Friday, 12 August 2016

What is the Law in your Life?

5 things you should know about creating a new website for your business:

1.  Take up competitive quotes and ask for examples of recent work and details of customers to speak to. Prices can vary considerably - as can quality of product.

2.  Make it a condition of appointment that the website designer assigns his/her copyright and any design right in the website to you as a condition of engagement. This must be in writing.

3.   Ensure that the Distance Selling Regulations are complied with if applicable:

4.  Do not use photographs or images where you do not own the copyright in same. Mistakes can be very costly!

5.   Endeavour to make it as "future proof" as possible and do not make it so detailed as to be unattractive. Remember it is, in essence, your shop window to the world.

For more information on any aspect of this note, please contact Scott Brymer at (details)


Thursday, 28 July 2016

New legislation Briefing: The Assessment of Energy Performance on Non-Domestic Buildings (Scotland) Regulations 2016

As of 1 September 2016, The Assessment of Energy Performance on Non- Domestic Buildings (Scotland) Regulations 2016 (the ‘Regulations’), will come in to force. This will require action to be taken by many businesses across Scotland to ensure that their business premises are compliant. This briefing note is designed to give an overview of what to expect.

Background

The Climate Change Act 2009 has introduced the Regulations with the aim of improving the energy efficiency of commercial properties and helping the country meet internationally agreed energy targets. The Regulations will require some property owners to report on the energy efficiency of their buildings and to act on the findings. As a result, local authorities will have authority to impose a £1000 penalty for non-compliance (for each failure).

Who will the Regulations apply to?

Initially, qualifying buildings will only be larger commercial buildings (or units within a building) with a floor area of 1,000 m2 or more, that are already required to provide an Energy Performance Certificate (‘EPC’). 

What action must be taken by owners of a qualifying building?

If your building qualifies, the point at which the obligation is triggered comes at sale or lease of the building. After obtaining an EPC, in line with current requirements, step one is to perform an assessment with the aim of identifying improvements in energy efficiency (examples may include boiler replacement, inclusion of insulation etc.). Step two is to translate those identified improvements into an Action Plan which will indicate measures to be taken to realise the improvements. This Action Plan will have to be exhibited to prospective tenants or buyers (who will be deemed as such, for this purpose, as soon as they request information on the building with a view to deciding on whether or not to rent or buy). 

Do the actions have to implemented immediately?

An owner may choose to defer the physical improvement timetable if they monitor and report the building’s operational energy ratings annually. If, however, an owner opts to implement the improvements, they have 42 months in which to do so.

Which buildings or scenarios are not exempt or excluded?

Action to assess and improve or report on the efficiency of a building will not apply to:

  • Buildings that meet the energy standards equivalent to those introduced by the 2002 Building Regulations.  
  • Buildings which do not require an EPC.
  • Buildings that have already undergone improvements via Green Deal.
  • Temporary buildings with a planned time of use of 2 years or less.
  • Buildings and building units on which construction has not been completed.
  • Workshops and non-residential agricultural buildings with low energy demands.
  • The sale or lease of a building at any time before the construction of the building has been completed.
  • The renewal of an existing lease with the same tenant.
  • The grant of a "short term lease" (not more than 16 weeks with no option to extend) where the building has not been let by the owner during the preceding 36 weeks.

If you would like more information about the Regulations or their impact on your business, please contact us.

Wednesday, 18 May 2016

Intellectual Property: Changes on the Horizon

The UK Intellectual Property Office (IPO) last week published a document outlining proposed strategy for dealing with Intellectual Property (IP) infringement.

‘Protecting creativity, supporting innovation: IP enforcement 2020’ can be viewed here.

The document sets out how the UK IPO will concentrate future actions in the following key areas:

1.    Reducing the level of illegal content online

Making it easier for consumers to recognise and avoid copyright-infringing Websites by:
  • Reviewing notice and takedown procedures to improve and streamline the process and consider the scope for introducing a Code of Practice for intermediaries;
  • Examining the scope for introducing a system of notice and track down to enable rights holders to take action directly against the identified infringer;
  • Pushing within Europe for clarification of the current EU rules around platform liability and improving the current system to allow rights holders to more effectively protect and legitimately exploit their copyright; and
  • Developing our understanding of the challenges posed by set-top boxes and IPTV (Internet Protocol Television), and work with partners to tackle this emerging and fast growing method of infringement.

2.    Tackling the trade in counterfeit goods

The IPO will be working as the focal point for a number of other government bodies collectively attempting to address this. It will be doing this by:
  • Continuing to provide a dedicated intelligence hub to support the delivery of key objectives under the Home Office Serious and Organised Crime Strategy;
  • Continuing to invest resources in helping those countries identified as key sources of counterfeit goods improve their IP laws, identify criminals and stem the flow of illegal goods to the UK;
  • Encouraging the use of the UK Poise framework – a framework for future IP enforcement initiatives created by IPO – among international organisations such as Europol, Interpol, OLAF, EUIPO and the UN to help protect IP rights in the UK;
  • Helping to develop broader disruption measures with law enforcement agencies and regulatory authorities to make IP crime less attractive for criminals. This includes encouraging the increased use of POCA in IP investigations to ensure that money spent in the UK on counterfeit goods is identified, seized and assets removed from criminals, and work with HMRC to tackle unpaid tax and duty on IP infringing goods, for the benefit of the UK treasury.

3.    Further strengthening the legal framework to facilitate easier access to justice

There will be a review of existing legal resource to ensure UK business have adequate legal means to protect their IP and have the means to take necessary legal action, examples may include:
  • Looking at the case for introducing specific legislation to respond to the emergence of fulfilment houses (companies that specialise in warehousing and packing for others), which are increasingly being used to facilitate the sale of counterfeit, unsafe, smuggled and mis-described goods in the UK;
  • Considering what legislation would be effective in addressing the growing problem of illegal streaming via set top boxes. Protecting creativity, supporting innovation: IP enforcement 2020; and
  • Investigating the scope for legislation to take action against search engines, ISPs and platforms that facilitate or otherwise support those involved in infringement and counterfeiting.

4.    Increasing education, awareness and building respect for IP

The IPO intends to become the primary source of IP enforcement information in the UK, and by working with industry partners, law enforcement agencies and stakeholders in the public and private sectors educate the public as to the harm of infringement and the benefit of using legitimate options. It will do so by:
  • Helping businesses through the UK PatLibs network at their 16 regional centres, the majority based in city centre libraries, to support, develop and increase understanding of IP enforcement;
  • Offering enforcement advice and information for business advisors through IPO workshops and IP Master Class training;
  • Delivering the IPO funded IP Audits Plus programme, including the enforcement of rights, aimed at businesses with growth potential;
  • Educating consumers to engender greater respect for IP rights, by:
  • Supporting industry in promoting the diverse sources of legal content available to UK consumers by promoting UK sites that aggregate sources of legal content, such as findanyfilm.com and getitrightfromagenuinesite.org.  This extends at the European level where we are playing an active role in the EU’s efforts to develop similar resources for each and every member state;
  • Encouraging and supporting industry partners in promoting greater respect for IP through products and services aimed at children and students, our future innovators, reaching teachers by providing IP education resources and lesson plans linked to the curriculum via the IPO’s Cracking Ideas portal and supporting competitions; and
  • Delivering enforcement information to university students via the IP Tutor tool.

5.    Making it safer for UK rights holders and businesses to trade internationally

The IPO states its intention to work in conjunction with global partners and stakeholders to achieve improvement.
  • Using economic evidence to set the context of IP infringement. This demonstrates that IP infringement and IP crime is not victimless, but has a real cost, for example in terms of loss of tax and other receipts, its links to organised crime, and the harm to consumers through dangerous products. We show the benefits of a fit for purpose IP system – its contribution to a country’s economy – and try to explain that a well-functioning global IP system is in everyone’s interests;
  • Engaging at a high-level. Using senior Government interaction to reinforce our messages with international partners, and holding regular dialogues with our counterparts in key markets. We use these opportunities to set out what we see as UK best practice and leadership on enforcement issues; and
  • Providing practical training and engagement for IP enforcement practitioners (such as Police, Customs, and Trading Standards equivalent). This is provided through an appropriate mix of project-based external providers and UK experts in IP enforcement.

6.    Improving the evidence base

The IPO is looking at ways to understand the scale of infringement and the impact of policy on trends. Methods for achievement are varied but will include:
  • Developing a comprehensive scoreboard to be published annually and combining the available data on the prevalence of civil and criminal IP infringement;
  • Developing more accessible civil and criminal IP court data; and
  • Making it easier to record IP offences.
 
The UK IPO’s plan is for this strategy to take shape over the next four years. The various complexities will see some outcomes delivered quicker than others, but overall this documents indicates a strong commitment on the UK IPO’s behalf to tackle IP infringement.

Monday, 18 April 2016

The Killie Pie - a tasty reminder to all businesses to protect their intellectual assets

‘Trade Mark: KILLIE PIE; Status: Opposed’. 

So reads the UK Intellectual Property Office Case Details for trade mark UK00003139173, otherwise known as ‘KILLIE PIE’ (Classes 29, 30, 35 and 43). 

The award winning pie (back to back titles, no less), is an infamous pie sold at Kilmarnock FC’s home ground, Rugby Park. Having gained favour among Scottish football fans, known discerning connoisseurs, the pie has become a household name. The question is: whose name? 

Though more often an accompaniment to reading the papers, the Killie Pie is now leading the headlines, having become the subject of a trade mark bun fight between bakers, Brownings the Bakers Limited (Brownings), and the company running Kilmarnock football club, Kilmarnock Football Club Limited (KFCL).

Brownings, who have been contracted by KFCL to supply match day catering at Rugby Park since 2003, sought on 04 December 2015 to file for the trade mark ‘KILLIE PIE’ (https://www.ipo.gov.uk/tmcase/Results/1/UK00003139173 ). In so doing, however, they have enraged KFCL, who are claiming that their registered mark of ‘KILLIE’ already covers baking (https://www.ipo.gov.uk/tmcase/Results/1/UK0002184177B ). Further, KFCL claim that Brownings’ use of the name ‘Killie Pie’ had only ever been allowed by virtue of a royalty free licence to use the mark. Following the furore, KFCL have declared a termination of contractual arrangements with Brownings.

For a season in which the baking has probably been the only highlight for the Killie boys- more panettone than Luca Toni if you will- the fuss must come as an unwelcome distraction to the relegation battle.  

Whatever the outcome, the analysis will conclude that all businesses need to be aware of their intellectual property assets and take proper action to put in place the necessary contractual provisions with their suppliers- however long they may have worked together.

For the Franco Baresi of intellectual asset defence, contact Brymer Legal.

Wednesday, 13 April 2016

Appropriation and the art of copyright

Appropriation and the art of copyright – Richard Prince

In an interesting intellectual property development from the US, controversial artist Richard Prince looks to be further attempting to challenge the boundaries of what is to be considered ‘fair use’ in his appropriating of other artists’ original work.

For those who don’t know their John Ash from their Matisse El Beau [Rivage], Prince’s work involves taking and modifying (or appropriating) pieces by other artists and photographers. Most recently (there have been others), he has angered one photographer by exhibiting a cropped version of their photograph ‘Rastafarian Smoking a Joint, Jamaica’- but with added Instagram comments underneath- as his own. The original photographer, Donald Graham, filed a complaint for copyright infringement.

Prince, for his part, is seeking to argue (as he has done successfully before) that the “transformative” nature of his work means that it is excepted from infringement, falling under the penumbra of protection afforded by US ‘fair use’. Further, Prince maintains that his actions do not impact on Graham being able to market Graham’s work – an element that will be considered in ‘fair use’- and that by pursuing him, Graham is asking the courts to consider something on which they have previously adjudicated on.

Much like the attraction, the result remains to be seen.

Friday, 11 March 2016

Supreme Court Ruling in Trunki 'v' Kiddee:- a case packed with implications for design right protection

Two years on from the Court of Appeal decision in the so called ‘Trunki’ case, the parties have a final decision from the Supreme Court.  It was decided on the 9th March 2016, with the Court confirming design rights are not concerned with the protection of an idea, but of the design (and the scope of review is narrow). 

The dispute itself relates to the popular children’s sit-on wheelie suitcases. 

Magmatic, the owner of the ‘Trunki’ children’s case (as seen on Dragon’s Den) had a Community Registered Design for their case which they accused PMS International ("PMS"), makers of the ‘Kiddee Case’, of infringing. A registered design protects a product’s appearance and the factors which contribute to it; among other factors, shapes, forms, lines, colours and textural qualities. 

In a case that started with the High Court stating that the Magmatic Trunki design was infringed by PMS’s Kiddee Case, the decision was then reversed by the Court of Appeal, who felt it was not infringing. The reason for the non-infringement in the view of the Appeal Court related significantly to two tone colouring. Magmatic’s registered design was deemed to be not just for the shape of the case, but incorporated the contrasting colouring also. The Court of Appeal was of the view that this had to be taken into account when comparing both products and concluded that there was no infringement by PMS. Magmatic appealed the non-infringement decision to the Supreme Court.

In a long trundling case that had legal spectators wondering "are we were nearly there yet?", the Supreme Court decided that the Court of Appeal was right in its approach, and although sympathetic to Magmatic given the originality of the design, ultimately decided that the Kiddee Case did not infringe, as the protected design was not just for the shape, but to be viewed more narrowly, taking into account the colouring and design.

Magmatic will certainly be disappointed after falling victim to the balance that is required to be struck between protection for designers and fair competition. They will not, though, be packing their Trunki for a trip to the European Court of Justice, with the Supreme Court deciding not to refer any matters for guidance. 

The full legal ramifications of the case remain to be seen, not least because PMS previously made clear their intention to pursue a claim for damages against Magmatic following an earlier obtained injunction.  

For anyone concerned with design rights, this decision highlights the need to ensure that any variations of your design, and not just the core elements, are protected; think carefully about how you present your design when filing for protection; and look to obtain the widest penumbra of protection possible. 

For more guidance on design rights, get in touch with Brymer Legal.

A link to the judgment can be found here - https://www.supremecourt.uk/cases/uksc-2014-0147.html 

Friday, 26 February 2016

Rights done wrong

A(nother) cyber libertarianism backlash presents a timely reminder of understanding the consequences before unleashing the dogs of law.

As the saying goes, public opinion doesn’t have a law degree. It does, however, have access to the internet and isn’t shy on taking up the cyber torches and pitch forks when it feels curbed. And so this week a refresher lesson in cyber liberalisation was dished out to a company who failed to understand its market before dawning its big legal wellie boots and plunging on in to a reputational quagmire. 

Come on down YouTube, and, in particular, brothers Benny and Rafi Fine.

So what happened this time?

The brothers operate a successful YouTube channel named Fine Brothers Entertainment, which showcases ‘Kids React’, a series of videos displaying children’s reactions to various situations. The success gave rise to the spin off ‘Adults React’. In a YouTube sea of ‘reaction videos’ the Brothers sought to trade mark words including ‘react’ in Class 41, Entertainment, to protect their position. In so doing, however, what the Brothers and their advisers failed to take into account was how such an act may be perceived by their followers and subscribers: as an attempted oppression of freedom. The perception of the Brothers attempting to police or control the internet was met with unhappy incandescence. While no video of the Brothers’ reactions is available, hundreds of thousands of followers left, an apology was issued and the trade mark applications were abandoned.   

It stands as a timely reminder to businesses that protection and enforcement of rights must be weighed with other commercial realities such as how your market or audience may perceive your actions. The failure to understand that much of the channel’s success stemmed from the supporters’ approval of its non-big-corporate approach was then compounded by an attempt to obtain trade marks and an appearance of oppression of those most likely to be protective of their cyber libertarianism. Poor show, chaps.

Barbra’s lawyers find themselves in the duck sauce

No mention of backfiring rights enforcement can be complete without a nod to the quintessential case of Barbra Streisand. When Barbra’s lawyers attempted to sue California Coastal Records Project for breach of privacy owing to a photo of Barbra’s house featuring in their archive, well, they did not make a very good job of it. So unsuccessful were the lawyers in their approach that the attempted suppression and the reaction that followed created such great interest that the image was not just seen by more than might otherwise have seen it, but it actually went viral. The ‘Barbra Streisand Effect’ was born.

The Jack Daniels solution that goes down well

One example of a success story comes from the approach taken by the legal team of American whiskey Jack Daniels, who, when faced with a book cover very similar to their bottle label acted cleverly. The ensuing cease and desist was (according to the recipient) ‘as if the Gentleman Jack had penned it himself’. The polite and friendly approach was not only in-keeping with the laid back brand but was posted online by the recipient and went viral for all the right reasons. Cheers!


For rights done right, contact Brymer Legal.