“Government and the health charities spend over £2 billion a year on research, which has produced many new and improved ways of delivering healthcare. However, the NHS often lags behind other countries in terms of implementation,” Sally Chisholm, Programme Director of NICE’s Health Technologies Adoption Programme, said. “Hospitals often try and fail to introduce new technologies – and it is sometimes very difficult to understand the reasons. Understanding and being able to negotiate through the technology adoption process is vital, and it is exactly this support that we will be providing doctors and managers in the NHS.”

• Criminal measures for registered design infringement.
• Introducing a geographic link for the concept of “commonplace” designs.
• First owners of design rights to be the creator rather than the commissioner.
• A right to appeal decisions from the Intellectual Property Office to the Appointed Person rather than the High Court.
• Establishing the central division of the new Unified Patent Court of First Instance in London and local divisions elsewhere in the UK.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “There are challenges in securing investment, but Hertfordshire is a massive area for life sciences and it is excellent to see such support for the sector.  The Herts LEP has also indicated their big support for seeing the PING (Pharmaceutical Industry Network Group) project, which Matthew Arnold & Baldwin runs with the Watford Chamber of Commerce and Watford Council, continue to flourish.  PING has been a massive success as a forum for people in the life sciences sector.  It is great to have that support not just from a local Council and Chamber of Commerce for this industry, but also from the ever-increasingly important LEP.”

• Section 1 – There is now a requirement for claimants to show they have suffered serious harm. This is to stop trivial claims. Where the claimant is a business, serious harm means that the claimant has to show “serious financial loss”.
• Section 2 – The defence of showing that the statement was substantially true. This replaces the common law defence of justification.
• Section 3- The defence of honest opinion replaces fair comment. For the defence to succeed, the defendant must show that the statement was an expression of opinion and not fact, the statement indicates the basis of the opinion, and the opinion is one that an honest person could have held based on the fact existing at the time of the statement.
• Section 4 – Statutory defence of publication in the public interest. This enshrines in law the common law Reynolds defence developed to protect responsible journalism.
• Section 5 – This section aims to give greater protection to website operators for material posted on their sites, including where they have moderated their sites. More is yet to be introduced on this by further Regulations. In the meantime, what we do know is:
  • It is a defence for a website operator to show that it was not the operator who posted the statement.
  • This defence will not apply where the claimant shows that they could not identify the person who posted the statement, they gave the website operator a notice of complaint for the statement, and the operator did not respond to the notice of complaint according to the new Regulations.
  • The complainant must set out information in its complaint, such as their name, the statement concerned, where on the website it was posted and an explanation of why it was defamatory.
  • The defence will not work if the claimant shows the website operator acted maliciously.
• Section 6 – Scientists and academics can publish statements in peer-reviewed journals with less fear about being sued for defamation now.
• Section 8 – There is a new single publication rule for defamatory material posted online. Defamation actions can be brought within a year of publication. What had happened previously on the web was that each time there was a hit on a web page, that was deemed to be a new publication. This meant that liability for defamation continued indefinitely. This new rule means that a claimant is prevented from bringing an action more than a year after the first publication of that material to the public or a section of the public. However, if the material is republished by a new publisher or the manner of the publication changes, this constitutes a new publication.
• Section 9 – This seeks to stop England and Wales being used as libel tourism so that foreign people choose courts here because of more claimant-friendly defamation laws. The courts will now only be able to hear actions if England and Wales is clearly the most appropriate place in which to bring the action.
• Section 10 – Secondary publishers such as booksellers are now offered greater protection. They can only be sued where it is not reasonably practicable for the claimant to bring an action against the author, editor or publisher.
• Section 11 – There has been a removal of the presumption that defamation trials would be by jury.
• Section 13 – Despite sections 5 and 10, courts can still make a statement requiring website operators to remove defamatory statements and others from distributing, selling or exhibiting material containing the statement.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “Although there are still further rules to be introduced in respect of websites, this update to defamation law has been a long time coming and strikes a fairer balance between claimant and defendant.”

Care should be taken, though, to ensure that data was not processed in a way that involved non-compliance with the Data Protection Act. Therefore, data should not be disclosed to the wrong people or inaccurately recorded or invading someone’s privacy. She called for a standard severity scale for data breaches across the whole health and social care system, with full annual reporting of performance in respect to the data handling.

Caldicott added that organisations needed to tell patients how personal data would be used for research, audit, public health and other purposes. They should also be told in a suitable form as to how their data would be used and shared. Patients should always have the right to withdraw consent, and organisations should clearly record all consent and withdrawals of consent. In addition, patients should be told of any consequences of not giving their consent.

Any information which was fully anonymised could be freely used and disclosed. However, any data that still used coded references should still be treated as personal data. Any linking of de-identified personal data with other identifying information should only take place in specialist, independently scrutinised places called accredited safe havens. An example of a safe haven was the new Health and Social Care Information Centre.

The Caldicott Review can be found here: https://www.gov.uk/government/publications/the-information-governance-review.

• Google gives favourable treatment in its general web searches to its own specialised web search results (such as for Google Shopping) compared to links to competing specialised web search services (such as particular categories of information for restaurants, hotels or products). Google displays links to its own specialised results within its web search results and does not inform users of this favourable treatment. Users may not be aware of the way in which Google promotes its own offering within its search results, and results of competitors for specialised search results are less visible.
• Google uses original content such as user reviews from third party websites without consent in its own specialised web search services. Google therefore takes advantage of its competitors’ investment. If competitors complain, they are told that they would have to opt out of their specialised searches from appearing in Google’s search services, which would effectively be commercial suicide so this is not a viable option.
• Google’s agreements with third party publishing websites (such as newspapers) require those sites to obtain all or most of their online search adverts from Google.
• Google’s contracts restrict online search advertising campaigns from being transferred to competing search advertising platforms.  Artificial switching costs can discourage advertisers that use Google’s AdWords from running parallel online search advertising campaigns on competing platforms.

Google has proposed to offer changes including the following for just over five years and the Commission is now inviting comments on this:

1. Clearly label links promoting its own specialised search services so users can distinguish them from natural web results.
2. Separate its promoted links from other web search results through frames.
3. Provide links to three rival specialised search providers near to its own services in a clearly visible way.
4. Allow all websites the opportunity to opt-out from using all of their content in Google’s specialised search services.
5. No longer require publishers to source all online search advertisements from Google.

The Newspaper Licensing Agency managed the intellectual property rights of its members by licensing and collecting fees for making copies of newspaper content. Meltwater provided a media monitoring service by monitoring websites, reading the websites and then providing a digest. Meltwater gave its customers the opportunity to receive the digest in one of two ways: either as an email; or to access it on Meltwater’s website. Meltwater’s digest had three elements: a hyperlink from a headline to the original article on the NLA member’s site; the opening words of the article; and an extract from the article containing the words around the searched for term. The NLA brought a copyright infringement legal action, which initially involved Meltwater before Meltwater settled and obtained a sufficient copyright licence from the NLA. Now, one of the other defendants, Public Relations Consultants Association Ltd, continued it on. The PRCA was a professional association for UK public relations providers that used Meltwater’s service. The question that had arisen in proceedings in the lower courts was whether the end users of Meltwater’s digest service – ie PRCA’s members – were infringing copyright? The parties agreed that PRCA’s members needed a licence for Meltwater’s email service; but what of the situation where they accessed the service on Meltwater’s website?

The Supreme Court has decided that the issue should be referred to the European Court of Justice as to access of copyright material by users over the Internet. Non-commercial users in the Internet might unwittingly be incurring civil liability by viewing copyright material on the Internet without the authority of the rights owners. Was the intention of copyright law in the European Union to catch these people and hold them liable, such that merely browsing the Internet and accessing a website that had unauthorised material on it would legally catch the casual Internet surfer? Surely not, the Supreme Court thought, as long as the Internet user was acting in a non-commercial way. But is that what the law actually says? The Supreme Court felt it was necessary to go to the ECJ for a ruling. 

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “The case has massive implications for people who simply use the Internet in the EU.  Let’s hope the ECJ comes down on the side of common sense, as the Supreme Court has indicated it should.”

C bought handsets with V’s trade marks on from S for re-sale. The handsets were faulty. C sent them to V. V investigated and found that the serial numbers did not match, so concluded that the products were counterfeit. V told C that it would not support the products. C took the issue to S, who offered to carry out a warranty repair. However, C decided to replace all the products with genuine products from V’s authorised distributor. V alleged that C had infringed its trade marks, and C agreed to deliver up the offending pieces of equipment to V. S admitted that the products amounted to trade mark infringement but the questions arose as to whether C was entitled to additional costs of obtaining replacement handsets and whether C could claim for the management and employee time in investigating the problem.

The Patents County Court ruled that C had been entitled to claim for breach of Sections 14(2) and 14(3) of the Sale of Goods Act as the handsets were not of satisfactory quality. C had then acted reasonably in checking the position with V. Once the trade mark issue had become apparent, C was reasonable in obtaining replacement goods from a different supplier. V’s demand for delivery up of the goods was also reasonable. C had then acted reasonably in delivering up the goods to V. C was entitled to the sums for the full cost of replacing the telephones. The whole exercise had diverted C away from its business and so C could claim for the loss of staff time too.

Levi Strauss owned a European Community Trade Mark containing “LEVI’s” in a particular rectangle by a pocket (the overall mark). Levi Strauss also owned a separate European Community Trade Mark just for the particular rectangle element without the LEVI’s name (the component mark). Colosseum marketed jeans with the word “SM JEANS” that were arguably similar to the component mark. Levi Strauss sued Colosseum in Germany for trade mark infringement and the case was referred to the European Court of Justice. The component mark had only been used as part of the overall mark. A question arose over whether the component mark had been put to genuine use and could be challenged for non-use.

The ECJ ruled that genuine use of a trade mark could be satisfied where the mark had been distinctive as a result of using a composite mark of which the component mark formed part or where the mark was only used in conjunction with another mark. In those situations, use of the component mark would be satisfied where people would actually perceive the goods or services designated by the component mark were exclusively from a given undertaking. It followed that the same would apply to defeating challenges for non-use. The critical thing was that the component mark must continue to be perceived as indicative of origin in order for that use to be genuine use. A trade mark owner would not be able to rely on this ruling to maintain an unused mark that is perceived by people merely to be an insignificant part of a wider mark.

The European Court of Justice has ruled that a European Community Trade Mark (CTM) owner can prevent the owner of a later confusingly similar CTM from using that mark. The later CTM does not have to have been declared invalid first. What happened in this case was that the earlier owner of the CTM for “FCI” had not put in its opposition in time and the later “FCI” mark proceeded through to registration. That was not fatal to the earlier CTM owner’s rights, the ECJ decided.

This case revolved around a badly drafted confidentiality agreement. D was aware of a development site. D introduced to B the opportunity to buy the site. D would only disclose confidential information about the site with a non-disclosure agreement. The agreement was made so that B could introduce its client, I Ltd. B had to enter into the confidentiality agreement, so that B could in turn involve I Ltd. The agreement said that B should not make contact with third parties relating to the opportunity; D and B should each keep secret confidential information; B could disclose confidential information to third parties if bound by similar obligations of non-disclosure and non-circumvention, and would be responsible for any unauthorised disclosure. D then disclosed the information to I Ltd, which was B’s client. D applied for summary judgment against B for the acts of B’s client. The High Court sided with B.

The Court of Appeal has allowed D’s appeal. The Court should ascertain the meaning of an agreement conveyed to a reasonable person having all background knowledge reasonably available to the parties when they entered into the contract. The aim of the agreement could be seen in the circumstances in which the agreement was signed and in the recitals within the agreement. The parties had intended for D to be protected against both disclosure and circumvention. B would be an introducer and it was therefore obvious that any receiving party would be bound by the non-circumvention obligations on B. B’s back-to-back agreement with its client, I Ltd, should have contained the same non-disclosure and non-circumvention obligations. As B had to obtain a back-to-back agreement, it would have been strange if B had been under no obligation had it failed to do so. B’s responsibility extended to confidential information coming not from B, but from D, to I Ltd.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “In this case, the Court of Appeal looked to side with the party whom it felt had been wronged. The fact that the wording in the agreement was not as clear as it could be did not stop the Court from trying to put the responsibility on B for something that its client had done to D’s detriment. B should have had appropriate contractual obligations in the back-to-back agreement with its client.”

The Department for Business, Innovation and Skills (BIS) says that the size and nature of the surcharges would vary according to the type of business. Relevant factors would include size of business, sector, and bargaining power with the payments industry. Costs directly and exclusively attributable to the payment means could be reclaimed, but indirect costs such as general administrative overheads or staff training would not be recoverable. Costs in “risk management” such as fraud detection and prevention measures could be included within a surcharge.

The BIS guidance can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/175298/13-719-guidance-on-the-consumer-protection-payment-surcharges-regulations-2012.pdf.

GSK admitted to paying an average of £1,250 to each of about 1,500 UK doctors. In addition, it sponsored about 1,000 doctors to attend scientific conferences and meetings. AstraZeneca says it has cut back on this type of spending and has also sought to avoid lavish expenses.

Doctors deny that they are influenced by this sort of marketing spend, and they need their expenses sponsored so that they can stay up-to-date with developments.

In addition, the ICO said that it could have claimed the commercial interests exemption.  Although there was a strong public interest in requiring the FSA to disclose the commercially sensitive information to review whether the regulator was conducting its regulatory functions properly, there was an even stronger interest in withholding it as it related to a company that had not been subject to enforcement action by the FSA despite having been subject to an investigation.

Patient groups said the problems were unacceptable. Meanwhile, Claire Ward of the Independent Pharmacy Federation, which represents many of the independent pharmacists,  said the position was getting harder each day. She said, “The Department of Health needs to wake up and recognise it has got a problem. It is not going away, it is getting greater.”

The Parliamentary All Party Pharmacy Group held an enquiry in 2013 and reported on its findings in May 2013. It showed that there were clearly problems. Despite that, the Department of Health has consistently maintained that there is no problem.

He said: “In the next three years we expect the NHS to make significant savings to the tune of £3.4 billion as the patents on many medicines lose their patent. Coupled with these savings, the UK also has amongst the lowest prices in Europe but there has been a consistent failure in the healthcare system to invest in new medicines, which not only harms patient health but affects companies’ ability to invest in the hugely risky and expensive process of researching and developing medicines.”

The Guidelines come into force on 8 September and can be found here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:068:0001:0014:EN:PDF.

• Harmonise the treatment between European trade marks and national marks, including between the different trade mark offices.
• Clarify certain case law.
• Remove the requirement for trade marks to be represented graphically.
• Make counterfeit goods that are only in transit within the EU to be caught by EU trade mark law, even if they will not be marketed in the EU.
• Apply infringement rules to goods ordered outside of the EU through the Internet.
• Introduce pan-European certification marks.
• Re-name the Office for Harmonisation in the Internal Market (or OHIM) the European Union Trade Marks and Designs Agency.
• Rename the Community Trade Mark as the European Trade Mark.

The Commission hopes to adopt the proposals by early 2014 with implementation into law within two years after that.

From 1965, Foster had used a fox and boot device on its shoes and boots. Brooks was a UK subsidiary of a well-known US menswear group and was incorporated in the UK in 2005 and started selling shoes with a very similar fox and boot device. The Patents County Court sided with Foster’s claim that Brooks’ use was passing off and rejected Brooks’ defence of honest concurrent use. Honest concurrent use could arise in one of two circumstances: (a) when people independently built up goodwill over years in different localities and then collided due to increased trade; or (b) “common ancestor” cases where the parties had derived their name legitimately from the same source and had traded alongside each other. This was a common ancestor type case.

For a common ancestor defence, the following needs to be established:

(1)   The first use of the sign complained of in the UK by the defendant or predecessor was entirely legitimate and not passing off.

(2)   By the time of the acts alleged to passing off, the defendant or predecessor must have made sufficient use of the sign to establish protectable goodwill.

(3)   The acts alleged to be passing off must not be materially different from the way in which the defendant had carried on business when it was legitimately used.

Applying the above, the Court decided that the original use was legitimate. However, there was not concurrent goodwill in 2005 in the UK because there had been insufficient trade and lack of use in the UK for the 40 years prior to 2005. Even if the second requirement would not have failed, the Court said that it would have failed on the third ground, because the use was on a much greater scale and more likely to cause deception and therefore materially different from before.

What a difference a mere word or two can make in a contract. So KC discovered when defective building works were carried out on its land. KC had agreed with M for M to “arrange for eligible works to be carried out”. KC argued that the works should have been carried out with reasonable skill and care, and materials should have been of a satisfactory quality, and work completed within a reasonable time.

The High Court ruled, however, that M was not responsible for the building works. Although KC did not have a direct relationship with the builders, M’s contractual responsibility was not as main contractor entering into a subcontractor relationship. M was therefore not responsible for the building work. Instead, M had to carry out its services – of arranging the works to be carried out – with reasonable skill and care and within a reasonable time. This meant collecting money and paying the builder. M’s obligations did not extend to the building works themselves.

The conclusion: there is a difference between “arranging” that a third party will carry out something and “procuring”. “Arranging” involves much less of a requirement. The landowner’s contract with M should have held M responsible for the builders’ work if they wanted that to be the case.

Dame Sally Davies said: “The challenge is to alter the balance of these incentives so that we have a thriving, vibrant, sustainable and safe programme of research and development into new antimicrobials.”

Statpro was an IT supplier that entered into two agreements with Depfa Bank. A clause in the agreements said that they would renew automatically for the subsequent period of three years on each anniversary of the renewal date unless termination notice was given. The renewal date was 30 July 2009. Depfa sought to terminate the agreements on 30 July 2010 and 30 July 2011. It wanted to interpret “anniversary” as meaning each year. Statpro said that the agreement could only be terminated at the end of a successive three year period, the next one being 30 July 2012. The High Court sided with Statpro and said that the renewal periods were three years and “anniversary” must have meant “three year anniversary”.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: ”Courts like to achieve a result that gives business common sense to contracts. However, it was a shame that the parties did not use clearer words in their contracts which would have avoided the uncertainty, time and cost in having to go to court to decide the issue.”

The situation has become so serious that the UK’s regulator – the Medicines and Healthcare products Regulatory Agency (MHRA) – has written to the European Commission to raise its worries. However, to date, there is no sign that the Commission is going to delay the deadline for EU Member States to implement the law.

Paul Gershlick, a Partner at MAB, is not at a loss. “Anyone who has been following the big pharma story over the last few years will realise that their business model is broken. With increased costs of bringing new drugs to market, a lot of drugs falling off the patent cliff and thus losing intellectual property protection against competitors, and a lack of new blockbuster drugs to plug the gap, something has had to give. Pfizer shut its research and development site in Kent two years ago, with the loss of over 2,000 jobs. AZ has been under pressure for some time and has been forming new collaborative alliances. Where better to try to reverse the malaise and locate in one of the university hubs within the Golden Triangle between Cambridge, Oxford and London?”

To its credit, Aptuit actually alerted the Medicines and Healthcare products Regulatory Agency (MHRA) to the irregularities and Eaton’s prosecution came after the MHRA investigated. Eaton’s actions did not actually invalidate results of any trials, but the investigation led to delays and increased costs.

Gerald Heddell, MHRA director of inspection, enforcement and standards, commented: “Mr Eaton’s actions directly impacted on the validity of clinical trials and delayed a number of medicines coming to market, including one to treat depression. This conviction sends a message that we will not hesitate to prosecute those whose actions have the potential to harm public health.”

Overy wanted to sell his home by offering it as a prize in a competition and used Paypal as an electronic payment service provider to collect entry fees. He also ran a photography business and wanted to use Paypal for that too. When he signed up with Paypal, he chose the Paypal business option, and he signed up to Paypal’s standard terms of business, which involved providing various business information during his application with Paypal. Paypal later suspended the service to Overy for a couple of reasons under its contract terms. The parties got into a dispute over whether Paypal’s terms breached the Unfair Terms in Consumer Contracts Regulations (UTCCR) and the Unfair Contract Terms Act (UCTA). UTCCR applies in contracts only between a business and a consumer. The relevant provisions in UCTA could apply either where the business deals with a consumer or on the business’s standard terms.

The High Court ruled that for the purposes of UTCCR, Overy was not a consumer. Where the buyer is acting for more than one purpose, the test is not what is the predominant or primary purpose. A buyer will only be deemed to be a consumer if the business purposes are merely negligible or insignificant. That was not the case here. Further, even if the buyer was acting outside of the business, he could not benefit from the UTCCR protection if he gave the seller the impression that he was acting for business purposes and the seller unaware of the private purposes.

As to whether he could challenge the terms under UCTA, it was irrelevant to decide whether he was a consumer or not. In either case, UCTA applied, as he was dealing on standard terms of business. On the facts, though, the High Court ruled that Paypal’s terms were reasonable under UCTA, so Overy’s claim failed.

This case involved commercially sensitive plans to buy some development land. Dorchester wanted to disclose the information to BNP so that BNP could find a financial backer to help Dorchester to buy the site. Under a deed entered into between Dorchester and BNP, BNP could disclose confidential information to a third party if it procured a similar non-disclosure and non-circumvention agreement with that third party. BNP disclosed some information to a financial backer, and Dorchester did likewise in the belief that BNP had entered into a back-to-back agreement with that backer. There was no such agreement, however. The financial backer approached another person to purchase the land. Naturally, with significant money at stake, the case ended up at court.

The Court of Appeal decided that Dorchester and BNP had agreed for Dorchester to be protected against unauthorised disclosure and circumvention. The court should interpret the deed to keep the parties’ objectives in mind. The deed had required BNP to obtain a back-to-back agreement from the recipient before it passed confidential information to it. The parties could not have intended for BNP to be required to do this but not have any liability should it fail to do so. The agreement had intended BNP to keep and procure to be kept secret all confidential information coming to another’s knowledge as a result of BNP’s and that other’s relationship. Therefore, BNP’s liability extended to confidential information meeting that description coming from a source other than BNP, such as Dorchester itself.

The Commission said in response: “An investigation would require indications that pharmaceutical market players have engaged in agreements or concerted practices which have as their object or effect the restriction of competition in the distribution markets, having an impact on the EU trade. Similarly… it would require indications that pharmaceutical manufacturers with a dominant position in a relevant market are imposing supply policies or conditions that may be considered abusive.” The Commission concluded that there was insufficient evidence for the investigation to take place.

The Court of Appeal has overturned a decision of the High Court to imply terms into a contract because a sensible bargain could have been made either with or without the implied term. 

The case involved Mr Dear and Mr Griffith, shareholders and directors in a company. They had entered into an agreement to use shareholders’ voting rights to appoint and continue re-appointing Mr Jackson as director. The agreement did not expressly prevent Dear, Griffith and others from unanimously agreeing to remove Jackson under the company’s articles of association.

The High Court had felt that it should imply a term into the contract to prevent Dear and Griffith from exercising the power of removal in the articles. The Court of Appeal felt differently. It asked whether all reasonable people would agree that commercial common sense must dictate the addition of the proposed implied term. The answer had to be no. To add a term where there was already another commercially sensible option would involve an impermissible re-writing of the contract. There had been a negotiated agreement that was clear on the appointment of Jackson but had remained silent on his removal. The Court clearly had strong reservations about implying a term when the parties had clearly expressed their preferences for express terms in the agreement.

Stichting was part of the BDO group of accountants and owned a European Community Trade Mark for BDO in respect of accountancy, business and financial services. Unibank had traded under the name BDO in the course of being the biggest bank in the Philippines. It sought tie-ups with various remittance providers, which provided services under the name “BDO Remit”. Stichting sued the defendants for services and adverts using “BDO” which had been circulated within the European Union.

The High Court ruled that three of the 12 adverts at issue were infringements of the registered trade mark contrary to Article 9(1)(a) of the Community Trade Mark Regulation because they were for the same mark in respect of the same services. For online sales, it had been necessary for Stichting to show that an offer for sale had been targeted at consumers in the territory covered by the trade mark; merely for the website to be accessible by those consumers was not enough, following the L’Oreal v eBay case. Some of the adverts had not been targeted at users in the EU, but three of them had been. They were in English, and 6,000 of the 30,000 readers of the publication were in the UK.

Despite the apparent infringement of trade mark rights, the defendants had an “own name” defence under Article 12(a) of the Regulation. For this defence, the user must show that it should not be stopped from using its own name or address in the course of trade if he uses them in accordance with honest practices in industrial or commercial matters. When deciding whether use was according to honest practices, the High Court looked at the factors set out in the case of Samuel Smith v Lee, being the following:

• Knowledge of the mark – a prudent and honest businessperson in the defendants’ position would have carried out international trade mark searches when it knew of the existence of the Philippine registration of BDO.
• Likely objections by trade mark owners to use of a sign – the defendants should have realised that the trade mark owners would object to the use of the mark in the adverts.
• Likelihood of confusion – the defendants should not have expected a likelihood of confusion, and there was no evidence that there was any likelihood of confusion either.
• Adverse effect on reputation – there was no evidence that there was any adverse effect on the trade mark’s reputation.
• Interference with exploitation – the defendants’ use of the name did not interfere with the trade mark owner’s ability to exploit their trade mark.
• Timing of the complaint – the trade mark owner did not complain about the adverts until years afterwards.
• Justification – the defendants were justified in using the sign in the ways that they did.

Overall, the use of own name defence succeeded, despite the apparent infringement of BDO’s trade mark.

Ten recording companies have obtained blocking injunctions against six Internet service providers for illegal file-sharing of their music by the ISPs’ users. The users had used three file-sharing websites, which had been extremely profitable off the back of their copyright-infringing activity. The recording companies had monitored the activity and notified the ISPs of over four million instances of illegal downloading. The High Court granted the injunction under Section 97A of the Copyright, Designs and Patents Act 1988, because the ISPs had actual knowledge of another person using their services to infringe copyright. For a court to make the blocking orders, the claimants had to establish four things: (1) the defendants were ISPs; (2) users of the websites infringed copyright; (3) users of the websites used the defendants’ services to do that; (4) the defendants had actual knowledge of that. These points were all made out here. The defendants had received blocking orders previously and had the technical means to block at relatively low cost; the blocking orders were therefore proportionate. The intellectual property rights of the claimants outweighed rights of website users and operators.

• To stick to 30 day payment periods for public sector contracts. Central government best practice was to pay 80% of invoices within five days and in any event within 30 days.
• It would simply amend the current laws – the Late Payment of Commercial Debts (Interest) Act 1998.
• As the changes were relatively minor, the Government would not apply the changes retrospectively – they would apply only to new contracts from 16 March.

In a match that seemingly goes on and on through injury time, extra time and beyond, Stan James and Sportradar have lost an appeal over a finding of joint infringement of database rights for data published on their website that had come from Football Dataco. For anyone hoping that this would be the final result, watch this space: the bookmakers are gambling all on one final battle in the Supreme Court. For now, the second highest court in England has given a damming verdict on their data use practices.

Football Dataco creates and exploits data from English football games through its “Football Live” graphical user interface. The data includes scores, penalties, cards and substitutions and is updated live while the games are in progress. Football Dataco uses professional analysts to gather the information including providing a commentary on the game, and this includes their judgement on validity and identity of goalscorers. Sportradar ran a “Live Scores” website service in competition with Football Dataco using data that had emanated from Football Live. Stan James provided a “Live Score” website service from which users could click a box and download data coming from Sportradar (and therefore ultimately from Football Live).

In 2012, the High Court ruled that Football Dataco had database rights in Football Live, Stan James’ users had infringed that right, and Stan James was jointly liable for those infringements. There had been sufficiently large investment to mean that database right existed, and sufficient use of the data to constitute infringement. The Court had ruled, however, that there was no longer infringement when the amount of data used was decreased just to data of the goals and their timings as that information had not required substantial enough investment for database right infringement.

Later in 2012, the European Court of Justice ruled that when a website user requested data from a website, the infringing act occurred where the user downloaded the data (ie where the user was based) as long as the website intended to target the public there. This meant that Sportradar would be on the hook for database right infringement by users.

The Court of Appeal has upheld the High Court’s decision against Stan James. In fact, it has widened it, by ruling that Stan James was still infringing even after it had reduced the data used. Meanwhile, Sportradar was also a joint infringer with users. In widening the ruling against Stan James, Lord Justice Jacob said that it was irrelevant that the data could have been collected at low cost; what actually mattered was the scale of the actual investment, and the fact was that a lot of investment was needed to have someone at each of the football grounds, even if that did not need to be a skilled person.

As regards Stan James, the Court of Appeal said that the website operator had turned each user accessing the site into an infringer. Stan James was therefore a joint infringer. Stan James was responsible for the user’s infringement because the user naturally infringed the database right as soon as they clicked the pop-up box.

Meanwhile, the Court of Appeal decided that Sportradar had targeted UK users when it supplied data to Stan James and so was also jointly liable for infringing acts of Stan James’ customers. This was academic, though, because Sportradar was also liable for primary infringement of database rights in light of the ECJ’s decision because of its intention to target English users.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “The biggest impact of this case is that where a website contains material that infringes someone’s intellectual property rights (such as copyright or database right) and users will inevitably copy that material when they access the website, the website operator is a joint infringer with the user. This could have massive implications for websites that may not know whether their material infringes third party intellectual property rights or not.”

As with the ABPI’s announcement of requiring more compliance with its code of practice for open clinical trial data obligations, Roche’s announcement came the day after the heated head-to-head PharmaTimes debate on open clinical trial data between Ben Goldacre and Stephen Whitehead. During that debate, Roche’s spokesperson said that they were listening to concerns, in response to severe criticism from the British Medical Journal Editor-in-Chief, Fiona Godlee, that it had still not made the Tamiflu trial data available four years on since medicine purchasers around the world spent billions on the drug to counteract the dangers of flu.