IP and Agriculture in the UK
Creative Commons Licence
According to the Department for Environment, Food and Rural Affairs ("DEFRA"), some 476,000 individuals in the UK were employed or engaged in agriculture contributing £9.9 billion to the country's gross value added in 2014 (see Agriculture in the United Kingdom 2014 DEFRA and devolved administrations).
As most consumers purchase their food from intermediaries there are limited opportunities for farmers who supply those intermediaries to distinguish their produce from those of their competitors. The position is, of course, different if they market directly to the public through their own farm shops or other retail outlets that they control or influence. If they can build up reputation or goodwill it makes sense to register the name, logo or other sign by which they are identified in the market as a UK trade mark.
If goods are produced in a particular manner or meet a specified standard it may be advantageous to use a special type of trade mark known as a certification mark. s.50 (1) of the Trade Marks Act 1994 defines a "certification mark" as:
"a mark indicating that the goods and services in connection with which it is used are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics.”
Such marks are usually registered by trade associations, government departments, technical institutes and similar bodies and applications for a licence to use those marks must be made to such users.
If a farmer belongs to, or is eligible to join, a trade association that produces a distinctive beverage or foodstuff, he or she may be entitled to use a collective mark. A "collective mark" is defined by s.49 (1) of the Act as:
"a mark distinguishing the goods or services of members of the association which is the proprietor of the mark from those of other undertakings.”
Further information about certification and collective marks can be obtained in the Intellectual Property Office's Guidance on collective and certification trade marks.
Certification and collective marks are examples of geographical indications. The European Union operates three schemes to promote and protect names of quality agricultural products and foodstuffs known as protected designations of origin, protected geographical indication and traditional speciality guaranteed. These schemes restrict the use of geographical indications to producers in designated regions who use specified production methods. British products that are protected in this way include Stilton cheese (blue and white) which is protected as a protected designation of origin and Cornish pasties which are protected as protected geographical origins.
Design can be important for packaging. One of the leading cases on copyright in product designs before the law was reformed concerned kiwi fruit containers (see Frank M Winstone (Merchants) Ltd, and others v Plix Products Ltd. 5 IPR 156). Product designs in the UK are protected by unregistered design right under Part III of the Copyright, Designs and Patents Act 1988.
It is possible for those working in agriculture to invent products or processes for use in farming, Such inventions may be patentable if they are new, inventive, useful and fall outside the statutory exclusions provided by s.1 (2) of the Patents Act 1977 or arts 52 (2) and 53 of the European Patent Convention, Equipment and other product designs may also be protected by s.213 (1) of the Copyright, Designs and Patents Act 1988 or as trade secrets by the law of confidence.
Farmers should also be aware of the intellectual property rights of others. Much of the latest equipment, fertilizers, pesticides, veterinary supplies and other technology used in agriculture may be patented. New plant and seed varieties are likely to be protected under the Plant Varieties Act 1997 or Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ L 227 of 01.09.94 p.1) as amended.
The source code for computer programs used in agriculture is likely to be protected as original literary works by s.1 (1) (a) of the Copyright, Designs and Patents Act 1988.
Patents, copyrights, trade marks, unregistered design rights and other intellectual property rights are enforced by proceedings in the civil courts.
Actions to enforce or revoke patents and plant breeders' rights have to be brought in the Patents Court or the multitrack of the Intellectual Property Enterprise Court (IPEC").
All other claims may be brought in the Chancery Division (including IPEC if they can be disposed at a hearing of no more than 2 days) or the Manchester, Leeds, Liverpool, Preston, Newcastle, Birmingham, Bristol, Mold, Caernarfon and Cardiff hearing centres of the County Court.
Claims below £10,000 may be brought in IPEC's small claims track.
IP litigation can be expensive and is not usually covered by most legal indemnity policies. Thought should be given to funding enforcement or revocation proceedings in the course of business planning. Further guidance on this matter can be found in How Small Business can Fund IP Advice and Representation 3 Sept 2016,
Anyone wishing to discuss this article or intellectual property and agriculture generally should call me during office hours on +44 (0)20 7404 5252 or send me a message through my contact form.
European Commission Protection and Control Agriculture and Rural Development
Michael Kock Adapting IP to an evolving agricultural innovation landscape WIPO April 2013
Hartmut Meyer and others The role of intellectual property rights in agriculture Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH
Jayashree Watal Intellectual Property Rights and Agriculture: Interests of Developing Countries World Bank
UC Davis Public Intellectual Property Resource for Agriculture