Unpaid costs: what's your preference?




A device for dealing with
non-payers of costs: once you've
got them trapped, you can
tickle them till they agree
to pay up
A few days ago, it was a very concerned Kat who posted this message in his Monday Miscellany:
""This is just a quick request for any tips you or your readers might have for extracting Office for Harmonisation in the Internal Market (OHIM) opposition costs from reluctant [and presumably unsuccessful] opponents. 
Are you aware of any means by which those unwilling to pay can be compelled, reprimanded or shamed publicly as I'm unwilling to give up on €1,600 in costs that easily".
Since then, the IPKat's friend Ben Mooneapillay has written to him as follows:
"I have not looked at the question of unpaid OHIM costs awards in any detail, but my understanding is that they can only be enforced via the Court [This view is shared by other correspondents too -- and the Community Trade Mark Regulation makes no provision for just helping yourself, notes Merpel]. Unfortunately, the irrecoverable cost of such action may well exceed the original costs award [This view is shared by unsuccessful opponents who know that they are unlikely to face such an action, which is why they don't bother paying]. I have tried to find out whether the PCC  -- that's the Patents County Court [for England and Wales: not quite the Panacea County Court, but it's getting there!] -- can hear applications for enforcement of OHIM costs awards, but my initial enquiries did not yield anything helpful [Even if it did, it's not likely to worry an opponent based in one of those lovely bits of Europe that's miles from England and who has no assets in the jurisdiction].
The UK Intellectual Property Office has a "name and shame" list (http://www.ipo.gov.uk/t-unpaid-details.htm) [its official name is the Details of unpaid costs order cases page], which also has the neat effect, I believe, of forcing those on the list to stump up security for costs if ever they find themselves in another inter partes dispute before the tribunal".
The Kat took a look at the "name and shame" list. He was relieved to see that none of his friends are on it, but he was disappointed about two things.  One was the understandable reluctance of the IPO to use the terms "name and shame".  The other was the fact that some businesses are obviously quite good at living with the shame. Some have been living with it for years. Indeed, International Toiletries and Cosmetics Ltd recently celebrated the third anniversary of its unpaid costs order.  Merpel says, you can guess from the names of some of the costs debtors that they're not going to pay up in a hurry. Never Give Up Ltd is hardly going to cave in, is it? Even if it faces the prospect of a date in the PCC with Judge Birss QC.

In a so-far-unpublished editorial for the European Trade Mark Reports, IPKat team member Jeremy writes:
"... Since the amount of the costs order is small, and the amount of expenditure needed in order to extract it from the recalcitrant opponent from a national court is considerable, it does not make sense to spend a larger sum in pursuit of the recovery of a smaller sum. Costs orders are kept small in order not to discourage oppositions, but this policy actually encourages them since realistic unenforceability reduces the real cost of a failed opposition still further. The United Kingdom’s Intellectual Property Office has a “name and shame” website, but its efficacy is reflected by the length of time that names of opponents remain on it without paying. Making oppositions contingent on security for costs would be more effective, but this solution is reputed to be both legally impossible and politically unloved. ..." 
Name-and-shame and security for costs are just some of the solutions that might be adopted. Others might be  the award of costs on a far more generous scale, to make them worth suing for, a month-by-month increase in the sum awarded for as long as it is unpaid, or the temporary unenforceability of an unsuccessful party's IP rights till the outstanding sum is paid.  The IPKat is running a little poll in the side bar of his front page in order to ascertain readers' preferences.

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