Intellectual Property Workshop – Registers and Data IP

Zoom link: https://uqz.zoom.us/j/87384020074

Paper 1- Who Reads the Trade Marks Register? 

Professor Robert Burrell  (University of Oxford and Melbourne Law School)

Is coffee a non-alcoholic beverage? If this were a question in a consumer survey, a clear consensus might well emerge. But for those with legal training this question is more likely to produce wariness, at least once told they are dealing with this issue as a matter of law. A legal audience will be mindful that a range of interpretive techniques can be brought to bear on questions of this type. Legal education teaches that even the clearest of categories can permit exceptions – that a military truck in a public garden may not fall foul of an ordinance prohibiting vehicles in parks if it has been mounted on a pedestal to serve as a war memorial.  The lawyer will therefore want to know more about the context in which the question of whether coffee is a non-alcoholic beverage has arisen. Confronted with an unfamiliar context, the lawyer will also want to know if this or a cognate question has been adjudicated before and, if so, how it was resolved.

In the course of this presentation it will be seen that from a trade mark law perspective there is reason to conclude that coffee is definitely a non-alcoholic beverage in Australia, is definitely not a non-alcoholic beverage for the purpose of the pan-European trade mark regime, and may or may not be such a beverage in the UK. This divergence is itself worthy of attention given that considerable efforts have been made to facilitate cross-border trade mark registration using common terminology.  However, I will argue that the reason why trade mark law struggles with questions of this type is because it has never taken a clear view of the person at whom the trade marks register is aimed. This oversight has important implications for matters that someone new to the field might imagine would have been resolved long ago. In particular, the absence of a clear vision of who reads the register has created a penumbra of uncertainty about how the information on the register is to be interpreted with important implications for the scope of trade mark rights. 

About the Speaker

Robert Burrell holds the Professorship of Intellectual Property and Information Technology Law at Oxford and is the current Director of the Oxford Intellectual Property Research Centre. He teaches and researches across all areas of intellectual property law and is the co-author of Copyright Exceptions: The Digital Impact (CUP, 2005) and, Australian Trade Mark Law (OUP, 2010; 2nd ed. 2016). His most recent work includes an investigation of the role of rewards as an alternative to the patent system in the eighteenth and nineteenth centuries, and an interdisciplinary project with a team of psychologists that tests trade mark law’s assumptions about consumers. His work has been cited by the High Court of Australia, the Supreme Court of New Zealand, the Court of Appeal of England and Wales and in an Opinion of an Advocate General to the European Court of Justice. He has spent many years outside of academia working as a consultant to boutique Australian firms and, in particular, has substantial experience in litigation before the Australian Trade Marks Office.

Paper 2 - Data Intellectual Property, Data Property or Something else? Insights from the Chinese Regulatory Experiment of Data Intellectual Property Registration

Dr Wenting Cheng (UQ Law School)

China has recently started registering ‘data intellectual property’ through eight provincial-level pilot schemes, even before the protected subject matter ‘data intellectual property’ has been defined by legislation. This pilot program follows a logic of ‘implementation before conceptualisation’.  While the pragmatic nature of the current regulatory experiment may not provide much insight into what ‘data intellectual property’ entails, the experiment could eventually generate normative change—conceptualisation through legalisation.

This presentation will briefly introduce the Chinese ‘data intellectual property’ registration system. It will then compare ‘data intellectual property’ with an alternative Chinese approach of ‘data property’ and ownership-usufruct, as well as the EU’s precautionary approach towards  proprietary rights over data. It concludes with thoughts on the nature of data and the way in which its value should be allocated among actors in the digital environment.

About the Speaker

Dr Wenting Cheng is a Senior Lecturer at UQ Law School. She specialises in intellectual property law, sustainability governance, and their intersection. She has applied interdisciplinary skills, comparative perspectives, and regulatory theories to research in diverse areas, including intellectual property law, innovation policy, energy regulation (particularly hydrogen and off-shore wind power), just climate transition, and sustainable finance at local, national, and international levels.

Wenting obtained her PhD in Regulation and Governance in 2018 from the School of Regulation and Global Governance (RegNet), College of Asia Pacific, the Australian National University. From 2020 to 2023, she worked as a Grand Challenge Fellow at ANU Grand Challenge Zero Carbon Energy for the Asia Pacific. In this role, she had the opportunity to work in a multidisciplinary team, including scientists, engineers, and economists, to explore how to address technical, economic, and regulatory challenges for energy transition nationally, regionally, and globally.