Archive for June, 2010
Wednesday, June 30th, 2010
So, alcohol survived the emergency budget. However, many fear that this is a small rest bite before the storm that is sure to come once the Government has overhauled the Licensing Act 2003 as its attempts to tackle the binge drinking culture in our country.
Whilst we wait to see what happens MPs north of the border have voted through the ground-breaking Alcohol Bill which could result in drink promotions banned full stop, an ability to raise the age for buying alcohol, and “social responsibility fees” for retailers who choose to sell alcohol.
Whilst it seems unfathomable that alcohol will ever stop being a big part of British culture, who could have predicted a near universal ban on smoking in public venues across the EU. When will the shackles on the sale of alcohol stop tightening? Will it stop at prominent health warnings on packaging being mandatory or will a far more draconian hand be dealt to the industry?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: Brands, Emergency Budget, Food & drink, licensing
Posted in Brands, Food & drink, Licensing | No Comments »
Wednesday, June 23rd, 2010
The Coalition’s emergency budget has given the clearest indication yet of the true extent of the funding cuts the public sector can expect with the announcement that around 80% of the debt reduction plans will be funded by public sector cuts. The scale and scope will be known at the end of the Comprehensive Spending Review.
And this is where the Total Place agenda has the potential to deliver.
With substantially smaller budgets the most successful local authorities are likely to see the cuts as an opportunity to achieve more visible outcomes and greater value for money from the services they commission.
The key to achieving this will be the effective identification of local priorities followed by the development of bespoke new service models (in partnership with other public sector organisations) which are designed to support the effective delivery of targeted services without compromising quality.
The effect of these cuts may be deep but with Total Place there is certainly scope to engage in a successful transition to services commissioned within a Total Place framework whilst minimising the pain of the proposed cuts.
Posted by Melanie Print
0121 237 4582
mprint@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: Emergency Budget, Public Sector, Public Sector Cuts, Total Place
Posted in Public Sector | No Comments »
Friday, June 18th, 2010
Ambush marketing is a ubiquitous feature of any major sporting event, and it’s certainly got FIFA cross at the 2010 World Cup, after orange mini-dress-sporting football fans were ejected from a World Cup match.
The women are accused of contravening the Merchandise Marks Act by abusing a trade mark. However, the difficulty in this case is that no mark of the company is visible on the dresses and it is therefore hard to see exactly what trade mark has been used.
The case demonstrates that organisations such as FIFA take ambush marketing extremely seriously and will crack down hard where they see examples of it. However it also illustrates that, no matter how draconian the legislation or the enforcement of it, ambush marketers will always be one step ahead.
One thing is certain: during the 2012 London Olympics, ambush marketers will find new ways to advertise their brand without paying hefty sponsorship fees. So, let the games begin!
Posted by Nick McDonald
0115 976 6198
nmcdonald@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: ambush marketing, Brands, Intellectual Property, world cup
Posted in Advertising & Marketing, Brands, Intellectual Property | 1 Comment »
Thursday, June 17th, 2010
In the High Court recently, the Telegraph Media Group Limited successfully defended a claim of defamation made by Dr Sarah Thornton, the author of Seven Days in the Art World. The Telegraph successfully argued that the words complained of in its review of the book were not capable of being defamatory.
The judge recognised that any definition of “defamatory” must incorporate some qualification or threshold of seriousness, so as to exclude trivial claims. He preferred the following definition:
“the publication of which he complains may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do”.
This interpretation provides defendants with another weapon in their armoury. Plus in an increasingly pro-publisher environment, coupled with the prospect of claimants not being able to recover success fees and ATE insurance premiums from defendants, it may make potential claimants think twice before commencing an action.
Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: Brands, Commercial Litigation, defamation claims, ip
Posted in Brands, Commercial Litigation, Intellectual Property | No Comments »
Tuesday, June 15th, 2010
Home Secretary Teresa May today announced that the Independent Safeguarding Authority (ISA) registration process is to be put on hold whilst the scope of the scheme is reviewed.
Whilst the review is a major step, one must question whether it goes far enough. There is little doubt that the registration requirements impacted upon too many people, but the management of the information held by the ISA and its role in barring individuals also requires review. A failure to automatically tell employers when their staff are barred, and an extremely low threshold for when employers are under a legal obligation to refer conduct to the ISA, are of serious concern to employers. If a review of the process is to be undertaken at all, then a full and thorough review of all aspects of the ISA’s role is in order. It is disappointing that the government’s plans do not suggest a more complete review.
Posted by Dai Durbridge
0115 976 6578
ddurbridge@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: Charities, Education, employment, ISA, Public Sector
Posted in Charities, Education, Public Sector | No Comments »
Saturday, June 12th, 2010
Last week we posted that Mars and The FA were considering legal action against Nestlé .
This week a study by Nielsen has revealed that Nestle are not the only ones taking advantage of “ambush marketing” during the lead up to the World Cup. The likes of Nike and Carlsberg appear to got the upper hand over their bitter rivals but its not all bad news. Nielsen also found that FIFA partner Coca-Cola was found to have had five times the level of mentions around the World Cup than Pepsi did.
With the raft of brands that are currently and will continue to engage in ambush marketing, is it time for sponsors to start taking advantage of their alignment to the World Cup by being more creative, since “owning” the tournament is clearly not enough?
Would money be better spent on savvy marketing strategies rather than on potentially fruitless attempts to try and go after arguably more creative (ambush) marketeers?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: advertising, ambush marketing, Brands, marketing, world cup
Posted in Advertising & Marketing, Brands | No Comments »
Friday, June 11th, 2010
‘Outstanding’ schools who want to become academies may no longer need to consult with the local authority, parents and other stakeholders. The new Academies Bill does would not require schools to consult on becoming an academy. However, schools would still have the option to consult if they wished to do so.
The government appears to hope that removing the requirement to consult will help successful schools to become academies quickly, even by as soon as this September. However, schools which do not consult could run the risk of legal challenges by the local authority or parents who may argue successfully that they had a ‘legitimate expectation’ that the school would seek their views. Despite the duty to consult apparently being lifted, it remains to be seen whether governing bodies will decide that it is safer to consult stakeholders in order to avoid potential delays to becoming an academy as a result of long drawn-out and costly legal challenges.
Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: academies, academies bill, Education, schools
Posted in Education | No Comments »
Friday, June 11th, 2010
So Eric Pickles has abolished the Regional Spatial Strategies (RSS), allowing local planning authorities (LPAs) a greater say in delivering local development and meeting their own housing need. It will also be open to them to work with the Improvement Bodies, such as the RDA’s, HCA’s and local RSL’s to improve delivery of development and in particular housing.
This policy decision would appear to accord with the localisation and Total Place agenda. However, the difficulty is there is no framework for LPAs to work within in terms of identifying the development that it should be bringing forward. Its success relies on LPAs being committed to deliver development and identifying those areas which are a priority. A lack of commitment on their part means local areas will suffer in terms of delivery of development. Therefore for Total Place to work within the planning sphere, surely the RSS must be replaced to ensure that development is achieved at the necessary levels?
Posted by Tom Edwards
0115 976 6560
tedwards@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: local planning authorities, localisation, LPAs, regional spatial strategies, Total Place
Posted in Public Sector | No Comments »
Thursday, June 10th, 2010
The High Court has upheld a decision that consent given under a co-existence agreement to the registration of a trade mark for certain goods was a bar to opposition on relative grounds, citing section 5(5) of the Trade Marks Act.
Omega Engineering argued that Omega SA had no right to oppose its application to register OMEGA in respect of certain goods since it had expressly agreed not to do so under a co-existence agreement between the two parties. Omega SA argued, amongst other things, that the co-existence agreement was irrelevant to an objection made on relative grounds. Mr Justice Arnold disagreed stating that it would be unjust if a party who had consented to the registration of a trade mark could successfully oppose the application to register it.
This has to be the right decision otherwise the usefulness of co-existence agreements would be severely threatened.
Posted by Sara McNeill
0121 237 3930
smcneill@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: Intellectual Property, ip, Trade Mark, trade marks
Posted in Commercial contracts, Commercial Litigation, Intellectual Property | No Comments »
Tuesday, June 8th, 2010
Christopher Dearlove, a 41 year old homeless man, was recently issued with a three year criminal anti-social behaviour order (ASBO) for costing the NHS tens of thousands of pounds in wasted care. This action by the NHS CFSMS shows that Trusts acting together gives the NHS a powerful weapon to fight back.
Whilst it sends out a strong message to the wider public enforcing the ASBO could be problematic. The court will be reluctant to punish Mr Dearlove if he presents again but it is borderline as to whether he is genuinely ill.
Whilst the evidential burden to obtain an ASBO is quite low, gathering sufficient evidence for a case like this will also have been very time consuming and it no doubt took many years before anyone realised the problems.
The only failsafe way to spot this sort of problem early on would be through a national identity card system combined with an electronic patient record – so for the foreseeable future old-fashioned vigilance and common sense will have to be the watchwords for the NHS.
Posted by Ian Long
0115 976 6194
ilong@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: ASBO, NHS
Posted in NHS, Public Sector | No Comments »
Tuesday, June 8th, 2010
Internet Service Providers (ISPs) could soon be compiling a blacklist of online copyright infringers. Ofcom is currently consulting on the code to be followed by ISPs and how, in practice this will be enforced. The consultation ends on 30 July.
For the first time copyright owners will be able to receive a list of infringers for the purpose of bringing legal proceedings and apply to find out the names of those who are alleged to have infringed. ISPs may also be required to limit or even block internet use.
The Act (and code) will inevitably make an ISP’s life more complicated, since, as well as blacklisting its own customers, there is a risk they become drawn into the inevitable claim, counterclaim and appeal between copyright owner and alleged infringer.
Posted by Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: copyright, copyright infringement, isp, ofcom
Posted in Intellectual Property | 1 Comment »
Monday, June 7th, 2010
Mars, the FA’s official sponsor, is considering taking legal action against Nestlé’s latest advertising campaign for Kit Kat for “passing themselves off” as being associated with the England football team. This is particularly interesting since Mars ran a very similar campaign 4 years ago.
With major sporting events, “ambush marketing” can be rife with advertisers other than official sponsors keen to piggyback on the popularity of the event without expressly associating themselves with it.
Although sporting associations often publish guidelines as to what references they will permit, which prohibitions are actually enforceable is a question of law. There is obviously a line which must not be crossed. However Nestle say they have taken advice, and feel that the campaign is permissible.
If the law doesn’t protect the rights which official sponsors have paid for, whats the point in paying ? – or maybe we are all “fair game” when it comes to making money for football?…
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: advertising, Brands, marketing, world cup
Posted in Advertising & Marketing, Brands | 2 Comments »
Friday, June 4th, 2010
This week, Michael Gove announced that over 1000 schools have expressed interest in becoming academies. The government’s Academies Bill, introduced last week, enables all maintained schools to apply to become academies. It also promises automatic approval of academy status for those schools judged “Outstanding” by Oftsed.
To date, 626 “outstanding” schools have registered their interest in converting to academies. Despite their existing success, they are presumably tempted by the promise of greater independence.
Rapid expansion of the academy population currently looks inevitable and the government has been keen to emphasise the types of freedoms that academies will enjoy, such as the freedom to adapt the National Curriculum and vary the length of the school day. However, governors and the wider school community may still need to be convinced of the benefits of conversion, not least because of its historic association with failing schools.
Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: academies, Education, schools
Posted in Education | No Comments »
Friday, June 4th, 2010
Opinions may vary about Total Place, but in light of the full coalition agreement and impending announcement of the emergency budget (expected 22nd June) there can be no dispute about two fundamental points – funding in the public sector will tighten over the medium term, and public sector organisations will need to give immediate thought to developing innovative service delivery which will deliver effective long-term savings.
The Conservative manifesto pledged that they would give local authorities a “general power of competence”, making it absolutely clear that local authorities have the power to take any step that will help save money from the public purse. This has made it into the coalition agreement but what is now needed is clarification as to how this power will operate. Without it progress is likely to be slow and local authorities could be forgiven for proceeding with caution following the recent ruling that the formation of the London Authorities Mutual Limited was illegal.
Posted by Chris Webb-Jenkins
0115 976 6175
cwebb-jenkins@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: local authorities, Public Sector, Total Place
Posted in Public Sector | No Comments »
Tuesday, June 1st, 2010
Craig Venter has created a bacterium called Synthia that has an artificial genome. But what protection should be afforded to the creators of this synthetic DNA? Criticism of Venter’s patent application has been forthcoming, particularly from Sir John Sulston.
European Directive 98/44 EC explicitly said that biotech patents can be granted, although certain things including plant or animal varieties or the discovery of human genes were not patentable. However, the specific drafting of a claim is a different matter, and Venter’s patent’s claims were originally very broad.
Venter’s patent application is being examined by the EPO. Objections to the initial application were made by the examiner in April 2009, which the examiner said were “such that there is no possibility of overcoming them by amendment”. A reply was filed in February 2010, reducing the claims from 28 to 20, and having spent a reported $40 million to create the synthetic DNA, there is no doubt that Synthetic Genomics, the company in whose name the patent was filed, will fight hard to get all the patent protection it can get. It will be interesting to see whether any patents they end up with in Europe do protect anything of monetary worth.
Posted by Giles Parsons
0121 237 4557
gparsons@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: biotech, epo, patent, synthia
Posted in Intellectual Property | No Comments »
Tuesday, June 1st, 2010
The government has announced that thousands of ‘outstanding’ schools may never be inspected by Ofsted again. A new Academies Bill has already been published which will allow all successful schools to automatically become academies, taking them out of local authority control and giving them the freedom to employ their own staff, set their own admissions policy and depart from the national curriculum.
The proposed exemption from inspection will mean that highly-rated schools will soon also be free from the burden of Ofsted inspections in future. Head teachers of ‘outstanding’ schools are likely to welcome the policy as a sign that the government trusts teachers to run their schools effectively. However, the move has not gone down well in all quarters, with teaching unions commenting that it will create an alarming lack of on-going accountability in thousands of schools.
Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Posted in Education | No Comments »
