When Mr Patel complained to Unite about the postings, Unite took the forum offline and released a statement that the allegations against Mr Patel were unfounded; but Unite failed to respond to Mr Patel’s request for the identification of those responsible.

The BASSA website was subject to terms of use, which warned users that their personal data might be disclosed subject to data protection and privacy law.

Mr Patel successfully applied to the High Court for a “Norwich Pharmacal” order, which required Unite to provide the identities, addresses and Internet Protocol addresses of the users responsible. Instead, Unite provided an expert’s report to show that the information requested had in fact been deleted. Mr Patel and his solicitors pushed Unite to make further efforts to recover the information, without success. Mr Patel therefore sought a further Norwich Pharmacal order for an independent expert to be given access to Unite’s database on the grounds that the continued failure to provide the information must be, at best, as a result of incompetence or technical ignorance. Unite objected to a further order on data protection grounds.

The High Court ruled that Unite had not provided sufficient evidence that it had carried out the reasonable search required by the first Norwich Pharmacal order, and Unite had not shown that it had actually followed up the information provided by Mr Patel in order to carry out that search. The High Court noted that the additional order that Mr Patel was asking for was intrusive, but that it was proportionate and necessary to give the order so that Unite would comply with Mr Patel’s information request. The High Court considered the fact that the website terms of use warned users that Unite might disclose a user’s identity, subject to data protection and privacy law, and that, without the order, those responsible would not be identified. Whilst the order was given by the High Court, it was strictly limited to an expert appointed jointly by both parties and only to the disclosure of the information which would identify those responsible, or which explained why identification was not possible.

In 2011, Samsung pursued injunctions against competitors in the manufacture of mobile devices for infringement of its patents. This was despite Samsung having given a commitment to the European Telecommunications Standards Institute (ETSI) in 1998 to license standard essential patents relating to European mobile telephone standards to its competitors on fair, reasonable and non-discriminatory terms.  According to the EC, Samsung’s pursuit of an injunction may be an abuse of its dominant market position under Article 102 of the Treaty on the Functioning of the European Union. European standards are agreed specifications imposed by the EC in order to ensure interoperability of products, and standard patents should be licensed on fair, reasonable and non-discriminatory terms.

The EC has said that Samsung was obliged to license the use of 3G mobile and wireless technology patents to its competitors on fair, reasonable and non-discriminatory terms but that, in trying to enforce its rights over those patents against its competitors in court, it may have breached those obligations.

In a reminder of the dangers of an aggressive marketing campaigns aimed at the trade marks of competitors, the Court of Appeal has allowed part of Specsavers’ appeal against the High Court ruling. The Court of Appeal has ruled that:

-          Asda’s cross-appeal over the use of the strapline “be a real spec saver at Asda” should be rejected because it took unfair advantage (under Article 9(1)(c) of the Community Trade Marks Regulation) without due cause of the distinctive character and use of Specsavers’ registered Community Trade Marks (CTMs).

-          Specsavers’ appeal that the strapline “spec saving at Asda” infringed its CTM should be upheld, also on the basis that it took unfair advantage under Article 9(1)(c).

-          Specsavers’ appeal under Article 9(1)(b) that the straplines and bespectacled logo used by Asda infringed its word and logo marks should be dismissed. For the appeal under Article 9(1)(b) to have succeeded, Specsavers would have had to show that the average consumer would have been likely to have been confused. Here, the overall marks gave a different impression to the average consumer. There was a difference between what the judge described as “living dangerously” and one who intended to confuse customers. This was more of a case here of unfairly taking advantage of the reputation of the brand owner’s mark (for which Specsavers succeeded under Article 9(1)(c)) rather than customers being confused.

-          A further query about a wordless logo mark should be referred to the European Court of Justice for clarification.

This ruling should come as a relief to brand-owners, who argued that the High Court interpreted the definition of “unfair advantage” too restrictively in delivering its initial ruling. The ruling of the Court of Appeal emphasised the importance of the market position held by Specsavers due to its brand and the fact that Asda had intended to target that market position in its advertising campaign. A winning result for the brand, although not everything is seen totally clearly yet until we get the ruling back from the European Court of Justice.

The FSA states in the guidance that it is concerned at the number of unfair clauses it comes across in consumer contracts, such as rights to unilaterally alter or terminate a contract, rights to transfer obligations under a contract and contractual terms that are not in plain English. Whilst the FSA’s guidance is intended only for firms regulated by the FSA, it is a useful reminder to everyone involved in commerce as to what unfair terms are and how businesses can avoid imposing an unfair term on a consumer. The FSA can take action against businesses registered with it for unfair contractual terms, for example by obtaining a court injunction to prevent an unfair term being used any further by the business. The Office of Fair Trading (OFT) can also take action in the wider market place against offending practices.

The FSA sets out that, if a business can specify a valid reason within the contract itself as to why terms might be unilaterally altered, the right to unilaterally alter the contract is less likely to be considered unfair. A right of alteration is unlikely to be valid if it is, for example, in the business’s absolute discretion or to cover “unexpected” costs. In addition, stating that the contract can be altered “for any valid reason” will not be enough. If a business does alter a term that has a significant impact on the consumer’s obligations under a contract, such as varying charges payable by the consumer, the consumer should be informed of the change as soon as possible and given the chance to terminate the contract with immediate effect, without charge or other “practical” barriers put in place by the business to prevent the contract coming to an end.

Similarly, in relation to the transfer of obligations to third parties, the business should make sure that the guarantees provided to the consumer by the third party are the same as or better than those offered by the business itself – they key is stability and certainty for the consumer. The guidance states that consumers should be adequately informed of any transfer in good time for the consumer to fully understand the impact on the contractual relationship.

Simon Weinberg, a solicitor in the Commercial/IP/IT team at Matthew Arnold & Baldwin and assistant editor of Upload-Commercial/IP/IT, commented, “This guidance, whilst useful, does not necessarily tell us anything new. It is an important reminder for businesses of the requirement to have contractual terms that do not unfairly prejudice the consumer. It is not just the risk of an injunction to prevent the future use of those terms that should be taken into consideration – in addition, businesses should remember the bad press that can come with an injunction and the knock-on effect on consumer goodwill to an offending business. At a time when margins are tight and goodwill is essential to survival in the marketplace, getting contractual terms in order is an easy way to avoid the risk of an FSA or an OFT investigation, and all the reputation damage that can come with it.”

The Court of Appeal has rejected an appeal against the decision of the High Court, on the grounds that the High Court’s findings were not based on any error of principle or perversity in factual findings, leaving no scope for a fresh evaluation by the Court of Appeal.

However, the Court of Appeal allowed a cross-appeal against the finding that the UK trade mark for the number 32 had not been infringed. The Court of Appeal ruled that the High Court had incorrectly assumed that, where a separate reputation had not been established by use of the trade mark, there could be no infringement under section 10(2) of the Trade Marks Act 1994; rather, the number 32 was a significant part of the trade marks that the High Court had ruled had been infringed, such that there was no basis for saying that the trade mark for the number 32 had not been infringed as well.

It is also hoped that the licence procedure will be simplified, with the creation of “unlimited music events bundles” for a flat annual fee and the simplification of how background music charges are assessed.

In a press release, the EC outlined the main changes that will be made to the data protection regime in the EU::

-          There will be one set of rules across the EU, rather than each EU Member State having its own rules.

-          The scope of the people caught by the data protection law will be increased. The rules will apply to data controllers who are not established within the EU if the data processing relates to offers of goods or services to data subjects within the EU or a monitoring of EU data subjects’ behaviour. Clearly, this is intended to cover large online players from the US such as Google.

-          In addition, what counts as personal data is being widened. Data will be personal data if it is not just data held by the data controller that can identify the individual but also data held by a third party which, in combination with the data held by the data controller, could identify. This could catch rights holders that hand over Internet Protocol addresses to Internet service providers for enforcement of copyright infringement under the Digital Economy Act 2010.

-          There will no longer be an obligation for organisations to notify (or register) all data protection activities to data protection regulators (such as the Information Commissioner’s Office (ICO) in the UK), but only data breaches will need to be notified; however, that will need to take place within 24 hours of becoming aware of the breach. Organisations will need to have continuous monitoring and reporting systems in place at all times. Security breaches must also be notified to data subjects “without undue delay”.

-          In place of general notification obligations, organisations will have to maintain documentation and records showing their processing activities, and be subject to strict audit requirements and produce that to the authorities on demand.

-          Data controllers will also have to comply with training requirements.

-          People will be able to access and transfer their own data more easily. They will have a right to be given their data in a convenient portable format such as a disk or MP3 file. They will also have a right to be told how long their data will be kept for.

-          Data subjects will have a right to be told where the data controller got their data from.

-          There will be a “right to be forgotten” where people will be able to delete their data if there are no grounds for it being retained. This will put a huge burden on Internet businesses in particular, which will have to do what they can to ensure links to the data is deleted by others even after they have deleted it.

-          Member State regulators, such as the ICO, will be strengthened to allow them to better enforce the rules, with possible fines of up to £1m or 2% of a company’s global turnover. The amount of the fine will depend on the nature, gravity and duration of the breach; whether the breach was deliberate or negligent; previous history of breaches; what security measures had been put in place; and the level of co-operation with the authorities.

-          All organisations will have to appoint data protection officers unless they have fewer than 250 employees, in which case they will be exempt from this requirement.

-          Clearer rules for the transfer of data across borders within multi-national organisations will be introduced. In addition, national data protection authorities will need to approve bespoke agreed clauses as an alternative to the standard contractual clauses for transfers between an organisation in one EU country and another organisation outside of the EU.

-          Any consent from a data subject will have to be explicit rather than implied. Any written consent such as a tick-box will need to be distinguishable from other consents. This would mark a change from current online acceptance practice.

-          Data access policies will have to be not only fair but also transparent.

-          The law will move from data being permitted if “not excessive” to effectively minimising the data as it will only be legitimate if the purpose cannot be fulfilled by processing non-personal data.

-          Data processors (people who process data on behalf of data controllers and do not take any decisions in respect of the data) are currently not subject to the data protection requirements. They are only caught under contract law when data controllers (as they are required to do) enter into a written agreement with the data processor to contain certain safeguards. That will change. Under the new regime, data processors will have specific direct obligations to maintain security of data under the law.

-          Data controllers will generally not be able to charge data subjects for data subject access requests.

The proposals will be sent to the European Parliament and the Council of Ministers for discussion, and will take effect two years after they have eventually been adopted.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This proposed law makes depressing reading. The Commission has trumpeted the ease of cost to business, but such a statement totally ignores all the other increases in regulation that this law would introduce. On balance, this will involve much more red tape for business to have to comply with. At a time when SMEs need a helping hand to grow and help to rescue the EU’s economy, this development is not going to be welcomed. Instead of considering SMEs’s legitimate interests, the Commission seems to have been too focused on protecting EU citizens against big US Internet businesses.

“The one plus side is that the new data protection law will be implemented in one consistent way across the whole EU; the major downside, though, is that it will involve much stricter obligations than businesses currently face, including tougher internal programmes and records and quick reports to the regulators and data subjects of data breaches. And there will now be much bigger fines for breaches. Let’s hope some of the provisions are softened before the law is passed.”

The Information Tribunal has disagreed with the Information Commissioner’s ruling, and ruled that, if the email still existed, it was still “held” and therefore the University should disclose the email or issue a valid refusal notice.

Whilst this ruling relates to the Environmental Information Regulations, it is based on the same principles as disclosures under the Freedom of Information Act 2000 and is an interesting precedent.

Whilst this ruling relates to the Environmental Information Regulations, it is based on the same principles as disclosures under the Freedom of Information Act 2000 and is an interesting precedent.

The Court of Appeal reversed the decision of the PCC on the grounds that the PCC had made two errors in light of the prior art:

1. The PCC had failed to identify the correct differences between the prior art and the claims made.
2. The PCC had failed to address whether the differences between the prior art and the claims made amounted to steps that would have been obvious to a person skilled in the art without any knowledge of the alleged invention, or whether those steps required a degree of invention.

The Government’s actions are intended to take effect later this year, and will implement the Consumer Rights Directive, which was approved by the European Union in October last year.

MM issued proceedings for infringement of copyright, alleging that the BBC had used his original artistic work in the “Bounce Bunch”, which he had provided to the BBC, in producing “Kerwhizz”, and that the characters were so similar that they could only have been created by the BBC by copying his own characters. MM showed that there were extensive similarities and that the BBC had prior access to his work (which had been available online even before he submitted it to the BBC), such that the Patents County Court passed the burden of proof on to the BBC to show that the characters in “Kerwhizz” did not come about through copying.

The Patents County Court ruled that there had not been any copyright infringement, on the grounds that the BBC’s evidence clearly showed that the “Kerwhizz” creations did not come about through copying the “Bounce Bunch” characters. There was no causal connection between the two. Rather, the Patents County Court found that the BBC witnesses had shown on the evidence that they had already provided the Kerwhizz characters prior to the communication from MM. In any event, “Bounce Bunch” designs were simple, generic and not particularly memorable, such that, even if a BBC designer saw the designs, subconscious copying of those designs was extremely unlikely.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This shows an interesting strategy in its fight to stamp out bribery. Despite the bribes having taken place in another country, this still fell within the SFO’s remit. Innocent people should still do their due diligence on the foreign businesses in which they invest, and they should try to make sure that the business is conducted properly. Otherwise, they can face clawback for dividends paid out to them despite not being at fault or having any knowledge of the issue.”

Despite the exact photos being different, the judge ruled that New English Teas’ subsequent photo had infringed what he called the copyright in Temple Island’s “photographic work”. He described this as being the precise motif, the angle of shot, the light and shade, illumination and adaptation by digital manipulation after the event. It was more than being in the right place at the right time, as thought and effort had gone into creating the exact combination of features in a certain way which had made the photo look attractive. Whether it is copied in each case is a matter of fact, but in this case the judge decided that there was sufficient similarity. Although he said he struggled with the decision, he dismissed the argument that the ruling would give one person exclusivity over certain landmarks – it all came down to the way they were represented in a particular aesthetic way.

Paul Gershlick, Head of Pharmaceuticals and Life Sciences at Partner at Matthew Arnold & Baldwin LLP and a data protection law specialist, comments: “We need to understand the facts as the ICO sees them and then make a judgement, but such a large fine seems harsh given that the hospital appear to have been the victim and no data actually got into the public domain through the hospital’s action with the police when the items appeared on eBay. This action signals the tough intentions of the UK’s data protection regulator in dealing with data security breaches involving people’s health data.”

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “This case shows the need for organisations to have clear IT and Internet usage policies. Organisations should also make sure that those policies have been updated since the increased use of business and personal social networking sites.”

The ICO sets out a plan of 5 Es: eduate, empower, engage, enable and enforce. It is not purely about enforcement as it wants to educate and help too, but that is clearly the end result if there are problems. It wants to target its limited resources to the areas in which it perceives are the greatest need to act to protect individuals. It will consider the volume, nature and sensitivity of the data and the number of people affected. Ultimately, it will consider what is in the public interest.

The ICO wants to ensure that its activities are conducted transparently, proportionately, consistently, targeted and in an accountable way. It also wants to see a high proportion of the public aware of their privacy rights and how to enforce them.

The Information Rights Strategy can be found here: http://www.ico.gov.uk/about_us/plans_and_priorities/information_rights_strategy.aspx.

The High Court had initially ruled that WPL had copied one of SAS’s programming manuals. However, in respect of the other allegations, the Court was of the view that there was no copyright infringement, based on previous English court cases of easyJet v Navitaire and Nova v Mazooma. However, it decided to make a reference to the European Court of Justice for a definitive ruling on the European Union’s position on the extent of copyright protection in software programming language, programming interfaces and the functionality within the software.

The European Court of Justice’s advisor has now given his opinion. Advocate General Bot has followed the High Court’s ruling. He said that the language and functionalities of a computer program were not eligible for copyright protection. They amounted to ideas without concrete expression. Functionality was the set of possibilities offered by a computer system. It is the service that the user expects from it. For example, in a program for airline tickets, this included finding the flight, checking availability, booking a seat, registering details, paying and editing. The list of possible functionalities was finite. However, the means of achieving the concrete expression of those functionalities is eligible for protection.

We will now await several months for the decision of the European Court of Justice. The Advocate General’s opinion is not binding, but is usually followed by the court.

The guidance advocates a cookie audit to identify the cookies used, distinguishing between session, persistent and third party cookies, look at how privacy-intrusive each cookie is and how clear information is provided to users.

The ICO has also given further guidance on obtaining consent. It says that website operators should have minimal use of cookies until users have consented. Implied consent is not a viable option at the moment, but as users become more aware of cookies, that could be used. It also advocates contractual obligations between third parties and website owners governing the collection of consent for the third party cookies.

The ICO’s report and the guidance can be found here:  http://www.ico.gov.uk/news/latest_news/2011/must-try-harder-on-cookies-compliance-says-ico-13122011.aspx.

Viagogo – the website – had objected to the hand over, saying that to do so would be disproportionate and infringe its users’ data protection rights. The Court of Appeal disagreed. The rights had to be balanced and the RFU was entitled to know about who was infringing its contract terms. The Court of Appeal therefore ruled that it was right to grant the RFU a “Norwich Pharmacal Order” against Viagogo to reveal the data. Whether or not the England rugby body used that data to take action against the sellers or the people who had provided the tickets to the sellers was irrelevant to the ruling.

Paul Gershlick, a Partner and Head of Pharmaceuticals and Life Sciences at Matthew Arnold & Baldwin LLP, comments: “According to evidence from the BioIndustry Association, the UK share of clinical trials has fallen from 6% to 2% in the last decade. The UK also went from the fourth largest location for clinical trials in 2006 to twelfth just two years later. The UK has a long history of being a global leader in developing new pharmaceutical products. A lot of jobs and expertise have been based here as a result. Anything the Government can do to make drug discovery conditions better so as to reverse the declining trend and make the UK a more enticing place to discover new drugs has to be a good thing.”

The ruling is an important reminder that exit provisions in agreements are not something to worry about later; rather, they are just as important as those provisions of an agreement which are intended to have immediate effect. If exit provisions have not been agreed, the party receiving the services is at serious risk of being without those services for a period of time until another provider is found, with potentially catastrophic impacts on its business. Similarly, the service provider may suddenly be without a revenue stream without any form of transition period to balance the impact.

The ruling also shows the importance of not just having exit provisions within an agreement, but to make sure that those provisions set out the requirement for an exit plan which clearly defines what happens to the services on termination – in an IT contract, for example, this should include the specific hardware and software that is needed, the level of support and maintenance that will be provided, how long the transition services will be provided for and how much those transition services will cost.

The Court agreed with Hodgson’s claim. Although a lot in the script was independent of Hodgson’s book, there was striking similarities, such as the football chant used at the beginning and about 50% of the dramatic events were similar. Taken as a whole, the similarities were too close to be explained in any other way, and as a matter of quality and not just quantity too much of the book had been copied, directly or indirectly. The Court ruled that there had been infringement.

Paul Gershlick, a Partner and Head of the Pharmaceutical and Life Sciences sector at Matthew Arnold & Baldwin LLP, says, “It is absolutely crucial to protect patient data. However, privacy groups again appear to be pursuing a single concern agenda – ie privacy. What about improving patient care and improving or saving lives? Instead of criticising the Government’s healthcare data strategy for being pursued too fast, people worried about privacy should instead be working with the Government to make sure the privacy safeguards are in place so that the health benefits can be achieved as soon as possible. The longer any delays take, the fewer number of people who will benefit from any reforms. When people’s lives are at stake, there should be no time to lose.”

The ruling can be found here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=115783&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=6211.

The fine follows a similar incident last year where public parts of a document about another child were sent to the same member of the public by the council. The ICO admonished the council, with the council promising to improve its processes.

In addition to the fine, the council has been ordered to retrain all staff in relation to data protection before the end of March 2012, with refresher training to follow every three years.

Under the E-Commerce Regulations, web service providers can be liable for material that they host if they have actual knowledge of unlawful activity, but they can avoid liability if they expeditiously remove the unlawful material.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “Despite this ruling, the best advice for any website service provider to avoid the risk of liability would be to have clear terms and conditions that allow it to take down material, and then to do so at the first suggestion that it is going to get caught in any cross fire.”

Details of the case can be found here: http://www.bailii.org/ew/cases/EWHC/QB/2011/3031.html.

The “Article 29 Working Party”, which is a committee of national regulators from each EU State (including the UK’s Information Commissioner’s Office), will provide the basis for the new board. The board will offer support to each country’s regulator and, it is hoped, will bring about more harmonisation between the data protection laws in each Member State.

• Allowing for limited private copying of copyright material, including to permit format shifting from, say, CD to mp3 player.
• Having an exception for parody and pastiche.
• Creating wider exceptions for library archives and commercial researchers (including use of computerised data mining techniques).
• Creating a regime to enable licensing of orphan works – where the copyright owner is not known.  The scheme would need to build in protections for owners.

Meanwhile, the Government has recently appointed Richard Hooper, who used to be deputy chairman at Ofcom, to consider the implementation of a new digital copyright exchange.

The Intellectual Property Office’s consultation is open until 21 March 2012 and can be found here: http://www.ipo.gov.uk/pro-policy/consult/consult-live/consult-2011-copyright.htm.

The Regulations will remain in force until September 2012, and similar regulations will come into force in Wales and Scotland.

In Apple’s business model, it calls itself an agent and gets a commission on the sale price. In genuine agency situations, the supplier is free to tell the agent what price to sell at. However, if it is not a genuine agency situation, this is forbidden. The EU rules as to what amounts to a genuine agency are complex. They include looking at who bears the financial risk or commercial risk in the sale of the books.

The Commission will now investigate. If found guilty, the parties to anti-competitive arrangements can be fined up to 10% of their turnover, the agreements are unenforceable and third parties can sue for damages.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “This result is interesting in light of recent court orders that the MPA has obtained against ISPs in the UK such as BT and Sky, under which the ISPs have had to block access to infringing content. The law needs to be clearer or at least applied in a more clear way across the European Union.”

India and China both have an established and successful generics based pharmaceutical industry and as tens of billions of pounds of  patent protected drugs come off patent soon (known as the “patent cliff”), they look set to benefit by releasing cheaper generic  alternatives – making themselves a small fortune in the process. Both the Wall Street Journal and BBC News have reported on the most recent victim of the patent cliff in which India-based firm Ranbaxy Laboratories Limited confirmed the release of an FDA-approved generic version of the 10 billion dollar a year drug “Lipitor” owned by the global pharmaceutical company, Pfizer. The new generic drug will be called “Atorvastatin” and with Lipitor’s patent having now expired, there is nothing Pfizer can do about it – except try to develop itself or buy in the next big thing from another research and developer.

With such a Robin Hood approach to pharmaceuticals there are mixed opinions about the impact the patent cliff is having on the pharmaceutical industry as a whole. The large pharmaceutical companies claim that the patent cliff is affecting their ability to raise funds for research and development which in turn is inhibiting advances in new and improved pharmaceuticals, to the detriment of patients. The smaller generic based companies and some consumer groups however are hailing the patent cliff as an opportunity to offer a wider-ranging and affordable selection of medicines to both the public and private sectors.

Laura Mole, from Matthew Arnold and Baldwin LLP’s Pharmaceutical and Life Sciences Sector Group Team, says, “Whilst I appreciate continued research and development in the pharmaceutical industry as a whole is vital for the production of new, more advanced drugs to combat human illness, I cannot help but see good quality, affordable alternative medicines as a good thing for the consumer and the NHS in these difficult financial times. More drugs will cost less so more patients will benefit. The important thing in the long-term, though, is that there is sufficient funding in the industry to incentivise continued research and development so that patients continue to benefit with further medical advances. More of the early-stage development is being done by start-up companies, with big pharma companies stepping in if the prospects look good.”

Paul Gershlick, a Partner and Head of the Pharmaceutical and Life Sciences sector at Matthew Arnold & Baldwin LLP, comments: “This case shows that any organisations involved with people’s health data must be careful to ensure that their employees do not misuse the data and that they take adequate safeguards to protect it. Health data about individuals falls within the category of sensitive personal data and is a higher class of data that is protected under data protection laws. That said, this outcome would probably have been the same regardless of the fact that the data misused was within the category of sensitive personal data.”

1. the oral agreement had been breached when Graham sought to exploit the sauce for his own commercial gain; or, alternatively
2. the information given to Graham when Bailey demonstrated the recipe to him attracted a duty of confidence which had been breached when Graham commercialised the sauce.

Graham argued that he had arrived at the recipe through his own hard work and experimentation, and that the claims were an attempt to take advantage of his commercial success when marketing the sauce.

The High Court ruled that there was no breach of contract and no breach of a duty of confidence on the grounds that:

-          the evidence established that Graham had developed the source himself and that there had been no agreement between the parties. The agreement that Bailey and Williams alleged existed made no sense as there was no reason for Bailey to enter into such an agreement to reveal his secret recipe in order for Graham to take it to market. The burden of proof was on Bailey and Williams to prove that the agreement existed – they had failed to do so and therefore no breach of contract was possible; and

-          Bailey had failed to prove that the sauce recipe had been imparted to Graham in circumstances that gave rise to a duty of confidence. In any case, the recipe that was the subject of Bailey’s claim was not sufficiently certain to have a duty of confidentiality attached to it.

The dragons’ investment was well protected and just as well that Graham did not need to face their fire…

The relationship broke down in 2008 and was terminated in December 2009 by R and Stoneygate. P issued proceedings for breach of contract, suing Stoneygate for arrears of commission due under the agreement, both before and after termination. R argued that post-termination commission was not payable, and that the agreement was not enforceable in any case as it was an unreasonable restraint of trade.

The High Court ruled in favour of R, ruling that the agreement was invalid and unenforceable – it was a restraint of trade on the grounds that it imposed substantial restraints on R over a significant period of time, on terms that were uncommon in the industry, and had been agreed by inequitable negotiation between P and R when R was 17 and had not received legal advice. The High Court also ruled that, even if the agreement was enforceable, post-termination commission was not payable under the terms of the agreement. P appealed to the Court of Appeal on a number of points.

The Court of Appeal ruled that:

1. on construction of the agreement, post-termination commission was payable in relation to arrangements procured by P and for which Stoneygate received payment after completion; and
2. the agreement was a restraint of trade, despite the fact that R’s primary occupation was as a footballer and his primary earning potential was not through the image rights that were the subject of the agreement – the exploitation of image rights was almost always going to be ancillary to another occupation, and was just as capable of protection under the restraint of trade doctrine as any other occupation.

Due to the fact that the agreement was a restraint of trade, P could not recover accrued entitlements as the agreement was unenforceable in the first place.

Simon Weinberg, a solicitor in the Commercial/IP/IT team at Matthew Arnold & Baldwin LLP and assistant editor of Upload-IT, commented, “In this case, it was extremely difficult for the courts to see past the fact that, when the agreement was negotiated and entered into, one of the parties was a 17-year-old without legal representation; the bargaining powers of the parties were unequal from the start, undermining the basis for the agreement. The fact that its terms restricted Rooney’s own exploitation of his image rights until he was 25 was always likely to lead to arguments of restraint of trade once he did receive appropriate legal advice. This case serves as a useful reminder that, when negotiating a contract, it is important to ensure that the other party has legal representation; if they do not have that legal representation and the agreement seems to be one-sided, there is a risk that the foundations of that agreement will be challenged in future. If you convince the other side to sign without legal advice, and the terms of the agreement seem too good to be true, they probably are.”

Some have raised privacy concerns over the proposals.  Big Brother Watch has said it should be for patients to decide what happens with their medical information rather than governments.  Meanwhile, Patient Concern warns that the plans would be the death of patient confidentiality.

However, Paul Gershlick, a Partner and Head of the Pharmaceutical and Life Sciences sector at Matthew Arnold & Baldwin LLP, disagrees with those concerns and welcomes the Government’s initiative.  He says: ”It is clear from the Government plans that patient data will be anonymous so that any one individual will not be identified during the data sharing.  If that is the case, why should there be any fuss from privacy campaigners? Under UK data protection law, people lose rights over “their” data if that data is anonymised. 

“Surely, as long as patient data is protected through anonymity, the main objective must be to improve patient care and make people’s lives better.  As a society, we must do all we can to improve the quality of care through helping to achieve faster drug development and introduction. If the NHS works together with the private sector to help to develop or bring out new drugs quicker, that has got to be a good thing if it saves anyone’s lives or makes them more comfortable.  And if this has the added bonus of generating more business in the UK by making it a more attractive place to do business in the pharmaceutical and life sciences sector particularly in these economic uncertain times, so much the better.”

The High Court ruled that, based on Foxtons’ terms and conditions, all Foxtons had to do to receive commission was for there to be an unconditional exchange of contract with the purchaser. As that had happened, it was entitled to commission, even though completion did not take place.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “Following this case, estate agents should check their terms and conditions to make sure that they are entitled to commission should there be exchange of contracts but no completion.”

There are two totally independent Merck companies. This arose out of the Treaty of Versailles at the end of World War I, under which the two different Merck companies were each given exclusive rights to the brand in different territories.

German Merck claims that it held the rights to material on the web page at www.facebook.com/merck, but it has recently discovered that those rights were now being allocated to the US company. German Merck has no argument with US Merck – its complaint is with the social networking site, which it claims has been less than helpful over the issue.

This case shows the issues that can arise with owners of parallel brands existing in an ever-smaller global market.

The Intellectual Property Office announced that the small-claims track will limit fixed costs and have an upper limit on damages of £5,000 per case. It hopes that the track will be operational by the end of 2012.

1. the meaning of a “communication to the public” for the purposes of the Copyright Designs and Patents Act 1988 (the “Act”); and
2. the meaning of “reproduction in part” (whether individual frames amounted to a substantial part of the copyright work and whether the display of a broadcast on screen amounted to reproduction) for the purposes of the Act.

The High Court has now ruled that the first question should be amended for reference to the ECJ, as to whether the right to authorise or prohibit broadcasts extends to broadcasters of free-to-air programmes online to users who could lawfully receive those broadcasts on their televisions.

The High Court has also stated that the second question above has been answered by the ruling of the ECJ in the case of the FA Premier League v QC Leisure & Karen Murphy, which stated that copyright owners do have the “exclusive right to authorise or prohibit direct or indirect” reproduction of their content in the form of “transient fragments of the works within the memory of a satellite decoder and on a television screen, provided that those fragments contain elements which are the expression of the authors’ own intellectual creation, and the unit composed of the fragments reproduced simultaneously must be examined in order to determine whether it contains such elements”.