What is the Law in Your Life?

5 things you need to know about ScotLIS:

1.   ScotLIS is the acronym for the proposed Scottish Land Information Service which will be an authoritative "one stop shop" for information on land and property in Scotland.

2.  All properties in Scotland will have a Unique Property Reference Number ("UPRN") which will be used as a method of identifying properties. Access to ScotLIS is likely to be by way of UPRN, Title Sheet number and/or Post Code.

3.   Registers of Scotland are responsible for the creation of ScotLIS and the first iteration thereof will be in place by October 2017.

4.   An integral part of ScotLIS will be a definitive cadastral-based plan which will ultimately show the line of pubic utilities and their such data. This is the way in which other systems operating elsewhere in the world function e.g. Infoland in Norway.

5.   Other bodies assisting in the work of creating ScotLIS include the Improvement Service; Ordnance Survey; The Law Society of Scotland; and the Royal Institution of Chartered Surveyors.

What is the Law in Your Life?

5 things you need to know about Keeper Induced Registration:

1.   In terms of The Land Registration etc (Scotland) Act 2012 ("the Act"), the Keeper of the Land Register is entitled to induce registration of title to properties in the Land Register. This is known as Keeper Induced Registration ("KIR) and is supplementary to the registration of title by way of transfer of title or by voluntary registration.

2.  The Keeper has accepted an obligation to complete the Land Register by 2024. This is an ambitious target. KIR will be used to help accelerate the programme of registration of title. Registers of Scotland will engage with the legal profession, local authorities and agencies such as citizens advice bureaux in a particular area before KIR happens for that area. Individual landowners will be notified once their title has been brought onto the Land Register.

3.   Initially, KIR will only be used in 3 Land Register Research Areas: Carnoustie Edinburgh (Murrayfield); Glasgow (Bearsden). KIR will then be rolled out across the country in appropriate circumstances.

4.   Where a title is transferred to the Land Register by KIR, the owner will not incur any of the costs of the transfer. All work will be undertaken by the Keeper''s staff. The owner will receive a letter informing him/her that the title is to be registered using KIR and will be asked to confirm a few facts as summarised in a letter from the Keeper. An obvious example of where KIR will be useful is where the title to say, 5 out of 8 flats in a tenement block are registered in the Land Register but the other 3 titles are not. It will be expedient and beneficial for the remaining 3 titles to be registered.

5.   A title registered using KIR will, to all intents and purposes, look like a title registered in the normal way under the Act. It will be a facsimile of the title which is, at that time, recorded in the Register of Sasines. The Keeper will bear the costs of registration and so there will be no additional cost to a homeowner.  The owner will benefit from a state-backed guaranteed title.  There will be no erosion of rights for homeowners whose titles are brought onto the Land Register by the KIR process itself.

What is the Law in your Life?

5 things you need to know about Dilapidations in Leases:

1.   Although the obligation to repair/renew a property leased from a landlord may differ from lease to lease, the tenant in all cases will have an obligation to return the property in an appropriate condition at the end of the lease. In some cases, this will be by reference to a photographic Schedule of Condition prepared and agreed between the landlord and the tenant at the commencement of the lease.

2.   Most commercial leases entitle the landlord to enter the leased subjects in order to assess the state of repair at any given time during the lease term with the tenant being obliged to remedy any wants of repair identified in an interim Schedule  of Dilapidations.  Tenants are advised always to check such schedules to ensure that the works identified therein are really their obligation in terms of the lease.

3.   In principle, the rectification of dilapidations in a leased property is appropriate. Care should always be taken however to ensure that the works identified therein represent repairs rather than extra-ordinary repairs or improvements where such may not be  the responsibility  of the tenant.

4.   This, perhaps, is no more obvious than at the end of the term of a lease where what are called terminal dilapidations are identified by the landlord. Such schedules should be served timeously in terms of the lease and be examined carefully against what the lease states with regard to the tenant's obligation to reinstate the property to the condition it was in at the commencement of the lease. If available, the schedule should be assessed against a photographic record of the condition of the property as at the date of entry.

5.   In certain cases, the lease may provide for a payment to be made by the tenant to the landlord akin to the rent which the landlord would otherwise be entitled to receive if it was letting a unit in good tenantable condition and repair to a new tenant following the expiry of the former lease. If such a provision is in a lease, the tenant should seek to limit the period during which such a payment will be due.

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)

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.

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.

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.

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.

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 

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.

What is the Law in Your Life?

5 things you should know about objecting to a company name:

1.   Any person can object to a company's registered name if the name is:

a)    the same as a name associated with the objector and in which he has goodwill; or 

b)   similar enough to such a name that its use in the UK would be likely to mislead by suggesting a connection between the company and the objector

The objector does not need to be a company.

2.  There are specific circumstances in which there will be a presumption the company's name was registered legitimately. These include that:

a)  registration took place before the start of the activities on which the objector relies to show his goodwill; 

b)  the company is carrying on business under the name; 

c)  the company is proposing to carry on business under the name and has incurred substantial start-up costs in preparation; 

d)   the name was adopted in good faith; 

e)   the interests of the objector are not adversely affected to any significant extent.

If one of these presumptions applies, the objection must be dismissed unless the objector can show the respondent registered the name either to obtain money from the objector or to prevent him registering the name. In that case, the objection must in most circumstances be upheld.

     

If none of the presumptions applies, the objection must be upheld. It is to be noted that one of the defences is that the company is operating under the company name; an application to the adjudicators is not an alternative to an action for passing-off or trade mark infringement.

3.   If an objection is upheld, the offending company name must change to one that does not raise an objection within the time prescribed by the adjudicator. If the company fails to do so, the adjudicator may determine a new name for the company.

4.    The adjudicators are based at the Intellectual Property Office in Newport, South Wales. Collectively the adjudicators are called the “Company Names Tribunal” and they will consider objections against a company's registered name.

5.    When making an application to the Company Names Tribunal the objector must give his own details and the details of the company name to which he objects, together with a concise explanation (the statement of grounds) as to why he is making the application. The objector will need to enter a UK address to which the Tribunal can send correspondence and he will need to include the application fee with the form and fee sheet. The objector will also need to make a statement regarding whether he has contacted the company in relation to the matter prior to filing the application; when he did so and what he said to the company. If the objector does not give the company name holder adequate notice of his intention to file the application, this may affect any award of costs at the end of the proceedings. 

What is the Law in Your Life?

5 things you should know about Company Striking Off and Dissolution:

1.  If a company is no longer needed it can apply to the registrar of companies to be struck off and dissolved.  This procedure is called “voluntary striking off”. An application for voluntary striking off can only be made by the company’s directors on the company’s behalf.

2.  To apply for strike off a company must complete and sign a Form DS01 and send this to Companies House with the required fee. Within 7 days of sending the form, the directors who signed the form must send a copy to all members, existing and likely creditors, employees, managers or trustees of any employee pension fund and to any directors who have not signed the form; failure to do so is an offence. Upon receipt of the Form, Companies House will, if it is acceptable, register the information and put it on the company’s public record, publish notice of the proposed striking off in the Gazette to allow interested parties the opportunity to object and place a copy of the Gazette notice on the company’s public record. If there is no reason to delay, the registrar will strike the company off the register not less than 2 months after the date of the notice. The company will be dissolved on publication of another notice in the relevant Gazette.

3.  From the date of dissolution, any assets of a dissolved company will belong to the Crown.

4.   Creditors and other interested parties can apply for a company that has been struck off and dissolved to be restored to the register. Any company which is restored to the register is deemed to have continued in existence as if it had not been struck off and dissolved.

5.   A recent decision of the Inner House of the Court of Session on appeal from the Sheriff Principal has confirmed the effect a company’s striking off and subsequent restoration to the register has on a lease when the lease is disclaimed by the Crown prior to restoration. The argument by the tenant that their restoration to the register meant that the lease continued as if there had been no interruption caused by its striking off was successful before the initial sheriff hearing the case, but lost on appeal to the Sheriff Principal. The tenant (and one of its directors) appealed to the Court of Session. The Inner House considered the effect of the disclaimer and the proper construction of the relevant provisions of the Companies Act 2006. The Inner House held that on the date the tenant was dissolved and struck off, its rights vested in the Queen’s and the Lord Treasurer’s Remembrance (“QLTR”) as ownerless property. However, the QLTR’s subsequent disclaimer of the lease meant that: (1) the tenant’s rights in the lease terminated on that date; and (2) any rights in the lease were deemed not to have vested in the QLTR as ownerless property. As a result the tenant’s rights, interests and liabilities in the lease had come to an end.