The Legal 500

Legal Developments in the UK

• Limiting immigration - interim measures, exceptional consideration and Government consultation

  On 19 July 2010 the UK Border Agency (UKBA) started to implement interim limits on non-EU economic migration under tiers 1 and 2 of the points based system. UKBA states that the aim of these measures is to achieve an overall reduction of 5% in the number of applicants in these categories compared to the equivalent period last year. This interim limit will run from 19 July 2010 to 31 March 2011. In April 2011 the Government intends to be in a position to implement new immigration policies following the current consultation exercise.
  - Penningtons Solicitors LLP

• Sentencing guidelines for corporate manslaughter

  In February 2010 the Sentencing Guidelines Council (the SGC) issued definitive guidelines to courts on imposing appropriate sentences for corporate manslaughter and health and safety offences causing death. The SGC states that fines imposed on companies found guilty of corporate manslaughter should not fall below £500,000, while fines in respect of health and safety offences that are a significant cause of death should be at least £100,000. Crucially, the SGC declined to provide for a fixed link between the imposed fine and the turnover or profitability of the offending company.

  - DLA Piper UK LLP

• Israel – New options for obtaining trade mark protection

  On 1 September 2010 Israel will join the territories that can be designated via a Madrid Protocol application for the protection of trade marks. For those with existing Madrid Protocol applications or registrations Israel can be the subject of a subsequent designation in order to extend protection into this territory. In this case, the rights would date back to the date that the request for a subsequent designation was made rather than the original filing date of the Madrid Protocol application or any priority claim.
  - Boult Wade Tennant

• Change in Google AdWords and AdText Policy

  Google has announced that, from 14 September 2010, it will no longer prevent advertisers from selecting a third party's trade mark as a keyword. Instead, trade mark owners will be able to complain abou the selection of their trade mark by a third party if they feel that it leads to a specific ad text which confuses users about the origin of the advertised goods and services. Google will then conduct a "limited investigation" and if it finds that the keyword in combination with a particular ad text is confusing as to the origin of the advertised goods and services, it will remove the ad. However, it will not prevent the use of trade marks as keywords.  
  - Boult Wade Tennant

• The ECJ's judgement in the case of Monsanto v Cefetra BV and others

  On 6 July 2010 the European Court of Justice (ECJ) handed down their judgement in the case of Monsanto Technology LLC v Cefetra BV and Others, a referral to the ECJ from the Rechtbank’s-Gravenhage of the Netherlands. This case is of particular significance for patentees in the biotech industry since it has provided one of the first opportunities for the ECJ to address the scope of gene patents in Europe in light of Directive 98/44/EC (the Biotech Directive).     
  - Boult Wade Tennant

• Accelerated prosecution of European patent applications

  The time from filing to grant of European patent applications has increased in recent years, particularly in certain technical fields such as telecommunications, software and biotechnology. In some areas, this is a result of the number of applications filed, which has risen faster than the number of examiners able to deal with such cases. Also, the volume of PCT applications designating the EPO as International Searching Authority has caused a knock on effect to increase the delays in examination of other applications. Other major patent offices are experiencing similar problems leading to backlogs. 
  - Boult Wade Tennant

• Defamation and confidence: three significant cases

  There have been several recent cases concerning the laws of confidence and defamation that address important procedural issues relevant to litigators practising in all spheres. This article discusses decisions by the Court of Appeal, a Queen’s Bench judge and a Master.
  - Schillings

• Adjudication: caught in the Act?

  Anyone not involved in what might be regarded as the mainstream of the construction industry (whether as a building contractor or someone who regularly employs one) would be forgiven for thinking that a dispute resolution procedure introduced to rid the industry of some of its historical problems is of no relevance to their business.
  - Bond Pearce LLP

• The ‘failing firm’ defence in difficult times

  Given the current economic climate, competition authorities are expecting a possible increase in the use of the ‘failing firm’ defence. The doctrine provides potential opportunities for businesses to acquire competitors, which in normal circumstances would be regarded as anti-competitive. The basic rationale behind the doctrine is that since the failing firm would have left the market anyway due to its financial collapse, any harm to competition caused by the loss of an independent market player would arise regardless of the merger. The doctrine therefore potentially allows a business to acquire its struggling competitor, which is on the brink of administration or liquidation. The defence is worth considering by any administrator or liquidator of a business. Competitors are likely to pay the highest prices for assets and so a merger with a competitor could be an appropriate solution to save a deteriorating business.
  - Holman Fenwick Willan

• Kingsway Hall sees Red

  Kingsway Hall Hotel Ltd v Red Sky IT (Hounslow) Ltd [2010] examines the use and enforceability of exclusion clauses in a contract for the provision of software and related services. In the wake of BSkyB Ltd & anor v HP Enterprise Services UK Ltd & anor (Rev 1) [2010], it provides further salutary lessons for IT suppliers on the proper management of their sales and contracting processes. Under the Unfair Contract Terms Act (UCTA) 1977, certain exclusions and limitations of liability are either unenforceable or subject to a test of reasonableness.
  - SJ Berwin LLP