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Trade secrets – employment

These days many small companies prefer to rely upon the law of ‘trade secrets’ rather than go to the expense and complexity of patents and trade marks (unless an item is clearly patentable).  

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EC competition – new joint ventures

The ECJ has held that the creation of a joint venture only requires competition filing and clearance from the EC if it will be a ‘fully functioning’ commercial entity. This is an important change. A JV will only be ‘full function’ if it is a fully functioning market operation (eg it conducts its own commercial policy; it operates independently with its own management running its day-to-day operations; it carries out activities that are more than merely one specific function for the parents of the JV; it is not bound by sales and purchase agreements to its parents).  

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Administration – statutory moratorium

There are three ways in which an insolvency administrator can be appointed: (i) by the court, (ii) by the holder of a qualifying floating charge, or (iii) by the company (or its directors). Note that as between a floating charge and the company, it is the floating charge holder who has priority in making an appointment of an administrator. Accordingly, if a company or its director wants to appoint an administrator they have to give five business days’ written notice of this ‘intention’ to any floating charge holder. That notice of intention then allows the floating charge holder the chance to exercise their right before the company or its directors.

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Debt – winding up

A company’s liquidator can potentially recover any of the company’s property that is transferred after the date on which a winding-up petition is issued. Section 127 IA 1986 makes any disposition of property (eg money) void if it is done after the issue of the winding-up petition.

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Exclusion clause – ‘business common sense’

Ove Arup gave advice on a development site, including advice on asbestos contamination. After purchase, substantial asbestos was found and the developer sued Ove Arup. They, in turn, relied upon an exclusion clause which limited liability for pollution and contamination to £5m. Liability for asbestos was specifically excluded.

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Luxury brands – online sales

Luxury brands do all they can to preserve the exclusiveness of their products. Thus, they try to prevent them being sold online (especially through retailers such as eBay and Amazon). But, to what extent are such policies anti-competitive?

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Trade mark – ‘Special K’

In Australia, Kellogg’s has taken action against wild-boy tennis player Thanasi Kokkinakis who is widely known as ‘Special K’. Since Kokkinakis has started using that nickname in his branding, Kellogg’s says it is merely protecting its registered trade mark.

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Chattel as security – bill of sale

A bill of sale is a useful way of taking security against high-value moveable items (eg luxury cars, artworks). A bill of sale is a non-possessory form of security (ie the lender does not take possession of the asset), which has the advantage of being registerable under the Bills of Sale Acts 1878 and 1882. But, a form prescribed by the Acts must be followed, and the bill must be registered within strict time periods (with any variations and amendments also being registered). In addition, the bill of sale must be re-registered every five years. Failure to comply with the strict rules results in the security becoming invalid.

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Insolvency rules – concerns

One would hardly expect a new set of insolvency rules to be regarded as controversial. However, there are two aspects of the new IR to have caused consternation among practitioners: 

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Airline flights – delay

The Denied Boarding Regs give compensation to passengers who arrive late if the flight departs from an EU airport. 

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