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2010
Tariq Sayfoo clarifies the position on the use of photographs for persnal use to BBC News - December 2010
On 8 December 2010, Tariq Sayfoo was recently invited by BBC News to comment on a controversial data protection issue.
We are all aware of the current trend in banning photographs being taken of pupils at school functions and the fierce debate this has caused. The reason behind this is a fear of breaching the Data Protection Act by unlawfully processing personal data (photographs).
There is much confusion as to what the position is and what it should be. Understandably, most schools adopt a cautious approach to this issue by enforcing an outright ban of photographs being taken. Some, however, implement inventive policies such as photographs being taken of children at the end of a function in tableaux form, allowing parents who do not wish their child to appear to remove them.
In light of the recent guidance issued by the Information Commissioner, that schools should allow parents to take photographs for personal use without breaching the Data Protection Act, BBC News invited Tariq Sayfoo to shed some light on the extent of personal use.
See http://www.bbc.co.uk/news/uk-11947374
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Intellectual Property – Intellectual Property Lawyers – Intellectual Property Right – Trade Mark – Trade Marks – Community Trade Mark - December 2010
In the recent case of Liz Earle Beauty Co Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) [2010], the Court of Justice of the European Union partially annulled a decision an dismissed an appeal by Liz Beauty Co Ltd against OHIM.
Liz Beauty Co Ltd applied for a Community Trade Mark (CTM) with OHIM for the mark ‘NATURALLY ACTIVE' in respect of classes 3, 5, 16, 18, 35 and 44. The application was refused on the grounds that trade mark was devoid of any inherent distinctive character as such trade marks are not registrable.
However, a trade mark can acquire distinctive character through use. Liz Beauty Co Ltd had however never furnished such evidence of use which was considered by the examiner and was rejected. Liz Beauty Co Ltd appealed against this decision. The Board decided that the trade mark was devoid of any distinctive character as the phrase 'naturally active' was so general. More
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Compromise Agreement – Compromise Agreements – Equality Act - Employment Lawyers - Redundancy - Redundancy Pay - November 2010
Section 147 of the Equality Act 2010 (“the Act”) has already become the subject of legal discussion, due to apparent ambiguities. This section of the Act sets out the requirements for an enforceable ‘compromise contract’ which purports to settle claims arising under the Act. The ambiguity is in relation to the definition of an ‘independent adviser’, the person advising a complainant under the Act on the terms of their compromise contract.
As with a compromise agreement under the Employment Rights Act 1996, an employee/complainant would need to obtain independent legal advice regarding the terms and effects of the compromise contract given under the Act, particularly on the employee/complainant’s ability to pursue any claims against the employer.
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Liverpool FC (LFC) Sale and Purchase : High Court Action by Tom Hicks and George Gillett to remove members of the Board of Directors in order to influence the sale of LFC – 13 October 2010
Tunde Oyedele from the Sports Law team at RT Coopers was asked today by Ominsport (part of the Perform Group) to comment on the decision of the High Court to rule against Tom Hicks and George Gillett in their efforts to remove Christian Purslow and Ian Ayre from the Board of Directors of LFC, and thereby influence the subsequent sale of LFC. Hicks and Gillett and Liverpool FC were involved in a long-running saga with Royal Bank of Scotland (RBS), which called in debts owed to it by LFC which LFC appeared to have no reasonable prospect of paying. An arrangement was reached in which it was ‘agreed’ that LFC would seek a buyer, which would takeover LFC and clear the debt owed to RBS. New England Sports Ventures (NESV) made a bid for LFC, which was accepted by the majority of the Board of Directors. Hicks and Gillet dissented, asserting that this would substantially undervalue their shares in LFC. They pointed to alternative and ‘more lucrative bids’, which were deemed speculative and less favourable than the NESV bid by the Board of Directors. Hicks and Gillet subsequently brought a high court action to remove Purslow and Ayre from the Board of Directors. The High Court ruled against them, stating that the board had been properly constituted and a lawful resolution to sell LFC to NESV passed.
Despite possible appeals and further action from Hicks and Gillet, it is believed that the sale to NESV will now progress
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News October
Employment Law - Discrimination - Equality Act 2010 - Employment Law Update – October 2010
Below is a summary of the changes to employment legislation that will come into force in October 2010.
Equality Act 2010
The act harmonises and consolidates existing anti-discrimination legislation and came into effect on the 1st October 2010.
In spite of the bringing together and re-statement of the existing discrimination legislation, there have been a number of important changes to the law, including the following:
- Employers are explicitly liable for harassment of employees on the grounds of sex, race, religion/belief, sexual orientation, disability or age, by third parties within the workplace;
- The enforceability of “pay secrecy” clauses have been limited in employees’ contracts;
- Unless made for prescribed reasons, employers can no longer make pre-employment health enquiries; and
- Employers are allowed to recruit or promote someone from an under-represented group where they have a choice between two or more equally-suitable candidates;
- Tribunals are able to make recommendations that benefit the wider workforce, not just the claimant More.
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News September 2010!!
Relaunch of Newsletter - September 2010
We are about to relaunch our newsletter from September 2010 on a monthly basis. If you do not receive a copy by the end of September, please send us an email to add you to our mailing list.
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News August 2010!!
RT Coopers have been recomnmedned for Lexcel Accreditation - August 2010
We are pleased to announce that the firm has been awarded Lexcel Accreditation. The Lexcel quality mark assures our clients and potential clients that we provide a quality service.
Lexcel is the Law Society's practice management standard. It is a scheme to certify that we have met certain standards following independent assessment. The Lexcel practice management standard is only awarded to solicitors who meet the highest management and customer care standards. In order gain Lexcel Accredition we had to undergo a rigorous independent assessment to ensure we met the required standards of excellence in areas such as client care, case management and risk management.
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Intellectual Property – Intellectual Property Law – Trademark Registration – Trade Marks – Trademark - September 2010
In Icebreaker Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) [2010] Case T-112/09, the trade marks were regarded as similar and therefore a likelihood of confusion between the trade marks.
Back in 2003, Icebreaker filed a Community Trade Mark (CTM) application for the trade mark ICEBREAKER. The intervener in 2004, Gilmar SpA, opposed the based on a number of earlier national and international registrations of the trade marks ICE and ICEBERG.
The Opposition Division of OHIM in 2007 partially upheld the opposition on the grounds that evidence of genuine use had been provided for the earlier trade marks ICEBERG and ICE. Therefore, there was a likelihood of confusion between those earlier marks and the mark ICEBREAKER for which registration was sought in respect of those goods.
Icebreaker appealed on the basis that arts 8(1)(b) and (5) of the Council Regulation (EC) 40/94 (on the Community trade mark) had been infringed. The Fourth Board of Appeal dismissed the appeal and upheld the Opposition Division's decision on the grounds that there was a likelihood of confusion existed within the meaning of art 8(1)(b) of the Regulation in relation to the trade mark ICEBERG.
Icebreaker appealed on the basis that the Board of Appeal wrongly concluded that there was a likelihood of confusion between the trade marks.
The appeal was dismissed:- More
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Intellectual Property - Trade Mark - Trademarks - Refusal to allow UK Trade Mark Application - August 2010
A recent decision by the UKIPO reconfirms that proprietors of trade marks must understand the examination process for the registration of a trade mark. In this case an application was filed to register a trade mark. The examiner made an error in the examination report and resubmitted it. The proprietor was given sufficient time in which to submit arguments against the objections. Instead the proprietor chose to request substantative reasons for the objections.
At no time did the proprietor submit any evidence of use or even argue against the objections. The examioner gave the proprietor an opportunity to attend a hearing whcih was never taken up. The application to register the trade mark was refused and rightly so. More
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Intellectual Property Law – IP Law – Trade Mark – Trade Mark Infringement – Trademarks – Exhaustion of Rights - August 2010
In the case of Honda Motor Co Ltd and another v David Silver Spares Ltd [2010,], David Silver Spares (the defendant), the defendant got it wrong and did not put forward a defence of exhaustion of rights, and therefore failed to succeed in their claim against Honda.
Honda brought proceedings against the defendant because they were dealing in Honda motorcycle parts which had not been put on the market in the European Economic Area (EEA) by Honda or with its consent. The defendant made an application to the court for the claim to be struck out or for summary judgement on the ground that the claim was entirely speculative and lacking in particularity. Consideration was given to Article 5(1) of the Directive and to the issue surrounding who the onus was on to raise the defence of exhaustion of rights under Article 7 of the Trade Marks Directive (EEC) 89/104 (“Directive”).
Under Article 5 of the Directive: '(1) The registered trade mark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade: (a) any sign which is identical with the trade mark in relation to goods or services which are identical with those for which the trade mark is registered…'. Article 7 of the Directive provides, so far as material: 'The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.' More
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Employment Law – Employment Lawyers - Disability Discrimination - Britain Got Talent Ex Contestant - July 2010
At the second day of a pre-trial review hearing on 21st July 2010, Amelia Pearl Czikai (a former contestant of Britain has Talent show) said she was seeking £300,000 for injured feelings, compensation of £1m and loss of earnings of £1.25m on the grounds of disability discrimination against the show's creator and star, Simon Cowell, the production company Syco, and Freemantle Media. These claims are denied. Ms Czikai is believed to suffer from cervical spine neuritis, which causes severe neck pain and headaches. The pre-trial hearing is to determine whether there is any basis for her claim. More
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Intellectual Property Law – IP Lawyers - Trade Mark Law – Trade Mark Lawyers - Trade Mark Protection - Likelihood of Confusion – Contested Decision - July 2010
The recent case of Coin SpA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) [2010] involved a determination relating to likelihood of confusion in respect of a trade mark. On the 27th of April 2004, the company Dynamiki Zoi AE made an application for registration of a Community trade mark. The mark for which registration was sought was the word mark “FITCOIN” for goods and services in Classes 16, 25, 28, 35, 36 and 41.
Subsequently, on the 30th of December 2005, the applicant in this case, Coin SpA, gave notice of opposition to the trade mark registration in respect of all the goods and services covered in the application. It should be noted that the opposition was based on a number of earlier, national, international and Community figurative marks “COIN”.
The grounds which were relied on for the opposition were detailed in Article 8(1)(b) of Regulation 40/94 (now art 8(1)(b) of Regulation 207/2009).
The Opposition Division rejected the opposition.
The Opposition Division held that even in the event that the goods and services covered by the application were identical and/or similar to those covered by the mark “COIN”, the marks themselves were sufficiently dissimilar visually and phonetically and, conceptually, they had no meaning.
It concluded that any likelihood of confusion was excluded. More
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Employment Law – Employment Lawyers - Summary Dismissal – Termination of Employment Contract - July 2010
In the case of Geys v Société Générale, London Branch [2010] the High Court determined when an employee’s employment contract was terminated by his employer. The court reached the conclusion that the employee's employment contract did not terminate on the date his employer informed him in writing that he was summarily dismissed. It also did not terminate on the date that a payment in lieu of notice was made to him. More
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Data Protection: Information Commissioner Fines Council -July 2010
The Information Commissioner's Office (ICO) released a press release on 8 July 2010, stating that it had brought legal action against the London Borough of Barnet, West Sussex County Council and Buckinghamshire County Council for a systemic lack of staff training on how to handle personal information which resulted in the loss of sensitive personal information relating to thousands of children. More
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Employment Law – Unfair Dismissal – Breach of Contract - June 2010
The recent case of Botham v Ministry of Defence [2010] involved a decision relating to unfair dismissal and to whether an employer had breached the terms of the relevant contract.
The employee in this case had been employed for approximately fifteen years by the employer. The employee held a position as a youth community worker at a number of military bases around Germany. His employment could be terminated on three months' notice.
On the 10th of December 2002, he was suspended from work. Subsequently, he was charged with gross misconduct on the 4th of June 2003. The allegations made against him included that he had behaved inappropriately in relation to two teenage girls. Furthermore, his behaviour in respect of young people in general gave cause for concern.
Following disciplinary proceedings, the employee was summarily dismissed for gross misconduct. His dismissal took effect on the 30th of September 2003. Furthermore, he was placed on the Department of Education and Skills’ list of individuals that are deemed unsuitable to work with children.
He then brought a claim for unfair and wrongful dismissal. More
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Intellectual Property Law – Patent Law – Expiry of Patent – Late Renewal Fees - June 2010
The case of Betson Medical (Ireland) Ltd v Comptroller General of Patents [2010] involved a decision relating to section 28(3) of the Patents Act 1977, which stated:
“If the comptroller is satisfied that - (a) the proprietor of the patent took reasonable care to see that any renewal fee was paid within the prescribed period or that the fee and any prescribed additional fee were paid within six months immediately following the end of that period, the comptroller shall by order restore the patent on payment of any unpaid renewal fee and any prescribed additional fee.”
Prior to the proceedings in this case, B had filed an application for a patent in December 1996. Subsequently he assigned the application to the appellant in this case in October 1999. The appellant in this case was a company that B had incorporated for the purposes of the exploitation of his invention.
Even though both B and the appellant in this case were aware of the renewal date, due to financial constraints, the renewal fee was not paid for the patent in December 2003.
B had sought funding from both banks as well as private investors, however, the money was not made available to him in order to pay the renewal fee or the additional fee within the subsequent six months allowed under section 25(4) of the Patents Act 1977. More
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Data Protection: New Penalties – Information Commissioner - Data Protection (Monetary Penalties) (Maximum Penalty and Notices) Regulations 2010 - January 2010
The Information Commissioner will be granted new powers under (SI 2010/31), the Data Protection (Monetary Penalties) (Maximum Penalty and Notices) Regulations 2010 (“Regulations”) to be able to impose civil monetary penalties on data controllers for non-compliance. These Regulations will come into force on 6 April 2010.
Summary
· These Regulations make provision in relation to the power of the Information Commissioner to impose monetary penalty notices on data controllers under section 55A of the Data Protection Act 1998 (“the Act”)
· Regulation 2 prescribes £500,000 as the maximum amount the Information Commissioner may impose as a monetary penalty
· Regulation 3 prescribes the information that the Information Commissioner must include in a notice of intent, which the Information Commissioner serves on a data controller when the Information Commissioner intends to impose a monetary penalty
· Regulation 4 prescribes the information the Information Commissioner must include in a monetary penalty notice.
Non Compliance
The Regulations set out the maximum amount of monetary penalty and the minimum details to be contained in a notice of intent and in a monetary penalty notice (see below).
The Information Commissioner is able to serve a monetary penalty notice on a data controller if the Information Commissioner is satisfied there has been both a serious contravention by the data controller of the Eight Data Protection Principles and it was likely to cause substantial damage or distress. Such contraventions must be either deliberate or something which the data controller knew would occur (or ought to have known) and of a kind likely to cause substantial damage or substantial distress, but in respect of which the data controller failed to take reasonable steps to prevent such occurrence.
· A penalty for knowingly or recklessly failing to comply with the data protection principles so as to create a substantial risk that damage or distress will be caused to any person
· A power for the Information Commissioner to inspect personal data and the circumstances surrounding its processing in order to assess whether or not any processing of the data is carried out in compliance with the Act
· A power for the Information Commissioner to require a data controller to provide him with a report by a skilled person
· Enhanced enforcement powers to enable the Information Commissioner to bring seriously unlawful processing to an immediate halt, to place formal undertakings on a statutory basis and to enable the Information Commissioner to take enforcement action to prevent breaches of the Act that are likely to occur
· Information notices that can be served on any person rather than just a data controller. More
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Intellectual Property Law – Trade Mark Law – Community Trade Mark – Opposition – Revocation – Abuse of Process - January 2010
In the European Court of Justice Decision in Stella Kunststofftechnik GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs) [2010] Case T-27/09, the ECJ held that if there were opposition proceedings pending against a trade mark it did not preclude a third party bringing revocation proceedings to cancel a trade mark registration. The ECJ held that revocation and opposition proceedings were distinct and autonomous proceedings.
The trade mark 'STELLA' was registered as a Community Trade Mark in respect of classes 6, 8, 16, 20 and 21 in 2001. An Intervener filed a Community Trade Mark application in 2004 for a device mark 'STELLA PACK' in respect of classes 4, 6, 16, 20 and 21. A notice of opposition was filed against the application for STELLA PACK.More
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