CITMA and CIPA state only Supreme Court should depart from retained EU case law

The Chartered Institute of Trade Mark Attorneys (CITMA) and the Chartered Institute of Patent Attorneys (CIPA) have published their response to the Ministry of Justice’s consultation on the UK courts and tribunals’ departure from retained EU case law. 

In the consultation, the Ministry of Justice asked the question: do you consider that the power to depart from retained EU case law should be extended to other courts and tribunals beyond the UK Supreme Court and High Court of Justiciary?

CITMA and CIPA believe that the power to depart from retained EU case law should be confined to the Supreme Court, and should be used ‘sparingly’ rather than extended to other courts and tribunals within the UK.  The response indicated the body of case law developed over the years is reasonably stable and well supported by industry.  Departing from retained case law risks, and even invites, increased uncertainty.  Moreover, the well-established mechanism for effecting significant change in the law is for the UK Parliament (as sovereign) to legislate and for the UK courts to interpret that legislation.  In the event that Parliament is of the view that domestic laws should depart from EU law, it can and should legislate.

In Intellectual Property (IP) law, EU case law has been particularly significant, and well-developed in several areas, including in trade mark law, in supplementary protection certificates in patent law and, to a lesser extent, in copyright and design law.  UK trade mark law comprises a large body of CJEU decisions built up over 30 years.  The decisions are interlinked and create a shared and reasonably stable understanding of how trade mark law is applied.  It is also often difficult in practice to distinguish between binding UK and binding EU case law in this area.  To depart from the latter without having an unpredictable impact on the former would contribute to uncertainty.

The Institutes further argue that extending the power to the Court of Appeal and equivalent level courts would “increase the number of appeals in IP infringement cases” and “unsuccessful parties would have a greater opportunity to appeal the basis of the underlying case law.  In addition, “if the Court of Appeal were to have the powers but not the High Court, that would raise the question as to the standard for an appeal.  Further, the Institutes state that “decisions by all courts and tribunals would result in piecemeal changes to law, which would potentially lead to uncertainty and inconsistency.

The consultation questionnaire with CITMA and CIPA’s responses is available here.