Wednesday whimsies

The bright, shiny new European Commission e-justice site, launched earlier this month, features a directory of legal professionals which includes lawyers, notaries and bailiffs, the IPKat learns from Kilburn & Strode's observant Nick Bassil -- but not patent and trade mark attorneys. Wonders Merpel, is this because they're not legal or because they're not professional?

Ten Questions -- and some pertinent comments. The "Ten Questions About Confirmatory Assignment" post by IPKat team member Neil last week has attracted some enrichment in the form of quality comment from readers: if you are involved in or concerned about confirmatory assignment issues, you may wish to revisit this article -- which you can do so by clicking here.

Augmented reality. The IPKat's dear friend Maximilian Schubert, convinced that "augmented reality" will soon become a part of everyday life, has a little idea which is very simple. Since this technology is novel, we must consider which legal principles govern it. Since keyword advertising plays a role, he argues that the principles developed recently by the ECJ (see IPKat posts here, here and here, for instance) could apply here too -- after all, it makes little difference whether a consumer searches for a "Canon S 90 price comparison" on a search engine or just points his smartphone's camera at a Canon S 90 camera while standing inside a store. In both cases he submits a query and receives results (which contain, or are displayed alongside, ads). If in principle both technologies are similar, the ECJ's keyword advertising doctrine will fit it neatly. Maximilian's thoughts (which you can read here) haven't advanced very far yet, but he'd love to hear the ideas of other jurists on this subject.

Since so many readers of this weblog side with the underdog in its battles with the overdog (if such a concept exists), the IPKat has decided to gratify them with the news that Mattel, owner of the iconic Barbie doll, has just seen its hard-won injunction against former employee Carter Bryant's Bratz dolls disappear. According to 9th Circuit Chief Judge Alex Kozinski, the district court erred when it found that Mattel's employment agreement covered the idea for Bratz, wrote who concluded: "America thrives on competition; Barbie, the all-American girl, will too." The order was stayed pending the appeal (see the AmeriKat, here).

The apt illustration on the left comes from an earlier posting on this dispute from Counterfeit Chic, Susan Scafidi's lovely blog, that has been too quiet for appreciative Kats of late.
Wednesday whimsies Wednesday whimsies Reviewed by Jeremy on Wednesday, July 28, 2010 Rating: 5


  1. Wonders Merpel, is this because they're not legal or because they're not professional?

    It is simple, they are not lawyers. Let us be honest a patent or trade mark attorney doesn't have the same legal education as a lawyer and so should not be called lawyer. They are akin to legal conveyancers who aren't lawyers either and so are also not included in the portal.

  2. @Anonymous

    Your comments, which are presumably intended to be offensive, actually reflect your ignorance.

    "If it looks like a duck, walks like a duck and talks like a duck, then it is a duck" -- and we pesudo-conveyancers are trained to litigate, do litigate and note with satisfaction that solicitors rely so heavily on our expertise and professional training when seeking to do so in patent disputes themselves.

  3. Both of you calm down! No ducks anywhere! Patent and Trade Mark Attorneys are not "lawyers" though, are they, really? It's a completely different training and very specialised already during training. Solicitors or barristers or attorneys at law and whatever else there is in Europe undergo a much more in-depth legal training covering much wider fields of law than what patent or trade mark attorneys will know. Patent and trade mark attorneys are very specialised in one very narrow field and so super experts in their respective field. Often though, they do not appreciate the wider context of the law and that is not an offensive statement. Just comes with the nature of the training. Should they be qualified as lawyers for the search on the EU website? No, I don't think so since most people expect a lawyer to have that broader training. Should they be included as patent and trade mark attorneys in that EU search? Yes, so people can find the specialised expertise they seek. Now, calm down! There is a place for all of us!

  4. For what it's worth (and I'm not making any particular comment as to what that might be), patent and trade mark attorneys are defined as "other lawyers" in the Legal Services Act 2007 ( So UK law seems to consider them to be lawyers.

  5. Some years ago when I was only EP-qualified, I had occasion to refer my then employers to the CIPA protected titles committee because the new [American] senior management had started to refer to their in-house patent attorneys and part-qualified TAs as "attorneys" in internal correspondence. I was concerned that this might be contravening Section 276 of the CDPA 1988 which made it a criminal offence for an individual [me!] to let himself be referred to as a patent attorney when he was not, and I wanted backup to get my employer to cease refrring to me in this way. The reply partly confirmed my concerns insofar as external correspondence was concerned, and drew attention to the Solicitors Acts, noting that "Attorney" was still considered to be a title reserved for solicitors, and that only the specific titles of "Patent Attorney" and "European Patent Attorney" set out in S.276 should be used as appropriate.

    My understanding is that the relevant provisons of the Solicitors Act were not affected by the 2007 Legal Services Act.

  6. Whether or not Patent Attorneys specifically fall within the definition of 'lawyer' is irrelevant. The website refers to 'legal professions' and there can be no doubt that Patent Attorneys fall within this definition.

    Since notaries are separated out from lawyers, you would think that Patent Attorneys would be too, but maybe we are not considered to be a large enough group for such representation.

  7. The word "ATTORNEY" does not mean or imply a Solicitor.

    The term ATTORNEY simply means a person appointed by another to act on his behalf and having authority to act for him.

    Many people act as attorney for ailing relatives and indeed use the word ATTORNEY when exercising that power.

    The special meaning of the term ATTORNEY as meaning a form of lawyer was abolished in England in 1873 [or so says my dilapidated copy of "The Oxford Companion to Law".

    So, as a matter of language, the term AGENT could be considered synonymous with the term ATTORNEY.

    Historically, the Law Society appeared to be of the opinion that any term including the word “ATTORNEY” implied “SOLICITOR”. This resistance appears to have passed, since by their October 2007 press release the Law Society indicated their support for ITMA seeking statutory protection for the term “Trade Mark Attorney” and indicated “We were concerned to ensure that the registration of 'trade mark attorney' as a certification trade mark did not prohibit solicitors from using that title”.

    If the term “attorney” meant “solicitor” the Law Society could not have supported ITMA’s position since that would be condoning a breach of the Solicitors Act.

    In summary, ATTORNEY does not mean SOLICITOR and is not confusable therewith.

    Thank goodness, or I would be reluctant to call myself an attorney.

  8. Anonymous states:-
    "Solicitors or barristers or attorneys at law and whatever else there is in Europe undergo a much more in-depth legal training covering much wider fields of law than what patent or trade mark attorneys will know."

    As it appears open season for abuse, my experience indicates that the phrase "in-depth" could generally be replaced with "in-shallows".

    Additionally, patent and trade mark attorneys tend to use more elegant language "than what" a solicitor might.

  9. Enough with the ignorance and disrespect for other professions. Let's not get into a "who is better" conversation - there really isn't a general rule, just individual merit.
    As to titles, I believe that "attorney" has never been synonymous with "solicitor". Attorneys acted in the common law courts, and the professions of attorney and solicitor were fused when the courts were fused in the 1870s. No one now living has seen an "attorney" in action in the UK Courts. Whilst it might, in the 1880s, have been a title and a profession confusable with that of solicitors, it certainly is not now.
    The real confusion arises because our split professions make things incomprehensible to non-Brits. For a solicitor to use the term to an American would cause confusion because in the US an attorney would (or could) also do the advocacy - "barrister" would in some respects be closer to what the layman (in the UK or US) would expect of a US "attorney". Just as confusing as the term "patent attorney", in fact.


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