademark applications in numerous countries. We are likely to see implemnation this year (Don’t worry – I’ll keep you informed). Bad thing for non-US trademark lawyers as they won’t get paid to file non-US applications by US companies. Bad thing for US trademark owners as they won’t get paid to file US trademark applications by non-US applications.
4. Digitization of the Trademark Procedures: My international trademark metasearch couldn’t exist four years ago. I couldn’t have handled the number of applications I did this year without electronic online filing. The real cost of portfolio management (should) come down every year as digit-pushing replaces paper pushing.
5. Erosion of Western Brand Power – First, there is a something of an anti-brand intellectual current, as exemplified by Rev. Billy’s Church of Stop-Shopping and Naomi Klein’s No Logo book. Then there is the fact that we are in a consumer-spending downturn when people are a little less likely to pay for a name. Finally, there is the mainfestiation of anti-Western sentiment as local brand loyalty – case in point MECCA COLA.
I expect to finsih my trends to watch list by mid-December. Stay tuned.