How to Protect Consumers and Regulation - Titles and the Unregulated

Having read the various comments in response to the post The Great Unregulated (why so many anonymous?) I think the issue is not whether there are regulated firms that provide poor value, or unregulated ones that are excellent, so much as whether the area of advice is important enough for society to ring fence in some way to protect consumers. For example, nobody would dispute that only doctors should be let loose on the public to provide certain types of services. So, that is the question, what types of legal services should be reserved activities that only lawyers, patent attorneys, trade mark attorneys, or whatever other discipline is permitted to provide?

Consumer protection?

If the aim of the Legal Services Act is in part, consumer protection, then these sort of questions need to be considered. Fine distinctions between trade mark attorney, and registered trade mark attorney, or trade mark agent, are not going to be easy for the public to understand. The question is, should the public be protected against the clerical assistant who worked for a short stint in a law firm, and who then sets himself up in business as a trade mark agent because they can’t find any other work? Their knowledge may be miniscule, but it will be greater than that of the lay public, so they may well be able to attract work if they price themselves cheaply enough. Does society think that trade mark registration is important enough to become a reserved activity? What about web design, search engine optimisation, marketing and many other areas where anyone can set up in business…. with little experience, and pick up the ropes as they go?

The Unregulated

What is unhelpful in my opinion is the rivalry between professional bodies, and all the protected titles that are devised in order to mark out a particular group as the ones who should be consulted above all others for that particular area of work. Surely, other regulated entities are not the real problem. If the people who should not be allowed to mislead the public by use of titles are the unregulated sector, (possibly those people with little background in law, who may be passing themselves off as suitable to provide legal services), then let's find solutions to stop some of their unregulated activities.

If we thought trade mark registration work should be a reserved activity, then it might be relatively easy to prevent certain people filing trade marks as agents for others. They might still find a role providing help to the public to draft their own applications, but at least their limited capacity to act would mark them out as a different type of trade mark agent. But in the absence of some radical measure like this to distinguish between providers, what is the point of reserving use of titles, if there would be some other title that the unregulated would be able to use in order to provide their desired service?

Protecting Titles

In the meantime, we are in the ridiculous situation where confusion reigns over who may or may not call themselves trade mark attorneys. For example, recently, after verifying on this post that there appeared to be an error in the IPO’s booklet Choosing the Right IP Adviser I wrote to the IPO to point out that solicitors could also call themselves trade mark attorneys and could they please correct the error. To my astonishment this week I received the following reply from ‘Debbie’ of the iPO:

Thank you very much for your feedback on the 'Choosing the Right IP Adviser' booklet which has been forwarded to me from Paolo Senese. Please accept my apologies for the delay in response but I have been absent due to a bereavement.

I can confirm that the point you have raised re: page 7 about Trade Mark Attorneys is being looked at. This issue has also been raised by another Attorney.

The text in the booklet was taken from the CIPA website relating to Trade Mark Attorneys and cleared internally by TM colleagues, but as you rightly state this does not tie in with Section 84 of the Trade Marks Act 1984. Thus, "trade mark agent" and "trade mark attorney" remain open for anyone to use.

I have been discussing with CIPA and I understand that the Protected Titles Committee recently considered the matter and was making a report to Council on 5th January in which it is suggested that the public would be misled now by anyone using the term if they are not on the Register of Trade Mark Attorneys. The reason for this is that the treatment of trade mark attorney is now in all other respects analogous with the treatment of patent attorney and with the "Register of Trade Mark Attorneys" now in place the public is likely to assume that someone using the title is entered on the Register. Thus the Committee is proposing that Council should issue guidance to Fellows that they should not use the title unless they are also entered on the Register. Whether that will be accepted by Council I do not know and am trying to establish the outcome of the report with CIPA.

CIPA has confirmed that they will not be updating their website until the outcome is known with the view that I would amend the publication at that time.

I will be more than happy to provide you with an update when I hear anything further from CIPA.

Thank you for your interest in the IPO publications and if you have any further feedback in due course this would be most welcome.

I was amazed that the IPO seem to think that CIPA have the right to make changes except possibly with regard to their own members. If CIPA wish to issue guidance to Fellows that they should not use the title Trade Mark Attorney unless they are also entered on the Register, I doubt this would have effect on anybody else’s use of this term. It's also surprising that the CIPA website has this statement about the term Trade Mark Attorneys. What happened to consultations with other interested parties?

While I agree with CIPA that all these terms are confusingly similar, I do object as a solicitor, to them effectively trying to deprive solicitors of the use of the title. It speaks volumes about the problems that need to be addressed. I read recently that there is a realisation that greater consideration is needed as to the activities that should be reserved and what Alternative Business Structures (ABS) will be able to provide once legal services are deregulated. Otherwise, consumers are in danger of being misled.

While Jeremy’s suggestion that some further research is needed in this area is correct, it clearly needs to focus on both regulated and unregulated IP providers.

The Great Unregulated

At yesterday's Intellectual Property Institute seminar on the report, Intellectual Property Enforcement in Smaller UK Firms (here) I mentioned a topic that is of potential importance to many readers of this blog: the growth of the unregulated sector.

The position of specialists intellectual property solicitors, barristers, patent attorneys and trade mark attorneys is fairly clear: they are qualified, they are regulated and they cannot quickly and easily increase their numbers.  This has raised the suggestion that, since they are in relatively short and stable supply, the cost of engaging them is not very elastic.

It seems to me, however, that there has been a rapid growth in the unregulated sector.  Among those wo are competing to supply services to the IP business community are the following (some people may fit within more than one category):

• former qualified practitioners who have retired or ceased to retain their practising certificates on being made redundant;
• people who for one reason or another have failed to pass their professional examinations but have studied for them;
• those who have worked in an intellectual property environment and have gained some practical experience;
• businessmen who have specialised in bringing innovations to market.

I'm fairly certain that there are quite a lot of people working as unregulated IP consultants since I regularly receive email or phone requests for advice with regard to gaining access to reported and unreported cases, updating on recent developments and recommendations of others whose skills complement their own. What I'd like to know is what impact these people have upon the IP environment, especially in so far as it affects micro-businesses and SMEs which perhaps unsurprisingly appear to make up the bulk of their clientele. I also know that some of these people would be only too happy to secure some form of regulation and recognition, while others see it as unnecessary or a threat to their activities.

Readers' thoughts on this topic are very much appreciated, not least because it might turn out to be an interesting and valuable subject for a serious research project in the future.

Why UK may be the future of Legal Process Outsourcing for Solicitors

I've just written a blog post over on Azrights blog where I express the view that the future of Legal Process Outsourcing (LPO), insofar as solicitors firms are concerned may well be here in the UK.

Niche firms and those with expertise in areas where another firm needs to make savings, are best placed to provide the efficiencies. There is an oversupply of solicitors and paralegals in this country, so why go offshore in search of outsourcing solutions?

It would be great to have others' views on this topic.

Patent applicants and professional representation

The inventor's dream: a pile of profits
or
The inventor's nightmare: paying my professional representative

Earlier today I posted a piece, "Unrepresented patent applicants: a little thought", on the IPKat weblog here.  Having done so, it occurred to me that there might be quite a few readers of this weblog who don't spend their hours gaily filing away on behalf on cash-comfy multinationals but who have to advise patent applicants with limited resources as to how to deploy their money and find the happy balance between saving money and actually getting a patent granted. They may therefore be better qualified to pass comment.

Readers' thoughts on my IPKat post are greatly welcomed, whether posted there or here.

Intellectual Property Predictions for 2011

In the best pundit style these are my SOLO predictions for the IP profession in the UK: Let me know what I have missed out

Crystal Ball Applied to 2011

• The Unitary but not-Community Patent Initiative will not succeed. Politicians will blame the IPkat reading masses for calling it a CRAP patent but the real reason will be that it will not have big business support
• The Hargreaves Review will recommend amendments to the Copyright Act leading to much acrimonious litigation in the next ten years at least
• CIPA and ITMA will merge - reluctantly but in the face of demand from the IPRegulated to stop wasting resources
• The IP Strategist will become the unregulated "financial adviser"  in the IP profession
• OHIM will start a new line of business
• His Honour Judge Birss will be very busy
• Baroness Wilcox will be replaced in a reshuffle
• The EPO bar will begin to influence the filing strategies of the multinationals having adverse effects on the traditional patent agent profession
• Start ups and Investors will begin to find that IP educated managers are worth a check box in their due -diligence lists
• DIY or in-house patent drafting will become more popular and online tools will become available to facilitate support from entrepreneurial agents. Here is one  that already exists
• All EPO decisions on Petitions for Review will be clearly unallowable