Archive for December, 2010
Thursday, December 23rd, 2010
The General Court of the European Union has dismissed Lindt’s appeal against the examiner’s decision refusing registration of its 3D reindeer, bunny and bell as Community trade marks. Storck’s chocolate mice also suffered the same fate.
Why? Such shapes are devoid of distinctive character as they are the typical chocolate-shaped goods that one finds in their stocking at Christmas or receives as a gift at Easter, thus they fail to meet the requirements for shape protection under the Community trade mark regime. Unfortunately, the red ribbon collar and little silver bell didn’t help the reindeer and bunny leap over the distinctiveness hurdle either.
Was it the right decision? Well, it was certainly consistent with previous case law (think back to Guylian’s seahorse-shaped chocolate). Also, bearing in mind the ultimate purpose of a trade mark, to act as a badge of origin, the decision must be correct.
Posted by Sarah Fellows, who specialises in non-contentious intellectual property, and IT commercial agreements; familiar with a range of sectors, including technology, biosciences, retail and education.
Sarah Fellows
0115 976 6242
sfellows@brownejacobson.com
Tags: Intellectual Property, Lindt, trade marks
Posted in Intellectual Property | No Comments »
Wednesday, December 22nd, 2010
The upcoming implementation of the Bribery Act 2010 next year continues to be a major concern for UK businesses, but with Christmas approaching the Serious Fraud Office (SFO) has offered some extra help.
The question on the lips of every UK company is “how will corporate hospitality be dealt with under the new legislation?” The SFO have volunteered a preliminary answer. Richard Alderman, Director of the SFO has said that ‘sensible and proportionate expenditure on hospitality will remain perfectly lawful under the Bribery Act’, and that the SFO ‘will be happy to help by publishing its views.’ This will follow the Ministry of Justice’s final guidance on the act, due in January, and the Attorney General’s guidance to prosecutors.
This leaves plenty for businesses to look forward to in the new year but it remains to be seen just how practical all of this guidance will be. Meanwhile, enjoy a very hospitable Christmas.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
Tags: bribery, corporate hospitality, SFO
Posted in Brands, Government bodies, Manufacturing, Regulatory | No Comments »
Wednesday, December 22nd, 2010
Ofcom has confirmed that from 28 February 2011, paid for references for products and services will be permitted in UK TV programmes.
The new rules can be found in a revised section nine to the broadcast code and includes restrictions on the types of product that can be placed, the types of programmes in which products can be placed, and limits on the way in which products can be seen and referred to in programmes.
The industry is suggesting that real changes are unlikely to be seen on TV until 2012, but viewers should see an audience awareness campaign on channels intending to use product placement early in the new year.
Now that television receivers that allow users to record, pause and rewind our favourite programs are common place, expect to see our favourite programs infiltrated by our favourite brands. Time will tell whether this will be a ‘product invasion’ or whether advertisers manage to strike the right balance and ensure that the placement matches the content of where it is placed.
If you would like to find out more about these changes you can read our bulletin on product placement at www.brownejacobson.com
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
Tags: advertising, ofcom, product placement
Posted in Advertising & Marketing, Brands | 1 Comment »
Tuesday, December 21st, 2010
It has been revealed that over 70% of excluded pupils have some form of special educational needs. The official figures were revealed in a response to a parliamentary question by Charlotte Leslie, the Conservative MP who sits on the Commons Education Select Committee. Out of those excluded, 44% are on ‘school action plus’ (which is the status given to children who fall just short of receiving a Statement of SEN), and 20% are children on ‘school action’, the level below ‘school action plus’.
Leslie commented that “children who would previously have been given statements and had their needs legally enshrined have suffered under a scheme which was designed to be the ‘inclusive’ version of a statement”.
The statistics substantiate the argument that there has been too much emphasis on teaching children with SEN in mainstream schools and insufficient recognition of when the setting is inappropriate. The culling of special school places and statements under the guise of ‘inclusion’ has not worked in the best interests of many children with SEN. Hopefully this failing will be suitably addressed in Sarah Teather’s forthcoming green paper on SEN.
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
Tags: exclusions, school exclusions, sen, special educational needs
Posted in Education | No Comments »
Tuesday, December 21st, 2010
The Department of Health has recently released two important papers; the 2011 NHS Operating Framework and the PCT Allocation. Together these two papers show how the Government is developing it’s thought process after responses to the White Paper and indicates what the NHS should do to deliver a patient centred service in the future.
Interestingly the two papers say little at all about the NHS Estate and what is to happen with the land and buildings which are currently owned by PCTs. Whilst it appears clear that services, accountability and finance are all for example discussed in detail, there is yet to be any decision on who is to retain ownership of the service environment.
Unless guidance is delivered soon there is a possibility that there will be insufficient time for PCTs to prepare and a frenzy of estate activity in the final months before the closure of PCTs. Ultimately this could lead to a messier estate being handed over to the successor organisation and a real practical headache for the successor organisation to sort out.
Posted by Mick Suggett, who specialises in commercial freehold and leasehold property within the public health and local authority sectors; preparation of reports on title for lenders and public bodies.
Mick suggett
0115 908 4885
msuggett@brownejacobson.com
Tags: NHS estates, NHS reforms, primary care trusts
Posted in NHS, Public Sector | No Comments »
Monday, December 20th, 2010
Generally speaking, an equal pay claim in an employment tribunal must be brought within six months of the end of employment. Last Friday a High Court judge has held that such claims may also be pursued in the courts, where a time limit of six years applies.
In Abdulla v Birmingham City Council 174 female employees brought claims that failure to give them pay equal to predominantly male groups was a breach of their contracts of employment. The Council applied to strike out the claims. In dismissing that application Colin Edelman QC said that the High Court did have jurisdiction to hear the claims, even though the six month time limit for a complaint to the employment tribunal had passed.
The case is only at a preliminary stage, but the final decision may open a new route for employees to bring equal pay claims which were previously thought to be time-barred and possibly resurrect claims that had previously been struck out because they were brought too late.
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
Tags: employment, employment tribunal, equal pay
Posted in Employment | No Comments »
Friday, December 17th, 2010
The ASA has recently reminded us that Santa Claus most definitely does not exist.
Or rather, as those keen eyed readers will notice from the title, that a Santa clause does not exist, as part of the Advertising Codes. The ASA has reported that every year at the time of glad tidings, mince pies, carols, and general merriment it receives a sack full of complaints from angry parents. For example, last year it received 40 complaints against an Asda TV advert depicting parents buying and hiding presents. Why would they do this when Santa will be bringing them on Christmas Eve …… the children might ask?
The ASA did not investigate. Nevertheless, it accepts that the Codes place a particular emphasis on protecting children from harm and distress.
Accordingly this year, to save us from tears, the ASA had reminded advertisers to ‘tread carefully’ when putting their Christmas adverts together.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
Tags: advertising, advertising standards authority, marketing
Posted in Advertising & Marketing, Brands | No Comments »
Friday, December 17th, 2010
The Advocate General (AG) has given his opinion on questions referred by the High Court in the trade mark litigation between L’Oreal and eBay.
L’Oreal argued that in using L’Oreal’s trade marks, eBay (in some cases) directed its customers to infringing goods and that it was involved in the infringements of sellers using its online marketplace.
The AG’s opinion is that on the face of it eBay is not liable for acts of trade mark infringement committed by its customers (since the function of the trade mark should not be affected). However, eBay could become liable, if it was notified of the advertisement or sale of infringing goods, and such infringement by that seller continues or is likely to continue in relation to the same or similar goods.
eBay are said to be pleased with the opinion, though trade mark owners will take comfort from the fact that eBay will have to remove listings for goods of questionable origin and could be liable for future infringement by the same person.
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
Tags: Attorney General, Ebay, Intellectual Property, IP Scout, L'Oreal, trade marks
Posted in Intellectual Property | No Comments »
Friday, December 17th, 2010
National validation and translation costs currently make the cost of obtaining a patent in Europe around ten times as expensive as obtaining a patent in the USA. In the absence of agreement on proposals for a single EU patent, and in a bid to make the application process cheaper, the European Commission this week presented a proposal for ‘enhanced cooperation’ between some member states. Under the proposal, EU applicants not using English, French or German as their home language can file applications in any other official language of the EU, with the applicant then being reimbursed for the cost of translation into English, French or German. Applicant’s inventions would be protected in all countries participating in the scheme.
Whilst enhanced cooperation may go someway towards reducing costs of applying for patent protection in the EU, this halfway-house measure is likely to detract from the ultimate aim for a fully single European patent.
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
Tags: European Commission, Intellectual Property, patent protection, Patents
Posted in Intellectual Property | No Comments »
Friday, December 17th, 2010
The newly proposed Localism Bill contains in it a general power for the Secretary of State to order councils to contribute to the UK’s obligation to pay an EU fine, if an act or omission of the council can be shown to have contributed to the fine being imposed.
The EU Treaty clearly specifies that fines are attributable to the member state. This measure would allow the government to fine councils, extra-judicially by executive action, in order to raise money to pay fines legally imposed on the government.
Firstly, can such a measure be introduced without any consultation whatsoever? Secondly, how on earth will it be possible to fairly calculate any liability between the countries of the UK let alone the councils in England?
The current proposals seem unfair, difficult to administer and potentially very burdensome on local authorities. It might be better looking at how local and central government can work together to ensure the UK isn’t fined in the first place instead.
Helene Maillet-Vioud
0115 976 6213
hmaillet-vioud@brownejacobson.com
Tags: EU fines, local authorities, Localism Bill
Posted in Public Sector | No Comments »
Thursday, December 16th, 2010
The supreme court has cleared the way for the European Court of Justice (ECJ) to cut the cost of environmental litigation. In line with the doctrine that environmental litigation must not be ‘prohibitively expensive’ under Article 9 of the Aarhus Convention, the supreme court appeal committee ruled that the decision to refuse a claimant a protective costs order by the House of Lords was subjective and that doubt had subsequently been cast on that approach by case law, meaning that the matter should be reopened. A reference was also made to the ECJ given the uncertainty as to the current position on protective costs.
Though the decision by the supreme judges has only stayed the costs order pending a preliminary ruling from the ECJ it is hoped by environmental groups that in the future protective costs orders will be easier to obtain. If that is the outcome of the reference to the ECJ, it is possible that more speculative and boundary pushing environmental litigation will ensue.
Westley Laird
0115 976 6273
wlaird@brownejacobson.com
Tags: ECJ, environment, environmental
Posted in Waste & Environmental | No Comments »
Thursday, December 16th, 2010
The Social Work Reform Board has set out what is expected of social workers at every stage of their career in the profession’s first ever proposed national standards framework, set out in its report, Building a Safe and Confident Future: One Year On
Once in place these standards will be relied on in professional negligence claims as the benchmark against which social workers’ practice will be assessed by claimant lawyers.
They will take some implementing. Furthermore, internet comments make it clear that practitioners are concerned that the standards will be used as benchmarks against which to manage and assess their own performance, but that local authorities face no real sanctions if they fail to meet their obligations to their employees and by extension, their service-users.
The framework is not set in stone yet. The consultation period finishes on 31 March 2011 and anyone interested in commenting on the proposals can visit the reform board’s website for more details.
Posted by Sarah Erwin-Jones, who specialises in social services, the care sector, education and negotiating legal costs; advises on risk management issues including data protection matters.
Sarah Erwin-Jones
0115 976 6136
serwin@brownejacobson.com@brownejacobson.com
Posted in Social Care | No Comments »
Thursday, December 16th, 2010
On 9 December 2010, HM Treasury announced that from 1 April 2011 Academy schools should be put on the same footing as local authority maintained schools, in terms of their ability to recover VAT from HM Revenue & Customs in certain situations.
The announcement focuses on Academies recovering VAT which they incur on incoming supplies of goods and services, which are then used by the Academy for its non-business activities. Since providing education free of charge is generally a non-business activity, this is a very relevant point for Academies.
At the moment, Academies don’t have the same powers as local authority schools to recover VAT which they incur in this non-business context. Additional grant funding has been available from the government to try to bridge this gap. But from 1 April 2011 the intention is for Academies to be treated in the same way as local authority maintained schools on this issue.
Posted by Andrew Noble, who specialises in corporate and real estate tax, employee share incentives, UK and cross-border; advises clients from private individuals to listed companies; Chartered Tax Adviser.
Andrew Noble
0121 237 3952
anoble@brownejacobson.com
Tags: academies, hm revenue, local authorities, maintained schools, Public Sector, Tax, vat
Posted in Tax | 1 Comment »
Tuesday, December 14th, 2010
The Localism Bill was unveiled yesterday on the day that each local authority learnt how much less grant it will receive over the next four years from central government. The big theme of the Localism Bill is a transfer of power from centre to regions. Some powers will travel all the way to the individual.
Local people will be able to take over services with social value, such as care homes and schools. But with no economies of scale, and in such heavily regulated sectors, will well-meaning amateurs be able to run things more efficiently?
The idea of giving hard-pressed working people the ability to veto ‘excessive’ council tax increases may prove a vote winner. But no one likes paying any tax. One of the biggest concerns is whether they will have enough information to understand why the increase is proposed, and the inclination to vote on behalf of their locality, rather than just themselves.
Posted by Chris Webb-Jenkins, who specialises in defending claims against education and care providers and their insurers; risk management, stress, information management and child protection issues.
Chris Webb-Jenkins
0115 976 6175
cwebb-jenkins@brownejacobson.com
Tags: care homes, local authorities, Localism Bill, schools
Posted in Public Sector, Social Care | No Comments »
Tuesday, December 14th, 2010
In the recent case of K Mehta v Child Support Agency the EAT has provided guidance on reading witness statements aloud in employment tribunals, suggesting no value is added by the practice and that it wastes tribunal time.
An odd procedure, those more familiar with civil courts may think. But what exactly are the pros and cons of reading a witness statement aloud?
These will mainly depend on the quality of the statements. The more direct input the witness has into their statement the more natural it will sound when read aloud, enhancing credibility. Witnesses who have had no input into their statement will sound foreign and may incur the embarrassment of tripping over unfamiliar words.
Whether dispensing with the need to read a statement aloud will in practice have the desired effect of reducing tribunal time, and therefore reducing costs, remains to be seen. It could mean that representatives will simply spend more time asking supplemental questions and in cross examination.
Hannah Bramhall
0121 237 4563
hbramhall@brownejacobson.com
Tags: EAT, employment, employment tribunal
Posted in Employment | No Comments »
Tuesday, December 14th, 2010
The government have announced that, contrary to previous statements, the education budget will not rise in real terms over the next 4 years due to changes to the forecast of inflation. They have also announced that the pupil premium will be £430 per pupil whose family earns less than £16,000. Not only is this significantly less than expected, it has been confirmed that it is money which has been recycled from other areas of school funding rather than a fresh injection of cash.
Russell Hobby from the NAHT has described the pupil premium a ‘damp squib’ since the amount is so low that targeted education provision and other such initiatives will not be feasible. Even if the pupil premium does incentivise schools to admit disadvantaged pupils, they are under no obligation to spend the additional money on their poorer pupils. This watered-down pupil premium may end up making no real impact on the educational prospects of the most disadvantaged pupils.
Posted by Katie Michelon, who specialises in education law advice to schools, colleges and LAs, including commercial advice on education sector projects such as academies, trust schools and federations.
Katie Michelon
0115 976 6189
kmichelon@brownejacobson.com
Tags: education budget, Katie Michelon, pupil premium, schools
Posted in Education | No Comments »
Monday, December 13th, 2010
A recent Court of Appeal judgement suggests courts will consider the economic restrictions placed on local authorities before deciding if there has been a breach under Section 41 of the Highways Act.
In Ali v The City of Bradford & Metropolitan District Council the Court found that there was no such provision to extend the duty under Section 130 to remove general rubbish and overgrown vegetation and that the duty did not give rise to a civil action for damages.
The Court was conscious that to require highway authorities to carry out regular precautionary inspections of public footpaths would have substantial economic implications.
Its refusal to extend the duties to members of the public, which would have imposed a significant financial burden, is welcome news during these difficult times.
Going forward, it will be more common to put forward this type of argument where all Council departments are facing cuts. Ali suggests that such an argument will be given serious consideration by the Courts.
Posted by Jonathan Cook, who specialises in defendant public liability work including employers’, occupiers’ and highways liability cases from initial instruction to trial. Including small claims, fast and multi track work.
Jonathan Cook
0115 976 6150
jcook@brownejacobson.com
Tags: councils, Highways Act, local authorities
Posted in Employers & Public Liability, Insurance, Local Authorities | No Comments »
Friday, December 10th, 2010
Can you take photos of your child performing in the school nativity production? It comes as no surprise that people are confused. The law in this area is difficult and complex. This leads to defensive practice. If you say “no”, the risk of breaching the law is removed.
However, knee-jerk refusals cause damage themselves. As well as restricting liberty, they are often contrary to common sense. The area of health and safety is held in low esteem by the nation for this very reason. Information sharing (often and revealingly simply called “data protection”) could go the same way.
The Information Commissioner has this week released guidance dealing with this specific issue. He says clearly that taking photos for your family album, for private use, is lawful. The return of common sense, many people will respond. Yet most schools and sports clubs are not so relaxed, and do impose some restrictions. Let us hope the season of goodwill extends to the family snapper.
Posted by Chris Webb-Jenkins, who specialises in defending claims against education and care providers and their insurers; risk management, stress, information management and child protection issues.
Chris Webb-Jenkins
0115 976 6175
cwebb-jenkins@brownejacobson.com
Tags: child protection, Data Protection, local authorities, schools, Social Care
Posted in Local Authorities, Public Sector, Social Care | No Comments »
Friday, December 10th, 2010
Nominet recently considered whether an initially non-abusive domain name registration might become abusive through its later use.
In this case Daniel Stubbs registered a number of spread betting related domain names including worldspreads.co.uk for the purposes of making money through affiliate marketing. The website at the domain initially contained links to generic shopping websites.
WorldSpreads, a well-known provider of financial spread betting services, began trading in the UK two months after the date of Mr Stubbs’ registration and was unable to adduce evidence of prior rights in the UK. The registration was, at that point, legitimate.
Following several approaches by WorldSpreads to purchase the domain, Mr Stubbs changed the content of his website to include links to the websites of WorldSpreads’ competitors.
It was held that, although the initial registration was legitimate, Mr Stubbs’ later use of the domain amounted to abusive use.
This decision will be welcome news to brand owners, and private individuals seeking to profit out of speculative domain name registrations will need to tread more carefully.
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
Tags: Domain, domain registration, Intellectual Property, Nominet, trade marks
Posted in Intellectual Property | No Comments »
Friday, December 10th, 2010
Online freedom of speech activists continue to campaign against companies that have declined to do business with WikiLeaks. Companies such as Mastercard and Visa have said that WikiLeaks failed to comply with their terms and conditions. Activists feel that these companies have in fact bowed to anti-WikiLeaks pressure.
The LOIC bot tool, through which distributed denial-of-service (DDoS) attacks are carried out, has been downloaded more than 31,000 times. DoS attacks have been an offence since 2006, under the Computer Misuse Act 1990, as is supplying or obtaining a programme for use in such an attack. But this does not necessarily deter participants. As well as causing business interruption, DDoS attacks can result in serious data security problems – see the example of ACS:Law.
In the past, conventional wisdom might suggest disassociating yourself from such a controversial enterprise as WikiLeaks. But with collective movements taking advantage of strength and relative anonymity in numbers online, will companies now consider the wider picture before acting – or just get better protection?
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
Tags: advertising, Brands, Data Protection, online payments
Posted in Advertising & Marketing, Brands, Data Protection, Intellectual Property | No Comments »
