Archive for April, 2011

Trade Mark Infringement Can be Based on Sound

Infringement of a trade mark need not be a visual issue: a trade mark can be infringed when the sound of the trade mark is infringed..

 
The case arose when the international toy manufacturer Hasbro alleged that its trade mark ‘PLAY-DOH’ had been infringed by a company selling ‘Play Dough’, an edible dough for children. The marks were not similar in appearance, nor were the products physically identical.
 
The defendants argued that PLAY-DOH had become synonymous with modelling clay and was thus so generic in meaning that it had lost its distinctiveness. It would not therefore qualify for trade mark protection. They also argued that if the words PLAY-DOH could be extended to cover ‘Play Dough’, then they lacked ‘distinctive character’, which is a necessity for a trade mark to be enforceable.
 
The court rejected both arguments.
 
It is good sense to make sure that you research trade marks before you start to use any trading style.We can assist you to make sure that you do not infringe others’ trade marks, and help you to protect your own trade marks and the rights attached to them.
 

Claim Procedure Reforms Will Affect Smaller Claims

 Stafford CourtWith all the hoop-la about the proposed change to the ‘no win, no fee’ regime, another set of proposals, which may well be of greater importance for many people has slipped under the radar of the popular press.

 
A new consultation paper proposes changes to the limits on claims to be heard by the lower courts. The proposals include:
 
  • the limit of a claim which can be dealt with in the small claims court is to be increased from the current £5,000 to £15,000; and
  • the minimum limit for a case to be sent to the High Court is to be raised from £25,000 to £100,000; and
 
In addition, the online system for settlement of smaller road traffic accident cases is to be adapted for use in all small personal injury cases up to £50,000 in value and trialled for use in claims for clinical negligence against the NHS.

Is Your Intellectual Property Protected?

Today is World Intellectual Property Day and the global members of the World Intellectual Property Office have joined forces to help raise awareness of how patents, copyright, trade marks and designs affect everyday lives. This year’s theme is ‘Designing the Future’.

 
Innovators and creative minds across the country are being encouraged to protect their inventions and ideas to help design the future. Designs are about the way an object looks and developers can invest a lot of time and money into making sure their designs are fit for purpose.
 
Minister for Intellectual Property Baroness Wilcox said, “Designs touch almost every part of our day to day lives, from the chairs we sit on to the phones we use. Registering your design with the Intellectual Property Office can offer protection against unauthorised copies and imitations.
 
“We are keen to encourage businesses to get their designs protected to allow them to reap the potential financial rewards of their innovations. Many people are unaware that you can register a design for just £60, granting exclusive rights that are renewable for up to 25 years.
 
“Today is about raising awareness of the importance to businesses of protecting their innovative ideas. Investing in their creativity and ideas now can help shape growth and success in the future.”
 
Further information on World Intellectual Property Day can be found on the IPO website at www.ipo.gov.uk.
 
If you have an invention, trade mark, original design or the practical application of a good idea that you wish to protect, contact us.

Who Determines Who Inherits Your Estate?

A recent case will cause concern to anyone who has a specific wish that their estate should not pass to certain people. It involved a woman who left an estate of more than £400,000, which she wished to go to various animal charities.

 
The woman had a daughter, from whom she had been estranged for more than 25 years. She had written a letter explaining exactly why she did not want her daughter to benefit under her will.
 
The daughter, despite not having had any form of support from her mother since the estrangement, sought a share of the estate by making a claim under the legislation designed to grant relief to people who are dependent on a person who dies without making reasonable provision for them.
 
The Court of Appeal accepted the daughter’s claim, apparently on the ground that she was not well off and was a deserving case. So, despite her mother’s specific wish, she stands to inherit such sum as the court will later determine constitutes ‘reasonable provision’.
 
If you are concerned that your assets may fall into the hands of someone undeserving, we can advise you on the steps to take to help make sure this does not occur.

Banks Receive PPI Compensation Setback

Offixe 23The long-running battle between banks and their customers over alleged mis-selling of payment protection insurance (PPI) plans took another step forward last week when the High Court dismissed a challenge brought by the banks that guidance on such policies issued by the Financial Services Authority on sales of insurance did not apply to PPI policies.

 
PPI policies were sold aggressively by banks to customers who took out loans. They insure the person taking the loan against redundancy and illness, with the insurer covering any loan payments due during the period of incapacity or unemployment. The cost of the policy was normally added to the loan on day one, meaning that if the debt was paid off early, premiums had been paid unnecessarily. Typically, a PPI policy would add more than 20 per cent to the loan.
 
The move paves the way for customers to receive refunds of premiums paid. However, an appeal by the banks is likely and, even if unsuccessful, the estimated £4.5 billion cost will inevitably end up being met by the current customers of the banks, most probably through the demise of free bank accounts.
 

If you have suffered a loss through being mis-sold a financial product, you may be able to obtain redress. Contact us for advice

Pension Entitlement Depends on Social Integration

Are the conditions of entitlement to state pension credit under the 2002 State Pension Credit Regulations compatible with EU law? That is the question raised by a recent Supreme Court case in which a Latvian national attempted to claim the same pension credit rights afforded to British and Irish citizens.

 
Under the general provisions of European law, citizens of any EU member state are subject to the same obligations and enjoy the same benefits under the legislation of any member state as the nationals of that state.
 
However, the basis of entitlement under the 2002 State Pension Credit Act is whether the claimant is ‘in Great Britain’. Regulations under the Act set out the circumstances in which a person is treated as being in, or not being in, Great Britain. The test is whether or not the person is ‘habitually resident’ in the United Kingdom or elsewhere in the ‘Common Travel Area’ of Great Britain, Ireland, the Isle of Man and Channel Islands. But the rules as to when a person is or is not to be treated as ‘habitually resident’ do introduce tests that raise issues about nationality.
 
‘Habitually resident’ means that the person must be resident for the purposes of work or other prescribed purposes. Everyone, including United Kingdom nationals, must meet this requirement. But while all United Kingdom nationals have a right to reside in the United Kingdom, not all of them would be able to meet the test of habitual residence.
 
When retired factory worker Galina Patmalniece, a Latvian national of Russian origin, moved to the UK in 2000, she hoped to win refugee status. Although she failed in her applications, she became entitled to remain in Britain as a consequence of Latvia’s accession to the EU in 2004. Ms Patmalniece was not able to acquire a right to ‘habitual residence’ however, because she is no longer a worker, is not self-employed, is not self-sufficient or a member of a family of such a person.
 
Counsel for Ms Patmalniece submitted that the requirement to have a right to reside here discriminated directly between citizens of the United Kingdom and citizens of other Member States. It was argued for the Department of Work and Pensions, however, that a person would only be eligible to receive state pension credit if they could show economic integration in the United Kingdom or a sufficient degree of social integration here. What the regulations sought to do was to prevent exploitation of welfare benefits by people who came to this country simply to live off benefits, without working or having worked here.
 
The conclusion of the Supreme Court was that, although the 2002 Regulations discriminated against nationals of other EU member states, the conditions laid down are objectively justifiable on grounds independent of a claimant’s nationality.
The appeal by Ms Patmalniece was duly dismissed.
 
This area is complex, and is complicated further by the obscure language of the relevant legislation. British nationals who spend considerable time out of the UK, as much as nationals of other member states, could be in danger of falling foul of the ‘habitual residence’ requirement and should seek expert advice if concerned.

Are the conditions of entitlement to state pension credit under the 2002 State Pension Credit Regulations compatible with EU law? That is the question raised by a recent Supreme Court case in which a Latvian national attempted to claim the same pension credit rights afforded to British and Irish citizens.

Under the general provisions of European law, citizens of any EU member state are subject to the same obligations and enjoy the same benefits under the legislation of any member state as the nationals of that state.

However, the basis of entitlement under the 2002 State Pension Credit Act is whether the claimant is ‘in Great Britain’. Regulations under the Act set out the circumstances in which a person is treated as being in, or not being in, Great Britain. The test is whether or not the person is ‘habitually resident’ in the United Kingdom or elsewhere in the ‘Common Travel Area’ of Great Britain, Ireland, the Isle of Man and Channel Islands. But the rules as to when a person is or is not to be treated as ‘habitually resident’ do introduce tests that raise issues about nationality.
‘Habitually resident’ means that the person must be resident for the purposes of work or other prescribed purposes. Everyone, including United Kingdom nationals, must meet this requirement. But while all United Kingdom nationals have a right to reside in the United Kingdom, not all of them would be able to meet the test of habitual residence.

When retired factory worker Galina Patmalniece, a Latvian national of Russian origin, moved to the UK in 2000, she hoped to win refugee status. Although she failed in her applications, she became entitled to remain in Britain as a consequence of Latvia’s accession to the EU in 2004. Ms Patmalniece was not able to acquire a right to ‘habitual residence’ however, because she is no longer a worker, is not self-employed, is not self-sufficient or a member of a family of such a person.

Counsel for Ms Patmalniece submitted that the requirement to have a right to reside here discriminated directly between citizens of the United Kingdom and citizens of other Member States. It was argued for the Department of Work and Pensions, however, that a person would only be eligible to receive state pension credit if they could show economic integration in the United Kingdom or a sufficient degree of social integration here. What the regulations sought to do was to prevent exploitation of welfare benefits by people who came to this country simply to live off benefits, without working or having worked here.

The conclusion of the Supreme Court was that, although the 2002 Regulations discriminated against nationals of other EU member states, the conditions laid down are objectively justifiable on grounds independent of a claimant’s nationality.



The appeal by Ms Patmalniece was duly dismissed.



This area is complex, and is complicated further by the obscure language of the relevant legislation. British nationals who spend considerable time out of the UK, as much as nationals of other member states, could be in danger of falling foul of the ‘habitual residence’ requirement and should seek expert advice if concerned.

Supreme Court Next Stop in Legal Privilege Case

As expected, insurer the Prudential is to appeal to the Supreme Court following the Court of Appeal’s decision that communications with its tax advisers (a leading firm of accountants) relating to its tax planning were not professionally privileged.

 
Legal professional privilege is a doctrine that applies to communications between legal advisers and their clients and means that communications passing between them cannot normally be required to be used in evidence in court.
 
The Supreme Court granted leave of appeal to the Prudential on 14 April. The Prudential argues that it is unfair that only communications with its legal advisers are privileged, claiming that communications with other professional advisers advising on quasi-legal matters should also be privileged.
 
The Institute of Chartered Accountants in England and Wales is backing the appeal.
 

CFOs Less Optimistic

Chief financial officers (CFOs) are increasingly concerned that the UK may be headed for a ‘double-dip’ recession, according to a survey by accountants Deloitte.

 
The survey found that 29 per cent of CFOs predicted a double-dip and that optimism is at the lowest level in two years.
 
If you are concerned about difficulties with collecting debts, meeting your financial obligations, the availability of finance or protecting your business from trade risk we may be able to help.

Email Terms Apply in Contract

A recent case in the Court of Appeal has demonstrated that terms agreed by email can amount to a contract despite a formal contract referred to in the emails remaining unsigned. The case concerned a commodities trader and a fuel storage company that had entered into negotiations for the provision of a facility to store 3,000-4,000 cubic metres of derv fuel.

 
In October 2008, the commodities trader Clear plc made enquiries concerning the availability of storage capacity at Immingham Storage Company Ltd.’s facility in Immingham, Lincolnshire. Following an exchange of emails, it was established that the required storage capacity would be available from 1 May 2009 and a quotation for the storage service was sent to Clear by email.
 
The quotation included details of the storage availability and stipulated a minimum 12-month contract with 6 months’ notice of termination. It was stated that the quotation was subject to tankage availability and the approval of the Immingham Board. The quotation was also subject to ‘General Storage Conditions’, which were also attached to the email.
 
The final sentence of the document was ‘A formal contract will then follow in due course’. It was signed on behalf of Immingham and contained space for a signature from Clear under the words ‘we hereby accept the terms of your quotation subject to your Board approval’.
 
Included in the email was a request that the quotation should be signed and returned by fax not later than the 3 January 2009 in order for the storage capacity to be allocated. In the event, the document was signed with the approval of various officers of Clear and faxed back to Immingham on 5 January 2009.
 
Receipt of the fax was acknowledged by Immingham and a subsequent email noted its acceptance of Clear’s offer to take up 4,000 cubic metres of storage capacity at Immingham’s depot starting no later than 1 May 2009. It was also stated that a further confirmation contract would be drawn up and forwarded for signature. This was done on 23 January, when a legal adviser employed by Immingham wrote to Clear with a contract document enclosed and stating that ‘the contract will formalise the existing situation between us as detailed in our quotation to you’. The letter requested the document be signed and a copy returned.
 
Despite acknowledging receipt of the document and stating that it would be signed and returned within the week, the contract was never returned. Clear was unable to source the fuel and so made no delivery to Immingham. The storage facility was kept available for May and June, with Immingham sending invoices on 1 May and 1 June. On 25 June 2009, Clear denied the existence of any agreement, stating that acceptance of the quotation did not constitute a formal contract.
During the initial court hearing Clear argued that return of the signed quotation was not an offer capable of acceptance as a contract because of the inclusion of the words ‘A formal contract will then follow in due course’. This argument was rejected by the trial judge, who quoted established precedent for so doing. Clear was ordered to pay damages of some £197,000.
 
On appeal, there was further discussion over whether the existence of a contract between the two parties was conditional upon the later provision of a subsequent ‘full contract’. The Appeal Court held that the language of the relevant emails was quite explicit in being a ‘contract confirmation’ and in the acceptance of a contractual offer. The Court also noted that there was nothing in the signed quotation stating that it was ‘subject to contract’. It follows that the subsequent formal contract, had it been signed, would have been no more than ‘further confirmation’ of the contract that already existed.
 
The appeal by Clear was thereby dismissed.
 
It is a popular myth that a contract must be agreed in a written document.The fact is that terms agreed by correspondence, including emails, can constitute a legally binding contract. Businesses that don’t want to be caught out in this regard should seek expert legal guidance at the earliest stage of negotiations.

Bridge is Sport –Official

Hitchin bridge club has successfully registered itself as a charity under the Charities Act. The application was successful after the Charity Commission accepted that sitting down for a few rubbers of the world’s most popular card game was a game of mental skill and exertion which qualifies as a sport under the legislation.

 
The Charity Commission considered that it met the criteria because of:
 
  • The level and degree of mental skill and exertion required;
  • The potential health benefits from the exercise of the mental skill and exertion; and
  • The public benefit conferred.
 
The club had produced evidence that bridge has beneficial effects as regards dementia and Alzheimer’s disease.
 
If you wish to set up a charitable organisation, we can advise you of the legal requirements and your legal  obligations.