Sunday, 22 July 2018

What is the Law in Your Life?

5 things about asbestos risks in commercial property

Asbestos is a material that was widely used in the construction industry for many years due to its heat, fire and sound protection qualities. It has been illegal to use asbestos in the construction or refurbishment of buildings since 1999.

Asbestos is now recognised as a significant health hazard if disturbed and so building owners and occupiers must be aware of, and comply with, legislation that regulates its use, removal and management. Every person with an obligation to maintain or repair a property constructed before 1999 must take particular note of the asbestos regulations, and comply with them.

The following are 5 things to be aware of:

1.         The relevant current regulations are the Control of Asbestos Regulations 2012 (“the Regulations”) which came into effect on 6 April 2012 and an approved code of practice has been issued by the Health and Safety Executive ('HSE'). In common with other health and safety regulations, breach of the Regulations constitutes a criminal offence, punishable by an unlimited fine and/or up to two years imprisonment. Affected persons may also bring negligence claims against the duty holder.

2.       There is an obligation on the duty holder to (i) determine whether asbestos is present or is likely to be present in a building and (ii) manage any asbestos which is or is likely to be present. The definition of a duty holder is broad. It will apply to owners of “non-domestic premises” and to any tenants and sub-tenants thereof. These obligations can also extend to managing agents if they have taken over the repair or maintenance of a property. The obligations apply to vacant premises.

3.      The legislation does not define “non-domestic”, however the HSE has advised that a broad approach will be taken. It includes commercial premises, offices, retail premises, industrial premises, hospitals, schools, universities, prisons and places of worship.

4.         A duty holder must carry out a 'suitable and sufficient' assessment to determine whether asbestos or asbestos containing material is likely to be present in the premises. To do this, the duty holder must take account of building plans, other relevant information and the age of the premises. An inspection must be made of those parts of the premises which are reasonably accessible. In all cases, the approach taken should be proportionate to the perceived risk and a full survey may not be required unless work is planned which could disturb the asbestos. The duty holder must review the survey and record its findings in order to assess the risk. 

5.         If the survey shows that asbestos is or is liable to be present, the duty holder must determine the risk from that asbestos, prepare a written plan to identify the parts of the premises affected and specify the measures taken to manage the risk. The measures must include monitoring the condition of the asbestos and maintaining or removing any materials thought to contain asbestos. The information about the location and condition of the asbestos must be provided to every person liable to disturb it and to the emergency services.

Wednesday, 18 July 2018

Trade Secrets

Confidential information/trade secrets are currently protected through case law in the UK. In order to successfully claim for a breach of confidence, it is necessary to establish that:

·       the information has the necessary quality of confidence (i.e. it is not generally known by the general public, or persons who specialise in that subject);
·     the information was shared in circumstances imparting an obligation of confidence (i.e. a reasonable person would have realised that the information was being given in confidence); and
·      there has been an unauthorised use of that information to the detriment of the party communicating it (i.e. it has been used by the recipient for purposes beyond the consent of the owner, or it has been disclosed to third parties without the owner’s consent).

The UK implemented the EU Trade Secrets Directive (2016/244/EU) on 9 June 2018. There was previously no statutory definition as to what constituted a trade secret in the UK. In essence, a trade secret is a form of confidential information (all trade secrets will be confidential information, but not all confidential information need be a trade secret).  A trade secret is therefore a rarefied form of confidential information. The aim of the Directive is to harmonise the protection of trade secrets in all Member States. The substance of the Directive largely reflects the existing UK law on trade secrets.

The Directive introduces a new harmonised definition of a trade secret. In terms of the Directive, information will be considered a trade secret if it:

·      is secret – in the sense that it is not generally known among, or readily accessible to, persons who normally deal with this kind of information;
·       has commercial value because it is secret; and
·     has been subject to reasonable steps (under the circumstances) to keep it secret by the person lawfully in control of the information.

This definition should make it easier for businesses to protect their trade secrets but they must be able to demonstrate that they have taken “reasonable steps” to protect the secret if they wish to rely upon specific rights and remedies under the Directive.

As always with confidential information generally think before any disclosure is made. The quote from Jeremy Bentham in 1735 is as true today as it was then:  Three men may keep a secret only if two of them are dead”.

Wednesday, 28 March 2018

What is the Law in Your Life?

5 Things you need to know about 3rd Party Rights:

1.    Scots law has always provided for third parties to be able to enforce contractual rights between others. This was called ius quaesitum tertio (“IQT").

2.    IQT was quite complex and difficult to identify and enforce on occasion –especially with regard to IQT created by implication.

3.   This has changed following the coming into force of The Contract (Third Party Rights) (Scotland) Act 2017 on 26 February 2018. This brings Scots law in line with English law.

4.   The new statutory framework replaces IQT and applies to all contracts entered on or after 26 February 2018. The Act does not have retrospective effect and does not affect existing contracts.

5.    There are specific conditions that have to be met for a third party right to be created under the Act. The parties to a contract may exclude third party rights by adding a clause to that effect in relevant contractual documents.

Wednesday, 3 January 2018

What is a distinctive shape?

For some years now it has been possible to apply for registration of 3D shapes as trademarks. The court battle between NestlĂ© and Cadbury over whether the 4-fingered KitKat bar could be registered as a 3D trademark illustrates some of the difficulties. 

The 5 key points:

1.    NestlĂ© applied to register their 4-fingered chocolate bar as a 3D trademark. Cadbury objected claiming that it lacked essential distinctive character.

2.    The case progressed to the Courts with judgment in favour of Cadbury. Nestle appealed.

3.   The Court of Appeal in England held that the shape lacked distinctiveness which would allow a third party to rely on it as an indicator of origin – i.e. that it would clearly be seen as having emanated from Nestle. In other words, it was not a “badge of origin”.

4.   While there have been successful applications for registration e.g. the Coca-Cola bottle shape, the courts have been reluctant to agree that there is essential distinctiveness without the manufacturer’s name or brand being embossed on it - as is the case with the KitKat 4-fingered bar.

5.    This case reinforces the need for care to be taken when creating new product design if reliance is to be had on 3D shapes. Trademark law is there to protect brands and trade names but a monopoly right is only granted if the legislative standards are met.