Posted: Thursday 29 December 2011
Is owning a pair of Uggs a human right?
By Austin Flynn
When I started my law degree twenty five years ago, ‘intellectual property’ was one of the modules offered, alongside much less exciting sounding subjects such as ‘advanced land law’ and ’revenue law’, as well as the ever-popular ‘human rights law’. The human rights module was taught by a lecturer who at the time was also the legal director of Amnesty. As a result, he missed several lectures as he was intermittently away on ‘missions’ to far-flung countries with dubious human rights records, negotiating with despotic leaders to try and secure the release of political prisoners. It was all very ‘James Bond’ and my head was turned away from intellectual property law and towards the world of human rights. Another factor against choosing the intellectual property module was that in 1986 there was no dedicated text book on the subject. That meant endless hours in the law library searching for the source material.
Four years later when I started my traineeship, the large commercial firm that employed me didn’t have a dedicated intellectual property lawyer, even though it was a very well resourced firm. Various lawyers from the corporate and commercial teams had a smattering of knowledge on the subject, but my recollection is that we were rarely asked to advise on the subject anyway.
How things have changed. These days it’s impossible to provide a full commercial legal service without a solid working knowledge of the law of trademarks, copyright, design right, registered designs, patents and passing off. Barely a day goes by when we aren’t asked to advise on these subjects, either in isolation or related to a corporate transaction. Intellectual property has become interwoven with the day to day goings on of many of the businesses that we advise and clients are also becoming increasingly aware of the value of their intellectual property and the need to protect it.
As I sat on Christmas morning, surrounded by my family’s opened presents and discarded wrapping paper, I began to keep a mental note of the number of well known trademarks and logos on display. I counted eleven (Nintendo, Apple, Ugg, Calvin Klein, Rohan, Crabtree & Evelyn, Adidas, Twinings, Green & Black’s, Next and Amazon) before I decided that I had better things to do on Christmas morning than gather material for a blog. However, it also occurred to me that in most cases, another manufacturer could easily make a product that would do exactly the same thing as any of the branded products, but that a ‘plain vanilla’ product would not be worth anywhere near as much. After all, Ugg is not the only manufacturer of cosy sheepskin boots and Rohan is not the only maker of outdoor clothing and travel gear. However, all of the names mentioned above have become virtually synonymous with the products that bear their names and the use of the name on the product adds a premium to the price that you and I are prepared to pay. That is why the owners of the brands are prepared to go to such lengths to protect them. In simple terms, a pair of Adidas trainers will sell for a huge premium over a pair that is identical apart from the three stripes on the side.
As I was out shopping in the sales with my children yesterday we heard one delightful teenage girl suggesting to her parents that they were virtually breaching her human rights by having failed to buy her ‘a pair of Uggs’ for Christmas. It was striking that she was not interested in having a pair of cosy sheepskin boots: they had to be Uggs. Just then it occurred to me that this was the moment I had been waiting for: almost twenty five years after I chose one over the other, the world of human rights law and the world of intellectual property law were coming together in a most satisfying way. If you need a lawyer to advise on both, I’m your man.
