Reminder for Motorists - The Dangers of Cold Weather Driving

The first fall of snow of 2013 brings a timely reminder for motorists of the dangers of cold weather driving. Headlines about pothole epidemics and blocked roads are in abundance. The combination of snow, slush and ice warrants extra caution from drivers as vehicles become more susceptible to hitting potholes or sliding off the main road.

With road traffic accidents rising during the winter period, more motorists are likely to bring a claim against their local highway authority for failing to maintain deteriorating roads.

Protecting Your Database – Database Rights and Copyright Infringement

As a key platform for the delivery of online information and content, databases have become valuable business assets. They represent an investment of time, money and skill, meaning that protecting your database from others is important due to its commercial value. Electronic databases can be described as “a collection of independent works, data or other materials which are arranged in a systematic or methodical way and are individually accessible by electronic or other means”. There are two main types of protection; database rights and copyright infringement protection.

Protecting Your Business from Cybersquatting

The internet has evolved to become an integral part of everyday life and businesses have been compelled to evolve with it. Many utilise it as a powerful marketing and communication tool by creating an online presence while some companies now only trade online.

Although the internet may be great for businesses, it also provides opportunities for those wishing to cash in on others’ intellectual property. One particularly pervasive problem has been cybersquatting.

Guide to Passing Off and Goodwill

The common law principle of passing off aims to protect businesses carrying out trading activities under a trade mark from unfair competition. Relying upon this principle, traders can take legal action against parties who have used similar marks to mislead the public about the origin of goods or services. Businesses should be aware of the legal consequences of passing off to avoid law suits and protect their own trademarks.

Trade Mark Infringement when Using Similar Marks

Many businesses ignore the potential consequences of trade mark infringement when using similar marks or signs that are similar to registered trade marks. With cases of trade mark infringement on the rise, businesses should give serious thought to whether the use of particular marks or signs could provoke legal action from registered trade mark owners.

Hosting Defence for Trade Mark Infringement Qualified

Safe harbour hosting defences for trade mark infringement were significantly qualified by the European Court of Justice (ECJ) in 2011. Host websites such as eBay can generally avoid being jointly liable with users who infringe trademarks when advertising goods but there exist important limitations on this type of defence following the conclusion of L'Oréal v eBay .

 

The implications are wider than simply limiting the defence for online auction sites such as eBay so all host operators should take note. The judgement is good news for brand owners.

 

RFU v Consolidated Information Services Limited – Disclosure v Data Protection

The Supreme Court made an interesting recent decision to grant a disclosure order known as “Norwich Pharmacal relief” despite the presence of competing data protection rights. The Supreme Court affirmed the decision of the Court of Appeal but revisited the principles of proportionality that need to be considered by Courts while adjudicating issues requiring the grant of third party disclosures under the famous Norwich Pharmacal Order.

Lord Kerr categorically stated that the purpose of Norwich Pharmacal Order is to do justice, and, if the requirement of proportionality is met and the competing interests of both Parties are weighed properly, Courts will not refrain from granting third party disclosure orders.

Protecting Photograph Copyright Online

Protecting photograph copyright online has become a major issue for independent photographers. Photograph copyright, like any other intellectual property right, has been severely tested by the Internet as the digital revolution made copying almost any form of media easy, even for amateurs. The power of large websites such as Instagram to suddenly change policies in their favour can also leave individual creators feeling impotent.

Inevitably the wealthiest copyright holders such as film studios and record labels have put up a strong fight against perceived copyright infringers, lobbying governments and challenging the most prolific abusers in court. Famous examples include early peer to peer file sharing services such as Napster which faced considerable legal challenges; Napster was sued by the Recording Industry Association of America, amongst others, under the US Digital Millennium Copyright Act.

Smaller copyright owners face significant difficulties protecting their work from proliferation on the internet. Independent photographers have had a particularly tough time preventing their work from being re-published without recognition or payment the moment they have posted it on a website.

£400 Million Divorce Husband Jailed for Contempt of Court

It might not have the dubious glamour of a celebrity divorce but it certainly has all the drama. The battle between Scott Young and his wife Michelle has been playing out in both the courts and in newspaper headlines due to the size of the potential payout; one of the biggest in British divorce history.

The case, which has been running for nearly six years, is centred on an estimated £400 million in assets which Mr Young claims to have lost in a capsized property deal. Mr Young’s failure to detail the losses has tested the patience of the court beyond its limits and this week it jailed him for contempt of court.

Minimizing the Costs of Credit Control

Credit control plays a significant role in the successful running of any business enterprise. Minimizing the costs of credit control requires that businesses can recover monies due within a reasonable period of time and without damaging relationships.

Credit control departments must also have efficient procedures to reduce the costs of recovering of monies due from debtors. Putting the right systems and processes in place will ensure that an effective credit control culture is developed across the company.

The Incorporation of Standard Terms into Commercial Contracts

Businesses should be vigilant regarding the incorporation of standard terms into commercial contracts, particularly when they are another party’s terms. Commercial agreements are normally subject to one party’s standard terms irrespective of the other party’s true awareness of them.

In the recent case of Allen Fabrications Ltd v ASD Ltd [2012], the High Court concluded that ASD’s standard terms were incorporated and reasonable, limiting its potential damages of £7 million in a claim for negligence and breach of contract to £705.

Law Commission Supplemental Consultation on Matrimonial Property Needs and Agreements

The Law Commission has carried out a Supplementary Consultation on financial ‘needs’ and ‘agreements’ in relation to matrimonial property. The Supplementary Consultation, which ran from 11 September to 11 December 2012, followed a consultation in relation to matrimonial property agreements (pre-nuptial, post-nuptial and separation agreements) in 2011.

Ban on Payment Surcharges May be Implemented Early

A ban on payment surcharges has been in the legislative pipeline for some time now and affected businesses must be prepared to change their practices. Regulators are keen to implement a ban on payment surcharges which they view as excessive fees levied by companies on consumers when they use credit or debit cards to buy goods. The explosive growth of online shopping has seen a European wide crackdown on practices that are viewed as harmful to the consumer.

“Car Dooring” Poses Significant Risk to Cyclists

Cyclists are surprisingly unaware of the risks posed by “car dooring”; being hit by an open car door. The fear of moving traffic means that many cyclists ride far too close to parked cars putting them at significant risk of being knocked off their bicycle by drivers opening doors.

The dangers to cyclists come not just from hitting car doors but also from swerving into the path of oncoming traffic to avoid a collision.

Providing Employee References

Employers must take adequate care in providing employee references in order to prevent or minimize the risk of legal action from employees or prospective employers. Although employers can choose to give references to employees upon request, the legal obligation to provide a reference only arises where the contract of employment explicitly provides for it.

Protecting Your Business Reputation Online

The internet has made researching and comparing goods and services significantly easier. Rather than buying industry magazines, reading professional reviews and trudging around shops or ringing multiple travel agencies, we can simply sit at home and surf the internet. At the click of a mouse, one can find professional articles, enthusiasts’ blog posts and the views of thousands of ordinary consumers who have read and reviewed a book on Amazon or dined out at a particular restaurant.

Although the internet has given great power to consumers and brought great advantages, the ability for anyone to publish to a mass audience has considerable scope for abuse.