Exclusivity is a weighted term. Not only is much of the rationale in intellectual property discourse articulated around this concept, but also in cultural and social activities more broadly speaking it brings with it notions of prestige and advantage.
This issue of the Queen Mary Journal of Intellectual Property examines exclusivity from a range of perspectives and approaches.
The notion of exclusivity in the interpretation and application of geographical indications is explored by Xiaoyan Wang in ‘Absolute Protection for Geographical Indications: Protectionism or Justified Rights?’ The case of geographical indications provides a particularly relevant insight into the way in which this concept is understood both legally and culturally, especially in relation to the understanding of exclusivity as manifest in the product as distinct from rights vested in the producer. This article examines and compares the interpretation of geographical indications through what the author identifies as ‘absolute protection’ and protection through a closer relationship with principles of trade mark law, notably considering also a cultural and sociological-political relationship between the form of protection and ‘Old World’ or ‘New World’ approaches.
The concept of exclusivity in operation in data exclusivity protection is examined by Collins C Ajibo and Ndubisi A Nwafor in their article, ‘TPP, TTIP and the Shifting Dynamics of Threat to Public Health: Options for Sub-Saharan Africa’. The authors note the apparent importance of data exclusivity in the major multilateral trade agreements, and critique the relationship between this application of exclusivity protection to data and the wider concerns for public health. In their analysis, they note that while this kind of exclusivity is consistent with recognizing the various investments in data (not only financial but also resources of time and expertise), this must be understood in conjunction with the potential contribution of that data to technology and knowledge transfer and development. In outlining their recommended approach for negotiators, the authors implicitly weigh the value of exclusivity against the need to understand the impact of that exclusivity on access to resources – in other words, public health should not be an ‘option’ of prestige or advantage.
Matthew Kennedy also addresses the operation of a kind of exclusivity with respect to indications for wines in EU trade mark law in his article, ‘Sober Reflection on Traditional Terms for Wines’. In the context of the opportunity to register similar terms in relation to applications from non-EU members or contracting partners, the author notes the contrary approach to registrations from countries outside the EU, where the use of similar terms has led to the refusal of trade mark applications. In some respects ‘community’ within Europe appears to relax the demands for exclusivity between EU members, and the author suggests that this may change for the UK post-Brexit. However, it might be interesting to consider what the difference may be between exclusivity in the actual term as opposed to a more complex viticultural landscape that demands a certain meaning be fulfilled in the use of the actual term.
Exclusivity can become a critical consideration long before the application of rights. In their article, ‘Establishing an R&D Strategy based on a Patent Analysis of the Display Industry’, Gabjo Kim, Yung Kim, Gyungtae Song, Dongju Sun and Sangsung Park propose a method of establishing R&D strategy in the display industry, including an expert taxonomy of the industry itself which can then be subjected to a patent indicator analysis. As well as R&D investment, the authors recommend strategies in mergers and acquisitions as well as monitoring developments. Exclusivity, in terms of rights, is not a loner's game.
In ‘R v C in the UK Supreme Court – Should Parallel Importation be Criminalized?’ Ashley Roughton gives a thoughtful and provocative analysis of parallel importation in his review of the decision. Parallel importation of course provides a particular consideration of ‘exclusivity’ in territories and space. The author considers whether the example of parallel traders and licensee overruns should amount to criminal infringement in the UK; in other words, a criminal imposition upon trade mark space. In a critical analysis of divided exclusivity, as it were, the author brings the concept of exclusivity to bear upon the very difference in repetition in the case of trade marks.
Indeed, as Karl Lagerfeld reportedly said, ‘Exclusivity … I think it's very démodé’.