Codes-of-Conduct-the best-guarantee-for-rigorous-and-responsible-Intellectual-Property

“It is nice to have valid competition; it pushes you to do better.” (G. Versace)

The European Union Intellectual Property Office (EUIPO) published on 7 July 2021 the Resolution EX-20-9 of his Executive Director, that introduces a tightening of the conditions of use of his platform of operative electronic communication with professionals and right owners.

The thing is that for some time it has been observed a trend of a considerable increase in the activity of certain representatives accredited of the European Economic Area (EEA), that showed a suspicious disproportion with their historical patterns and dimensions, beyond the logics of market fluctuations.

Behind these “dummy signatures”, some representatives or titleholders who are unconnected to the EEA would be directly operating with the Office with the aim of dodging the requirements of representation, those that ensure the compliance of certain standards of qualification, responsibility, registry of activity and domicile demanded by EU Trademarks and Registered Community Designs Regulations.

The logic of these market subterfuges is always the same: the supposed saving of the costs of the intervention of a registered professional, by skipping over all the legal requirements of registration and practice that a representative[1]  must comply with to act with the due guarantees of client protection, the core reason for this control of professional activity.

Illegalities aside, it is true that this resolution goes in the direction to protect the regulatory framework of the exercise of the professional representation in matters of EU trademarks and registered community designs. Nevertheless, it must not be forgotten that in the last lustrums the legislative bet of the EU has gone rather in the contrary: towards the elimination of barriers to the freedom of establishment and circulation of people, goods, services and capitals; the core of the consolidation of a community single market.

Accordingly, the deployed legal instruments[2] have tried to combine, in my modest understanding with uneven results, the push for an increase in the level of efficiency and competition of the market, with the safeguard of the protection of the rights of the consumers and users of services. One must add to this that the diverse legal tradition of each member state, together with the margin of discretion they retain in the transposition of directives into internal legislation, continue to generate unequal situations in the field of the professional representation in Intellectual Property matters among country members.

In the case of Spain, the apt pupil in this stormy subject, the regulations on administrative procedure[3]  have historically envisaged, at a generic level, a fully open system in the representation of third parties, without any attention to the professional qualifications of the person who exercises it.

If this was not enough, the reception of the EU Law carried out has progressively diminished the capacities for  deontological control  of practice for many professional institutes, among them the COAPI, to the extent of considering that requirements like a professional liability insurance or the compulsory registration before the professional body are obstacles to the dynamism of competence, rather than guaranties for the clients who trust those collectives (gosh!).

In light of this reality and with the exponential growth in regulations and technical complexity of many of the material areas managed by the Administration, one cannot help but wonder whether, along the way, we are not exposing large key economic sectors[4]  to unscrupulous licentiousness in the handling of what would be a discretionary power of any citizen; the administrative representation of a third party, converted into a regular, pseudo-professional practice.

It would be very logical to think that for a country to generate innovation of quality it needs a good Intellectual Property system, but this cannot be achieved by curtailing the legal threshold of the qualification and exercise controls of key professionals in the process, those who help to protect the innovative effort of a significant share of our economy.

Competition is always good but reciting G. Versace’s sentence that gives title to this article: it must be valid. Thus, as long as this situation does not evolve, and as paradoxical as it may seem, the voluntary adherence to the Codes of Conduct of institutions such as COAPI, at a national level, or FICPI, at an international level, will be the best guarantee for a more rigorous and responsible Intellectual Property to the benefit of the whole society.

[1] Arts.119 and 120. Regulation 2017/1001 of the European Parliament and the Council 14 June 2017 on the mark of the European Union and arts. 73-75  Commission Delegated Regulation (EU) 2018/625

[2] Directive 2006/123/CE of the Parliament and of the relative Council to the services of the inner market, that went object of transposition by the Law17/2009 of 23 November, on the free access to the activities of services and his exercise.

[3] art. 5. Law 39/2015, of 1 October, of the Common Administrative Procedure of the Public Administrations.

[4] Intellectual property rights and firm performance in the EU.  Analytical report to scale business, February of 2021. EPO-EUIPO. In the period covered by the study (2016-19), the companies with an intensive use of the rights of patent rights (marks, patents and industrial designs) generated 45% of the GDP and 30% of employment in the EU.

Article by Joan Salvà.

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