Category Archives: Competition Law

Latest changes in the Legal System

The various specialist civil courts in England and Wales will be reorganised and be officially known as the “Business and Property Courts of England and Wales” from June 2017. They will handle, amongst other matters, international dispute resolution jurisdictions. The courts included within the Business and Property Courts will be as follows:

  • The Commercial Court which will continue to cover all its existing subject areas of shipping, sale of goods, insurance and reinsurance etc.
  • The Admiralty Court.
  • The Mercantile Court.
  • The Technology and Construction Court which deals with major technology and construction cases.
  • The Financial List which deals with all banking and financial market issues.
  • The Companies and Insolvency Court.
  • The Patents Court.
  • The Intellectual Property and Enterprise Court.
  • The Competition List.

The new structure will provide more flexibility while preserving the practices and procedures of these courts. Judges with suitable expertise and experience will be able to cross-deploy so as to be able to sit on cases where their expertise can be best utilised. The current situation means that judges who are experts in a particular legal field are not readily available to sit in cases in that area in another court, so, highly expert competition law judges in the Queen’s Bench Division cannot easily sit on the bulk of competition law cases that take place in the Chancery Division.

The overall intention is to enhance the U.K.’s reputation for international dispute resolution and to ensure that the U.K. continues to provide the best business court-based dispute resolution service in the post Brexit world. Business and Property Courts will be set up in Birmingham, Bristol, Cardiff, Leeds and Manchester, initially with planned future courts in Newcastle and Liverpool and these courts will enhance the connections between Business and Property work carried out both outside and within London.

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Filed under Arbitration, Commercial law, Company Law, Competition Law, Construction, contract law, Copyright Law, Dispute resolution, EU Law, Intellectual Property, Legal news, UK Law

Do I really need to register a trademark?

The brief and simple answer is “yes” if you want to stop others passing off their goods and services as your own. The technical definition of “Passing off” states that it occurs when someone in the course of trade creates an impression that their goods or services emanate from that of another business, so leading to customer confusion. This is actionable in law using a Passing off action. Usually a passing off action arises where the branding of a business is copied, although it can encompass more general attempts to replicate another business.

Although a passing off action will provide some protection against unauthorized use of your business name or logo if they have not been registered as trademarks, your brand/company remedies in law are much more certain if you can argue that your trademark has been infringed, but  this does involve having a registered trademark.

Having a registered trademark makes it easier and cheaper to take action to stop other businesses from using your name or other branding. If you have not registered a trademark the law of passing off is your only recourse.

In order to prove Passing off you will need to establish that:

  • Your name and/or logo have built up a reputation and consequently there is a measure of “good will” attached to the brand.
  • A disconnected third party has used your branding in such a way that potential and or actual customers could be misled into believing that the goods or services on offer were those of your business.
  • You have suffered some form of loss, either financial or reputational, by the other person’s use of your branding.

Establishing the above can be difficult and expensive so it’s best to get specialist legal advice so if you are affected, why not give us a call?

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Filed under Commercial law, Competition Law, Copyright Law, Dispute resolution, Intellectual Property

What are your terms? (part 1)

Terms and conditions, used by everyone, both by buyers and sellers, in business with hardly a second glance yet they form a vital part of any transaction because they clearly define the agreement between the two parties, and can prevent confusion and protect both the business and the customer in the event of a dispute.

Despite their importance, many new businesses sometimes just copy another similar business’s Ts & Cs or don’t spend enough time creating their own, so this is a basic guide to what needs to be considered when drawing up Ts and Cs; what to include, the legislation involved and how you can enforce them if you have to.

A business that sells goods or services to other businesses or customers enters into a contract of sale and the terms and conditions of sale set out the particulars of the contract. There are normally two types of terms, implied terms and express terms. Implied terms are those that both parties assume to be included in the contract, and these do not necessarily have to be set out in the Ts and Cs. These include:

Terms implied by statute. Statutory terms are included in every contract, like those set out in the Sale of Goods Act 1979. Statutory terms specify the seller has the legal right to sell them, that the goods must fit their description, and the goods must be of “satisfactory quality and fit for purpose”. You cannot exclude these statutory implied terms in any contract in order to evade liability.

If Ts and Cs do not include any information relating to the performance of a contract, the Sale of Goods Act 1979 automatically implies certain terms:

  • Price: where no price for the goods has been agreed, a reasonable price is to be paid for the goods.
  • Time for payment: at the very least the buyer must pay cash on delivery.
  • Delivery: in the absence of prior arrangements, delivery takes place at the seller’s place of business.

Consequently if as a seller this is not how you wish to carry out your contract it is vital that you include the above in yours Terms and Conditions.

There are also terms implied as a matter of fact, law and custom. Terms implied as matters of fact apply where a term is so obvious to both parties it does not need to be included in the contract. Terms implied as a matter of law means that goods and services must meet the requirements of general legislation, regardless of whether this is addressed in the contract. Customary terms are terms customarily used in a particular trade or profession so they do not need to be specified in the contract.

Next time we’ll look at Express terms and what needs to be included when drawing up terms and conditions of sale and why.

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Filed under Commercial law, Company Law, Competition Law, contract law, Dispute resolution, Duty of care, UK Law

Hey! That’s my logo.

One area of law businesses fall foul of sooner or later, either as perpetrators or victims, is that of intellectual property rights. Intellectual property can be best defined as intangible personal property; a collection of commercial ideas and information that the law recognises as having a value and therefore, deserves protecting. The law is often used to prevent others from exploiting or infringing the intellectual property rights of the owner.

Although intellectual property covers subjects like trademarks, copyright, patents and designs. We’re going to have a brief look at “Passing off”. This is the area of intellectual property rights that protects the reputation and goodwill of a business and prevents people from selling goods as if they were someone else’s. The law protects traders against unfair competition from rivals and also protects consumers who might otherwise be confused as to the origins of goods and services that they are offered.

Although both traders and consumers are protected, traders are the only ones allowed to take legal action against an offending trader. In order to bring a case the affected trader must demonstrate the following:

  • A misrepresentation has been made to the public by the Defendant.

Customers or potential customers could be deceived or confused, although it’s not necessary to show that someone has actually been deceived, nor does it even have to be deliberate or intentional. Even an innocent or accidental misrepresentation that leads the public to believe the goods or services offered by the Defendant are the goods or services of the Claimant applies.

  • That goodwill or reputation is attached to the goods or services.

This is more nebulous but is taken to mean something that distinguishes a business from another, be it a trade mark, logo, or catchphrase, something that brings to the mind of a customer a particular quality of product or the good name of the business.

  • Damage has been suffered by the Claimant.

This includes loss of sales through diversion of custom, but can include damage to reputation if the goods or services supplied are of an inferior quality

If a claimant is successful they can get an order for the delivering up or destruction of offending articles, or the erasing of the offending mark by the Defendant. Restraining Orders can also prevent the use of the mark by the Defendant and punitive damages may also be awarded.

If the claimant can’t demonstrate the three conditions necessary, the action will fail, but there are also some additional defences available, including where the Defendant is simply using his own name, i.e.“J. Smith, Plumber” and “John Smith, Plumber” Courts are reluctant to prevent an individual using his own name when trading, but if this is combined with another factor which may lead to the public being deceived or a fraudulent intent then this defence will fail.

Another defence is when a Defendant has an independent or concurrent right to use the mark. This could happen when businesses have marks of independent origin yet naturally expand into new areas where they come into conflict with each other; neither business with a concurrent right to use a name or mark can prevent the other from continuing to use it.

It can be very expensive to bring an action so it’s always best to take legal advice, if you are affected, why not give us a call?

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Filed under Commercial law, Competition Law, Copyright Law, Dispute resolution, Intellectual Property

Bankruptcy debt level to rise soon, are you prepared?

From 1 October 2015, the Insolvency Act 1986 (Amendment) Order 2015 will increase the minimum debt level, above which a creditor can petition for a debtor’s bankruptcy, to £5,000. Given the previous level of £750 has been the threshold since 1986, an increase was well overdue. The intention by the Government seems to be to prevent bankruptcy, or at least the threat of bankruptcy, from being used as a debt collection tactic, especially in relation to smaller debts.

Clearly this change will have a major impact both on both small businesses and sole traders. Whether this is good news or bad depends, I suppose, on whether you are the creditor or the debtor. Before the new rules apply, we expect to see a spike in creditors issuing statutory demands and starting bankruptcy proceedings for amounts owed of less than £5,000 and therefore possibly a concurrent spike in contested debt as you can’t start bankruptcy proceedings where the debt is contested.

As the new threshold only applies to bankruptcy petitions issued after 1st October 2015, the date of any related statutory demand is not a deciding factor. For example, if a statutory demand is issued for £4,000 at the end of September 2015, the resulting bankruptcy petition could not be presented in October 2015 on the basis of that demand, as the new rules would have kicked in. As more creditors will be prevented from using bankruptcy proceedings for certain small debts, there may well be an increase in debtors petitioning for their own bankruptcy, or seeking Debt Relief Orders.

So if you was want to pursue debts of less than £5,000, you will need to act quickly before the rules change and as always, if you need any help or advice, give us a call.

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Filed under Arbitration, Commercial law, Competition Law, Debt, Dispute resolution, Insolvancy, Legal news

Intellectual Property Infringed?

Are you a small business struggling to protect that unique idea or product that forms the core of your business? You are not alone. The Federation of Small Businesses recently conducted a survey that found that a quarter of Small and Medium sized businesses have had their Intellectual property rights infringed or violated in the last five years. Products had been copied by rival companies along with multiple other copyright or trademark infringements.

SME’s are often forced to use funds they would otherwise use to grow and innovate, on securing Intellectual Property rights in the past five years, 22% of those surveyed have spent more than £5,000 in such actions.

Not surprisingly many business owners believe it is scandalous that responsible and dynamic small businesses across the country are forced to invest so much money and time to fight frauds and copycats and are demanding the law needs to be clarified and simplified.

The Government does, however, run schemes to help small firms, like the ability to raise small claims actions in the Intellectual Property Enterprise Court or the mediation service run by the Intellectual Property Office, but in many cases firms have taken no action because of the time and costs involved and lack of knowledge of their existence and how the process worked.

This lack of knowledge has several knock on effects; such as the ability to raise finance. For example only 5% of those with intellectual property rights have used them to support an application for finance. Only 25% of respondents reported they had insured their Intellectual Property before they encountered any problems. Exporting companies will also need to secure overseas IP rights; only 13% of respondents in the FSB survey said that they had secured overseas IP rights.

It’s always best to seek legal, advice from the outset but if you find your Intellectual property may be being infringed, don’t hesitate to give is a call.

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Filed under Commercial law, Competition Law, Confidentiality, Cybercrime, Ecommerce, Intellectual Property

New Enforcement powers for tribunal awards

Another new feature of the Small Business, Enterprise and Employment Act makes changes to the Employment Tribunals Act 1996 to allow financial penalties to be imposed on employers who do not pay employment tribunal awards or other sums due to employees. Once the time limit for payment of an award of compensation or costs has passed employees have been able to use the ACAS and employment tribunal fast track system to get their awards.

Despite the introduction of the fast track scheme unpaid awards continue to be a problem. In a survey of 1200 claimants in 2013 over one third of awards were completely unpaid and only half of all successful claimants were paid without having to take enforcement action

The new change introduces a scheme for penalising employers who fail to pay tribunal awards or settlement sums, key features of the new scheme include:

  • Unpaid tribunal awards can now include costs and accrued interest as can unpaid settlement amounts.
  • The procedure for imposing a penalty can start when the time for appealing the decision or award has expired.
  • If the employer has failed to pay the unpaid amount in full, a penalty notice can be issued for 50% of the unpaid amount with a minimum of £100 and a maximum of £5,000. This can be discounted if paid within 14 days.

The respondent has 28 days from the date of the penalty notice to appeal on one or more of the following grounds:

  • it was issued on incorrect grounds;
  • it was unreasonable for the enforcement officer to issue the notice; or
  • the amount payable was incorrectly calculated.

The Secretary of State now has the power to:

  • vary the minimum and maximum amount of the financial penalty that can be imposed;
  • amend the percentage figure that is to be used in the calculation of a financial penalty and the percentage reduction applied in cases of early payment; and
  • amend some procedural time limits.

Potential problems with the act exist as it’s not clear precisely how the procedure will be triggered as in will the claimant have to initiate the enforcement process through the courts in order to start the financial penalty procedure. That said, it does not address the problem of unpaid awards by insolvent companies and so-called “phoenix companies” that emerge following the insolvency of a previous company.

We’ll continue with the rest of the Small Business, Enterprise and Employment Act next week. As always, if you need any help or advice, give us a call.

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Filed under Arbitration, Commercial law, Competition Law, Debt, Dispute resolution, Employment Law