PTMG 91st CONFERENCE - WARSAW 2015 A Polish Rhapsody - Stay Tuned in Pharmaceutical Trade Marks Jean McIvor, Partner at Spoor & Fisher, South Africa It was the first visit to Poland for many of the delegates who booked in time to avoid the cut-off number of the ever over-subscribed Autumn Conference. Warsaw certainly wears its heart on its sleeve and provided plenty of interest for those able to enjoy the sights other than the monumental Palace of Culture, “The Gift of Stalin”, across from the InterContinental Hotel where we were based. In any event, the official programme also gave insights into our host country with Marek Lazewski’s miscellany which opened the conference, and the two evening functions. As always, PTMG managed to strike the perfect balance between business, education and interest, and must be complimented on their attention to detail and their personal touch. After the usual welcome reception at which the noise levels steadily increased with familiar greetings and the circulation of people, the first session got off to a leisurely start on Thursday morning. Our new Chairman Frank Meixner introduced himself and confessed to being a bit intimidated having to follow his formidable women predecessors. But with his own style and diplomatic skills from his former life, he suavely guided proceedings for the next two days. In Marek Lazewski’s opening talk entitled “A Tale of Three Cities”, he took us on a short and fascinating tour of Poland’s history since Marek Lazewski the war which reduced Warsaw to rubble, from communism and a central economy to the modern free market era and the city we see today. These changes in the landscape have been mirrored by changes in the legal landscape but it is still very much a system in transition with some lingering suspicions towards intellectual property rights illustrated, for example, by resistance to brand extension. What he did stress was the Polish love of brands as the economy has moved from the grey communist era to the colourful world of trade marks representing a vision of a better world. He paid tribute to the iconic Zubrõwka/Bison brand of vodka, sampled by some the evening before, and its distinctive grass straw contained in the bottle. The next speaker was the youthful Nicolas-David Lair who delivered a cracking Founder’s lecture and it was a pity that Derek Rossiter in whose Nicolas-David Lair honour it was given, could not be there to hear it firsthand as much of Nicolas-David’s French “expressionism” would not be as apparent from a reading of his paper. The lecture was entitled “Private Labels in OTC” (or “How to make money”) and provided a dense and well researched overview of the problem of lookalike OTC pharmaceuticals where “the enemy” is often one of the brand owner’s large customers. He conducted a thorough survey of the position in the USA, European jurisdictions, Canada, Australia and South Africa, and the different legal approaches followed, largely unsuccessfully, because of the absence of confusion which makes it difficult to take action against this “parasitic” practice. The talk was well illustrated with many examples and slides of store shelves which demonstrated the problem. This report cannot do justice to this truly excellent paper and you are urged to read it in full on the PTMG website. Trade Secrets, or “the 4th IP right”, was the next topic handled in two parts with Barbara Kuchar sketching the EU regime, and Mathew Lombard dealing with the Barbara Kuchar US position. Some interesting statistics about the misappropriation of trade secrets and confidential information emerged, with employees, ex-employees or business partners being responsible for the vast majority of breaches, and the problem is on the increase in the “paperless age” with so much information ironically now more accessible in its digital form than before, to unscrupulous parties. Yet, as Mathew pointed out, most companies spend more on coffee than on securing web applications. Barbara traced development of the law in Europe from Article 39.3 of TRIPS through to the draft European Directive, due to have its first reading before the European Parliament in November. In the process, she summarized the present position under the national laws of the various countries, with only Sweden having a dedicated law on the subject, and the rest largely relying on the common law, tort law or unfair competition. This certainly highlighted the need for a uniform approach but there is still controversy around how to legislate in this area. She then took us through the provisions of the Directive in some detail. Mathew dealt Mathew Lombard with both civil liability and criminal liability under the Economic Espionage Act. After piling up the evidence of data breaches in major companies recently which was certainly a call to action, he also gave useful background on the reasons for keeping something a “trade secret” rather than protecting it in other ways such as through registration. Both speakers provided good advice on best practice and a host of steps and actions which should be taken to restrict access, to manage and segregate information, to have confidentiality or non-disclosure agreements in place, but also to review these regularly as employees move up the promotion ladder, and so on. The next two papers had a regional focus with David Aylen dealing with Developments in Russia, and Scott Palmer discussing Challenges and Opportunities 9