The Legal Services Act 2007 (the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys) (Modification of Functions) Order 2014

PART 3 Functions of ITMA

ITMA acting as an approved regulator

Interpretation

10.  In articles 11 and 12 references to ITMA are to ITMA acting in its capacity as an approved regulator (other than in its role, if any, as a licensing authority).

Management and control of ITMA-registered bodies

11.—(1) ITMA may make regulations under section 83A(2)(b) of the 1994 Act(1) (requirements as to registration of a body corporate or unincorporate and its management and control) which require each ITMA-registered body to have—

(a) a Head of Legal Practice;

(b) a Head of Finance and Administration.

(2) Regulations made by virtue of paragraph (1) must include the provisions specified in Schedule 3.

Appeals to the First-tier Tribunal and the High Court

12.—(1) ITMA may make regulations under section 83A(2)(i) of the 1994 Act which provide for appeals against decisions made by ITMA under regulations made under section 83A of the 1994 Act (including regulations providing for a decision on such an appeal to be final and for orders as to payment of costs) to be made to the First-tier Tribunal or the High Court.

(2) Regulations made by virtue of paragraph (1) may include provision for appeals against decisions made by ITMA under this Order.

ITMA acting as a licensing authority

Interpretation

13.  In articles 14 and 15—

(a) references to ITMA are to ITMA acting in its role as a licensing authority; and

(b) references to a licensed body are to a licensed body in relation to which ITMA is a relevant licensing authority within the meaning of Part 5 of the 2007 Act(2).

Power to require payment of investigation costs

14.—(1) In this article—

“disciplinary measure”, in relation to a relevant person, includes an arrangement where—

(a)

the relevant person gives to ITMA an undertaking to do or not to do (or to cease doing) anything specified in the undertaking; and

(b)

any breach of that undertaking is liable to result in the imposition by ITMA of one or more other disciplinary measures on that relevant person;

“relevant person” means—

(a)

a licensed body; or

(b)

any manager or employee of a licensed body.

(2) Where—

(a) ITMA imposes a disciplinary measure on a relevant person, and

(b) the measure is imposed following an investigation conducted by ITMA,

ITMA may, in accordance with licensing rules, also require that relevant person to pay an amount to ITMA in respect of the whole or any part of the costs incurred by ITMA in conducting the investigation.

(3) For the purpose of giving effect to paragraph (2), ITMA must make licensing rules which make provision—

(a) as to the criteria and procedure to be applied by ITMA in determining—

(i) whether to require a relevant person to make a payment under paragraph (2); and

(ii) the amount of any such payment;

(b) as to arrangements for payment, including the time within which the payment is to be made; and

(c) for appeals to be made to the First-tier Tribunal or the High Court against any decision made by ITMA under this article.

(4) If the whole or part of any payment required under paragraph (2) is unpaid at the time by which it is required to be paid, ITMA may recover the unpaid balance as a debt due to it from the relevant person.

Power to issue a notice, warning or reprimand

15.—(1) ITMA may issue a notice, warning or reprimand in respect of any breach of the terms of a licensed body’s licence and cause this to be noted against any record (public or private) of that licence.

(2) ITMA may, if it considers it appropriate to do so in any particular case, communicate to the public that it has issued a notice, warning or reprimand to a licensed body under paragraph (1).

(3) For the purpose of giving effect to paragraph (1), ITMA must make licensing rules which specify—

(a) the breaches of the terms of a licensed body’s licence in respect of which ITMA may issue a notice, warning or reprimand under paragraph (1);

(b) the criteria and procedure to be applied by ITMA in determining whether to issue any such notice, warning or reprimand;

(c) the form that any such notice, warning or reprimand may take and the procedure by which it may be issued; and

(d) the criteria and procedure to be applied by ITMA in determining whether it is appropriate to communicate any such notice, warning or reprimand to the public.

Powers to make further provision

Powers to make further regulatory arrangements

16.—(1) Schedule 4 contains further provision about regulatory arrangements in relation to —

(a) registered persons and regulated persons, and

(b) licensed bodies (see paragraphs 10 and 11(1)(b) and (c)).

(2) The powers conferred on ITMA by this Order are not to be taken to prejudice—

(a) any other power which ITMA may have to make rules or regulations (however they may be described and whether they are made under an enactment or otherwise), or

(b) any other rules or regulations made by ITMA under any such power(3).

(1)

Section 83A was inserted by section 184(3) of the Legal Services Act 2007.

(2)

“Relevant licensing authority” is defined in section 73(4) of the Legal Services Act 2007.

(3)

Powers are conferred by sections 83 to 88 of the Trademarks Act 1994 (“the 1994 Act”) which are for the time being exercisable by the Institute of Trade Mark Attorneys (“ITMA”). Section 83(3) of the 1994 Act provides that the register of trade mark attorneys under section 83 is to be kept by ITMA and section 83A specifies functions which are exercisable by the person who keeps the register. Section 83(4) confers power on the Secretary of State to make an order requiring a person other than ITMA to keep the register. No order has been made at the date on which this Order comes into force. Section 83 of the 1994 Act was substituted by section 184(3) of the Legal Services Act 2007.