July 29th, 2010
The Academies Act passed into law earlier this week, paving the way for hundreds of schools to become academies. The government has been criticised for rushing the legislation through Parliament using procedures usually reserved for national emergencies. Christine Blower, general secretary of the NUT, has said, “Whatever people’s views on academies may be, by by-passing the usual democratic process, the legitimate and essential right to debate such an important issue is removed”. However, schools that want to become academies will welcome the swiftness of the legislation, which means that they can proceed quickly to become academies and obtain the freedoms associated with conversion.
Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com
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Tags: academies, Academies Act, Education, government, schools
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July 29th, 2010
Wayne Rooney has won a case against his former management company, Proactive Sports Management Ltd. The case concerned an agreement which gave Proactive an eight-year monopoly over the exploitation of Wayne Rooney’s image rights.
The agreement, which imposed a restriction that was much longer than the industry standard, was a restraint of trade and therefore unenforceable. The judge also considered Rooney’s age at the time the agreement was executed (he was only 17) and concluded that the agreement was not the result of a negotiation between equals.
The case illustrates the dangers of imposing lengthy restraints, particularly where these exceed industry standards (FIFA regulations stipulate a cap of 2 years for on-field agreements). Rooney was “delighted to have won this case” and the £4.3m he saved no doubt came in handy during Wayne and Coleen’s recent holiday in Barbados.
Posted by Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com
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Tags: Image Rights, Intellectual Property, Sport, Wayne Rooney
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July 29th, 2010
The Home Secretary Theresa May has unveiled plans to overhaul licensing laws and tackle violent disorder ahead of a key speech on anti-social behaviour yesterday.
Since the formation of the coalition government, the Home Office have consistently blamed lax licensing laws and in particular 24-hour drinking for Britain’s alcohol-related problems and more specifically its binge drinking culture.
However, when the Department for Culture Media and Sports last counted, there were 171,800 premises licensed to sell alcohol in England and Wales. Roughly, just 4% of these premises were licensed to sell alcohol 24 hours a day and of that 4% only 12% were pubs, bars and nightclubs. Further, in practice, very few of these actually open beyond 3am as the benefits of opening any later do not outweigh the overhead costs.
Is 24 hours licensing really to blame, when the reality is that 24 hour drinking has been nothing but a fiction since the introduction of the Licensing Act in 2005? Or is the Home Office distorting reality to make a demand by the public for more control over licensing decisions?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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July 28th, 2010
The Supreme Court has today referred a case against the Ministry of Justice concerning its refusal to grant pensions to thousands of part-time judges to the European Court of Justice.
Employment barristers at Cloisters, instructed by Browne Jacobson, are arguing that retired Recorder (part-time judge) Dermod O’Brien QC should be entitled to a judicial pension on retirement pro rata to the pension of full-time circuit judges. It is alleged that he has been discriminated against and that this is unlawful under European law as set out in the Part-time Workers Directive.
The Ministry of Justice has argued that this discrimination against part-time workers is not prohibited by European law, asserting that neither Mr O’Brien nor any judge “works” for, or is in an employment relationship with, anyone.
Part-time judges are paid pro rata to full time judges and are entitled to all the same benefits such as maternity and sick pay so should they not also receive the same pension’s rights as their full-time colleagues?
Posted by Edward Benson
0115 976 6211
ebenson@brownejacobson.com
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Tags: employment, Part-time Workers Directive, Pensions, Supreme Court
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July 26th, 2010
The Government has announced a consultation on implementing the recommendations outlined in Lord Justice Jackson’s review of civil litigation costs.
The main thrust of this will be to review CFAs and as to whether they are the best way of achieving justice with the current level of success fees and the way in which ATE works.
It is reassuring that the Government is looking at proposals for fixed costs on the fast track and has recognised the unique problems associated with clinical negligence claims. However it has left us in the dark when it comes to non personal injury claims and legal expenses insurance.
It is important the Government clarifies how this will be combined with other measures such as the Lord Young report and the LSB review on referral fees if it seriously wants the industry to engage fully in the debate.
Posted by Nichola Evans
0207 337 1019
nevans@brownejacobson.com
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Tags: Civil Litigation Costs, Claims, jackson review, Legal Expense
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July 25th, 2010
The government has announced that it will clarify the law on the use of force in the classroom. New guidance will explicitly say that teachers can use force to physically remove disruptive pupils from the class or prevent them from leaving the room to maintain discipline. Head teachers will also be given more powers to search pupils, not only for weapons, but also for drugs, alcohol and mobile phones. Teaching unions have broadly welcomed the proposals. However, teachers will only be able to use reasonable force so the decision on whether physical contact is legal will ultimately remain with the courts, potentially still leaving teachers vulnerable to allegations of assault.
Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com
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Tags: discipline, Education, schools, teachers, use of force
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July 22nd, 2010
The Department for Business, Innovation and Skills has announced the dissolution of the Strategic Advisory Board for Intellectual Property Policy (SABIP). Its functions will apparently now pass to the UK Intellectual Property Office.
SABIP’s vision was to ensure “the UK’s IP framework rewards innovation and creativity and provides incentives for these to flourish. It seeks to embrace the changing global context and balance the needs of industry, artists and consumers alike.”
Only set up in 2008, SABIP has hardly had an opportunity to make its mark. Its evidence-based approach to change appeared logical and sensible. Its lasting legacy will be its report into the relationship between copyright and contract law. This report was met with mixed reaction particularly from those wary that SABIP’s willingness to consider alternative rewards to copyright might lead to an erosion of that right.
Many are simply asking ‘What did it do anyway?’ which presumably formed part of Vince Cable’s thinking when dissolving the quango.
Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com
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July 22nd, 2010
In a novel promotion, Dr Pepper recently launched a Facebook app which gave consumers the chance to win £1,000 – if they allowed Dr Pepper to “hi-jack” their status updates. Dr Pepper, in line with their “what’s the worst that could happen” strapline, would use the app to post amusing embarrassing statements, which would appear as if they had been made by the entrants.
However the promotion went wrong when a 14-year-old girl’s status was updated with a reference to a hardcore pornography film, causing an outrage. Now Coca-Cola are reportedly considering moving their account from the advertising agency responsible for the promotion.
This shows the importance, when dealing with a novel promotion mechanic, of ensuring the promotion is carefully reviewed before it is run – not just for legal compliance, but also to establish what’s the worst that could happen?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, Brands, Food & drink, Social Media
Posted in Advertising & Marketing, Brands, Food & drink | No Comments »
July 19th, 2010
We recently commented on government plans to persuade food manufacturers to fund its Change4Life campaign in return for less red tape.
Now there are signs that the food industry is going to get even more respite. The Food Standards Agency (FSA) is going to be part of the government’s review of “arms length” agencies that is due to take place this autumn.
The FSA has been subject to much criticism from the food industry in recent years – particularly for it’s lobbying for mandatory traffic light labelling and restrictions on TV ads for foods high in salt, sugar and fat.
Many of those in the industry are of the view that the food industry is responsible enough to look after itself and consumers are big enough to make their own choices about what is and what is not good for them. But is the fiscal deficit really a good reason to abandon the body which when it comes to food is charged with protecting public health and public safety?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, Food Advertisng, FSA
Posted in Advertising & Marketing, Brands | No Comments »
July 16th, 2010
MPs, including David Cameron, roundly condemned tributes left on a Facebook group page dedicated to the gunman Raoul Moat and asked for the group, which also criticises the police, to be taken down. Whilst the offending page has now been taken down by its creator, Facebook themselves declined to do so on the grounds it encouraged public debate. They do have a system in place to address complaints about specific offensive material.
The E-Commerce Directive creates certain protections from liability for illegal material that appears on websites, although these protections have certain exemptions. This includes where the website is put on notice of unlawful material, at which point the ‘host’ must act expeditiously to remove it.
It is arguable whether Facebook’s approach brings it strictly within the protection offered by the Directive. But is it more important for Facebook to be seen to be promoting freedom of speech, even when it could be distasteful?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: Brands, E-Commerce, Facebook, Freedom of Speach
Posted in Advertising & Marketing, Brands | No Comments »
July 16th, 2010
The Education Secretary, Michael Gove, recently announced that hundreds of school rebuilds which have not reached financial close will not go ahead under Building Schools for the Future (BSF).
The Coalition argues that in the current economic climate, whichever party is in government would have to cancel many BSF projects in order to help reduce the national deficit. However, teaching unions are up-in-arms at the decision. Christine Blower, General-Secretary of the NUT, has said “poor learning environments have a negative impact on the education of children and young people”.
Despite imminent cuts in public funding across the board, unions are likely to insist that new school buildings are money well-spent, even in a recession. It will also leave the government open to legal challenges from a raft of local authorities unhappy at the decision to cut BSF funding.
Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com
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July 13th, 2010
The long awaited White Paper Equity and Excellence: liberating the NHS launched yesterday has been proclaimed as ‘the most radical overhaul of the NHS since its creation in 1948′.
The White Paper confirmed that primary care trusts and strategic health authorities will be scrapped by 2013. Responsibility for commissioning will pass to GP Consortia under an NHS Commissioning Board whilst local authorities will become responsible for assuming PCTs public health functions and leading the integration of health and social care at a local level.
Although much of the detail of the proposals has yet to be finalised the White Paper makes one thing abundantly clear: the impetus on integration and partnership working between the NHS, social care and public health is a top priority and the need for the NHS and local organisations to build partnerships to manage these service changes now and make the NHS a ‘truly world class service’ just stepped up a gear.
Posted by Emily Birkett
0121 237 3934
ebirkett@brownejacobson.com
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July 13th, 2010
The BBC has discovered that a number of high profile retail companies may be operating refund policies which are in breach of the Distance Selling Regulations. Online retailers are required to offer a refund of delivery charges for goods bought online, as well as the price of the goods themselves, when the goods are rejected and returned within 7 days of delivery. However the BBC found that a number of online retailers were not offering refunds of the delivery charges.
The Distance Selling Regulations were introduced in 2000, following EU legislation on consumer rights. They are designed to protect the rights of consumers who buy goods online, and therefore do not have a chance to inspect the goods in the shop before buying them.
Although the sums involved are individually small, this could mean an administrative headache for businesses forced to address numerous claims for a refund. It could also result in Trading Standards getting involved. Under the Enterprise Act, they have wide-ranging powers to stop breaches of consumer law, no matter how small.
Consumers are not always aware of their rights – however it is important that businesses do keep up to date with consumer rights, as stories like this can result in bad publicity, and may even prompt legal action.
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: Brands, Consumer Rights, Distance Selling, Retail
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July 9th, 2010
Ireland’s Department of Enterprise, Trade and Innovation has published the conclusions from its enquiry into whether the Irish Patent Office should continue to examine trade mark applications to see whether there are relative grounds for refusing the registration. A trade mark may be refused on relative grounds if it is identical or similar to an earlier trade mark. All applications are also examined to see whether the mark should be rejected on absolute grounds – i.e. because there is something inherently wrong with the mark, for example if it is not distinctive.
Applications for a European Community Trade Mark, and (since October 2007) for a UK trade mark, are not subject to examination on relative grounds. Instead, existing trade mark owners are notified of applications that may conflict with their registered, and given the opportunity to object – meaning that UK and Community trade mark owners must police applications.
The UKIPO changed the system of registration to make it more similar to the CTM system – but it is clear that the system in Ireland is easier for smaller businesses that cannot afford to invest heavily in policing their portfolio, for consumers, who have a better guarantee of the origin of their goods.
Posted by Giles Parsons
0121 237 4557
gparsons@brownejacobson.com
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Tags: Intellectual Property, Patents, Trade Mark
Posted in Intellectual Property | No Comments »
July 9th, 2010
On Monday, the coalition government asked its marketing departments to plan for spending cuts of up to 40% to their advertising budgets.
Yesterday, the health secretary, Andrew Lansley gave an insight into how the government sees that businesses can help keep important marketing campaigns alive.
Lansley explained that beer companies, confectionary firms and crisp-makers will be asked to fund the government’s Change4Life campaign; an advertising campaign that aims to persuade people to switch to a healthier lifestyle. In return, Lansley has promised that these companies will not face new legislation that was to outlaw excessively fatty, sugary and salty food.
Whilst this is an innovative way of keeping an important government campaign alive, the public don t always realise that the majority of restrictions on food are imposed by mandatory implementation of European Regulations.
Is the government indulging in soft sell – or is this a promise Lansley can keep?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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July 6th, 2010
In the Emergency Budget, the Chancellor, George Osborne, said that education spending could fall by 25% over the next four years.
Whilst the Coalition had promised to protect front line spending on schools for one year, teaching unions are already opposing the ‘back office’ cuts, which they say will still have a detrimental effect on childrens’ education. Furthermore, in light of imminent cuts, it is difficult to see how the Government will make its flagship policies a reality.
It remains to be seen whether the Government will have sufficient funding to pay for all ‘outstanding’ schools to become academies and allow parents and teachers to establish hundreds of their own ‘free schools’.
Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com
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July 6th, 2010
Mr Paul Barrett has been sentenced to a £3,000 fine, plus ordered to do 250 hours of community service, for committing the offence of shill bidding, after becoming the first person to be convicted of the practice on eBay earlier this year. This occurs when a seller bids on their own item, under another account name (or ‘sock puppet’) in order to jack up the price. Shill bidding is reportedly a widespread problem on eBay.
Mr Barrett had faced a maximum fine of up to £50,000, or jail time. He pleaded guilty after an investigation by North Yorkshire Trading Standards. He stated that he was not aware he was committing a crime.
Though the prosecution is to be commended, the size of the penalty, combined with the admission by the authorities that shill bidding is difficult to prosecute, means that without more action being taken, this conviction alone is unlikely to deter future shill bidders.
So do you think that chasing internet crime is a good use of Trading Standards meagre resources – or should they be concentrating on the real risks to consumers like sale of dangerous toys or flammable furnishing?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: Brands, Ebay, Shill Bidding, trading standards
Posted in Advertising & Marketing, Brands | No Comments »
July 6th, 2010
Apple’s iPhone 4, which was only launched last month, has already resulted in the first lawsuit being filed against the company in the United States.
The suit claims that Apple knew that the antenna design of the iPhone 4 caused reception problems, but ‘wilfully, falsely, and knowingly misrepresented material facts relating to the character and quality of the iPhone 4 units.’ It also states Apple failed to use due care by failing to issue a voluntary recall, or at the least waiving the 10% restocking fee for returned iPhone 4s.
If it becomes a successful ‘class action’ suit, Apple would also have to pay damages to anyone else affected by the alleged defects. This case illustrates how quickly a product launch can damage a brand if design defects are discovered. The more high profile the product, the more extensive will be the consumer testing so due diligence is critical to ensure that new products are fit for the marketplace.
So once you ve done your testing and your due diligence is in place – is it ok to be like the CEO of BP and stand by your Brand – or do you bow to the inevitable and accept that whatever happens – the customer is always right?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: Apple, Brands, iPhone 4
Posted in Brands | 1 Comment »
July 2nd, 2010
There is widespread recognition that local authorities need to be at the forefront of the implementation of community sustainability measures to save energy, reduce carbon emissions and tackle climate change.
Too many organisations seem to be re-inventing the wheel concentrating on policies without showing demonstrable improvements in environmental performance.
The austerity period now to be endured means that for the first time there is increased pressure upon the effective achievement of sustainability measures.
Innovative local authorities will adopt a Total Place approach to identifying new resources by examining their current assets and capital to design effective sustainability measures which can be introduced in their area.
However, few local authorities have embraced the need to implement community sustainability measures to date. Now that the focus on providing public services for less has been put firmly in the spotlight it will be interesting to see whether local authorities will embrace this step change in the short or long term.
Posted by Richard Barlow
0115 976 6208
rbarlow@brownejacobson.com
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Tags: Emergency Budget, Public Sector, Total Place
Posted in Public Sector | 1 Comment »
July 1st, 2010
Like England fans waiting for a World Cup tournament success, technology providers have been eagerly expecting Supreme Court guidance on the patentability of business methods and software inventions in the US. Unfortunately, they may be equally disappointed. Finally the decision of the appeal of Re Bilski has been delivered.
The Supreme Court has upheld the Federal Court’s view that an invention is patentable if it is “tied to a particular machine or apparatus” or if it “transforms a particular article into a different state or thing”, but has refused to confirm that this is the exclusive test.
It has however refused to endorse the earlier, far wider test requiring the invention merely to produce a “useful, concrete and tangible result”, which was set down in the State Street case, and which caused the patent applications to come flooding in. So at least the hi-tech world knows that there are some boundaries, but I suspect that is scant consolation.
Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com
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