Nobody is Friends with their Regulator

There is a disease known as consultation exhaustion. Yes we want to be consulted but no we don't want to spend our lives responding to consultations. Representative bodies like the Law Society and CIPA suffer greatly from it. I don't know the cure, but I can describe the symptoms.

Inbred Opposition (light touch?)

One particular symptom that worries me is Antagonism. The regulator proposes, and the regulated oppose. When the regulated are lawyers (for the purposes of this blog we are not talking about the European definition of lawyers but the English one which includes patent agents and registered trademark agents) they can readily dream up some grounds of opposition.

Take for example the opposition of the Law Society to the abolition of CPD  discussed here and now we have another bunch of oppositions  the Law Society has set out to the latest set of SRA consultations on what one would think was desirable deregulation.

The SRA suggested reducing minimum Professional indemnity insurance cover to £500,000. The Law Society opposes. IPReg does not have a minimum but except for litigators but suggests a £1 million. So patent agents have always had to think about what was an appropriate level of cover and I am sure that solicitors do too. As a solo practitioner, I have always included in my terms of trade a limitation of liability and I am afraid I hope to rely on it. Generally its to £1million and I haven't had any complaints. I received some terms from another firm today who were seeking to limit their liability to £5 million. So they can obviously afford bigger premiums than me. Perhaps they need them, the terms should have been sent to their client not me.  The Law Society is concerned that mortgage lenders will object to limitations of liability. Wouldn't it be better of the Law Society spent their time managing the expectations of such prospective clients than opposing the regulator.

For other matters your friendly Law Society opposes see here. In fact that doesn't seem anything that the SRA can do right, but there are a lot of closed consultations undergoing analysis.

In the current political environment, regulation is designed to protect consumers and business clients are expected to look after themselves. This has the desirable effect of meaning that for those of us who mainly deal with the business world, regulation can go back into the lightest touch box that we were used to.

Meanwhile, it would be nice if regulators and representative bodies could develop a slightly better relationship and just occasionally find some areas of agreement.

Consultation Marathon

Since the announcement of the Fast Trade mark Opposition consultation from the UK IPO discussed below, we have the Patent side of the Office starting a consultation on even faster patent prosecution. It must be because they were coming up to today's blessedly peaceful and sunny Virgin London Marathon.

London 21 April 2013

The Law Commission also finally publishing their consultation on groundless threats.  This last weighs in at 174 pages so most of us will simply have to rely on the executive summary. I like the prospect that legal advisers will be exempt. The idea we might get an unfair competition tort is interesting too. Possibly not an idea to hide in something as abstruse as a groundless threats consultation though.
Weighing in with a threat of a threats action is often a rather unethical practice. The last letter I received gave me a short time to respond so I did not as it was mostly groundless as we were discussing a service mark.
The super-fast patent paper is reasonably short and hopefully CIPA will be on to it. By the way, this is not for the small inventor or SME - a marathon fee of £3500-£4000 is proposed but you don't have to give reasons for paying it. There do not seem to be many situations where the normal expedited prosecution is inadequate, but if this procedure becomes available there does not seem much incentive for the IPO to do it for free when they could have a fat fee and a few extra home comforts in Newport.

Early Assist for Trademark Applicants

I have been working on a personal response to the UK IPO consultation on credit crunch fee structures which is due in before 1 June 2009. To download the consultation paper go to http://www.ipo.gov.uk/pro-policy/consult/consult-live/consult-feeservices.htm

The overriding objective of the consultation is that businesses should protect their trademarks and inventions. It is also clear that the IPO feel some responsibility to the significant proportion of unrepresented applicants. These may represent a larger proportion of applications abandoned before advertisement and they were certainly a category Gowers cared about. Of course we must point out that there are some very cost-effective qualified trademark professionals available for hire amongst the SOLO group. If you need or want to offer help post a comment.

Amongst the proposals are a new Early Assist program, abolition or suspension of the Fast Track and encouragement for e-filing. The Early assist program appears to replace the recently abolished Search and Advisory Service and would let businesses get help and refunds of some of their fees if they wanted to represent themselves.

If I were an entrepreneur starting a business today with next to no cash, I would not spend what I had on a trademark attorney. I would try the DIY route. I might not bother to protect my mark at all. If I were starting a stay-small business it is not much of a priority, but let's suppose I want to grow my business then protecting the brand is on the agenda and a UK trademark is a good place to start. For such a one, is this Early Assist program the best solution? Can we improve it? I think we can. I think it could be better offered as IP Aid by selected quality approved private practitioners rather than through the IPO. Some of the more innovative filing services such as Trademark Direct are already offering a No TM No fee guarantee. Our entrepreneur does not want to waste his limited cash. In the beginning it is easier to change a name than fight a war.

Therefore I think this idea needs encouragement and I am hoping we can think of ways that would make it work better and ensure that the trademarks registered with such assistance are not just in compliance with the Act and rules, but the right protection for the business as well.