Rachel Wilkinson-Duffy, President of the Chartered Institute of Trade Mark Attorneys, explains that post-Brexit the UK has allowed non-lawyers and foreign practitioners to appear before the UK Intellectual Property Office to the detriment of UK businesses.
Amongst all the political noise right now, there is one policy objective that has bipartisan support. The need for growth is clear, and policymakers should be doing all that they can to help drive it.
Membership organisations like the one that I am fortunate enough to be President of, the Chartered Institute of Trade Mark Attorneys (‘CITMA’), have a unique perspective and experience that can help governments devise and deliver practical public policy. That is why CITMA is working with government to deliver growth by plugging a gap that has widened since Brexit.
A Brexit-born loophole
Our proposal would close a loophole that we have allowed to emerge since Brexit.
Since we left the EU, the UK’s trade mark and intellectual property (‘IP’) professionals have lost the right to appear before the EU Intellectual Property Office, the body which is responsible for managing the registration of intellectual property rights including EU trade marks and community designs. To appear before the European Union Intellectual Property Office an individual has to have a connection to the EU, e.g. a place of business in an EU member state and appropriate qualifications.
Here, however, our loose rules mean that non-lawyers and foreign practitioners can use our system with little-to-no connection to the UK or understanding of our IP system. We have taken the active decision to allow our system to remain open to non-lawyers and overseas practitioners even though the EU (as do other countries, such as the USA) has chosen to limit access to their representation system to EU practitioners.
The consequences for our economy
The result is that our innovators – from our small-scale start ups to our SMEs and household names like Astra Zeneca and Dyson – are being let down by a system that is being taken advantage of.
CITMA’s members have seen and experienced the consequences of the rise in the number of foreign individuals or firms appearing before the UK Intellectual Property Office (‘UK IPO’) over the last few years. Those foreign entities now account for 35% of trade mark representatives in the top 100 appearing at the UK IPO – up from 16% in 2019 before our departure from the EU. One overseas-based company managed to file 1,532 trade mark applications on behalf of its clients in just a six-month period last year, having never filed a single application previously.
This shows our system is being run down. Thousands of applications are made every year by foreign entities looking to take advantage of our public infrastructure – even though they have no intent of setting up business, employing people and sharing wealth here.
This all adds cost and complexity to proceedings that our innovators get tied up in, and it allows unregulated overseas representatives to give poor advice to businesses, who are using them to register and manage UK trade marks, because they don’t understand our system.
The gap between what the EU requires for representation and the UK’s low bar is also unfair on our experts, who are locked out from the overseas systems that they used to have access to. They are competing on an uneven playing field – and our Brexit arrangements have allowed this imbalance to prevail.
Going for growth
We know that Brexit has imposed new barriers and complications on some businesses trading with Europe. That’s undesirable at any time – but this is a particularly poor policy outcome in the current circumstances given the state of our public finances.
As the government looks to supercharge growth and support businesses, CITMA is looking to work with it so that our trade mark and IP systems are strengthened. Already, UK industries that rely on our trade mark and IP regime contribute £770bn per annum to GDP: we want to see this loophole closed so that those numbers can grow further for the benefit of our economy.
Regardless of our views on Brexit, we can all agree on the need to make the most of the situation we are in.
By strengthening our rules so that unregulated and unqualified representatives cannot take advantage of our lenient system, we can bring ourselves in line with the EU’s approach – to the advantage of our domestic players.
This is a cost-free fix that will deliver a true Brexit dividend and will free our innovators up to do what they do best – take their product to the world, and deliver the growth we all want and need.
By Rachel Wilkinson-Duffy, President, Chartered Institute of Trade Mark Attorneys.