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Wednesday, 28 March 2012

Unjust Enrichment in English Law

The legal principle of unjust enrichment allows a claimant to seek redress for any unjust enrichment another party may have gained at the claimant's expense. Unjust enrichment can occur by chance, by mistake or unfairly but there is no requirement of wrongdoing. Where unjust enrichment has occurred the usual legal remedy is restitution. Restitution of unjust enrichment is a developing area of law which has generated much academic commentary due to its awkward fit in the English legal system.

What is Goodwill in the Context of a Trade Mark?

Goodwill is a concept familiar to professionals and business people alike. When a trade mark is bought and sold the transfer normally includes the transfer of goodwill at the same time, so it is important for buyers and sellers to understand what this entails.

Case Note for Software Companies: SAS Institute Inc v World Programming Limited (SAS v WPL)

The extent of copyright protection offered to software companies is being tested in the case of SAS v WPL with a full judgement due from the ECJ later this year. It is well understood that English Law offers protection to the expression of ideas but not to the idea itself. The recent opinion of Advocate General Bot in SAS v WPL has considered this principle in relation to software development.

Tuesday, 20 March 2012

Cerys Edwards receives lifelong payout

Five years after being paralysed and brain damaged in a car crash, 6 year-old Cerys Edwards has received a multi-million pound payout. The settlement, agreed just days before trial was due to commence, includes a £5 million lump sum and £450,000 annually for the rest of her life. It is one of the largest of its kind in English legal history.

Case Note: Adrian Simcoe v Jacuzzi UK Group plc

Conditional fee agreements (CFAs) have been criticised once again in the Court of Appeal ruling of Simcoe v Jacuzzi. The court ruled that interest should run on an award of costs in favour of a successful claimant represented under a CFA from the date of the costs order (the incipitur rule) and not the date costs are assessed (the allocator rule). While this clarification may be gladly received by practitioners, Master of the Rolls, Lord Neuberger seized the opportunity to condemn the legal bill of £74,000 in a claim worth around £12,750.

Copyright Law: The Rights of the Copyright Owner and How They Might be Infringed

In the age of the internet and the digitization of all forms of media from music to books, copyright is an increasingly complex topic. Despite this there is still a great deal to be gained from understanding the basics. Copyright gives the creator of an original piece of work exclusive rights for a limited period of time. However, owners are often unaware of what rights copyright ownership actually confers on them. Having created a piece of work that is able to be protected by copyright law, it is essential that owners are made aware of those rights and their ability to enforce them.

Copyright Infringement by an Internet Service Provider?

In November 2011 the European Court of Justice (ECJ) delivered a landmark ruling regarding potential obligations imposed on Internet Service Providers (ISP) to prevent copyright infringement. The court ruled that national courts could not impose obligations on ISPs to install, at their own cost, pre-emptive filtering systems that screen all user content in an attempt to identify copyright infringing material.

Non-solicitation Clauses: Update

Employees in client-facing roles will often find that they are bound by restrictions on their freedom to contact former clients when they move on from their current employer. These restrictions usually take the form of non-solicitation clauses and non-dealing clauses. The provisions aim to prevent the poaching of former colleagues and clients. The recent case of Towrey EJ Limited V Barry Bennett has shed light on what “solicitation” actually means and how it applies in practice.

When is an employee a fiduciary?

A recent High Court decision has highlighted when a fiduciary duty might be owed by employees to their employers. In Computer Systems plc v Ranson & Others, the claimant sued former employees for £1 million in damages for setting up a rival company while under its employment. The court examined alleged breaches of contractual duty of fidelity, fiduciary duty and a restrictive covenant.

Injunctions against ex-employees based on confidential information

How far can employers go in preventing perceived disloyalty by former employees? A recent Court of Appeal case might put off employers who are considering somewhat aggressive forms of litigation. In Caterpillar Logistics Services (UK) Ltd v Huesca de Crean the High Court’s decision to refuse an interim injunction based on a confidentiality clause was upheld on appeal.

Selling Shares and Businesses: Intellectual Property Rights Warranties

If a purchaser is buying a target company that derives significant commercial value from intellectual property rights then it is important to accommodate this in the sale and purchase contract by including specific intellectual property rights warranties in the buyer’s favour. These not only aim to protect the commercial benefits of the intellectual property but also reduce the potential for unexpected negative surprises after the transaction has taken place.

Distribution Agreements: General Contractual Framework

A distribution agreement governs the commercial and legal relationship between a supplier or manufacturer and a distributor of its products. Generally a supplier will appoint a distributor who will buy products at its own risk and distribute them in a particular territory to its own customers. Agreements may be in the form of a letter or a more detailed contract; either way there are numerous matters for the parties to consider.

Interpreting a Contract: General Principles

Non-lawyers will appreciate that there can be a considerable difference between their own interpretations of a set of facts or words and a court’s interpretation of the same thing. While it is important to recognise that such a difference will often mean expert legal advice should be sought, gaining a basic understanding of how a contract is interpreted can be useful. Below are some general principles that courts apply in the interpretation of contracts.

Company Law - Intellectual Property Due Diligence

Some businesses, particularly software and other technology related businesses, have unique features that require particular attention when potential buyers investigate their assets and liabilities. Unlike a manufacturing or retail business with significant real estate or plant and equipment, a technology business’ main assets are intellectual property and people. The intangible nature of intellectual property means that a due diligence exercise will require a special focus.