The Practical Lawyer

Businesses and individuals have been given new protection against groundless threats to bring legal action for infringing IP rights (patent, trade mark or design).

A recent CA decision gives useful guidance on the valuation on unquoted minority shares.

These days many small companies prefer to rely upon the law of ‘trade secrets’ rather than go to the expense and complexity of patents and trade marks (unless an item is clearly patentable).  

The ECJ has held that the creation of a joint venture only requires competition filing and clearance from the EC if it will be a ‘fully functioning’ commercial entity. This is an important change. A JV will only be ‘full function’ if it is a fully functioning market operation (eg it conducts its own commercial policy; it operates independently with its own management running its day-to-day operations; it carries out activities that are more than merely one specific function for the parents of the JV; it is not bound by sales and purchase agreements to its parents).  

There are three ways in which an insolvency administrator can be appointed: (i) by the court, (ii) by the holder of a qualifying floating charge, or (iii) by the company (or its directors). Note that as between a floating charge and the company, it is the floating charge holder who has priority in making an appointment of an administrator. Accordingly, if a company or its director wants to appoint an administrator they have to give five business days’ written notice of this ‘intention’ to any floating charge holder. That notice of intention then allows the floating charge holder the chance to exercise their right before the company or its directors.

A company’s liquidator can potentially recover any of the company’s property that is transferred after the date on which a winding-up petition is issued. Section 127 IA 1986 makes any disposition of property (eg money) void if it is done after the issue of the winding-up petition.

Ove Arup gave advice on a development site, including advice on asbestos contamination. After purchase, substantial asbestos was found and the developer sued Ove Arup. They, in turn, relied upon an exclusion clause which limited liability for pollution and contamination to £5m. Liability for asbestos was specifically excluded.

 If you are serving a notice of breach, make sure it complies with the specific requirements of the contract.

Luxury brands do all they can to preserve the exclusiveness of their products. Thus, they try to prevent them being sold online (especially through retailers such as eBay and Amazon). But, to what extent are such policies anti-competitive?

In Australia, Kellogg’s has taken action against wild-boy tennis player Thanasi Kokkinakis who is widely known as ‘Special K’. Since Kokkinakis has started using that nickname in his branding, Kellogg’s says it is merely protecting its registered trade mark.