Amendments Nos. 25 to 33, inclusive, are related to amendment No. 24 as are amendments Nos. 37 to 42, inclusive. These amendments will be taken together by agreement.
SECTION 81
I move amendment No. 24:
In page 41, subsection (1) (b), line 33, to delete "registered".
Amendment No. 25 would probably be of more relevance than amendment No. 24. In line 35 I do not see the purpose served by the term "registered". Subsection (2) states:
A person duly authorised by another person under subsection (1) to act as his registered trade mark agent may (subject to any provision to the contrary in any agreement between the agent and that person), on giving notice to the Controller and the other person, cease to act as registered trade mark agent for the other person.
The word "registered" is not required in that subsection; it does not serve any useful purpose. There is a prohibition on acting as a trade mark agent other than as a registered trade mark agent. There appears to be an ambiguity in the subsection as drafted. It might be open to some people to act as trade mark agents if the word "registered" is used as it is used on two occasions in this subsection.
If amendment No. 24 or any other amendment in this group is lost, the remaining amendments in the group cannot be moved.
Amendment No. 24 is different from amendments Nos. 25 and 26.
There is no need for us to get into a procedural wrangle or a technical discussion about whether the use of the term "registered" in one line is different from the significance of the proposed excision of the term "registered" in another line. Unless Deputy McDowell can persuade me to the contrary, my attitude towards all the amendments is the same. I am willing to abstract one from the rest if there is a specific reason in the case of one that is different. However, my attitude is informed by the advice I have received and the attitude of the association which enjoys a high reputation. The fact of registration has ensured the maintenance of high standards of such an order that it places the association's members in a good position to win international work in the context of the implementation of this Bill and specifically the implementation of the directive relating to a unitary trade mark.
I cannot see the argument for the excision of the term "registered". If one of the amendments is out of sequence for a particular reason that does not apply to the generality of the argument I have made, I am willing to look at it. However, my view is that "registered" ought to be used in the Bill.
Section 83 provides:
Subject to the provisions of this section, an individual who is not a registered trade mark agent shall not—
(a) carry on a business (otherwise than in partnership) under any name or other description which contains the words "registered trade mark agent",
That is reasonable but the section continues:
". . .or
(b) in the course of a business otherwise describe or hold himself out, or permit himself to be described or held out, as a registered trade mark agent.
In that context, the implication is that he can hold himself out as a trade mark agent if he does not use the word "registered" concerning himself. The same applies in section 83 (2) (b). It appears to imply that one can use the term "trade mark agent" freely in advertising material and so forth even though one is not registered. Is that a good thing? It would be better to provide that if one holds oneself out as a trade mark agent one can only do so if one is registered.
One may hold oneself out as a trade mark agent but one cannot act before the office. To introduce Deputy McDowell's amendments would be tantamount to saying that a practice that operates elsewhere in Europe could not operate here. I am sure Deputy McDowell is not making an argument for restrictive practices——
I am not doing that.
It would not be his wish to prevent people——
I presume that European directives would entitle people to rights of establishment and permit them to describe themselves as they properly are described. I am worried that the implication of this is that it is legitimate for me to issue a card saying I am a trade mark agent or, if I am a registered trade mark agent, that my unregistered partners are trade mark agents. That appears to be undesirable.
It would be unusual for us to enshrine in Irish law the outlawing of a title or a practice that is common throughout the Community. There are certain safeguards built into the system and it operates to the benefit of eveyone concerned. Although it may be slightly more costly on business it is worthwhile and I have not received any complaints about its operation.
Section 81 restricts a trade mark matter to a registered trade mark agent. It is strange that a person may call themselves a trade mark agent without using the word "registered" and not commit an offence under section 83. The public will not distinguish between a rgistered or unregistered trade mark agent in the same way as it does not distinguish between a registered or unregistered medical practitioner. If you describe yourself as a trade mark agent it is presumed you are qualified to act as one. I urge the Minister to delete "registered" where it appears before "trade mark agent".
I do not see why I should do anything other than send a clear signal to the Community that, at its own request, the profession is registered here. It enjoys a high reputation as a result and I do not see why we should depart from that position.
If there were a law stating that solicitors must be registered, which in effect they are as they must have a practising certificate, it would be most unsatisfactory if it were stated that nobody should describe themselves as a registered solicitor. If a person uses headed notepaper stating "trade mark agent" it will be assumed that the person is qualified to act as a trade mark agent.
The analogy is not a good one as I do not think a person purporting to be a solicitor would get much business if he or she could not go into court. In any event, it is a closed shop and I am sure the Deputy is not arguing for that in this case or that he would make an exception in the case of trade mark agents in his normal robust approach to the operation of enterprise. I do not see why we should do so in law.
It is strange that under the law one will be allowed to describe oneself as a trade mark agent in directories, publish articles and hold out one's employees as trade mark agents. People will assume they are registered. The section will not offer any protection to the average person as they will be left to wonder if the person is a bona fide trade mark agent. I accept the view that it is almost impossible to practise as a trade mark agent if one is not registered but one could give advice as an agent and hold out one's employees to be trade mark agents even though they were not registered and thus comvey to the public that they had qualifications or expertise which they did not have.
If the word "registered" is not used what proof will there be that the person is qualified as a trade mark agent? The word "registered" copperfastens the position. Anyone can set themselves up as a trade mark agent and who is to contradict them if a register is not kept?
If I issue notepaper headed "Mr. M. McDowell, Trade Mark Agent" it will be assumed that I am qualified to act as one and I do not commit an offence. The prohibition on holding myself out as a registered trade mark agent should apply to holding myself out as a trade mark agent because people will not see the difference.
Are solicitors registered?
You cannot call yourself a solicitor or anything like it. The average person would not know that there was a register and if they received notepaper or business cards describing a person as a trade mark agent they would assume the person was qualified to carry out that function. They will not notice the absence of the word "registered".
The Department was convinced by the association that a register of trade mark agents ought to be maintained in Ireland. That is not the practice in all other member states. The regulation of agents will ensure high standards of service, assist in attracting trade mark work to Ireland and ensure Irish agents are well placed to win international business. We have stressed the registered aspect of trade mark agents in order to promote their cause. I do not see any reason to change that.
Amendment, by leave, withdrawn.
Amendments Nos. 25 to 33, inclusive, not moved.
Section 81 agreed to.
Section 82 agreed to.