Peter Vaughan, Associate Professor NLS https://www.ntu.ac.uk/staff-profiles/law/peter-vaughan
T’was the night before Christmas… most are tucked up waiting for the imminent arrival of a certain jolly visitor all dressed in red, delivering festive gifts. But should Santa be quite so casual in his largess.? Or is his annual jaunt around the world fraught with legal difficulty? Perhaps Father Christmas should be on his own naughty list…
There are questions of product liability, of damage to property through the careless landing of sleighs on the roof, of animal welfare, of drink-sleighing, of employee rights for overworked elves. The list is growing longer than an excited child flicking through the Argos Catalogue (am I showing my age?) ready to write their annual letter. And let’s not even start on the GDPR nightmare lurking in the background.
But let’s put these to one side. Perhaps The North Pole has special rules to deal with this kind of legal purgatory. Can Father Christmas quite so easily avoid claims regarding IP infringement?
IP rights are territorial. There’s no use in claiming North Pole immunity here. We all know that Santa’s elves make the toys themselves. And yet, when they arrive they are neatly packaged in branded boxes. Trade Mark Infringement anyone? Not to mention the likely design infringement in the shape of the toys. Or patent infringement in the myriad of technology incorporated therein. Exhausting as it may be to deliver that many toys, it seems unlikely that any form of exhaustion would apply to the IP rights concerned. They are as fresh as the day they were created and waiting to spring into action.
I can feel a chill in the air already as cease and desist letters are prepared.
So, we have IP infringement. How are we to tackle this? How can we stop this annual mass infringement of Intellectual Property by one individual and his army of elf employees?
The first challenge must be one of service. How does one serve Father Christmas? Permission will be needed to serve out of jurisdiction. At least the address for service won’t be a problem. We just need to ask a child. Or perhaps, one of the many Father Christmases are acting as his agent and can accept service on his behalf. Failing that, what could be more festive than a cease and desist next to the mince pie (allergens suitably listed), carrot and 0% whiskey. It’s certainly not what you would expect to receive under the mistletoe!
Santa must also be considered a flight risk. Highly mobile and with assets easily moved around the world we will need to move quickly. How does one impound a magical flying reindeer? This will certainly bring a whole new meaning to a “freezing order”.
This is all sounding a headache. And I don’t want to be telling my two year old that I’m responsible for there being no Santa this year. Maybe there’s a solution. Maybe we can turn to equity. After all these years of IP infringement has time run out for the companies who own the IP? Perhaps there is a solution after all. An implied licence perhaps based on acquiescence. Worldwide, non-exclusive and perpetual in-nature in so far as the use is non-commercial (let’s not start arguing whether mince-pie and carrot constitute remuneration).
Yes. This would fix it. A peace hangs over the world. Snow falls across the quiet streets as hushed expectation once again creeps in. Are those sleigh-bells I hear in the distance?
Happy IP-Christmas!
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