Archive for September, 2010
Thursday, September 30th, 2010
It has been announced today that four councils have been testing the potential of community based budgets under the direction of the Coalition’s Big Society adviser Lord Wei.
The idea is premised on the four councils leading the way, involving local residents in designing and running their public services and pooling budgets at a community level. If successful they have the potential to prompt a significant shift in accountability which would make local public services genuinely local, both in the way funding is allocated, and decisions about services are made and accounted for.
With the Comprehensive Spending Review due on 20 October these pilots are well timed to feed into the outcomes of the Review and it will be interesting to see whether the result is the ‘radical devolution of power and greater financial autonomy to local government and community groups’ promised by the Coalition Government in their Coalition Programme.
Posted by Emily Birkett, who specialises in advice to NHS bodies ; their local authority partners and related organisations in commercial law, contracting, procurement , competition governance and all aspects of primary care.
Emily Birkett
0115 976 6175
ebirkett@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: budgets, comprehensive spending review, local authorities, Public Sector
Posted in Public Sector | No Comments »
Tuesday, September 28th, 2010
The majority of provisions under the Equality Act 2010 (EA) come into force on 1 October.
In time the EA should make it easier for schools to understand their obligations to ensure pupils and prospective pupils are not harassed or victimised.
Schools will be relieved to see that implementation of the provision that removes their current exemption from providing auxiliary aids and services for pupils with disabilities is on hold.
With government cuts looming, financial hardship coinciding with such an expanded obligation could result in schools being unable to provide the requisite aids and services and many disputes between schools and their local authority.
Courts have powers to award damages for breaches of the EA and failing to accommodate the needs of disabled pupils may invoke legal challenges.
Clarification prior to its enforcement on the precise extent of this duty is essential to ensure schools do not fall foul of the EA and expose themselves to liability.
Posted by Mark Blois, who specialises in advice to schools, colleges, and local authorities on the full range of legal issues, both contentious and non-contentious including changes of category, reorganisations, governance, commercial arrangements, special educational needs, disability discrimination, admissions, exclusions and safeguarding.
Mark Blois
0115 976 6087
mblois@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: Education, equality act 2010, schools
Posted in Education | No Comments »
Monday, September 27th, 2010
The National Audit Office’s (NAO) latest report highlights concerns over the financial management and governance of academies.
Whilst the Young People’s Learning Agency (YPLA), the body responsible for financial monitoring of academies, has powers to monitor academic and financial performance of academies, it has no equivalent processes for monitoring standards of governance.
The NAO report recommends that if those charged with governance fail to comply with the terms of the funding agreement and the articles of association, then the YPLA should have the power to intervene and possibly terminate the contract.
From January 2011 all academy schools will be awarded exempt charity status. As more schools convert into academies clearer and tighter controls will be needed, and the YPLA will need more resource to carry out their function. The Government will shortly clarify whether it intends the YPLA to adopt the role of principal regulator and the full remit it will have in that expanded role.
Posted by Mark Blois, who specialises in advice to schools, colleges, and local authorities on the full range of legal issues, both contentious and non-contentious including changes of category, reorganisations, governance, commercial arrangements, special educational needs, disability discrimination, admissions, exclusions and safeguarding.
Mark Blois
0115 976 6087
mblois@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: academies, national audit office, young peoples learning agency
Posted in Education | No Comments »
Friday, September 24th, 2010
Liquidated damages clauses have traditionally been assessed on the basis of whether the clause in question represents a genuine pre-estimate of the loss suffered as a result of the breach. If not, the clause was held to be a penalty and therefore unenforceable.
In a recent case, the High Court allowed a liquidated damages clause which, although not a genuine pre-estimate of loss, was justified on commercial grounds.
This “commercial justification test” is a flexible and pragmatic approach and few can argue with the court’s willingness to uphold a commercial agreement negotiated between equals. However, some may be surprised to read that the damages in this case (EUR 7.6 million) for late payment amounted to 20% of the total price!
Posted by Ryan Harrison, who specialises in intellectual property agreements and disputes, licensing, commercial contracts, and commercial and intellectual property issues arising from M & As and disposals.
Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 10.0/10 (1 vote cast)
Tags: Commercial contracts, liquidated damages
Posted in Commercial contracts | No Comments »
Friday, September 24th, 2010
What’s the difference between the allegations ‘loss of £3,000′ and ‘theft of £3,000′? A finding of unfair dismissal says the Employment Appeal Tribunal (EAT) in Celebi v Compass.
Mrs Celebi’s employers invited her to a disciplinary hearing regarding the allegation ‘loss of £3,000’. The evidence put to the tribunal was that they actually believed she had stolen the money. The fact that Mrs Celebi appeared to accept at the time that she knew she was being accused of theft could not be relied upon by her employers and it was at that point that the allegations should have been clarified. The EAT held that ‘it is a logical conclusion of a failure to put the allegation of theft to the claimant that the dismissal is unfair.’
The lesson to be learnt from this case is to say what you mean and not to try and save an employee’s feelings by attempting to soften an allegation.
Posted by Gemma Steele, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Gemma Steele
0121 237 4561
gsteele@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: Celebi, Compass, EAT, employment, employment appeal tribunal, unfair dismissal
Posted in Employment | No Comments »
Wednesday, September 22nd, 2010
The impending comprehensive spending review is likely to mean more swingeing cuts across the board for local authorities.
How? Schemes such as PFI, LIFT and BSF have stalled as there is less enthusiasm for the ‘build now, pay more later’ philosophy and local authorities have been forced to examine more imaginative ways of achieving savings whilst still delivering services. The London Borough of Hammersmith and Fulham has recently come up with an interesting list of 105 regulations, the abolition of which it reckons would result in savings of £200 million. Pretty impressive.
But for many authorities, it is likely that cuts in staff and, consultants will be the order of the day. Is that always right? Getting rid of swathes of people with valuable sector and organisational knowledge may mean that expensive mistakes are made. The financial impact of, for example more procurement challenges and litigation, coupled with supplier favoured contracts could more than wipe out savings made today.
Posted by Sharon Jones, who specialises in joint ventures,complex commercial agreements, projects and competition law (including public procurement, state aid); clients : local authority, health, governmental, private sector bodies.
Sharon Jones
0115 976 6284
sjones@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: local authorities, spending review, Total Place
Posted in Public Sector | No Comments »
Friday, September 17th, 2010
It’s all change for the Patents County Court. A new judge (Colin Birss QC) coupled by new rules, including cost capping and more robust case management powers, should see an even greater shift in emphasis in the newly named IP County Court towards a low cost and speedy dispute resolution process. These changes should be welcomed by critics as they go to the very heart of how best to improve intellectual property dispute resolution in the UK. The intended purpose of the court was always to provide greater access to justice to SMEs – and it is hoped that these changes will not only herald a new era for the court itself but also foster a greater confidence amongst innovators and brand owners that conducting IP disputes in the UK can be cost and time effective.
Posted by Mark Daniels, who specialises in intellectual property dispute resolution involving infringement and validity of patents, trade marks, designs and copyright, as well as reputation management and domain name disputes.
Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 6.0/10 (2 votes cast)
Tags: IP County Court, Patents, patents county court, trade marks
Posted in Intellectual Property | No Comments »
Friday, September 17th, 2010
EU plans to impose on Member States a requirement for fully paid maternity leave for 20 weeks have been thrown into controversy by a report on impact assessment produced at the request of the European Parliament this week.
The current regulations in the UK allow for first six weeks of maternity leave on 90% pay, followed by 33 weeks on Statutory Maternity Pay. The British Chambers of Commerce calculate that the increase will cost UK businesses £2.5 billion per annum.
The report itself warns against viewing the proposals in purely financial terms. However, early indications from small employers indicate that, contrary to the view of this report, the financial burden imposed by the increase in fully paid maternity leave may discourage recruitment of women of child bearing age. Could this proposal bring with it an increase in cases of direct discrimination?
MEPs will vote on the Pregnancy Workers Directive in October.
Posted by Heather Bragg, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Heather Bragg
0115 976 6553
hbragg@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 7.0/10 (1 vote cast)
Tags: employment, European Parliament, maternity leave, maternity pay
Posted in Employment | 1 Comment »
Wednesday, September 15th, 2010
On Wednesday the ASA ruled that an advert for Antonio Federici ice cream was offensive to Catholics. The advert depicted a heavily pregnant woman, dressed as a nun, holding a tub of ice cream. The advert’s text said “Immaculately Conceived….”
Federici said that their advert was a form of art and self-expression. They felt that advertising should be challenging and often iconoclastic. However the ASA said that the use of the image was likely to be seen as a distortion and mockery of the beliefs of Roman Catholics, and using it in a light hearted way to advertise ice cream was likely to cause serious offence.
In response, Federici have stated that they will be unveiling a new advert, which continues this theme, to coincide with the Pope’s visit to the UK.
This approach is similar to ambush marketing, and at the very least, contradicts the spirit of the ASA’s ruling. Is this another example of an adverse ASA ruling providing useful publicity for a brand?
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: advertising, ASA, Brands, marketing
Posted in Advertising & Marketing, Brands | 1 Comment »
Wednesday, September 15th, 2010
The European Court of Justice has ruled that the Lego brick cannot be registered as a trade mark because its shape is necessary to obtain a technical function, ie to enable another Lego brick to be attached to it. The court found that the exclusion applies even where, within the shape, there are other non-essential characteristics with no technical function.
So where does that leave products whose shapes are dictated by technical functions? Design protection may be available for some features of shapes, but again there is an exclusion applying to features of a design which are solely dictated by technical function, so community registered and unregistered design rights may be of little assistance. If the product is novel and inventive, it may qualify for patent protection.
The ECJ gives little guidance as to when any non-technical features are sufficiently relevant so as to bring the shape within trade mark protection. Those seeking such protection will have to place a great emphasis on any non-technical features, to get over the hurdle of registrability – something which the Lego brick failed to do.
Posted by Mark Daniels, who specialises in intellectual property dispute resolution involving infringement and validity of patents, trade marks, designs and copyright, as well as reputation management and domain name disputes.
Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: design protection, Intellectual Property, ip, patent protection, Trade Mark, trade marks
Posted in Intellectual Property | 1 Comment »
Wednesday, September 15th, 2010
Do we make assumptions about the origin of goods on the basis of a single letter?
The Office of Harmonization for the Internal Market (OHIM) says not – an application for a community trade mark by Borco to register the Greek letter alpha – α – for wines was held to lack distinctive character, being a simple reproduction of the letter and also a mark that Greek consumers would not see as an indicator of origin.
Advocate General Bot thinks otherwise and contends the OHIM’s practice of automatically rejecting applications to register single letters as trademarks without a full assessment is wrong.
This decision follows swiftly on from recent decisions on colour marks and confirms that all marks must be examined on their capability of distinguishing their particular goods from those of others.
It is hard to see how the ECJ could fail to follow the Advocate General’s opinion. Clearly there are no short cuts to examining distinctiveness no matter how short the mark!
Posted by Paula Dumbill, who specialises in non-contentious intellectual property, particularly trade marks and copyright, advising in particular on IP exploitation and collaboration agreements and trade mark portfolio management.
Paula Dumbill
0115 976 6059
pdumbill@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: distinctive character, Intellectual Property, ip, Trade Mark, trade marks
Posted in Intellectual Property | No Comments »
Tuesday, September 14th, 2010
The children’s minister Sarah Teather is seeking input for a green paper from parents, teachers, charities and Local Authorities (LA’s) on SEN assessments, calling the current system ‘adversarial’ and in need of change.
The paper will discuss how to identify children’s needs earlier, develop fairer and more transparent funding arrangements, streamline assessments and ensure parents have their say and are more involved at every stage.
The Lamb Report recently identified areas where parental confidence could be improved, but stopped short of a recommendation of an overhaul of the current system for statutory assessments.
However, the new government wants children diagnosed earlier whilst at the same time sweeping cuts in LEA budgets are about to be identified. In that context LAs may soon feel the strain of providing assessments, statements and sufficient support for children and their parents. Hopefully the green paper will address these tricky issues.
Posted by Mark Blois, who specialises in advice to schools, colleges, and local authorities on the full range of legal issues, both contentious and non-contentious including changes of category, reorganisations, governance, commercial arrangements, special educational needs, disability discrimination, admissions, exclusions and safeguarding.
Mark Blois
0115 976 6087
mblois@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: Education, sen, sen assessments, special educational needs
Posted in Education | No Comments »
Friday, September 10th, 2010
Google have agreed to pay $8.5 million to settle a class action brought by a group of customers using Gmail accounts (Google’s email service).
Google signed up its Gmail users to BUZZ, their new social networking application, without their prior consent. The BUZZ application created the user’s network on the basis of their email contacts but Gmail users objected saying that this violated their privacy, as Google’s activities resulted in Gmail users contact details being shared with others against their wishes.
With a proportion of the settlement payment going to organisations educating and promoting online privacy, this case illustrates the importance of online privacy and the need to get users consent to the receipt of services via opt in/opt out controls prior to launch. Having seen Google stung for $8.5 million in this case, hopefully others will not be inclined to indulge in similar ‘anti-social’ networking.
Posted by Emma Tuck, who specialises in Intellectual property disputes relating to patents, trade marks, designs and copyright; non-contentious intellectual property matters including advising on licensing, assignment, confidentiality and collaboration agreements
Emma Tuck
0121 237 3908
etuck@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: buzz, gmail, Google, Intellectual Property, internet, privacy
Posted in Intellectual Property | No Comments »
Friday, September 10th, 2010
The TUPE regulations require outgoing employers to inform and consult with employee representatives if they envisage taking measures in respect of employees. Outgoing employers rarely take such measures, or so we thought.
In Todd v Strain the transfer happened on 4 January 2008. The outgoing employer paid wages for 1 to 3 January shortly after the transfer, rather than at the end of the month, estimating the PAYE deductions. The Employment Appeal Tribunal decided that this was a “measure” that required consultation. This decision means that seemingly harmless administrative steps needed in TUPE transfers that have no adverse consequences for employees are ‘measures’ requiring consultation – an obligation to be taken seriously, since an Employment Tribunal can award up to 13 weeks’ pay per employee for a failure to comply.
Such a literal interpretation of the regulations is surely not what was intended?
Posted by Tom McLaughlin, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Tom McLaughlin
0207 337 1033
tmclaughlin@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: employment, employment appeal tribunal, paye, paye deductions, tupe
Posted in Employment | No Comments »
Friday, September 10th, 2010
Since October 2009, the OFT has been studying to try and find out how the “average consumer” thinks. This is an important question because the Consumer Protection Regulations (‘CPRs’) require the OFT to consider whether an advert making a price offer has complied with the regulations by reference to whether it would mislead the “average consumer”.
The OFT has now published a series of proposals with respect to price offers. The ideas are still draft and the OFT is looking to discuss them at roundtable meetings with interested parties.
Companies would be advised to consider the proposals carefully, as although they do not represent new rules and are only said to be a “suggested starting point for the OFT to use when assessing whether an advertised price promotion breaches the CPRs”,if the proposals are adopted, the commonplace pricing practices described will to all intents and purposes become illegal.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 8.0/10 (1 vote cast)
Tags: consumer protection regulations, OFT
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Thursday, September 9th, 2010
The High Court has dismissed a claim by Dyson Ltd against rival Vax Ltd for infringement of Dyson’s registered design for a cyclonic vacuum cleaner. The claim concerned Vax’s Mach Zen model which Dyson claimed infringed their registered design dating back to 1994.
Mr Justice Arnold dismissed the claim, deciding the two designs gave a different overall impression to the informed user of vacuum cleaners. He based this on the significant differences between the two machines; stating the Dyson machine gave a smooth, curving, elegant impression whereas Vax’s machine gave a rugged, angular, industrial and even rather brutal impression!
Despite the judge’s complementary take on its design Dyson are very unlikely to be satisfied with this decision. Dyson have historically gone to great lengths to protect their famous intellectual property. It therefore seems very likely that they will try to appeal it, in which case there is a likelihood of a referral to the ECJ.
Posted by Oliver Laing
0115 908 4806
olaing@brownejacobson.com.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: Dyson Ltd, Intellectual Property, Patents, Vax Ltd
Posted in Intellectual Property, Manufacturing | No Comments »
Thursday, September 9th, 2010
Michael Gove has announced the first 16 free schools that will progress to the next stage of preparing business plans . The schools are a mix of secondary, primary and faith schools in a number of areas set up by various groups including parents, teachers, local interest groups and charities.
In his ministerial statement Gove acknowledges that opening in September 2011 represents a challenging timescale and sets out his anticipation that more applications will follow. He expects the free school’s programme will improve choice for parents and raise standards for all young people.
However, Chris Keates, General Secretary of NASUWT considers these initial modest numbers of approval to show there is meagre demand for free schools, which would fragment communities and be socially divisive.
Either way if the number of applications for free schools do not significantly increase in the future, the programme may become something of a damp squib.
Posted by Mark Blois, who specialises in advice to schools, colleges, and local authorities on the full range of legal issues, both contentious and non-contentious including changes of category, reorganisations, governance, commercial arrangements, special educational needs, disability discrimination, admissions, exclusions and safeguarding.
Mark Blois
0115 976 6087
mblois@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: Education, free schools, schools
Posted in Education | 1 Comment »
Friday, September 3rd, 2010
In last week’s Legal Opinion, Stig facing the dump, Browne Jacobson reported the initiation of legal proceedings by the BBC who were seeking to restrain the publication of Ben Collins’ autobiography, The Man in the White Suit, which identified Mr Collins as Top Gear’s enigmatic celebrity driver The Stig.
By ruling of Mr Justice Morgan earlier this week, the High Court declined to grant the above relief, leaving publishers HarperCollins free to proceed with its proposed release. The Court’s reasoning is presently unknown and may remain so for some time as it is understood that judgment is to be given in private. One can only speculate, therefore, that the BBC may have been unable to show the necessary quality of confidence in Stig’s identity to persuade the Court that an injunction was appropriate (speculations about Mr Collins’ alter ego having been published as long ago as January 2009). Alternatively, HarperCollins may have successfully relied on Mr Collins’ right to freedom of expression, enshrined in Article 10 of the European Convention on Human Rights, to defeat the BBC’s application.
Of course, just because the BBC has lost the battle for an interim injunction, doesn’t mean that it will not ultimately be entitled to compensation for what may have been a breach of an equitable and/or contractual duty of confidence by Ben Collins. If this happens, Mr Collins may find a significant proportion of his royalty income wending its way towards dear old Auntie.
Some say… it’s not over yet!
Posted by Richard Roberts, who specialises in intellectual property law including patents, copyright, trade marks, passing off, designs and breach of confidence; regular speaker on IP issues.
Richard Roberts
0115 976 6199
rroberts@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: BBC, Ben Collins, Intellectual Property, The Stig, Top Gear
Posted in Intellectual Property | 1 Comment »
Friday, September 3rd, 2010
The Department for Education has revealed that a total of 142 schools are currently on track to convert to academy status this academic year. 32 of these conversions will take place this month.
The conversions form part of the Government’s much-publicised new academies programme, which encourages maintained schools to adopt academy freedoms. Based on the current number of schools due to convert, the NUT has deemed new academies “a failure”.
However, as relevant legislation only came into force last month and the option of conversion is only currently available to “outstanding” schools, surely many schools will be keen to see how the frontrunners fare before committing to a conversion? A slow start perhaps, but with a full school year now ahead, the pace of conversion could rise significantly.
Posted by Katie Michelon, who specialises in education law advice to schools, colleges and LEAs, including commercial advice on education sector projects such as academies, trust schools and federations.
Katie Michelon
0115 976 6189
kmichelon@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 5.0/10 (1 vote cast)
Tags: academies, Education, schools
Posted in Education | No Comments »
Wednesday, September 1st, 2010
The Advertising Standards Authority (ASA) today announced that it will be extending its remit to cover marketing communications which appear on businesses’ own websites. Previously, the ASA’s online coverage only extended to paid-for adverts. The change will come into force on 1 March 2011.
This is a significant change, as it brings a large amount of new material into the ASA’s territory. The ASA will now have the power to, for instance, examine claims made about your product on your website, and pronounce that they are misleading, or socially irresponsible. The ASA would then require that such claims not be made again. Businesses which operate primarily online through their own website could find themselves subject to ASA investigation for the first time.
An adverse ASA adjudication can produce a great deal of negative publicity, and in addition the ASA have decided that they may in future place their own advertisements online, to be found by search engines, to name and shame advertisers who refuse to comply with their rulings. For this reason your competitors may look to instigate a complaint if they feel there is misleading information on your website. Businesses should take the opportunity now to submit their website’s content for review, to avoid the risk of a complaint.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
VN:F [1.9.11_1134]
Rating: 0.0/10 (0 votes cast)
Tags: advertising, ASA, Brands, marketing, online advertising
Posted in Advertising & Marketing, Brands | 2 Comments »
