Draft Trade Marks (Amendment) Regulations 2022

Chi Onwurah Excerpts

Wednesday 26th October 2022 General Committees

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

It is a great pleasure to serve under your chairship, Mr Mundell. I thank the Minister for setting out what the instrument will do. I will try not to repeat what he said, but there are aspects that I want to highlight. The Minister was right to point out the importance of robust and effective trademark legislation.

I start by celebrating our Great British businesses. I thank and congratulate scientists, artists and creatives for creating some of the world’s most iconic brands and trademarks, which are recognised across the globe. They are the very imagery of Britain. Whether we are talking about Newcastle’s famous Greggs logo, world-renowned brands such as British Airways, Royal Mail, Jaguar Land Rover and Rolls-Royce, or one of the UK’s 5.5 million small and medium-sized enterprises, we must protect the intellectual property and trademarks of our Great British brands.

Trademarks, and especially WKMs, are an important but often overlooked form of property. We often forget that many of our assets are in intangibles, IP branding and trademarks, rather than bricks and mortar. Investment in brands drives the allocation of resources in our economy, increases competition and pushes firms to innovate. Investment in brands and intangibles has increased in the last 15 years, especially in advanced economies such as ours. Much of our success at home and abroad is down to those intangible business assets.

The contribution of trademarks to our economy is significant. According to analysis from Kantar, British brands contributed £205 billion to the economy in 2021, a significant proportion of which is attributable to trademarked imagery, signs and branding. It is absolutely right that our UK legislation should be fit for the purpose of protecting our intellectual property.

As the Minister set out, the UK already possesses highly effective well-known mark legislation. The draft statutory instrument will remedy a compliance issue that has emerged in the last few years, following the ratification of the TCA. As a result of that issue, the owner of an unregistered WKM would not be able to prohibit the use of conflicting marks on dissimilar goods or services, and there is a disparity in the treatment of UK and third country national signatories to the Paris convention.

The SI proposes amending the Trade Marks Act 1994 to achieve two objectives. The first is to ensure our compliance with article 240 of the TCA, which applies the World Intellectual Property Organisation’s joint recommendation concerning provisions for the protection of well-known trademarks. Regulations 4 and 5 of the SI amend the 1994 Act to achieve that. The second objective is to ensure that UK owners of WKMs have access to the same protections as third-country nationals, so the SI will provide parity of treatment for UK and third-country nationals regarding WKM provisions in the TMA. Labour recognises that the current disparity of treatment for UK and third-country nationals is not in keeping with the intent of the WIPO’s joint recommendation, which promotes harmonised common principles of treatment of WKMs across all country signatories. Regulation 3 of the SI seeks to resolve that legislative gap.

In order to protect and support our great British businesses and organisations, and to ensure that domestic law adequately implements the trade and co-operation agreement, the Opposition will not vote against the statutory instrument. However, we have important questions that I hope the Minister can answer.

First, it is disappointing that the Government did not provide further detail in their assessment for this instrument, or cite examples of issues that the SI will resolve, though the Minister did as he was speaking. I am sure that he will have been busy with his party’s political discussions, debates and changes, shall we say, but legislative scrutiny must come first.

I have consulted industry on this draft legislation, and I am pleased to say that I have not been made aware of any negative reactions. I am also pleased that the de minimis assessment suggests that there will be

“no, or no significant, impact”

on businesses, charities, voluntary bodies or public sector organisations. However, if there was even one case of a body being impacted by this legislative hole, that would be one too many. Research into IPO tribunal cases dealing with similar WKM issues found that in the last 10 years there were 121 relevant opposition and invalidation cases, a third of which—about four cases a year—concerned unregistered WKMs. I understand that only a small number of additional cases are going to tribunal and, in turn, an even smaller number would be appealed in court. However, given that information, will the Minister consider producing a further assessment of the impact of this amendment on well-known marks?

I am concerned about the time that the Government have taken to identify and address the issues dealt with in the SI. The explanatory memorandum gives no indication of how long the IPO or Government have been aware of them. The Government have often boasted about how global Britain is, yet the international harmonised and common principles in the field of well-known trademarks have existed since 1999, so I am slightly confused. The explanatory notes indicate that the compliance issue that followed the signing of the TCA were unforeseen, but I think the Minister indicated that the matter was considered to be already covered by common law. I would like to understand which it is, and why it has taken 22 months for this SI to be brought forward. Can the Minister take us through whether the issue was foreseen? Was there separate legal advice that said, “Actually, common-law provisions are not enough”? What was the process?

The Government’s own short assessment of the need for and impact of the SI admits that there are IPO tribunal cases that illustrate a knowledge of the gap following, and even prior to, the TCA. I therefore ask the Minister whether he intends to make a retrospective assessment of the impact of the legislation. As for the IPO tribunal cases that the Government are aware of, does the Minister have an assessment of the income lost in legal fees and costs in those cases, and of the impact on the organisations? Would he perhaps like to take this opportunity to apologise to them for their being caught in this loophole?

Both sides of the House can agree on the importance of the long-term future and health of the UK’s great British brands and well-known trademarks. The SI remedies a small hole in our legislation, but the Government’s reckless Retained EU Law (Revocation and Reform) Bill could blow a gigantic hole in it. Can the Minister provide assurances that the Bill, in scrapping a potential 2,400 laws, will not undermine the SI, directly or unintentionally?

On the issue of support for our trademarks and fantastic intellectual property, there is disharmony between foreign-based attorneys and firms, which can act before the IPO, and UK trademark attorneys, who cannot act in the same way in the European Union. What steps is the Minister taking to address that disparity, and to support trademark attorneys and companies in this country?

Labour’s industrial strategy commits to a closer relationship between the state, businesses, civil society and trade unions. That will enable the next Government—a Labour Government—more rapidly to identify and patch legislative holes such as the one we are discussing. It will ensure that we have a legislative policy framework, including for intellectual property, that businesses can trust, and under which they can prosper.