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CMI Triangle 03

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  • ‘Glee’ less than happy after trade mark strife (Brands & IP Newsnotes - Issue 2)

    28 March 2016

    We’re all familiar with the classic trade markdispute. But can you sue for trade markinfringement if the brand using your name is actually more famous than your own? In February, the Court of Appeal said you could.

  • Trading secrets safely in Europe (Brands & IP Newsnotes - Issue 2)

    28 March 2016

    In December 2015, while most of us were busy wrapping presents and eating mince pies, the representatives of the European Parliament and Council agreed the text of the Trade Secrets Directive.

  • Play those bars again and end up behind… bars (Brands & IP Newsnotes - Issue 2)

    28 March 2016

    The High Court has handed down a custodial sentence of 28 days for breach of an injunction against copyright infringement, albeit suspended for a period of 18 months. Two points rang out.

  • Kylie v Kylie (Brands & IP Newsnotes - Issue 2)

    28 March 2016

    It isn’t often that trade mark oppositions receive mainstream media attention. Kylie Minogue has bucked that trend by filing an opposition to reality TV star Kylie Jenner’s trade mark application for ‘Kylie’ in the US.

  • But we settled that! (Brands & IP Newsnotes - Issue 2)

    28 March 2016

    Parties will understandably often be relieved to sign on the dotted line of that “full and final” settlement agreement. But two decisions of the High Court earlier this year may give pause for thought. What is the practical effect of such a settlement and is it really what the parties want?

  • The EU General Data Protection Regulation – its impact on the marketing and publishing sectors

    24 March 2016

    Simon Morrissey, the head of Lewis Silkin’s Commercial Data team, will be speaking at various industry-body events in the marketing and publishing sectors in the coming months.

  • Pheasant sick as a parrot

    21 March 2016

    Today, 21 March 2016, HHJ Pelling handed down his judgment in relation to the account of profits element of the long-running dispute between Jack Wills and House of Fraser over the use of a logo consisting of a pigeon with a top-hat and bow-tie on some of its own-brand “Linea” products. The logo was found by Mr Justice Arnold to infringe Jack Wills’ rights in its “Mr. Wills” pheasant with a top-hat and a cane.

  • More than one storey: business rates liability

    04 March 2016

    A business may occupy a single unit of accommodation, such as a floor in an office building. Or it may occupy more than one unit, such as a number of floors within the office building. Such floors might adjoin, or they might be separated by other floors, or by common areas, or structural parts of the building. Or neighbouring properties might be occupied by the same business.

  • Latest ruling on holiday pay and commission

    24 February 2016

    The Employment Appeal Tribunal (“EAT”) has confirmed that UK law can and should be interpreted to give effect to the decision of the European Court of Justice (“ECJ”) that results-based commission must be taken into account when calculating workers’ holiday pay (British Gas Trading v Lock).

  • Highly unattractive: Court criticises complaints raised for the first time when resisting enforcement

    04 February 2016

    The Commercial Court denied an application to resist enforcement and recognition of a French judgment on the basis of public policy. The court reiterated the exceptional nature of the public policy carve out in the Brussels Regulation (44/2001) particularly in circumstances where the grounds relied on by the applicant could have been raised in the foreign court itself.

  • When a loss becomes a gain: accounting for gains made when mitigating losses

    01 February 2016

    Following a breach of contract, the innocent party is usually entitled to damages. Broadly speaking these are set at a level required to put them in the position they would have been had the contract been performed properly. However, there is no entitlement to recover for avoidable loss and so this gives rise to what is sometimes referred to as a “duty” to take all reasonable steps to mitigate one’s loss. If the steps taken increase the loss overall, the increased figure is recoverable. On the other hand, if steps taken in mitigation are successful, the wrongdoer is entitled to the benefit accruing and their liability is for the resulting loss as lessened. But what happens when the claimant’s steps to mitigate are so effective that he makes a profit, wiping out any loss arising from the breach?

  • Court of Appeal has no appetite for salami slicing

    25 January 2016

    Without prejudice privilege is founded upon public policy. It serves to encourage litigants to settle their differences. Its effect is to exclude all negotiations genuinely aimed at settlement (whether oral or in writing) from being referred to at trial. Solicitors will often head negotiating correspondence “without prejudice” yet protection is not dependent upon use of the label. It is often misused and arises automatically in appropriate circumstances. So what happens when no label is used and attendees of a meeting later disagree as to its status?

  • What’s obvious to some is not obvious to all: Supreme Court espouses a conservative approach to implied terms

    18 January 2016

    “Rent” is what a tenant pays to occupy premises – agreed? So you might think it was “obvious” that a tenant shouldn’t pay rent for any period after the tenancy terminates – e.g. in circumstances where a tenant validly terminates the lease early. If you think that, you were in good company and indeed many landlords would voluntarily reimburse rent paid for the period after the termination date even where the lease did not expressly require this. Why? – because it was it was the right thing to do, obviously!

  • Proper Purpose Test clarified by the Supreme Court

    09 December 2015

    It is often thought that the court will not interfere with decisions of directors which are within the range of decisions which directors could, acting reasonably, make. However, the new decision of the Supreme Court in Eclairs Group Ltd (Appellant) v JKX Oil & Gas plc (Respondent); Glengary Overseas Ltd (Appellant) v JKX Oil & Gas plc (Respondent), reminds us that directors must, in reaching their decision, not subjectively act for an improper purpose.

  • When will a court override an exclusive jurisdiction clause?

    30 November 2015

    In Jong v HSBC Private Bank (Monaco) SA [2015] EWCA Civ 1057, the Court of Appeal upheld the decision of HHJ Purle QC not to override an exclusive jurisdiction clause, setting out the factors to be balanced in the exercise of the court's discretion.

  • No duty of loyalty owed by directors to shareholders

    26 November 2015

    On 12 November 2015, in Sharp & Others v Blank & Others [2015] EWHC 3220 (Ch), Mr Justice Nugee handed down his latest judgment in litigation between the directors and shareholders of Lloyds Bank. His decision is of interest to directors and shareholders alike. It re-affirms the scope of duties owed by directors to shareholders, as well as the approach to be adopted when assessing them.

  • New protections for workers on zero-hours contracts

    17 November 2015

    Earlier this year, we reported on the Government’s ban on the use of exclusivity clauses in “zero-hours contracts”. The ban, which came into force in May, renders unenforceable a contractual provision which prohibits an individual working under a zero-hours contract from working elsewhere. The Government has recently proposed new legislation designed to add teeth to the ban, giving employees and workers the right to bring a tribunal claim if they are penalised for working elsewhere.

  • Access to justice: IPEC 1 - MoJ 0 (Brands & IP Newsnotes - issue 1)

    27 September 2015

    Conducting litigation in a cost effective and proportionate manner can be a challenge, especially if it involves big brand owners going toe to toe. But help is at hand in the form of the Intellectual Property Enterprise Court (‘IPEC’).

  • It never rains, but it pours…(Brands & IP Newsnotes - issue 1)

    27 September 2015

    Registered designs are used to protect the appearance of products. In considering whether to allow registration, several factors come into play: what else is already out there (the ‘prior art’); who will use it (the ‘informed user’); and what ‘degree of freedom’ does the designer have in arriving at the particular design?

  • EU trade mark reforms come closer (Brands & IP newsnotes - issue 1)

    27 September 2015

    Seven years after the European Commission started its evaluation of the European trade marks framework, the texts of the new proposed legislation were finally published in June 2015.

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