Alternative Business Structures -- as if we don't have them already

The Legal Services Board -- a strange sort of entity that seems to be there to regulate the regulators, has won the sudden and passionate admiration of the patent and trade mark attorney professions in the United Kingdom, it seems.  The following media release has just reached this blogger:

Legal Services Board announces recommendation that IP Regulator is to be licensed to authorise and regulate Alternative Business Structures

The Legal Services Board (LSB -- nothing to do with the closely similar LSD, much favoured in various Alternative Structures of the 1960s, or the studiously academic environment of the LSE where, well, never mind ...) has announced its decision to make a recommendation to the Lord Chancellor to designate the Intellectual Property Regulation Board, IPReg, as a licensing authority for Alternative Business Structures. This recommendation, if it is accepted, will enable firms of patent and trade mark attorneys to operate under Alternative Business Structures, under IPReg regulation.

“This makes a lot of sense,” said Roger Burt, President of the Chartered institute of Patent Attorneys. “Having IPReg as the licensing authority for Alternative Business Structures will benefit consumers as well as the legal profession. It should remove a potential obstacle to firms of patent attorneys merging with other providers of legal or professional services. This could widen consumer choice and enhance the service provided to business.”

Catherine Wolfe, President of the Institute of Trade Mark Attorneys, congratulated IPReg’s CEO Ann Wright on her efforts which have enabled this important milestone to be reached: “It’s taken the IPReg team many months of hard and good work to get this far,” she said. “It has been a complicated and demanding process and we are delighted to hear that the Legal Services Board is making this recommendation.”

You can read more about the LSB's decision here.

This recommendation says nothing about Alternative Business Structures that combine the practice of an IP professional with those of the diplomat, debt-collector, accountant, social worker, psychotherapist and a few other things besides -- most if not all of which are found in any typical solo practitioner.

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.