HC Deb 20 June 1994 vol 245 cc78-83 7.22 pm
Mr. Nigel Griffiths (Edinburgh, South)

I beg to move amendment No. 1, in page 36, leave out lines 41 to 47.

The amendment reflects the fears of the Patent Solicitors Association that confusion will be caused by the use of the term "attorney". I understand that clause 86 originated from the hon. Member for Meriden (Mr. Mills) and was moved in good faith. Let me say at the outset that I share the hon. Gentleman's laudable aim of finding for professionals who deal with trade marks a term that does not have negative connotations in the United States, France, Germany or elsewhere. Likewise, I share his aim of ensuring that litigation on trade mark matters is made cheaper and easier.

I would certainly welcome stronger support among Conservative Members for the key role played by the Patent Office and for Labour's fight to protect the excellent record of its workers. My hon. Friend the Member for Newport, West (Mr. Flynn), who is in his place, has supported those workers.

The Patent Solicitors Association, which strongly supports the Bill, is highly critical of the introduction of clause 86 at a very late stage and at short notice. The association contends that the use of the term "trade mark attorney" will cause misunderstandings and even deception; that the word "attorney" implies to businesses and the public that the practitioner is a qualified lawyer, when that is not the case; that attorneys will be subject to discipline from professional bodies and ultimately the Supreme Court, when they will not; that they carry indemnity insurance, which they do not; and that they are trained in all aspects of the law and litigation practice, when they are not so trained.

According to the Patent Solicitors Association, the term "trade mark attorney" is not recognised in Europe. In the United States, an attorney is someone who is a qualified lawyer, and who has passed the exams of the state bar—a very different type of professional. Assurances have been given that trade mark agents are highly qualified by examination, but that is not the case. The register of members of the Institute of Trade Mark Agents reveals that only 38 per cent. of the members and fellows have passed the institute's exams. That means that of the 416 full members only 158 were so qualified while 258 were not. If those members, who form a majority in the institute, were to be known as attorneys, the public would be likely to believe them to be legally qualified when they were not and would consider them to be lawyers when they were not.

I do not seek to impugn the excellent work of the Institute of Trade Mark Agents, but I would welcome the Minister's thoughts on the reservations that I have expressed, especially as other controversial clauses on unfair competition and lookalike products have been withdrawn.

The Parliamentary Under-Secretary of State for Technology (Mr. Patrick McLoughlin)

I have listened with interest to the points that the hon. Member for Edinburgh, South (Mr. Griffiths) has made. His amendment would delete clause 86, but I am not convinced that we should follow that course. I do not recall any dissent in Committee from the amendment tabled by my hon. Friend the Member for Meriden (Mr. Mills), which would allow registered trade mark agents to use the title "trade mark attorney". It is important to remember that the full title, not simply "attorney", would be used.

Moreover, as hon. Members will recall from the Committee, I reported that the overwhelming view of the departmental standing advisory committee on industrial property following consultation on the matter was in support of such a move. Although registered trade mark agents may not have a general legal qualification or be qualified as solicitors, they are qualified in trade mark legal practice by examination or experience. Their names also appear on the register maintained by the Institute of Trade Mark Agents—the professional body which exercises control over them. As I said in Committee, what is at issue is the use of the title "trade mark attorney", not the use of the word "attorney" on its own. Therefore, there should not be any confusion in the minds of the public.

One of the hon. Members who took part in the debates in Committee was the hon. Member for Newport, West (Mr. Flynn). I go some way towards agreeing with the hon. Member for Edinburgh, South that the hon. Member for Newport, West follows such subjects closely and also follows closely what goes on in the Patent Office. He gave a broad welcome to the change that has been made. Indeed, it received a broad welcome from the Committee. I understand the reservations expressed by the hon. Member for Edinburgh, South and his wish to raise the point, but I hope that he will not find it necessary to press the amendment to a vote.

Mr. Nigel Griffiths

The Minister has clarified one or two points. Although I still have some reservations, I have. no wish to delay the progress of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read.—[Queen's Consent, on behalf of the Crown, signified]

Motion made, and Question proposed, That the Bill be now read the Third time.—[Mr. McLoughlin.]

7.28 pm
Mr. Nigel Griffiths

I have the unusual privilege of welcoming the Bill on behalf of all sections of the House. Indeed, industry has been crying out for years for the protection that we hope that the measure will afford. Trade marks are often one of the best assets of successful businesses. They reflect the investment in quality and service of the work force, the management and the design teams. The confidence that a trade mark can inspire will ensure that the public can shop with an assurance of quality and design. The sad fact is that there have been delays in bringing this legislation before the House—delays which have cost businesses revenue, hindered investment, cost jobs and are entirely the responsibility of the President of the Board of Trade and his Ministers.

In 1990, the Government published a White Paper, "Reform of Trade Mark Law", which responded to businesses' needs to register their trade marks for use in the United Kingdom and the rest of the world. It promised simplified procedures for registering trade marks and detailed improvements to detect businesses that held current trade marks.

Business reaction to the White Paper could not have been more favourable. Firms and individuals would save time and money in registering their trade marks. They would also have to spend less on bringing to justice those who infringe copyright, and loopholes in the law would be plugged, making it easier to secure a prosecution.

In summary, this is a measure which business wants and that will give better protection to business and the public. There is no rational explanation for the lengthy delay in enacting it. Ministers have failed to explain to the House, both on the Floor and in Committee, why it has taken more than three years for the Government to introduce legislation on such a widely supported measure.

There is only one word to describe the Government inaction and that is dither. Ministers have dithered for three years. The cost of their dithering has been borne by businesses and the public and it has been high. Present legislation, with its complexities and loopholes, is costing businesses around £30 million every year. By the time that the Bill becomes an Act, British businesses will have lost more than £100 million since the publication of the White Paper. It is a lame excuse for Ministers to say that there has been no time to legislate. I have studied more than 50 measures for which the Government found time to introduce primary legislation, and few merit the same priority as this.

Business has been very patient with the Government. The Bill contains items that were recommended by Sir Reginald Mathys's committee many years ago. We are now on the brink of putting in place safeguards for the 1990s for British businesses and entrepreneurs. Now the Government have decided to tamper with the civil service, which administers patents. Instead of reflecting on the damage done to so many public services by the attack on civil servants, Ministers want to treat them like some fast food franchise.

My hon. Friend the Member for Newport, West (Mr. Flynn), whom the Minister commended for his activities in highlighting the good work done by the Patent Office, warned the House on Second Reading and in Committee that if its work were tampered with further, the primary losers would be not be civil servants but the public and businesses that generate the wealth of the country. The uncertainty over the future status of the Patent Office has meant that when the European Commission considered where to locate its new office, it did not choose Britain, with a track record of a Patent Office that goes back 119 years, but preferred Alicante in Spain—an airport favoured by certain people who have made a lot of money out of trade mark goods, illegally.

Instead of listening to the concerns of enforcement officers in trading standards departments, Ministers are determined that those key consumer protection services should be split up. It is time for Ministers to listen to trading standards officers and their fears that unscrupulous traders, who infringe trade mark legislation, will still find legal loopholes. Trading standards officers do not believe that the Bill goes far enough in plugging such loopholes, or that it ensures that seized counterfeit goods can be more easily returned for destruction, by bringing the law into line with section 100 of the Copyright, Design and Patents Act 1988.

My main regrets are that it has taken more than three years for the Government to introduce this uncontroversial Bill, that their delays have cost businesses more than £100 million and that the Bill still has some flaws. In order to give our inventors, businesses and the public some of the protections that they need, however, I commend it to the House, warts and all.

7.34 pm
Mr. McLoughlin

I am grateful to the hon. Member for Edinburgh, South (Mr. Griffiths) for welcoming the Bill. He made some of the usual taunts that we heard from him on Second Reading. He could not quite bring himself to give the Bill a general welcome and if he re-reads his speech in Hansard he will see that, if that is the voice of the new European Labour party, some of his comments about Spain will have to be tempered. Perhaps he is on the side of the section of the party of the right hon. Member for Derby, South (Mrs. Beckett) rather than that of the hon. Member for Sedgefield (Mr. Blair). However, I am grateful for his welcome for the Bill.

This is a complex Bill, but it is important to industry. I am grateful, therefore, for all the co-operation that has been demonstrated on both sides of the House in speeding its passage through the House. The Bill is a clear example of the Government's commitment to help industry and commerce. A company's trade mark can be among its most valuable assets and a major marketing tool in competing for business at home and overseas.

The Bill deregulates the administrative procedures surrounding the maintenance of registration and that will directly reduce costs for industry and commerce. The Bill will make it easier for a trade mark to qualify for registration and will give registered trade marks wider infringement rights. It will also enable the United Kingdom to ratify the Madrid protocol. All those changes will make it simpler and cheaper for industry and commerce to protect their trade marks, both in the United Kingdom and overseas.

In Committee, we made some changes to the Bill that will help further in that direction. A person who wishes to appeal against a decision of the registrar may, as an alternative to going to court, appeal to a person appointed by the Lord Chancellor, before whom he may be represented by a trade mark agent—or attorney, now—or a solicitor.

Another provision of the Bill that was amended in Committee was that dealing with counterfeit goods. Hon. Members will be aware that the Bill strengthens the protection against trade mark counterfeiting, but attention was drawn to a gap in its provisions as they related to the delivering up of counterfeit goods. We have closed that gap. It will now be possible for trading standards officers to seek forfeiture of goods seized whenever they can demonstrate to a court that the goods are counterfeit. That will enable them to dispose of goods that are clearly counterfeit. That is a positive and helpful change, which can only help trading standards officers in their determined efforts to combat trade mark counterfeiting. That was not part of the original consultation documents and would not have been in the Bill, but it has been included as a result of some court cases that we all know about.

During the passage of the Bill, much attention has been paid to the subject of lookalike products, which are allegedly got up or designed to look like those of brand leaders. Reference was made to that, both in this House and in another place. It was clear that businesses are divided on the question. Many feel that the present law provides insufficient protection against competitors taking advantage of the reputation of established products. Others, however, contend that the law is adequate and that special measures against so-called lookalikes would restrict legitimate competition and reduce consumer choice.

Even if one accepts the need for measures directed against lookalikes, it would not have been possible to deal with them in this Bill, which is about trade marks. A lookalike product may, in an extreme case, copy most of the features of a brand leader, but the one thing that it does not copy is the trade mark. As I said in response to a written answer to a question from my hon. Friend the Member for Medway (Dame P. Fenner), the Bill broadens the definition of what may be registered as a trade mark, so that distinctive attributes of goods, such as their packaging or shape, may be considered for registration as trade marks. The owners of such trade marks then have the right to take action for infringements against anyone using the same or similar marks on the same or similar goods.

The Bill should, therefore, be given a chance to work. If, once it has been in force for a reasonable period, it can be demonstrated that there continues to be a problem, the Government will be prepared to look again at the situation.

Mr. Jim Cousins (Newcastle upon Tyne, Central)

If, after the period to which the Minister has just referred, the Government were minded to take action on the matter, in what context and form would they attempt to deal with it legislatively?

Mr. McLoughlin

I said that we will look at the matter after some time, but I cannot at the moment anticipate what will come out as a result of any inquiry that we decide is necessary. The hon. Gentleman cannot get any more than that at the moment because I believe that the Bill goes some way to meeting some of those concerns. I should just like to cover a few others points and the hon. Member may come back later if he wishes.

We certainly understand the points made by the major brand owners. While we are firmly in favour of robust competition, some of the examples of lookalike products do seem to be close to the boundary between what is fair in business and what is not. I would therefore like to warn the producers of those goods. If they continue to sail close to the wind, there will undoubtedly be pressure on the Government and, as I have said, we would look at the matter again.

I know that all hon. Members wish to see the Bill pass on to the statute book and come into force as soon as possible. In particular, there is pressure to bring into force those provisions of the Bill that deal with counterfeiting, so that they are available to trading standards officers to deal with the peak period for the sale of counterfeit goods in the run-up to Christmas. We are sympathetic to that call, and the Government will consider a timetable for implementation to determine by how much the planned date of I December 1994 can be brought forward.

Mr. Nigel Griffiths

I welcome that, because the Minister has gone half way. Does he recognise that there are two peak periods for counterfeiters? There is a peak sales period in August, which he has not mentioned, and one in December. Will the Government tackle the problems in August, which have been identified by the CBI and the anti-counterfeiting group?

Mr. McLoughlin

I know that this point does concern the hon. Gentleman. Amendments have been made and the Bill will not have completed its stages once we are finished here tonight. That will depend upon progress in another place. I am keen to see the provisions relating to that type of counterfeiting brought into action as quickly as possible.

I am grateful for the constructive and speedy way in which the Bill has been considered by the House. That speed has recognised the Bill's importance to industry and commerce, and to companies and small traders alike. A modern trade mark system is long overdue. This was a manifesto commitment two years ago and I am glad to be able to help discharge it. I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read the Third time, and passed, with amendments.

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