Business Legal News from Blackadders Solicitors

We are delighted to announce that Kirk Dailly, an associate in our Corporate & Commercial team, was last night awarded the coveted Signet Accreditation in Corporate Law at a prestigious ceremony in Edinburgh.

The Signet Accreditation is a formal qualification for Scottish solicitors recognising excellence in legal services and signifying proficiency in an area of legal practice.  It is an initiative of The Society of Writers to Her Majesty’s Signet, Scotland’s independent association for lawyers and one of the world’s oldest independent professional bodies.  In order to attain the accreditation, candidates must undergo a rigorous assessment process which, in addition to testing their specialist legal knowledge, examines client-facing skills, drafting ability, commercial awareness, ethical standards and ability to perform under pressure.

Kirk, who joined Blackadders in 2005, said: “I am delighted to have received the Signet Accreditation.  To be independently recognised in your area of practice by such a renowned institution is very rewarding.”

With the head of our Corporate & Commercial team, Campbell Clark, having been accredited in 2010, Blackadders is now the only firm in Scotland to have two lawyers accredited by the WS Society in the field of corporate law.

David Milne, head of Blackadders’ Business Division, commented: “This is a considerable achievement for Kirk and for the firm.  Not many lawyers attain the Signet Accreditation.  The fact that we now have two accredited corporate lawyers makes us stand out from the crowd and is testament to the expertise and dedication that lies within our Corporate & Commercial team.”

Present

Legislation will soon come in to force which will make changes to the registration of company charges. The changes will simplify the process by creating a single, UK-wide system of registration.

Securities which are created by a document are required to include a certified copy of the instrument with the form. However, it was the case that the instrument was not available to view; only the form which was submitted with it. The new system provides for the instrument to be accessible to the public. This should improve the transparency of the registers. Information submitted does not always provide interested parties with sufficient details regarding the conditions attached to security. There will be a limited exception in terms of which it will be possible to redact personal information about connected individuals.

Another practical consequence of the new system is that it will now be possible to electronically register securities. It will cost £10 to file electronically or £13 to submit a paper copy of the security.

Companies negotiating the terms of a charge which may be registered under the new system should remember that the accompanying forms will change for charges created on or after 6 April, so they should be vigilant when submitting the charge for registration that they use the correct form.

Equivalent provisions will also apply to Limited Liability Partnerships.

Future?

The European Commission has launched a consultation regarding the requirement for, and feasibility of, the introduction of legislation to allow companies to transfer their registered offices across borders.

The Commission is conducting this consultation to ascertain whether there is a demand from companies for such transfers and whether clarity of the law is required.

The Commission is seeking contributions to the following questions posed:

• Whether companies are currently contemplating cross-border transfers of their registered office or have done so in the past
• The means that a company may currently use to effect a cross-border transfer
• The barriers that currently exist for a company that wants to effect such a transfer, e.g. costs, complicated administrative requirements
• Why a company may wish to effect a transfer, or what would make companies more likely to contemplate a transfer
• Whether there is an adequate procedure in place in the EU and whether case law provides an adequate solution
• Whether there is a need for a legislative instrument to deal with cross-border transfers

We would be interested to have your thoughts on these questions and whether you consider that there is an appetite for such a development.

The current situation in the United Kingdom would require the transfer of the assets of a UK registered company to a newly incorporated company in another EU member state and the subsequent dissolution of the UK company.

One legislative change that we think would be of benefit to a greater number of UK companies would be the ability for a company in England to change its registered office to an address in Scotland, and vice-versa.

The questionnaire for responding to the consultation is available to complete and submit until 16 April 2013.

A recent decision has confirmed that, in order for a trade mark to be registered, the mark must be distinctive and not merely descriptive of the goods and services to which it relates.

Getty Images, the global media giant, uses the mark “PHOTOS.COM” in connection with one of its websites.  In 2009, Getty attempted to register “PHOTOS.COM” as a (European) Community Trade Mark, but the application was refused on the basis that the mark was devoid of distinctive character.

Following an unsuccessful appeal at the OHIM (the EU trade mark office), Getty took the matter to the General Court of the European Union.  The court has backed the stance taken by the OHIM and so Getty will not be able to register the trade mark.

In my view, this is a sensible decision and I would have been surprised at any other outcome.  Members of the public should be able to distinguish the goods and services covered by a registered trade mark from those provided by another entity, and affording registered protection to such a generic term would have eroded that fundamental principle.

If you are developing a brand, take advice early on to ensure that it can be effectively protected and exploited.

I am delighted to be involved in an exciting event organised by TayScreen on Thursday 29 November.  TayScreen facilitates and promotes media, film and TV projects throughout Tayside and Fife, and the event forms part of its 10^th anniversary celebrations.

Joining speakers from across the sector, I will be considering how intellectual property law impacts on the creative industries.

Event Details

TayScreen 10 – From Script to Screen

Date: Thursday 29^th November
Time: 10am-5pm. Networking drinks 5pm-6pm. Lunch and refreshments provided.
Venue: Dundee Contemporary Arts, Dundee (www.dca.org.uk)

The event is free but places are limited.  Please click on the following link for more information and to book your place - http://www.tayscreen.com/opportunity-detail.cfm?opportunity_ID=61.

With the purveyors of doom queuing up to tell us how bad everything is, you’d be forgiven for thinking that nobody is doing anything positive (though I see that Google has patented technology for a driverless car, perhaps paving the way for future generations of Christmas partygoers to find an alternative way home). Times are undoubtedly tough for everyone, but it is important to recognise that many businesses continue to innovate and invest in their assets. We have been encouraged by the number of young businesses looking to protect and exploit their brands despite challenging economic conditions. In particular, we have seen a marked increase in the number of clients applying to register trade marks as they seek to gain a competitive edge. A registered trade mark affords its owner the exclusive right to use that mark and can serve as a key tool in the creation of a recognisable and marketable brand. It demonstrates that you mean business to customers and competitors alike. Any sign capable of distinguishing the goods or services of one business from those of another can potentially be registered as a trade mark – this includes business names, product names, logos and slogans. Trade marks are assets that can be licensed, franchised or sold. As such, they can play a major role in the commercial strategy of a business. If you are wondering whether your business could be doing more to protect and exploit its brand, why not take professional advice and find out more? I’m sure that Google did in the late nineties…

OSCR regulates charities in Scotland and one of its functions is to determine whether charities continue to meet the charity test.  As charitable status brings tax benefits, an important part of the charity test is that charities can demonstrate that their activities have public benefit.  

OSCR in Scotland and the Charities Commission in England and Wales have for some time been looking into whether private schools deserve charitable status.  OSCR has already issued directions to private schools such as St. Leonards in St.Andrews and Merchistons in Edinburgh that they need to widen their public benefit.  More directions have been issued south of the border.

In England and Wales, the Independent Schools Council, representing 1,260 schools, has taken the Charities Commissioner to court challenging the way that it applies the public benefit test.  A tribunal decision of 14 October 2011 has confirmed that there is too much emphasis on bursaries for poorer children and there is a need to examine the wider charitable work that schools are involved in.   

New guidance is expected shortly as to whether this approach will be followed in Scotland or whether the focus will remain on public access to school places.

I was interested to read that the Court of Appeal in England has held that newspaper headlines may be protected by copyright and that accessing material via a hyperlink could amount to copyright infringement. I have recently advised a number of clients on the subject of internet hyperlinks. Providing and accessing links from one website to another is an integral part of modern internet life, but it can be problematic. Apart from anything else, some website terms and conditions expressly forbid the creation of links from other sites without permission, and so linking may be prohibited as a matter of contract. In the recent case (Newspaper Licensing Agency v Meltwater), the court found that a newspaper headline could amount to a literary work capable of enjoying copyright protection. Although this case concerned the use of headlines as links in the context of a commercial service, it serves to highlight the type of legal issues that can arise in the digital age. From both a commercial and a legal perspective, deep linking (where the home page of the linked site is bypassed) can be particularly unattractive for website owners, as key revenue-generating advertising and disclaimers will typically appear on the home page. Moreover, a deep link is perhaps more likely to lead a user to think that the content of the linked site is part of the linking site, which could cause damage to the reputation and brand of the linked site and its owner. In summary, care must be taken when dealing with material created by others and the potential implications of linking to and from third party websites should always be considered.

On 1 June the Intellectual Property Office (IPO) launched its Peer to Patent (P2P) scheme, which will run on a trial basis until the end of the year.  The scheme will allow the public to participate in the patent application process through the IPO’s website.  It is hoped that members of the scientific and technical communities will participate in this process by providing IPO examiners with a body of specialist information and opinion to draw upon when considering an application’s originality.

The goal is to improve the overall strength of the patent system by ensuring that patents are only granted to truly novel and inventive works.  During the trial period, the P2P scheme will operate only in relation to IT patents.  Those wishing to contribute can do so by registering on the IPO’s website from 1 June. 

The P2P scheme is one of three proposals put forward by the Government in its Blueprint for Technology paper, which is aimed at making the UK a more fertile ground for innovation and technology.  The other two elements are the updating of the UK’s intellectual property laws (which produced the recently published Hargreaves Review) and the proposed “Entrepreneur Visa”, which aims to make it easier for overseas innovators to set up in the UK.

The corporate & commercial team at Blackadders is well placed to offer businesses a range of services in registering, licensing and protecting their intellectual property.

The European Commission has undertaken a consultation into how contract law could be harmonised within the EU.  This is aimed at removing the barriers of cost and legal uncertainty which presently impede cross-border trade within the EU.  This is of particular concern to small and medium sized businesses who either cannot afford advice on the legal implications of cross-border contracts and expose themselves to risk as a result, or incur unwanted costs getting appropriate advice.  In July 2010, the Commission identified seven options for harmonisation. These ranged from creating legislative ‘tool boxes’ for Member State governments to draw upon when drafting their own laws through to establishing a single mandatory system of European contract law.

The Commission’s preference is for an ‘optional instrument’, a comprehensive, stand-alone body of rules which parties could nominate to govern their contract in place of the laws of any one Member State.  On the surface, such an idea could be attractive: the same rules could apply wherever you do business – which would go some way towards the law catching up with internal market in which we operate.  However there would be massive upheaval required to implement this. For instance, some basic principles of contract law vary between Member States, so questions on pre-contractual issues or on the very existence of a contract could well stray into difficult gray areas without extensive legislation.

The Commission is not expected to formally table their proposal until autumn, so actual legislation is not likely to surface for some years.  Many questions on both the technical and practical aspects of the proposal remain to be answered, yet events are in motion and the way in which business is conducted within the EU might well change substantially, and for the better, in the years to come.