Intellectual Property Bill [HL]
Debate between Lord Clement-Jones and Lord Borrie
Lord Clement-Jones
My Lords, I rise to speak briefly in support of Amendment 28A. My noble friend Lord Jenkin eloquently set out the case for his amendment and there are very few points that I would wish to add. The case that consumers are being misled was strongly made out by a recent Which? report. As my noble friend said, it is clear that the CPRs—the consumer protection regulations—are ineffective because they are not enforced by the OFT and trading standards and there has been no review which would allow others to enforce those same regulations.
I have practised in the past as an intellectual property lawyer. Passing off is very difficult to establish in these cases but that is the basis on which you would normally expect to enforce ordinary civil actions against this kind of parasitic copying. All the evidence given to me by the British Brands Group suggests that it is extremely difficult to obtain the evidence required by the courts to show confusion, partly because consumers tend not to complain about low-priced items. It is very difficult to gather the evidence in store and courts often dismiss survey evidence as unreliable.
Another interesting feature, which the Minister might care to address, is whether or not the UK is upholding its obligations under the Paris Convention and TRIPS. Article 10bis of the Paris convention and Article 2 of TRIPS require signatories, which include the UK, to assure nationals of “effective protection” against unfair competition. Counsel has given opinion in the past that the UK is not compliant and I believe that the Gowers review gave some indication that that was the case as well. The Government have a case to answer on this question. It is a long-running sore among the owners of these brands and, as the noble Lord, Lord Jenkin, said, there is photograph after photograph of this type of parasitic copying. There is plenty of evidence that it takes place.
Lord Borrie
My Lords, the noble Lords, Lord Jenkin and Lord Clement-Jones, made a clear and convincing case for doing something about so-called lookalikes. I like the word “cheat”, which the noble Lord, Lord Jenkin, used, because it is a simple, human word, which does not rest on any statute. It is perfectly clear to people generally what cheating is. This is a form of cheating and I hope that something can be done about it.
I have seen the Which? report, which shows basic examples of lookalikes and the originals and shows how easy it is, when rushing around the supermarket, to pick up the wrong item when it looks exactly like the one you want to buy. That is very serious. The only question I have may be one for the Minister rather than the noble Lord, Lord Jenkin.
In the last session we passed a Bill establishing a grocery adjudicator. A lot of these problems arise with groceries, which are fairly widely defined in the Groceries Code Adjudicator Act. That Act provides a remedy for anti-competitive activity by supermarkets and other grocers in relation to the practices of suppliers of goods, groceries in particular. I was not very keen on the idea of a special adjudicator being set up and wondered why we could not use one of the existing bodies, such as the Office of Fair Trading, and give it a clear remit to deal with the problem. However, a special post was set up and the lady is now in office. She has a back office of some sort and deals with complaints from farmers and other suppliers against supermarkets which have done something anti-competitively. Why can one not use that particular office to deal with the problem that the noble Lord, Lord Jenkin, talked about?
Intellectual Property Bill [HL]
Debate between Lord Clement-Jones and Lord Borrie
Lord Clement-Jones
My Lords, it may seem somewhat of an anticlimax to come to these two amendments after visions of tsars and Alexander Nevsky crossing the ice, and so on. However, Amendment 15 is rather elegant, and I support it in principle. My friends at the Law Society would certainly find it an elegant solution. They say, under Clause 9(1), that the assignment of an unregistered right—very much as the noble Lord, Lord Stevenson, put it—
“need not follow the corresponding registered right (as is currently the case). The Bill should clarify whether the unregistered right is assigned to the same party, at registration of the assignment of the registered right. This will mean that under the new regime businesses can check whether an unregistered right has also been assigned to the same owner as the registered right, or whether they need to be aware of an unregistered right lying elsewhere”.
Amendment 15 achieves that aim. It is an extremely useful instrument, which would mean that there would be no doubt in future as to where the respective rights lie. It would be a source of some confusion if that was not known. This is a very interesting solution to something that will otherwise cause problems in future.
Lord Borrie
It seems slightly strange, to put this to my noble friend, that legislation which may have been in existence for many years specifies a particular form and what it should contain. That does not seem very appropriate.