We previously reported on the IPReg decision in relation to Joshi & Welch Limited – see here. That decision found that the firm had been left without professional indemnity cover, in breach of IPReg’s professional conduct rules. IPReg decided to suspend Manish Joshi for 6 months and Duncan Welch for 8 months.
The Intellectual Property Office was, of course, notified of this decision and considered whether to apply its power under section 88 of the Trade Marks Act 1994 to refuse to deal with the two agents during that period. The Office notified both that it was minded to do so, and invited their comments. Quite rightly, the Office wished to give both the opportunity to have their opinion taken into account in deciding whether to do so.
Sadly, Covid-19 intervened, closing the Office temporarily and triggering an automatic extension of all deadlines – including the deadlines for Messrs Joshi & Welch to respond. As a result, the Office realised that by the time they could reach a decision, the 6 and 8 month periods would have already expired! So the Office notified them both that it proposed to set a period running from the date of its (eventual) decision, rather than IPReg’s decision. Both objected, as this would effectively double the length of the suspension imposed by IPReg.
The Office considered this, and in its decisions relating to Mr Joshi and Mr Welch it agreed that this would be unfair. So the result was two decisions that decided to impose bans that had already expired by the date of the decisions.
The decisons seem to be correct and fair in the circumstances, but one might argue that the rules behind them perhaps need to be thought through in a little more detail? On the other hand, section 88 proceedings are exceedingly rare so it probably doesn’t matter much.