Archive for February, 2011
Monday, February 28th, 2011
Nescafe has today made history by being the first company to take advantage of the new rules on product placement on UK TV. However considering all the hype that surrounded the new rules, the first ever paid-for placement of a product on UK TV appears to have gone unnoticed.
The company paid £100,000 for its Dolce Gusto coffee machine to be placed on ITV’s This Morning’s kitchen over the next 3 months. However the machine was only visible for seconds at a time, sitting idly behind Phil Vickery and would not have been noticed unless it was actively sought out.
This is a nervous start by advertisers, and we may have to wait for shows such as the X-Factor to test the waters and see how far the new rules will go. Nevertheless, although Nescafe’s Dolce Gusto went largely unnoticed this morning the press it has since received as the first to take advantage of the new rules make it worth while. Bet you spot it tomorrow!
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 [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: advertising, Nescafe, product placement, This Morning
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Friday, February 25th, 2011
Earlier this week Ofcom announced an extension in the length of advertising breaks in films and single TV dramas. This will last for a trial period of 12 months beginning 28 February 2011, the same day that the new rules on product placement take effect.
The trial will only apply to commercial public service broadcasters, such as ITV, Channel 4 and Channel 5.
Currently broadcasters can only show up to 7 minutes of adverts each hour, but this will be extended to 12 minutes, in line with the current rules in relation to other programmes such as soaps and documentaries.
With new rules on product placement allowing commercial references within programmes, and an extension of the length of time adverts can be shown between them, brands have never had such opportunity to find their way into our consciousness. Maybe this is what is needed to make advertisers move back to this more traditional form of advertising medium rather than focusing most of their marketing efforts on the social media networks as they have been doing of late.
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 [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: advertising breaks, broadcasters, ofcom
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Friday, February 25th, 2011
In a recent case against British Airways, the Court of Appeal has reminded us that the amount of work an employee need do in Great Britain before being able to bring an employment tribunal claim here, can be very small.
The case involved Hong Kong based cabin crew who flew to the UK 28 times each year. In London they completed a 45 minute de-brief before resting for about 58 hours in hotel accommodation and returning to Hong Kong.
The court found that this was sufficient to be employed “partly in Great Britain” for the purposes of the legislation, meaning the employees could bring race and age discrimination claims in the employment tribunals.
The case was decided under the old law, which has been replaced by the Equality Act 2010 which is unhelpfully silent on its territorial scope. For the time being employers who regularly send employees to do short periods of work in Great Britain should be alive to the possibly of domestic employment law applying to the arrangement.
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 [1.9.14_1148]
Rating: 10.0/10 (1 vote cast)
Tags: British Airways, employment tribunal, equality act 2010
Posted in Employment | No Comments »
Thursday, February 24th, 2011
Today churches and chapels in Wales face an uncertain future, but their problem is not unique. Rising repair bills and dwindling heritage grants are threatening many of them across the UK. It seems that the generosity of worshipers (which has increased by around £100 million in the last 5 years) and grants is insufficient. For whatever reason, perhaps to maintain public relations, the church is reluctant to enforce any chancel repair rights it has.
Some are turning to innovative means to raise revenue and keep their doors open. We are seeing “green churches” appear as some are placing solar panels on their roofs and selling surplus electricity, others are installing telecoms masts. Will we see wind turbines next?
Are there options for even greater revenue where churches also continue to support their communities? For example, churches could provide services where cash strapped councils no longer can, and take the benefit of any revenue that may arise from the use of their assets in this way.
Helene Maillet-Vioud
0115 976 6213
hmaillet-vioud@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: churches and chapels, green churches, heritage grants
Posted in Property | No Comments »
Wednesday, February 23rd, 2011
In December 2010 HM Revenue and Customs (“HMRC”) published its draft “Disguised Remuneration” legislation in relation to which it launched a two month consultation period. Broadly, the anti-avoidance provisions are designed to accelerate income tax and NIC charges where employees and directors are remunerated via third-party arrangements.
However, the proposed drafting was so wide that there were concerns that the legislation could (unintentionally?) apply to various legitimate remuneration structures, including non-approved share incentive schemes involving an Employee Benefit Trust, even where there was no tax avoidance/deferral intention.
The consultation period has now come to a close and HMRC has published a set of FAQs in response. Whilst these clarify that some changes will be made to the draft legislation, e.g., in relation to allocating shares for certain employee share plans, they do not address all concerns. Many are therefore still anxious to see the final form legislation, which is expected by the end of March.
Posted by Beth Dowson, who specialises in taxation aspects of a wide range of property, corporate and commercial matters; provides taxation support to other internal departments.
Beth Dowson
0115 976 6186
bdowson@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 10.0/10 (1 vote cast)
Tags: disguised remuneration, employee benefit trust, hmrc, Tax
Posted in Tax | No Comments »
Wednesday, February 23rd, 2011
The rights of an employer to terminate a contract without notice could be key in deciding whether an independent contractor, trading through a limited company, has to comply with tax avoidance measure IR35.
In MBF Design Services Limited v HMRC the tax tribunal decided that the employer’s right to terminate Mr Fitzpatrick’s contract without notice was “characteristic of a contract for services but quite foreign to the world of employment”. Against this background, other terms of the contract which could be seen as confirming his employee status were given less weight.
This will give some comfort to contractors working on large manufacturing, IT or construction projects where contractors are required to use certain systems and procedures alongside employees, but have no true guarantee of work from week to week.
For employers seeking maximum flexibility from their independent contractors it does give an additional argument “after all…”, they can now explain to would-be contractors working for them “this clause helps you retain your independence ….”
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 6.0/10 (2 votes cast)
Tags: contracts, employer, employment, hmrc
Posted in Commercial contracts, Employment, In-house Lawyers, Tax | No Comments »
Wednesday, February 23rd, 2011
In OTG Ltd v Barke, the Employment Appeals Tribunal (“EAT”) has held that an administration can never qualify as “insolvency proceedings with a view to the liquidation of the assets of the company” under Regulation 8(7) of the Transfer of Undertaking (Protection of Employment) Regulations 2006 (“TUPE”).
Accordingly, unless employees have been properly dismissed by the Company or its administrators prior to the transfer, all employees will automatically have their contracts transferred to a purchaser under TUPE.
The previous decision of the EAT in Oakland v Wellswood (that Regulation 8(7) could apply to the purchase of companies in administration in some circumstances, including pre-packs) was not followed. This latest decision gives certainty to an area that was fraught with difficulty. However, it will undoubtedly have an impact on the appetite of purchasers to acquire the assets of a company in administration, particularly where the company has a large number of employees.
Posted by Vicki Dunstall , who specialises in business recovery and insolvency matters for creditors and practitioners; experienced at asset sales and transaction avoidance claims; commercial dispute resolution; general contractual disputes.
Vicki Dunstall
0115 976 6502
vdunstall@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: business recovery, employment appeals tribunal, insolvency, transfer of undertaking protection of employment, tupe
Posted in Business recovery, Employment | No Comments »
Tuesday, February 22nd, 2011
An individual against whom legal action was taken for downloading 44 tracks was recently fined a mere €200 by the Swedish courts.
This contrasts with recent US cases where individuals have been held liable to pay thousands (even millions) of dollars for downloading a similar number of tracks.
It should be noted that the US decisions relate to civil actions, not criminal prosecutions, which the Swedish decision appears to be. Therefore, in the US the primary aim was damages, and moreover, precedent.
However, the Swedish case does highlight the different approaches to damages between the US and Europe. In the EU, courts are subject to the IP Enforcement Directive, which requires any damages award to be “appropriate to the actual prejudice suffered by him/her as a result of the infringement”.
The non-commercial illegal downloading of 44 songs would probably not result in anything vastly more substantial than €200 award. Whether this really creates a deterrent is another question, though perhaps a solicitor’s letter and the prospect of legal costs are deterrent enough!
Posted by Nick McDonald, who specialises in intellectual property law including copyright, patents, trade marks, passing off, design disputes, breach of confidence, database rights and IT.
Nick McDonald
0115 976 6198
nmcdonald@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 9.0/10 (1 vote cast)
Tags: IP enforcement directive, music downloads
Posted in Intellectual Property | 1 Comment »
Tuesday, February 22nd, 2011
We are delighted to have joined forces with RSM Tenon to present this seminar aimed at primary, secondary and special schools, academies, diocesan boards of education and FE colleges. This seminar will consider the opportunities and challenges and explain the legal process and financial considerations associated with creating academy group structures.
Topics to be covered include:
• Review of important recent policy developments
• Analysis of the range of group legal structures that can now be adopted
• Exploration of issues relating to autonomy and influence within an academy group
• Creating all-through academies
• The role of sponsorship and the new sponsored academies product breakdown structure
• Financial and business operation considerations
book now!
Birmingham – Tuesday 15 March, 9.30am – 1pm
London – Thursday 17 March, 9.30am – 1pm
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 [1.9.14_1148]
Rating: 10.0/10 (1 vote cast)
Tags: academies, Education, legal training
Posted in Seminars & training | No Comments »
Tuesday, February 22nd, 2011
A formal complaint has been made over concerns that non-religious staff at academies could suffer discrimination, contravening EU employment law.
Faith schools controlled by the local authority can currently require 20% of their staff to be religious. However the National Secular Society argues that the Education Bill gives the government the power to raise this limit to 100% for schools transferring to academy status.
The Bill maintains the threshold of 20% but gives the Secretary of State the power to dispense with that threshold for a specific school.
The DfE argues that the Bill protects teachers’ rights when a school converts to academy status. Many will ask why the Secretary of State needs the power to dispense with this threshold if he is not planning on using it.
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 [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: academies, Education Policy, EU employment law
Posted in Education, Employment | No Comments »
Tuesday, February 22nd, 2011
Organisations working with children and vulnerable adults will always be at risk of claims arising out of allegations of abuse. Unlike most personal injury claims, these can be hanging around for tens of years afterwards. An acquittal of the alleged abuser will not always close the book on these. On the 17 February 2011, Mrs Justice Slade DBE allowed a woman in her late 20s to bring a claim concerning relatively minor sexual abuse against her abuser. The judge found:-
- Although the criminal court had found the abuser not guilty in September 2006, she was entitled to find in her civil court that, on the balance of probabilities the alleged abuse had taken place and had caused the claimant injury
- She would exercise her discretion to allow the claim to proceed out of time
- The claimant was entitled to £32,293 damages and interest
If you are a care, health or education provider expect to see this case cited in claims for vicarious liability for the abusive actions of your staff.
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
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: children and vulnerable adults, sexual abuse claims
Posted in Education, Health, Social Care | No Comments »
Monday, February 21st, 2011
We are delighted to invite you to our annual intellectual property seminar aimed at IP professionals, in-house lawyers, IP owners and advisers and anyone that deals with research and technology and/or branding.
This year’s half day session will give you a review of key decisions from the last twelve months in relation to trade marks and patents – focusing on current trends and the impact this is likely to have on strategic decisions around the protection of these rights.
Book now!
Birmingham – Wednesday 9 March, 9.15am – 1pm
London – Thursday 10 March, 9.15am – 1pm
Nottingham – Tuesday 22 March 9.15am – 1pm
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 [1.9.14_1148]
Rating: 10.0/10 (1 vote cast)
Tags: IP owners, IP professionals, legal training
Posted in Seminars & training | No Comments »
Monday, February 21st, 2011
The government have announced new rights are to be given to patients to bring a claim against the NHS if they have been discriminated on the grounds of their age. The new provisions in the Equality Act will prohibit in law discrimination in the provision of services such as medical treatment and operations on the grounds of age, such as the patient is too old. This will be the first time that discrimination on the grounds of age has been prohibited in the provision of goods, facilities or services to the public.
The Department of Health has said that it is likely to seek a number of exceptions to the provision including limiting cancer screening to people under 70. However, it is likely that the DOH will have to produce medical evidence to justify such an exception.
A consultation is to be carried out in March with a view to making the change in April next year.
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 [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: liquidated damages, NHS, The Department for Health, The Equality Act
Posted in Employment, Health, NHS | No Comments »
Friday, February 18th, 2011
The Government has published draft regulations removing the default retirement age.
Those employers who were concerned about the provision of employees insured benefits, such as life assurance and private medical cover beyond 65, have been catered for with a provision that it will not be age discriminatory if an employer does not offer these benefits to employees over 65.
The retirement procedures previously in place have been completely abolished. Employers are now left almost entirely unguided as to how they can fairly retire an employee, if at all. The ACAS guidance looks at the issue of an employee who is not performing well at age 65. Their suggested options of either a ‘work place discussion’ involving asking about the employee’s retirement plans or dismissing on the grounds of capability, are not satisfactory. For those who are brave enough to rely on the ‘Employer Justified Retirement Age’, ACAS’s assurance that guidance will soon be provided because ‘case-law will develop’ is not particularly helpful.
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 [1.9.14_1148]
Rating: 9.0/10 (1 vote cast)
Tags: employer justified retirement age, employment, retirement, retirement procedures
Posted in Employment | 1 Comment »
Friday, February 18th, 2011
Hasbro, owner of the modelling material PLAY-DOH, has succeeded in its trade mark infringement action against the manufacturer of “Yummy Dough”. The objection was to the accompanying strap-line “the edible play dough”. Whilst many may consider this phrase descriptive, especially given that “PLAY-DOH” has an inherently low capacity to distinguish the goods of one undertaking from those of another, the court determined that a global comparison was required. A distinction was drawn between home-made and commercial dough, it being shown that commercial traders generally refrained from using “play dough” in their branding. The strength of the brand (with the benefit of its acquired distinctiveness) apparently justified upholding allegations of infringement and passing of and resisting an invalidity attack. It is surprising that this strapline when used alongside the main “Yummy Dough” resulted in a finding of infringement. The case demonstrates however that less inherently distinctive brands may be enforced provided a relevant section of the public identifies the goods as originating from the trade mark owner.
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 [1.9.14_1148]
Rating: 9.0/10 (1 vote cast)
Tags: edible play dough, Hasbro, Intellectual Property, passing off, play-doh, trade maarks, Yummy Dough
Posted in Brands, Intellectual Property | No Comments »
Friday, February 18th, 2011
The General Court in Europe recently held that pay per view exclusive broadcasts of football matches in competitions of major public importance may be prohibited by member states in order to allow the general public to watch those events on free television.
The ruling follows the decision of the UK and Belgium to draw up a list of events they considered to be of major importance for their respective societies. Those lists contained major football matches of the World and European Cups. FIFA and UEFA challenged those decisions disputing that all such matches can be regarded as events of major importance for the public of those States.
By designating such games as of major importance, the value of those games and therefore the price which the organisers will obtain for broadcast rights is affected. Nevertheless the Court ruled in favour of allowing countries to decide what is of interest to its public and we can enjoy the result.
Posted by Peter Ellis, who specialises in commercial litigation or dispute resolution; intellectual property disputes e.g. trade marks, copyright, designs issues; breach of contract and claims through interruptions to trade.
Peter Ellis
0115 976 6269
pellis@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: broadcast of football games, FIFA, UEFA
Posted in Intellectual Property | No Comments »
Friday, February 18th, 2011
The DH has introduced a new wave of 89 pathfinders and there are now 140 registered GP Pathfinder Groups in the country; meaning more than 50% of the population are covered by a GP pathfinder organisation.
The pathfinders will initially be responsible for managing local health budgets and purchasing services for patients but will assume the majority of the commissioning role when the PCT’s are abolished in April 2013. There have been questions raised as to whether the GP’s have the desire or, more significantly, the experience to carry out the onerous commissioning role. However, until 2013, the pathfinders will be able to work in collaboration with PCT’s and other NHS colleagues. Therefore, introducing pathfinders now, appears to be a sensible approach because it gives the PCTs and GPs two years to collaborate and for the PCTs to pass on their knowledge and experience, hopefully resulting in a successful uptake of the commissioning role by the GP’s in 2013.
Paul Olliff
0115 908 4801
polliff@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 0.0/10 (0 votes cast)
Tags: Department for Health, GP commissioning, pathfinders
Posted in Health, Public Sector | No Comments »
Friday, February 18th, 2011
We are delighted to invite you to our bi-annual in-house lawyers’ forum. For those of you that haven’t attended before, these sessions are aimed at lawyers, directors, risk managers and those who regularly deal with developments in the law. This forum in particular would interest those who advise on, negotiate, or agree contracts; advise the business on employment issues; deal with financial transactions including raising finance and dealing with banks and their lawyers; and those that deal with IT projects or other risky ventures.
Book now!
London – Wednesday 16 March 2011, 9.15am – 1pm
Birmingham – Tuesday 29 March 2011, 9.15am – 1pm
Nottingham – 31 March 2011, 9.15am – 1pm
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 10.0/10 (1 vote cast)
Tags: contract law, employment law, in-house lawyers, legal training, training for lawyers
Posted in Seminars & training | 2 Comments »
Thursday, February 17th, 2011
Following the publication of the damning report by the Health Service Ombudsman into the care of elderly patients, the emphasis will be on increasing protection for the elderly against poor treatment.
One proposed route may be through the Equality Act, prohibiting age discrimination in the provision of services, including health and social care. While those provisions are not yet in force, and still subject to consultation by the coalition government, they may create a right to take legal action where a patient considers they have received worse treatment solely on the basis of their age.
Even if the specific provisions are not introduced, the climate following the Ombudsman’s report will mean that all clinicians will need to justify their decisions under ever greater scrutiny, without reference simply to a patient’s age.
Posted by Sian Brown, who specialises in defending clinical negligence claims, acting on behalf of the NHSLA and healthcare trusts and general health law.
Sian Brown
0115 976 6571
sbrown@brownejacobson.com
VN:F [1.9.14_1148]
Rating: 9.0/10 (1 vote cast)
Tags: elderly patients, Equality Act, Health Service Ombudsman, Social Care
Posted in Health, Social Care | No Comments »
