"Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce".
On 26 April 1970, the World Intellectual Property Organization (WIPO) Convention came into force. A few years later, WIPO became one of the specialised agencies of the United Nations (UN). In 2000, the UN member states designated 26 April as World IP Day to celebrate the benefits of intellectual property law for all the inventions and innovations that have shaped our world.
To mark the occasion, Swiss Re's IP experts, Denise Mathieu and Tammy Piccirillo, share their insights into this lesser known area of the law that can provide many tangible benefits when properly applied.
According to the statistics cited by Ben Carlson in a recent issue of the Fortune Investors Guide, intangible assets, including patents, brands and software, now make up 90% of the S&P 500's total assets. That's up from 17% less than 50 years ago. This is a very strong indication that businesses have become and stayed successful due to their knowledge, experience and expertise. Hardware then follows when innovation and IP are recognised, protected and monetised.
IP and the valuable rights attached to it can be lost through a lack of recognition and a lack of proper protection – both physical and legal. For instance, failure to register a senior priority date can result in a junior third party securing the patent rights to your novel invention. Failure to monitor the market, IP registers and the internet can cause a brand to lose vital enforcement rights through unchecked, widespread unauthorised use by third parties. This is especially harmful when a brand's reputation is damaged, as it is difficult to regain a good reputation.
The protection needed depends on the IP. New and novel innovations and inventions can be protected under patent law. If a patent is granted, the inventor(s) will have 20 years from the filing date to monopolise use and commercialisation of the invention. To protect a brand, trademark law provides vital rights to prevent others from marketing their goods or services under the same or a similar brand. Images, books, press articles, photos, drawings, charts, graphs, music, software and infographics are protected under copyright law. The great thing about copyright law is that the legal protection applies as soon as the IP is created, with no need for a formal registration such as patent or trademark rights. Finally, even start-up businesses with very little capital can use trade secret law and incur no costs, provided that the information or invention is treated as a trade secret. As you can see, IP protection comes in all shapes, sizes and prices.
Simply put, costs can be the biggest obstacle for many SMEs, and sometimes even for larger companies, when they are forced to go to court to preserve their IP rights. For this reason, SMEs should make use of the protection provided by trade secret law. However, it is important to remember that this form of IP law protection can very easily become invalidated if the requirements and obligations are not maintained.
Over the last decade, tech companies have transformed the banking industry with numerous innovative solutions and technology-led business models. They've had a clear and significant influence on the traditional field of banking, and this influence was supported by legislation. We are currently observing similar trends in the insurance area, which has long been considered a traditional field and has not seen any major innovations. For example, machine learning and advanced analytics have revolutionised underwriting and claims processes. Other parts of the value chain are being disrupted as well, such as sales and distribution, where data insights help insurers to cross-sell other, more lucrative products to their customers. Swiss Re has chosen to embrace this revolution and, to stay relevant in the Automotive & Mobility area, buy Movingdots and invest in research and development. All the innovations that Swiss Re is creating are being patented to make sure that we can serve our customers and monetise the huge investments behind these innovations.
When acquiring Akquinet sls, we realised that there was a lot of expertise, but none of that had been patented. For Swiss Re, entering the Automotive & Mobility market, it was crucial to make sure that we had the freedom to operate in an area where a lot of players were already active. That's why we filed around ten patents to properly protect our innovations, for example Coloride and the ADAS Risk Score.
Denise: After almost ten years, we won the Swissness case before the Swiss Federal Supreme Court. In a nutshell: In 2017, Switzerland passed a new legislation on trademark protection for Swiss geographical denominations under which any trademark containing "Swiss" (eg Swiss Re) is only granted trademark protection if the goods and services are of Swiss origin. This legislation, intending to support Swiss companies, resulted in unintended negative consequences for Swiss Re as the Swiss Trademark Office applied the new law in such a way that would have tripled the cost of any new trademark registrations going forward. Swiss Re therefore appealed the decision on how the Swiss Trademark Office handled the implementation of the new law as it applied to Swiss Re. In May 2020, the Swiss Administrative Court of Appeals ruled in favour of Swiss Re's appeal, meaning that the Swiss Trademark Office would have to continue to register Swiss Re's trademarks without limitations or disclaimers. However, the decision was then appealed by the Swiss Trademark Office. The Swiss Supreme Court confirmed the ruling of the Swiss Administrative Court of Appeals. This decision allows Swiss Re to continue with its trademark registration strategy as before.
Tammy: When I was still working as an external counsel at a boutique IP law firm, I was fortunate enough to be involved in a rebranding exercise for a global banking entity. I filed, prosecuted and registered multiple trademarks in dozens of classes within that branding scheme in over 120 jurisdictions. I have never worked as hard or learnt as much from a project than what I did during that rebranding exercise. Later on, I learnt that I had inadvertently used the same strategy as the International Olympic Committee did when they rolled out worldwide protection for their catalogue of marks. Almost 20 years on, almost every major entity now uses that strategy, but the IOC and I were the first!
