Friday 31 January 2014

Going home: Coleman on legal education

Ron Coleman, of Likelihood of Confusion fame, is one of the most perceptive legal writers (and probably the most perceptive legal blogger) I know, although when he gets onto politics I find my hackles rising ... well, it would if I were the sort of animal that had hackles in the first place, and if I were a dog or a cat I wouldn't know much about politics, or be able to read what Ron writes on the subject. Oh dear, this seems to be getting complicated. Let's see if I can get back to the point.

Although it seems to be a post from a couple of years ago, leading eventually to a 19-year-old article, 'Go Home ...' is horribly relevant today. Back in '95 when Ron wrote the original article I was teaching would-be (or as people might say now, and perhaps would have said even then, 'wannabe') solicitors who were attracted by the notion that it was a 'clean and pleasant trade' (follow his links and allow Ron to educate you about that phrase, if, like mine, your upbringing didn't already make it familiar). And I was wondering why on earth many of them had ever thought they might stand a chance.

I found my way easily - too easily - into the legal trade. At the time, I thought it was a profession, and perhaps it was, until about 1984 when advertising restrictions were lifted. After that it quickly turned into a business, which at first seemed progressive and exciting, but perhaps the deficiencies of my route into the law were brought into sharp relief by that change. Although my father couldn't teach me the clean and pleasant trade, he could arrange for his best friend to do it, and in due course, after three years at university during which I learnt a great deal about politics, photography, journalism and real ale but very little about law, followed by a very miserable six months at the College of Law studying the new wave music that was sweeping the country at the time, followed inevitably by another six months cramming to resit the Law Society Qualifying Examination, Part II (an examination of such stunning mindlessness that has surely never been surpassed, although from what I hear the Multistate Bar Exam might run it close), I became articled to him. If you lost track of that sentence, as I did, the 'him' to whom I was articled was my father's best friend, senior partner in the equal-largest firm in Teesside, which in those days meant six partners: there were three other behemoths with the same number of partners in the area.

I realise now that my articles were a further period during which I learnt no law (but did learn even more about politics). It wasn't a great start to a career in a learned profession, but once I'd qualified I did begin to learn some law, not only on the job but also by pursuing a formal part-time course of study which led first to being awarded a Masters degree in business law, then in due course to a doctorate, and finally to a (still part-time) position at the institution that had finally given me some legal education, teaching those would-be solicitors on the new Legal Practice Course, the successor to the Law Society Finals which had replaced the unlamented Part IIs. By this time - the mid-nineties - it was firmly in the business of law student farming, in Ron's apt phrase. The parallel with the fermiers who played such an important part in causing the French Revolution is striking.

Between the late seventies and the mid nineties, legal education shifted from being a system that one could negotiate with little effort, coming out with a 'gentleman's degree' and scant knowledge of the law and moving comfortably into a clean and pleasant profession, to one which demanded hard work, much learning, and considerable expense, the end of which was admission into a far-from-clean and definitely unpleasant trade. But there remained several hurdles, even for those who had passed the LPC (and the fermiers certainly saw no advantage to failing any of their students). First, the aspiring solicitor needed a training contract.

A large number of students only embarked on the LPC after securing an offer of a training contract. Often they would be sponsored by the firm with which they would complete that final stage of their training. But many didn't, and for years after they moved on I was still writing references for students who needed to persuade a solicitor to take them on. One of them tragically succumbed to breast cancer shortly after qualifying, having secured a training contract several years after passing her exams. And to this day there is still a colossal mismatch between the production of aspiring solicitors and the capacity of the profession to absorb them. A friend who had completed her LPC a few years ago searched for a long time for a training contract, finally accepting the only one offered which was quite unsuitable and made no use of her impressive qualifications and experience; now having qualified she faces a difficult search for a job.

Ron - if I may be permitted to return to the point of this rambling discourse - remarks at some length on the vicissitudes of applying for jobs. A 'gentleman's degree' is an immediate disqualification, no matter that it be supplemented with a doctorate: the way applications are filtered takes no notice of what follows one's first degree unless it is at least an upper second. I like his comment about the 20 'top ten' law schools ... A similar dilution of the quality of legal education has taken place here, and his comments about how attractive a law school is to a fermier is as relevant in the UK as in the US. The best are excellent, but the bulk of them offer less value - but, however good the legal education they offer, none of them can offer entry into a clean and pleasant trade. Or any trade, for that matter.

Enough, already. I will feel inclined to return to this topic another time. This is a good point at which to stop, for now.

Tuesday 28 January 2014

Greek yoghurt means yoghurt from Greece

Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2013] EWHC 630 (Ch) (26 March 2013)  is what aficionados call an extended passing-off case. The claimant had been selling Greek yoghurt in the UK for some time, while the defendant introduced what it had previously sold in the USA as 'Greek yoghurt' to the British market sometime later. I sampled it at a running bloggers' conference last year - it seemed OK but with what I know now I'd certainly taste the thickening agent - and even came away with a pair of laces, branded with the Chobani name. I certainly won't be using them: not the sort of brand values I wish to be associated with. Anyway they won't fit my huaraches. Anyone want them? Drop me an email.

Nothing surprising about the passing-off claim here: FAGE won. A bit more interesting is the malicious falsehood sideshow, a counterclaim arising from the claimant's approach to Camden trading standards. The judge noted in particular that as he didn't imagine the trading standards department would take action without investigating the allegations first, there was little chance of the defendants (counterclaimants) suffering any damage.

Wednesday 8 January 2014

Rights of audience: Law Society secures rule change for IP solicitors - The Law Society

Solicitors will have the same rights of audience in the ultra-trendy Intellectual Property Enterprise Court* as they had in the Patents County Court, the Law Society  says, claiming that its lobbying has brought about this outcome. (I wish it would work equally hard to prevent the unqualified, which as I understand it remains unlawful, use of the title 'attorney' by patent and trade mark attorneys).

Although it was the Chancellor of the High Court who announced that judges would allow solicitors to appear, our too-big-for-its-boots regulator had to stick its oar in:
The SRA has also confirmed that it will not regard solicitors appearing in the IPEC as being in breach of the rules and will change the regulations to make it clear that solicitors have rights of audience.
How kind of it.

*The utterly spurious word 'Enterprise' is what makes it ultra-trendy, although I should make clear that it's the name not the court that I am describing thus.

Tuesday 7 January 2014

OHIM's new examination guidelines

News  of revised guidelines from OHIM on the examination of CTM and RCD applications, which have now been published in the Official Journal.

UK Patent Office discontinues Patents Form 10 Reminder letter

The Patent Office, to give it its proper name, has announced in this statement  that it won't in future be sending out letters reminding patent applicants to file Form 10 and cross their palm with silver to request a substantive examination. For applicants with switched-on agents who have what Americans in general and patent lawyers everywhere call 'docketing systems', this won't matter, but for those who represent themselves it will be another matter. They will be told in the letter informing them of the A Publication that they have to file Form 10 and pay the fee within six months after that publication, as they already are: but the reminder which until now has been churned out two or three weeks before the end of that period will no longer be sent. The Office says it sends out about 3,000 of these letters per year, presumably many of them to agents who know perfectly well what is going on but who are either leaving it to the last minute or waiting for their client to get their act together.

3,000 letters is, these days, quite a lot, and producing a letter costs  much more than the cost of the paper and postage stamp, even in the computer age. So I can see the attraction of cutting out an unnecessary communication, though one might have thought that (again, in the computer age) some sort of automated reminder system for applicants in person could be devised - perhaps at a modest extra charge.

Advertising Standards Authority Adjudication on Trademark Office Ltd

Back in October 2013, the ASA published the result of an adjudication in which it came down as much like the proverbial ton of bricks on one of the leading producers of what I think it is fair to call misleading renewal notices: the adjudication is here. Unfortunately the ASA is not set up to do 'ton of bricks' very well, and it ends up being more like a couple of pounds of feathers, but even so ... Given that the respondent did not even take the trouble to reply to communications from the ASA, one cannot be optimistic about the chances of the parasites giving up, but I suppose that every little helps.

Two things might help more. First, the rogues use (on patent renewal 'notices') the designation 'Patent and Trademark Office'. (I pause to note that the American spelling of 'Trademark' ought to be a bit of a give-away, but will be lost on many people, who apart from anything else have for too long been exposed to far too much American 'culture' - like the contestant on Celebrity Mastermind the other day who referred to the London A-Z pronouncing the last letter 'zee'.) That includes the designation 'Patent Office' and to use that is an offence. If anyone thinks that perhaps the offence is not committed because other words are included, consider the efforts of the Architects Registration Board - and its prosecution of Ronald Baden Hellard, reported at (1998) 14 Const LJ 299. (The Court of Appeal accepted that using the affix RIBA amounted to using the style 'architect', although to be fair to the Court of Appeal there was little argument to persuade them otherwise.) Second, and this will require a change in the law which I acknowledge is as likely as an English winter without widespread flooding, as a consumer protection measure this sort of work needs to be reserved to the professions who will do it properly - and at far, far lower cost than the rip-off rates charged by the purveyors of confusing non-invoices.

There must also be an argument that they are committing a fraud, misrepresenting themselves to the inexpert or merely inattentive recipients. In which case the banking system should reject them as customers. I recently had no end of trouble when a bank with which I maintained an account detected suspicious activity on my account, to wit a payment from HMRC by way of a rebate of income tax. Unusual, perhaps, but suspicious? So why when my bank refuses to handle those funds are other banks (or perhaps even the same one) handling the proceeds of deceptive advertising?

Arbitrating licence agreements: interim relief

The mysteriously-named  AB v CD [2014] EWHC 1 (QB) (03 January 2014)  concerns not, as one might expect, a badly-behaved professional footballer or television presenter but two businesses with a licensing agreement. The agreement concerned an electronic marketplace, but no software was supplied. The claimant faced big problems when threatened with termination the licence to use a facility which was an essential part of their business, and sought an interim injunction to stop the termination until arbitration had been completed. Because the dispute was subject to arbitration, and there were obligations of confidence in addition to what one would normally expect to be inherent in arbitration proceedings, the names of the parties were not disclosed.

Why was the agreement going to be terminated? First, because in breach (it was alleged) of the licence the claimant had failed to stick to a sales and marketing plan which the licence required it to agree with the defendant (the licensor). But no such plan had actually been agreed, so there was at least an issue to be tried there. Likewise the second ground, that the claimant's business had developed in a different direction from that of the defendant, because the judge (Stuart-Smith J) thought it was arguable that the core business remained the same.

Would damages be an adequate remedy? The judge, perhaps slightly surprisingly, thought so. It looks like a clear case of a situation in which the claimant will suffer too much damage if the defendant is allowed to do what they propose to do. The situation is further complicated by the fact that the parties had agreed to limit the damages available for breach. The case-law left the judge feeling somewhat uneasy with the result, and consequently have gave leave to appeal. So, an interesting case which highlights a legal issue that's novel to me, but not, I suspect, the last word on it.

Saturday 4 January 2014

The cult of the NDA

The cult of the NDA makes for interesting reading - even though it is over ten years old. I can't remember how I got to it, following a link from somewhere, nor is it apparent who wrote it, but it's still worth a few minutes of anyone's time who's concerned about intellectual property and start-up businesses. It chimes with one of my recurrent themes, observable throughout the IP world: that intellectual property is just a means to an end, not the end itself. Even if you're a troll.

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