TRADE MARK UK

April 16th, 2012

UK Trade mark procedure: from application to registration

The first stage is to complete and file the application form and pay the applicable fee. The fee varies depending on the amount of classes under which protection is sought.

Once the application is filed, the mark will then be put before an Examiner who will then assess the mark against the criteria for registration. The Examiner does not, at this stage, assess whether the mark complies with the relative grounds (previously this was the case).

If the mark is accepted by the Examiner as meeting the relevant requirements, the mark will then be put forward to the Publication stage. The Publication stage generally lasts for a period of two months. The purpose of the Publication stage is to allow other earlier rights holders the opportunity to assess whether the mark conflicts with their mark in terms of the absolute grounds. If the wish to challenge the mark then the earlier rights holder may file an opposition.

If after the end of the Publication period there are no outstanding oppositions under the mark, the Registry will put the mark through to Registration, at which point, the mark will be registered and a Trade Mark Certificate issued.

The mark will last for 10 years and can be renewed for an unlimited number of further 10 year periods.

There are many potential pitfalls to an application such as the absolute and relative grounds for refusal. Care should be taken before filing you mark(s) and a trade mark search is advisable.

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YOUR DATA AT WORK

April 11th, 2012

Employer’s warned about demanding Facebook’s details.

The Information Commissioner’s Office (ICO) warned employers this week that it would have “very serious concerns” if employers demanded Facebook login and password details from existing or would-be employees. Its concerns were made following news from the USA.  A spokesman for the ICO said: “The UK Data Protection Act clearly says that organisations shouldn’t hold excessive information about individuals, and it’s questionable why they would need that information in the first place…..We would have very serious concerns if this practice was to become the norm in the UK”.  Facebook said: “We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do. While we do not have any immediate plans to take legal action against any specific employers, we look forward to engaging with policy matter safeguard the privacy of our users and other stakeholders, to help be.

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MORTGAGE REPOSSESSION and LEASES

April 10th, 2012

Where a mortgaged property is subject to a lease and the lender seeks to exercise a power of sale, the lender will need to know whether the lease will be binding on the lender.

If the lease was granted after the mortgage, then the matter is governed by section 99 of the Law of Property Act 1925. This gives a borrower who is in possession of the mortgaged property a power to grant leases that will bind the lender, provided the lease meets certain criteria. Being unpopular with lenders, they almost in all cases, remove this power altogether or make a requirement for the lender’s prior consent by a provision in the mortgage deed. As a result of this, if the borrower grants a lease without the consent of the lender, and the lender wishes to sell, the lender can obtain a court order for possession and the tenant will have no rights against the lender and will have to leave.

The Law of Property Act 1925 provides for whether the lender can sell without being bound by a lease that was granted prior to the creation of the mortgage. For example, a lease for a term of seven years or less is an unregistered interest that will override a disposition of the land.

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CHANGES TO THE TENANCY DEPOSIT SCHEME

April 10th, 2012

April 2012

From 6th April, the rules relating to the Tenancy Deposit Scheme will change as follows:

– Deposits received on or after 6th April must be protected within 30 days of receipt.

– Those deposits that have already been received, must have been protected by midnight on the 5th April 2012.

– Where an Assured Shorthold Tenancy is renewed with a tenant, and the deposit is retained by the landlord, the deposit must be re-registered.

– Where a landlord takes money to cover loss of rent or for damages or losses to the landlords property, it will be treated as a deposit, despite the name given to it by the landlord.

– Any guarantee or bond given to the landlord will not need to be registered unless money is literally handed over to the landlord.

– The landlord cannot charge the tenant a deposit protection fee, however the landlord can charge for administration services, and can also charge VAT for it.

– The certificate and certain information in relation to the deposit protection must be supplied to the tenant and any third party that provided the deposit.

– Where a landlord wishes to serve a section 21 Notice, it will not be enforceable, unless:

1. The deposit was protected within 30 days of receipt or returned to the tenant before serving the section 21 Notice

2. The certificate and certain information in relation to the deposit protection was supplied to the tenant and any third party that provided the deposit

– Where the landlord uses the custodial tenancy deposit scheme, he must ensure that he provides DPS the correct contact details for the lead tenant. This is to ensure that where the DPS needs to return the deposit to the lead tenant at the end of the tenancy, it can contact the lead tenant to do so.

– The deposit must be registered in the name of the registered proprietor of the property, unless an agent is registering the deposit.

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THE END OF SKY IN PUBS ?

April 4th, 2012

Football in pubs but dont play the anthem!

Practically this is a victory to the publicans. Although the Judge Kitchin LJ ruled in the Premier League’s favour in relation to some of the copyright issues. The judge held that the publican defendants were infringing copyright by communicating the works to the public in breach of section 20 of the Copyright Designs and Patents Act 1988 however they had a defence to infringement in relation to copyright in the films included in the broadcasts in section 72(1)(c) of the CDPA.

Therefore the Premier League have a claim of copyright infringement in relation to the PL anthem and certain graphics.

While we wait for the declarations from all parties, surely this will mean that publicans are free to show premier league matches provided they do not play the anthem or show any of the premier league graphics?

So is this the end for SKY in pubs?

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QUICK GUIDE TO TRUSTEES DUTIES

April 3rd, 2012

Use Good Faith and Uphold the Trust

Trustee’s primary obligation is to carry out the Trust purposes in accordance with the Trust Deed or other foundation documentation.
The utmost good faith is required of anyone aspiring to be a Trustee.  A high degree of probity, honesty, and integrity are required in undertaking to ensure the fulfilment of the Trust.
Once the purposes of a public Trust have been declared, the donor is not entitled to intervene or change them.

Joint Responsibility

Trusteeship imposes a duty on each Trustee to ensure that the actions of his fellows comply with the Trust Deed and with the law.
Even although day-to-day management may be, and sometimes practically must be, delegated, overall supervision lies with the Trustees as a whole.  Trustees are not entitled through good nature or embarrassment or indolence or ignorance to allow co-Trustees free rein to do as they see fit.
Allowing a co-Trustee to commit a breach of trust, whether expressed or implied, will involve both Trustees in the consequences of breach of trust.

Charity Trustees and Quasi Trustees

The responsibility for charities extends beyond those who are formally Trustees  – by statute all who are “concerned in the management or control” of bodies recognised as charities in Scotland, whether Trustees or not, are bound to administer the charity honestly and ensure the sound management and proper application of its assets.

Own Opinions

Trustees are entitled to have their own opinions but must distance themselves from these and not allow them to undermine the Trust.  They cannot allow themselves to be influenced by matters extraneous to the terms and purposes of the Trust and must uphold Trust strategy.

Advice

It is the duty of Trustees to take advice but make their own decisions in the light of the advice

Avoid Conflicts of Interest

Trustees must separate their own interests and personality from the interest and personality of the Trust.
If a Trustee finds he cannot do that, he should abstain from participating in relevant decisions and if it goes further than single issues should resign as a Trustee.

Standard of Care

The standard of management is the same standard of care that a prudent man of business would take in his own affairs.  This involves having a reasoned and reasonable basis for decisions taken.

Avoid Breach of Trust

Trustees must not allow a conflict of interest to develop between themselves and the Trust  – to do so is a breach of trust.
Breach of trust can involve dishonesty but can also consist in failure to observe the law or failure to seek proper advice.
It includes any form of bad management or neglect or any act that goes against the purposes of the Trust.  Allowing a co-Trustee to commit a breach of trust is itself a breach of trust.
It is no defence that the other Trustees concurred nor that they acted in good faith.
Similarly, it is no defence that Trustees in breach have exercised the same prudence that they do in their own affairs; a Trustees’ actions must be measured against the objective standards of prudence and ordinary diligence.

Liability for Actions

The general rule is that Trustees incur personal liability on a joint and several basis. The liability of the Trust Estate is determined by the liability of the Trustees, not their ability to pay.

Trustees can take out their own insurance to cover liability for their actings but this can only be met from Trust funds where there is authority in a Deed of Trust or a scheme approved by the court.  However, if insurance cover is justified by the nature of the Trustees’ activities the expenditure on premiums may be justified.

CONSEQUENCES OF FAILURE

Trustees are personally liable for their failures.  If it appears to the Lord Advocate that there is or has been any misconduct or mismanagement in the affairs of a charity, he may suspend any person concerned in its management of control pending action by the Court of Session.  It may remove and disqualify that person from office.

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DIVORCE RATES and TRENDS

April 2nd, 2012

On 8th December, the Office of National Statistics (ONS) released the latest figures on divorces taking place in 2010.  Having recently written about the trends over recent years, and what this tells us about the health of marriage as an institution, it is worth considering how these latest stats affect the bigger picture.

The headline is that the number of divorces in 2010 rose; the first annual rise in eight years (since 2003) and seemingly out of step with the broader trend.  The total number of divorces that occurred in 2010 came to 119,589 representing a 4.9% increase on 2009’s 113,949 divorces.  Although, on the surface, this does seem to suggest a rise in the prevalence of divorce the figure could potentially be explained by other factors such as a larger married population – more tellingly the divorce rate, that is the percentage of the married population that got divorced, also rose from 10.5% in 2009 to 11.1% in 2010. So does this reinforce the perception that more marriages are failing?

Rather than an indication of a broader shift in societal attitudes it is more likely that the results for 2010 mark a glitch in a longer term decline in divorce rates. This kind of glitch or spike in divorce rates has been seen at other points in recent history when the country has been on the tail end of a recession.  In 1993 the rate spiked following the recession between 1990 and 1992. There seems to have been a lag between the worst of the financial troubles and a jump in divorces and it seems plausible that this could also hint at causality;  financial issues are one of the major causes of relationship breakdowns and the lag may be explained by a) an initial reaction to ‘pull together’ to deal with money issues, b) the build up of subsequent pressures in the relationship and then, c) once the relationship has broken down, the time it takes for divorce process itself to complete.

In terms of the broader picture, the actual number of divorces has been noticeably falling for the last decade although it is easy to attribute this to the corresponding fall in marriages and previous divorce trends eroding the size of the married population in the first place.  The fact that the divorce rate has been steadily falling too suggests that those who are married are less likely to split.

Further evidence comes from the profile of those couples involved. More divorces involved individuals aged 40-44 than any other age group in 2010 but interestingly it seems that the age at which people divorce is creeping up (both men and women had 0.2 increases to 44.2 and 41.7 respectively), albeit in line with the rise in the age at which people are marrying, whilst the duration of marriages has plateaued.  Moreover, the highest rate of divorces for men in 2010 was seen in the 30-34 year old age group rather than the 25-29 group in 2009 (women were unchanged).  This may all suggest that marriages are starting later but are beginning to last a little longer.

Despite the latest figures telling us that 33% of marriages starting in 1995 had failed in the 15 year period to 2010 (up from 22% of those in the same 15 year period from 1970) the ONS is suggesting that the figures they have obtained so far may indicate that the rate of divorce before the 15th year for more recent marriages may be likely to decline.  Again this adds a little more weight to the argument that couples now seem to be waiting longer (cohabiting), being more cautious but ultimately, as a result, being more successful in their marriages.

In summary, it would seem most likely that the rise in divorces in 2010 is a spike, as witnessed in previous periods of recession, rather than a longer term trend.  There is still evidence in the age and duration of those getting divorced to support the bigger picture that couples are being more successful in marriage, but only time will tell.

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STATUTORY DEMANDS

April 2nd, 2012

What is a Statutory Demand?
When properly served, and it has to be formally served, this is a legal notice from the creditor to the debtor giving them 21 days to settle the debt otherwise a bankruptcy petition may be issued
View a statutory demand as a warning shot. Generally the courts have frowned on Statutory Demands as a method of debt collection. In many case with consumer as opposed to commercial debt the creditor does not pursue the bankruptcy route BUT if the Demand is served on you personally, that is by a process server as opposed to by post the take it very seriously indeed. The same applies if the demand was attempted to be personally served but wasn’t successful.

Who can Issue a statutory demand?
Anyone can – it is not a document that is issued at Court, generally they are held on Debt Collectors computers and just filled in with your details. It is not even a requirement to serve one before a bankruptcy petition is issued, but it does make the creditors life easier if one is served.

Legal Loophole in a Statutory Demand
A statutory demand must show a named person or persons from the Creditor or their agent/solicitor whom you can contact directly. This is Rule 6.2 of  The insolvency Rules 1986.

This means that if the statutory demand doesn’t give the name of a person you can speak to then it is not valid. If you try to contact the named person and they won’t put you through then it is also invalid.

Be aware that named people on accompanying letters are not part of the Statutory Demand – only those on the Demand itself are valid.

Important – make notes of dates/times you try to call the named person on the statutory demand, together with the name of the person that you spoke to and a note of what was said. Write and confirm everything said by Special Delivery.

When to worry about a Statutory Demand
Providing it has been served correctly you must treat it as a matter of urgency. Especially if the person/business behind the demand:

Is willing and able to take you to court to recover their monies
Is upset with you and the threat is more emotionally based than financial
Knows that the attempt to make you bankrupt will affect your professional reputation (all bankruptcy hearings are public knowledge, regardless of outcome)

How to prevent a statutory demand escalating to a bankruptcy petition

Reduce the debt owed to the creditor to below £750 (The legal minimum amount owed that can result in a bankruptcy order)
Apply for the demand to be set aside but only if you have proper grounds
Make an offer to settle or compound  the debt/s  to the creditors satisfaction.(For example offering some security).

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RIGHTS OF WORKING PARENTS

March 27th, 2012

Rights of working parents
Working parents have the following legal rights:

paid and unpaid maternity leave
paid paternity leave
paid and unpaid adoption leave
to request flexible working hours
unpaid parental leave for parents of children under five (18 if your child is disabled)
unpaid time off to deal with unexpected problems with the care of dependants.

These rights apply to parents in same-sex as well as in opposite-sex relationships.

Paternity leave
If you are a working father, you are entitled to one or two weeks’ paternity leave when you and your partner have a child. Some other people are also entitled to paternity leave – see below. You can also qualify for paternity leave when you adopt a child. Most fathers will be entitled to statutory paternity pay for their paternity leave. Statutory Paternity Pay is paid at the same rate as Statutory Maternity Pay.

To qualify for paternity leave for a birth, you must:-

have been employed by the same employer for at least 26 weeks by the end of the 15th week before the expected week of childbirth; and
be the biological father of the child, or be married to or be the partner of the baby’s mother (this includes same-sex partners, whether or not they are registered civil partners); and
have some responsibility for the child’s upbringing; and
have given your employer the correct notice to take paternity leave.

To qualify for paternity leave for an adoption, you must:-

be employed for at least 26 weeks by the time you are matched with your child for adoption. (You will not be entitled to paternity leave or pay if you already know the child, for example, if it’s your stepchild)
not be taking adoption leave. (Where you and a partner are adopting a child, one of you can take adoption leave and one paternity leave)
have some responsibility for the child’s upbringing
have given your employer the correct notice to take paternity leave.

When can you take paternity leave
If you are taking paternity leave for a birth, the leave can start either on the day the baby is born or on a date that has been agreed in advance with your employer. Your paternity leave cannot start before the baby is born, and, if you are agreeing a date later than the birth of your baby, it must be completed within 56 of days of the birth.
If you are taking paternity leave for an adoption, the leave can start either on the day that the child is placed with you, or on a date that has been agreed in advance with your employer. If you are agreeing a later leave date later than the date your child was placed with you, the leave must be completed within 56 days of the adoption date.

Telling the employer about your paternity leave

You need to be able to show your employer that you are entitled to paternity leave. To do this you must give the employer the following information:-

your name
the date the baby is due or the date of the birth. If you are adopting a child you should give the date that you were matched with your child or the date on which the child is placed with you
the date when you would like your paternity leave (and pay) to start
whether you are taking one or two week’s paternity leave
a declaration that you are entitled to paternity leave
a declaration that you are taking leave to support the mother or care for the child.

You can use self-certificates to provide this information to your employer. These self-certificates are available on the website of HM Revenue and Customs at:  www.hmrc.gov.uk for a birth child and  www.hmrc.gov.uk for an adopted child.

You must also give your employer notice that you want to take paternity leave. The notice must be in writing if your employer asks for written notice. You must give notice 15 weeks before the baby is due or, if this is not practical, as soon as possible once you know you want to take leave. If you are adopting a child, you must give notice no later than seven days after the date you are matched with your child for adoption. If this is not practical you must give notice as soon as possible once you know you want to take paternity leave.

If you change your mind about when you want to take paternity leave you can, but you should give your employer 28 days’ notice of the changed date.

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THE ROLE OF CHIEF POLICE OFFICERS AND THE CRB

March 22nd, 2012

Criminal Records Bureau and CPO Discretion

One of the first decisions of the new UK Supreme Court L, R (on the application of) v Commissioner of Police of the Metropolis [2009] UKSC 3 (29 October 2009) will offer some welcome reprieve to social care workers and would-be social care workers who have discovered the devastating effects of “information disclosed at the Chief Police Officer’s discretion” – on an enhanced CRB. There is now a way of fighting back.

The problem

The problem – because there most certainly is one – can be summarised as follows:

The use of enhanced CRBs is growing dramatically – nearly 275,000 were issued in 2008-09
The Police, if in doubt about the relevance of information, are likely to include it – saying, correctly, that it is for the organisation to whom it is disclosed to make decisions about suitability, not them
Employers and agencies are likely to err on the side of caution when an enhanced CRB raises concerns
All this has a devastating effect on the 10% or so of applicants in respect of whom enhanced information is disclosed.

There is a real dilemma here. Following the Soham murders of Holly Wells and Jessica Chapman and the subsequent Bichard Inquiry, emphasis was placed on revealing non-conviction information that might have prevented such horrors taking place. Guidance issued following an earlier court case gave precedence to child protection concerns over the rights of a would-be social care worker.

It was once held “that it is better that ninety-nine … offenders shall escape than that one innocent man be condemned.”*; our anxiety over the risks to children now seems to mean that we have reversed the ratio.

The court’s decision

A clear majority of the court held that the earlier court case and guidance were wrong, erring too much in favour of disclosure in borderline cases. In future, greater weight must be given to the effect on the CRB applicant and on their career. Specifically, the court said that it was not unreasonable for the CRB applicant to be contacted and their views sought before disclosure, and even indicated this would be the norm, rather than the exception, in future. Thus, Lord Neuberger:

‘I would have thought that, where the chief officer is not satisfied that the applicant has had a fair opportunity to answer any allegation involved in the material concerned, where he is doubtful as to its potential relevance to the post for which the applicant has applied, or where the information is historical or vague, it would often, indeed perhaps normally, be wrong to include it in an ECRC without first giving the applicant an opportunity to say why it should not be included.’ (para 82)

Analysis

For the many people affected, this re-balancing exercise is welcome. However, it only addesses the tip of the iceberg of the original problem.

First, the exponential growth in the use of enhanced CRBs is itself questionable. Employers are legally bound by a Code of Practice, but many think that ‘safe’ practice means asking for an enhanced check even when they have no right to do so, and there is no effective remedy for illegal enhanced CRB checks.

Second, the ‘soft’ information included is generally untested. Untested allegations may be completely right, but they may be completely wrong. A person may be a wholly innocent suspect, the subject of a malicious allegation, the victim of mistaken identity. It remains to be seen how far representations that this is the case will affect police decisions on disclosure in future.

Finally, however, there needs to be a proper understanding of the system to ensure a robust and fair decision making process by employers and agencies. If those who receive such disclosures assume the disclosure of ‘soft’ information is proof of its veracity, or of a person’s unsuitability, or if they abrogate responsibility for making such decisions at all, and in a risk-averse age simply say ‘no, thank you’, there will still not be justice.

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