Journal of Intellectual Property Law & Practice Advance Access originally published online on February 7, 2006
Journal of Intellectual Property Law & Practice 2006 1(4):229; doi:10.1093/jiplp/jpl014
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© The Author (2006). Published by Oxford University Press. All rights reserved.
Editorial |
When the figures just don't figure
Last year I received from Jean Pire (Gevers & Partners, Belgium) some data concerning the success rate of litigants in Office for Harmonisation (OHIM) proceedings involving Community trade marks and applications. These figures, drawn from Gevers' database of Board of Appeal, Opposition Division and Cancellation Division decisions, provide food for thought.
A curious statistic is the rate at which parties to OHIM proceedings fail to comply with Office formalities. One might think that parties who fail on formal grounds would be evenly spread among the EU Member States, or at least that the rate of failure would correspond to the rate at which parties engaged with OHIM's sometimes complex procedures. This does not however appear to be the case.
In 31.6% of instances, a party failing on formal grounds is represented by a practitioner from Spain; in 30.2% of cases, the practitioner is German; and in 10.8% of cases he is British. That leaves only 27.4% of procedural failures for which professionals from other EU Member States are responsible. At the bottom of the ‘failures’ list are the Greeks, who account for only 0.12% of formality-based failures (though admittedly they handle relatively few cases).
Why are the Spanish, the Germans, and the British more likely than others to stumble over formalities? If we accept national stereotypes, the Spanish, enriched by the culture of mañana, must surely miss OHIM's notifications and other requirements; the Germans, playing by the rules they learned in domestic practice, must assume that an Office populated by so many German legal scholars will apply the same rules in Alicante too; and the British, naively believing that it is only necessary to be a good chap, must forget that arbitrary rules in the OHIM regulations are there to protect the innocent, not to harm them.
But national stereotypes are the creatures of pre-War Europe. If they were ever justified, their influence no longer prevails in twenty-first century IP practice. This results in part from of the technological revolution that has transformed Europe, virtually from the Pyrenees to the Urals. IP practices are wired for instant communication, their staff trained to respond to the demands their systems make on them. This in turn is a consequence of the expectations of clients. Anyone who wants to represent cash-rich multinationals knows that it is a case of giving the client what he wants: if you cannot deliver, your competitor will.
Neither lack of professional training or lack of general education explains why practitioners in some jurisdictions appear to fall foul of Office formalities more frequently than others, since practitioners in Spain, Germany, and the UK possess high levels of skill and ability, not to mention the sort of experience that comes from processing a high volume of work. National stereotypes have already been discounted. So what then is it that gives these countries their high propensity to stumble over formalities?
One possibility is that practitioners in these three countries are more likely to fight even when they know their cause is lost. A second is that practitioners have a higher proportion of clients who, being global concerns with vast pockets, regard the cost of contesting even procedural points as being trivial—or even as representing a way of saving money when the outcome of one OHIM decision may enable them to make the right decision with regard to numerous other applications or oppositions that are in the same condition. It would require further research to see whether this were so. A third is that there is no statistical significance in the distribution of formality-failures: each outcome is dependent on its own facts and on the nature of the relationship between an individual professional representative and his client, and we should not be too swift to read anything into them.
My contention is that where intuition fails, knowledge is deficient, and reasoning cannot make up that deficiency there is nothing for it but to keep an open mind and conduct further research. Only then will we be able to explain this mystery.
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