COVID-19™ – will coronavirus-related trade marks and patent pooling be part of the new normal?

In brief 2 min read

The global COVID-19 pandemic has triggered an array of virus-related trade mark applications, with individuals, companies and governments seeking to monopolise marks. Meanwhile, the World Health Organization (WHO) has established a global patent pool to increase access to COVID-19-related knowledge and inventions, particularly those relating to a potential vaccine.

Key takeaways

• No COVID-19 related trade marks have yet been registered in Australia; however, several applications are pending, and at least one mark containing the word COVID has been accepted for registration.
• WHO has implemented a global COVID-19 patent pool. Currently, contributions are voluntary but there is the potential that governments will mandate contributions when providing public funding for research.

Who in your organisation needs to know about this?

Trade mark and patent attorneys, marketing representatives, and research and development managers.

COVID-19 trade marks

Several Australian trade mark applications have been made for 'COVID-19' and 'Coronavirus' in relation to a surprising range of goods and services, from board games, stickers and coins, to electronic publications and academic examination services.

Applications for marks such as 'COVIDKEY', 'CORONAVIRUS LEGALADVICE.COM.AU', 'CoronaClean', 'Corona-virus resistant', as well as the more creative 'Love in the time of COVID-19' and 'CORONAVIRUS K9 DETECTIVES', are currently pending before IP Australia. Notably, the New South Wales Government has applied for this logo:

Presumably, these marks will be used to market a new wave of virus-related products and services, or to encourage consumer confidence.

Before rushing out to lodge your new COVID-related trade mark application, it is worth bearing in mind that IP Australia is likely to object to any application that is merely descriptive of the claimed goods or services (think treatments, vaccines or other virus-related medical goods). In determining distinctiveness, consideration is also given to whether other traders should be able to use the trade mark in connection with similar goods/services.

At the time of writing, an application for 'eHealthier's Interim COVID Behavioral Vaccine' has been provisionally accepted, although the inclusion of 'eHealthier' in that mark was likely necessary to get it across the line. Time will tell if any of these other marks are successfully registered, or if this trend in applying to monopolise COVID-related marks will itself be novel.

Patent pooling

WHO has recently launched the Covid-19 Technology Access Pool (C-TAP). WHO's aim is to 'ensure faster and more equitable access to existing and new COVID-19 health products' by facilitating access to and sharing of inventions that would otherwise be monopolised, limiting availability and access. C-TAP measures include licensing any potential vaccine, or other relevant invention such as treatments or diagnostic aids, to the Medicines Patent Pool (the MPP).

Patent pooling is not a new concept – the MPP has been used in relation to HIV/AIDS, and similar approaches were planned but ultimately not implemented for SARS.

C-TAP will not involve compulsory licensing or acquisition of patents. Instead, patents will be voluntarily added to the pool with the option of requiring royalties be paid for use. While contributions are currently voluntary, governments are encouraged to include clauses in public funding agreements that would require resulting inventions to be made available through C-TAP and similar initiatives.

More than 30 countries have already joined C-TAP; however, the US has declined to participate and Australia is yet to decide whether it will take part.