For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

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Monday, 27 October 2008

OHIM oppositions and quality checks: the Kats differ

It's only a short document, but the Office for Harmonisation in the Internal Market (OHIM) "Quality of Decisions Service Standards 2008" -- brought to the IPKat's attention by his friend ITMA Treasurer Chris McLeod (Hammonds) -- makes gripping reading. OHIM, non-Europeans should remember, is the Alicante-based office that administers Europe's Community trade mark system.

Right: Kat fight, or OHIM opposition?

When it comes to the quality of decisions on absolute grounds that comply with OHIM quality criteria, OHIM expects 99% of its decisions to match up to its quality criteria, and in the third quarter the organisation exceed that by scoring a terrific 99.2% compliance rate. At the other end of the scale, 95% of opposition decisions are expected to comply with OHIM quality criteria but only 80.85% do so. To put it another way, virtually one opposition decision out of every five is potentially defective.

The IPKat is very worried about this. Is it a lack of adequate training and supervision, poor staff appointment policy, or what? OHIM's management tier should take a firm grip on this malaise and eradicate its causes, if users are not to lose confidence in OHIM oppositions and rely on (for example) national actions for cancellation instead.

Merpel's not so worried, though. In the first place, she says, oppositions are inherently more complex than absolute grounds decisions and there are lots more places they can go wrong. Secondly, the never-ending stream of Court of First Instance decisions on opposition issues is more difficult to keep up with. Thirdly, the fact that nearly 20% of opposition decisions fail to match up to OHIM quality criteria doesn't mean they're actually wrong. Look how many of us reach the right conclusions for the wrong reasons every day in IP matters -- and no-one usually notices ...!

Number of Google hits for 'right decisions wrong reasons': 5,280,000
The OHIM Quality Check System -- a helpful PowerPoint here

3 comments:

Anonymous said...

It is worth having a closer look to the definition of quality. The criteria is rather formalistic stuff: use of templates, identification of g&s, identification of the legal basis, summary of the arguments of the parties, correct language, etc., but not so much the reasoning in itself and the proof of the examiner's allegations.

Anonymous said...

...which makes you wonder about the quality of substantive examination, i.e. if they are unable to get the formal aspects right, unless this is more important to them.

Vincent O'Reilly said...

From Vincent O’Reilly

OHIM is delighted to see this issue attracting attention. For over a year and a half results have been published quarterly on our website. Recent issues of the journals of CIPA and ITMA carried articles on the subject.

Merpel is correct to say that an error does not mean that the outcome is wrong. The Office considers a decision to be error free only when its format, content and the outcome are all in accordance with the standards the Office has established. Contrary to what is suggested by anonymous 1 and 2 OHIM is concerned about the correct motivation of decisions, including full respect of the rights of defence, being provided in clear language. The relevant issues have to be dealt with in a logical manner and the outcome must be supported by the reasoning.

A breakdown of the error rate in oppositions in the last quarter shows that 3% had format errors, 16% had content errors and in 6% the outcome was incorrect. Some decisions had more than one category of error.

I will be writing in more detail on the subject in the November issue of Alicante News. I would be pleased to address issues that arise in the discussion here.

Vincent O’Reilly
Director
Department for Industrial Property Policy

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