PAUSE OVER FOR
PRO BONO

Access to justice is a fundamental human right, a basic principle of the rule of law and a necessary pillar of a fair and just society. It is also a key objective of the Legal Services Act 2007, which regulates all lawyers, including Trade Mark Attorneys and Patent Attorneys. But, as with many other areas of law, people are often unable to access professional help in IP disputes due to financial constraints.

To help fill that need, IP Pro Bono was launched in 2017. It was a collaboration between a number of organisations, including CITMA, the Chartered Institute of Patent Attorneys (CIPA), the Intellectual Property Lawyers’ Association, the IP Bar and the Law Society. It was also welcomed and actively supported by the UK IPO and His Honour Judge Richard Hacon of the Intellectual Property Enterprise Court (IPEC).

In fact, it was Hacon J who set the original challenge to the UK IP community to meet the needs of the individuals, charities and small businesses who could not otherwise afford to meet the costs of professional representation in IP disputes. The service was designed to help with contentious proceedings including oppositions and other proceedings in the IPO, litigation in the IPEC, and IP matters in the High Court. It recognised that the disparity between cases presented by litigants in person and those presented by professional representatives in court has often been referred to as a battle between David and Goliath – one where, so often, Goliath wins.

The success of IP Pro Bono was thanks largely to CIPA, which provided administrative support, and Stephen Jones, Past President of CIPA and Chair of IP Pro Bono from inception. A special mention must also be made of Chartered Trade Mark Attorney and Patent Attorney Barbara Cookson, for her ongoing assistance to many applicants to the original programme. Over 800 requests for assistance were received over a period of five years, and requests increased in volume during the COVID-19 pandemic, when many people turned their thoughts to starting their own businesses and then confronted issues with IP law, particularly in relation to trade marks and copyright. Unfortunately, this coincided with an upsurge in the work of professional representatives as well, and the need for advice began to exceed capacity, which resulted in the programme being paused at the beginning of 2022.

In search of a solution

Of course, the need for advice for IP owners and those starting new businesses did not go away. CITMA and CIPA worked together over the following months to find the right solution, which was LawWorks, a charity committed to enabling access to justice through free legal advice. “LawWorks is delighted to be collaborating with CIPA and CITMA on this important pro bono project,” explains its CEO Rebecca Wilkinson. “We know that legal advice for clients helps not only the client, but also the legal infrastructure: it reduces court time, improves fair outcomes and raises the standard of legal decision making.”

The administration of the scheme is now run through the LawWorks IP Pro Bono Portal (accessed at ipprobono.org.uk), which connects volunteer lawyers with people in need of legal advice but who cannot afford to pay. The lawyers who provide their services for free are qualified and regulated under the Legal Services Act 2007, and include Trade Mark Attorneys and Patent Attorneys, solicitors and barristers. Eligibility checks are carried out by LawWorks to ensure that the applicants are those who cannot reasonably afford to pay for professional advice, and to confirm that the matter relates to an IP issue.

The service is still designed to help small businesses and individuals who are involved in a dispute about an IP right such as a patent, trade mark, protected design or copyright. Typical cases relate to letters before claim, oppositions at the UK Trade Mark Registry, appeals to the Appointed Person and proceedings in the IPEC. The service is also designed to provide advice before a dispute becomes a court case and to assist with settlement and mediation. The support of the IPO is illustrated by its policy of not charging fees for its mediation service if the party is represented on a pro bono basis.

 “At all stages of their career, many lawyers regard pro bono legal work as an integral part of being a member of the legal profession”

Unlike the standard LawWorks model, however, where firms contribute to the costs of the administration, the IP Pro Bono programme is currently funded jointly by CITMA and CIPA, with IP specialist volunteers sitting on the IP Pro Bono advisory board.

Law firms who were already on the LawWorks Portal and who have nominated IP as an area of interest will now automatically receive the new IP opportunities in their weekly emails. Cases are allocated on Thursdays, and as there can be great demand from law firms wanting to offer their services, we encourage everyone to register their interest early for new cases. Those law firms with an IP team that are not yet on the Portal should get in touch with LawWorks directly (digitalservice@lawworks.org.uk). CITMA, CIPA and LawWorks are keen for more firms who are interested in contentious IP matters to sign up to the Portal and consider taking cases.

Signposting service

Part of the service is also to signpost applicants who are not totally without financial resources to other affordable or free legal support – for example, universities such as Brunel, which offer an advice service to individual creators, innovators and entrepreneurs at the beginning or in the very early stages of building their business, when an income is still an aspiration. And, of course, there are free advice clinics run by CITMA and CIPA. These are also for members of the public and small businesses but focus more on non-contentious matters, such as searching and the registration of trade marks and designs. Demand for these services has also increased exponentially and is outstripping the capacity of the regular volunteers. Please contact tm@citma.org.uk if you can help.

At all stages of their career, many lawyers regard pro bono legal work as an integral part of being a member of the legal profession. It gives lawyers the opportunity to use their valuable professional skills and knowledge to help people improve their lives and defend their rights.

The truth is, if a claimant or a defendant has no representative, simply due to a lack of financial resource, injustices can and do occur. Ask yourself if that is right. Then ask yourself if you can help. CITMA, CIPA and LawWorks are waiting to hear from you.

Kate O’Rourke is a Chartered Trade Mark Attorney and Head of Trade Marks at Mewburn Ellis
kate.o’rourke@mewburn.com

ILLUSTRATION: SHUTTERSTOCK.COM