Category Archives: Copyright 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

Article 50 is here.

Well article 50 has been effectively triggered today. Since the referendum there has been a period of uncertainty, but the latest analysis of possible effects on businesses and the probable changes to the law can be better understood.

One of the major issues that will need to be addressed will be all the EU registered trademarks, designs and the protected food and drink designations. Currently we have a national system which closely mirrors the EU regime, but after Brexit, the EU Trade Mark and the Community Registered Design legislation will no longer apply in the UK. Also protected names such as “Stilton” cheese will no longer apply to UK products so we may see in the future, French “Stiltons” or “Melton Mowbray Pies” and UK “Champagnes” and “Parma hams”.

Although the government has stated it will transpose much of EU law into UK law (The Great Repeal Act), this is not a simple as it sounds, there are many, many, alterations needed for the Laws to continue to make sense in the UK only and it remains unclear what will happen to current EU Trade Marks and Community Registered Designs. In any event, it’s possible that the UK Intellectual Property Office could be inundated with new and renewed registrations.

Data protection is another area of concern; currently the UK is committed to implementing the General Data Protection Regulation, but this may not be enough to prevent future problems with the EU as there may be legal challenges within the EU to recognise non-EU country’s data laws. On possible solution would be to have individuals either specifically give their informed consent to transfer their data or add clauses to contract that may involve data transfer.

Regulated industries are also likely to be affected; currently London houses the headquarters of the EU pharmaceuticals and veterinary products regulator, the European Medicines Agency, but this must change post Brexit which might mean delays to the clinical testing or marketing of new products in the UK. This might also apply in other heavily regulated sectors like the motor and aviation industries.

Businesses will encounter difficulties in many areas planning for the future with the legal outlook so uncertain. Although this brief overview doesn’t cover the thorny subjects of immigration restrictions and trade barriers, business needs certainty, which will only happen as the negotiations begin in earnest and the Government’s approach to tidying up the legal mess that Brexit involves becomes clearer.

What is certain is that if you are planning to enter into, or have existing long term agreements with partners in the EU you may need to consider the implications for those agreements. Some changes can sensibly be made now to deal with a post-Brexit world, so why not give us a call.

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Filed under Commercial law, Company Law, Copyright Law, Dispute resolution, Ecommerce, EU Law, Intellectual Property, Law and Technology, 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

You are suspended, pending…

Most disciplinary policy and procedures have, as part of the process, the ability to suspend an employee on full pay whilst an investigation is carried out; letters to the employees normally state that the suspension is not a disciplinary action; it is “a neutral act.” In most cases, suspending an employee will be the most appropriate and the best course of action to take. Bear in mind however suspension is a serious step to take and considerable care must be taken with this kind of action. Get it wrong and you could be caught by a constructive dismissal, discrimination or a stress claim, or even an injunction especially if you allow it to drag on unreasonably.

Suspension means that the employee is sent home and will not be allowed to enter their place of work or engage in any work at all, like working from home. The employee will also not be allowed to have any contact with any work colleagues or customers during that period without express permission. Only consider suspension where the misconduct is “serious” or “gross” (however these are defined in the policy) and when it fits into one of the following categories:

  • There is a potential threat to property and/or other employees
  • It is impossible to properly investigate the allegations whilst the employee remains at work
  • There is a risk that the employee may destroy evidence or attempt to influence witnesses
  • Relationships at work have broken down and suspension is required to keep individuals apart

Before suspending, an employer should have conducted some kind preliminary investigations to establish ‘prima facie’ evidence of the alleged misconduct; suspension should never be a ‘knee jerk’ reaction. Consider if any alternatives are available like moving the individual to another location or let them work from home while investigations are carried out. The suspension should be as brief as possible and be kept under review, according to the ACAS code of practice, used as a benchmark by Industrial tribunals.

Good practice would be to review the investigation at least every two weeks or a minimum every month and write to the individual suspended, reiterating the reasons for suspension.

Unless there is a clearly worded clause in the employment contract, suspension must be with full pay or the employer may be liable to a claim for unlawful deductions of wages and even when there is a contractual clause in the contract, exercise caution as any deductions must be seen as reasonable in the circumstances otherwise there will be an increased risk that the employee will claim the suspension is a repudiatory breach of contract, claiming constructive dismissal.

To reiterate then:

  • Carefully consider all the facts before suspending an employee after considering any alternatives and the serious of the allegations.
  • Give clear reasons for the suspension in writing and explain what other options have been explored instead of suspension.
  • Make it clear that you have not reached a foregone conclusion in relation to the allegations.
  • Give clear information regarding the employee’s rights and obligations during the period of suspension.
  • Be very careful if you need to tell other employees about a suspension, especially if it could cause the accused employee distress or may harm that employee’s reputation.
  • Keep the period of suspension as short as is possible and review regularly.
  • Conclude the disciplinary investigation as soon as possible.

Remember, employer or employee if you need help and advice, give us a call.

 

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Filed under Copyright Law, Dispute resolution, Duty of care, Employment Law, HR Issues, Mediation, UK Law, Unfair Dismissal

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

Sounds good to me!

Have you ever taken a radio or CD player to work so you and or your employees and customers could enjoy a brighter day listening to music while they work? Or turned the company TV on to “watch the match” at lunchtimes? I’m sure most of us have from time to time, especially if you work in an office environment or workshop.

Unfortunately, if you play music in a public place, defined as “anywhere except a family or domestic gathering” you will be in breach of Copyright laws and may fall foul of one of the bodies that “police” performance copyright; the Performing Rights Society (PRS) and Phonographic Performance Limited (PPL).

PRS is a not-for-profit organisation which collects licence fees from those who use others’ music and distributes these fees as royalties to those writers and publishers of the music which is played. PPL is an organisation who collects royalties on behalf of record companies and performers.

If you play music in a public place (such as a hairdressers, restaurants, cafés, offices etc), you need to obtain permission from the writer or composer whose music you intend to play; even though you may own the CD, this only gives you permission to play the music in private. Instead of having to contact individual writers or composers, the PRS is an organisation who acts on behalf of the music creators and grants you permission to play the music.

You need to obtain a licence for almost all music you play, whether from the radio, TV, CDs, jukebox, internet etc. even down to the telephone background music played if you place customers on hold when they call you. Copyright applies internationally and PRS have agreements with organisations all around the world where royalties can be collected on their behalf.

The licence fee will vary depending upon the type and size of the premises and the nature and extent to which the music is used. Normally two licenses are needed, from both PRS and PPL but for

  • Factories, offices or garages with four or fewer employees.
  • Amateur sports club, such as a local football club.
  • Voluntary organisations running community buildings, such as a village hall.

You may qualify for a joint licence, administered by PRS but granting you the requisite licence on behalf of both organisations.

If you don’t have a valid license, you will be in breach of copyright and the PRS and PPL could take legal action against you for costs and damages. Licenses are issued for specific purposes so you remain liable if you use the music outside the terms of the licence. You would need to either renew or licence or obtain another licence to ensure that you had the correct permission to play the music.

As always, don’t hesitate to get in touch if we can help with this or any other legal problem.

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Filed under Commercial law, Copyright Law, Dispute resolution, Duty of care, Law and Technology