Select Committee on Enterprise and Economic Strategy debate -
Friday, 2 Feb 1996

SECTION 42.

Mr. M. McDowell

I move amendment No. 16:

In page 26, lines 22 and 23, to delete subsection (2).

Deputy Ned O'Keeffe and I, and perhaps the Minister, have received representations to the effect that withdrawal might be erroneously made by genuine error and that there should be some flexibility. Section 42 (2) is mandatory and unequivocal. The purpose of seeking to delete subsection (2) is to introduce a reasonable element of flexibility. If somebody withdraws an application in error, they should not be faced with the situation that this is irrevocable and final for all time.

Mr. Rabbitte

I have been advised that this is not necessary. There is a similar requirement in the Patents Act, 1992, and this has not given rise to any problems. I accept that withdrawals could take place in error. I will consider the issue before Report Stage.

Mr. M. McDowell

I fully accept that the Minister wants certainty in these matters and so does the office. By the same token, there is an element of false certainty to a provision which does not allow for genuine mistakes.

Mr. E. O'Keeffe

The provisions of this section restrict the representation of trade marks to a registered trade mark agent. It is strange that people may call themselves "trade mark agents" without using the word "registered" and not commit an offence under section 83.

The public would not distinguish between a registered and unregistered trade mark agent in the same way as they could not distinguish between a registered medical practitioner and a non-registered medical practitioner.

Mr. M. McDowell

That applies to a different amendment.

Mr. Rabbitte

The Deputy is jumping slightly ahead.

Mr. E. O'Keeffe

They both overlap.

Mr. Rabbitte

On the specific point that Deputy McDowell raises, does he agree that if I were to reconsider this, the imposition of some kind of time guillotine would be necessary, otherwise you cannot have certainty. If there were such a genuine error and there was a limited time of one or two months, whatever it would be, whereby it could be reinstated within that given period, would that meet the situation?

Mr. M. McDowell

Rather than trying to put in a convoluted paragraph about genuine errors, the Minister might be able to say "subject to any rules made under the Act" and make provision in the rules for a genuine error. I would not like to have to draft a paragraph about what is and is not a genuine error.

Mr. Rabbitte

I am referring to the time guillotine: it cannot go on forever. We cannot have a situation where somebody comes back a year later and says——

Mr. M. McDowell

——I ought never to have done that.

Mr. Rabbitte

Yes.

Mr. M. McDowell

I accept that.

Mr. Rabbitte

On that basis I will have a look at it for Report Stage.

Amendment, by leave, withdrawn.

Section 42 agreed to.