Authors: Erikas Saukalas, partner at METIDA, attorney-at-law, head of International Relations Division, court mediator; Aleksandras Špiliauskas, Lawyer at METIDA
Exhibitions, fairs and other similar events have always attracted particular interest, since they offer an additional opportunity for the public to have direct access to the novelties of different markets and for the businessmen to introduce their products or services, extend the limits of their notoriety, and find partners or customers. Thus, businessmen make every effort to make participation in such events as successful as possible, but sometimes the following substantive mistakes are made before starting preparing for participation in exhibitions: failure to take into consideration the features of legal regulation of the relationship arising on the basis of such events or breaches of the intellectual property rights by third parties.
In short, legal protection of the objects before an event, during an event and after an event is forgotten. It would be helpful to consider protection of intellectual property in advance if the following objects are exhibited at an exhibition:
- 1) any industrial or handicraft item; if it is new or has individual characteristics, you should take care of registration of the design;
- 2) any industrial property object; if it is new, equivalent to the invention level and is characterised by industrial application, it would be worth it to take care of registration of the patent;
- 3) any sign if its purpose is to distinguish the goods or services of one person from the goods or services of another person and it may be represented graphically; it is worth considering registration of the trademarks.
It is not always clear what legal rules are applicable and what rules are not applicable to certain object. Thus, businessmen should discuss the protection of their objects with legal professionals in the fields concerned or look into the features of legal regulation in advance.
The case-law acknowledges that exhibitions, fairs and similar events and organisation of such events is considered as the activities targeted specifically at public interests or activities which satisfy public and individual interests. Organisation of such events is aimed at bringing together manufacturers and traders of one geographical area enabling them to advertise their goods and promote trade not only for satisfaction of their personal interests, but also for providing the consumers participating in such events with information and possibility to choose in the best possible conditions. Thus, incentives of such events for trade fall within the area of public interest. Unfortunately, as a rule, exhibition organisers fail to deal with numerous issues concerning alignment of intellectual property rights and unlawful consequences that may arise as a result of this and which must be taken care of by the proprietors of the intellectual property rights themselves.
It should be noted that the very concept “exhibition” has not been analysed in detail or broadly interpreted in the case-law yet, but there are cases in which distinguishing of the concept from other concepts (for example, “long-term exposition”) had a relatively high legal impact.
For instance, in the case concerning reasonableness of the authors’ right to receive remuneration for each manner of use of the work the court has found that the objects of the plaintiff’s copyright (sculptures) are publicly accessible in the respective territory (Grūtas Park) owned by the defendant which, inter alia, has used the images of the object of copyright (postcards and pocket calendars depicting the sculptures and other works exhibited in the park are sold in the park) without indicating the author; thus, infringing the copyright and the right to the author’s name.
In this case the court has rejected the defendant’s statements that the latter was entitled to use the object (sell postcards, calendars with the image of the object) for information purposes without the author’s consent and acknowledged that “exhibition of sculptures in Grūtas Park is not an exhibition and their representation in the calendars distributed by the defendant are commercial actions related to the defendant’s activities”.
Thus, it may be assumed that for the purposes of determining if the respective phenomenon is an “exhibition” (within the context of protection of the intellectual property right) the court mostly assesses the aims of organisation of the phenomenon and exhibition of related objects protected by the intellectual property rights. As a rule, performance of commercial actions without consent of the holder of the rights (and the respective remuneration) is prohibited.
It is worth recalling the position on exhibitions expressed by the court in another case, i.e. presentation of the goods and/or services designated by trademarks in fairs or exhibitions determines formation and strengthening of feedback on the market; therefore, in certain cases, it is reasonable and fair to recognise a higher standard of protection of the trademark (i.e. such mark may be considered as well-known unless this is rebutted by other circumstances as a whole).
It is also important to note that the information on the product provided by the proprietor of the intellectual property rights at an exhibition must be precise and reflect the reality. This is all the more important as the information provided by the proprietor of the rights after an exhibition in advertising messages may be declared as confusing on the part of the public if any mismatch between information in advertising and information provided at exhibitions or fairs is noticed.
Thus, prior to participation in a public exhibition with a new product one should ensure and take care of protection of intellectual property of the product from appearance of the product or its modus operandi to public use of the trademark in relation to the product. Such strategy of protection is efficient against potential competitors and against unscrupulous persons who have copied the particular elements of the introduced product.