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Ginfringement: Success for M&S in the Court of Appeal in registered design spat with Aldi

Published on 15 Mar 2024. By Rory Graham, Associate and Georgia Davis, Of Counsel

M&S and Aldi's gin bottle battle over design rights has reached a conclusion (for now) as the Court of Appeal has unanimously upheld the IPEC's decision that Aldi's bottle infringed M&S' design.

Clear as gin: M&S and Aldi take liquor bottle battle to the Court of Appeal

Published on 26 Jan 2024. By Rory Graham, Associate and Georgia Davis, Of Counsel

Intellectual property enthusiasts' favourite supermarket adversaries were back at loggerheads this week as M&S and Aldi appear before the Court of Appeal. The pair sought to thrash out a first instance decision handed down in the Intellectual Property Enterprise Court (IPEC) regarding alleged infringement of M&S' registered design rights in a gin bottle.

M&S v Aldi – lookalike claims lit up by design rights

Published on 24 Mar 2023. By Ciara Cullen, Partner and Harpreet Kaur, Associate

As lookalike products rise in prominence, the Intellectual Property Enterprise Court's (IPEC) recent ruling that the sale and advertisement of Aldi's 'Infusionist' range of favoured gins infringed M&S's UK registered designs protecting the light-up bottles containing its 'Snow Globe' gin range (Marks and Spencer PLC v Aldi Stores Limited [2023] EWHC 178) highlights the utility of registered design rights in circumstances where other intellectual property rights (IPR) are often less able to provide protection.

Lookalikes and passing off—bottle design get-up claim (Au Vodka)

Published on 07 Nov 2022. By Ciara Cullen, Partner and Sarah Mountain, Partner and Samuel Coppard, Senior Associate

Currently there's significant activity in the lookalikes space. The Au Vodka claim (Au Vodka v NE10 Vodka [2022] EWHC 2371), which focuses on bottle design 'get-up', arrived in the courts for an interim injunction hearing in September 2022. Au Vodka's application was dismissed. The judgment shows that passing off—get-up claims based on shape can be challenging to bring, particularly at the interim stage, and prompts the question of whether it's possible to bring Cofemel and copyright into the lookalikes arena.

Sky Kick Back! High Court finding of bad faith overturned by Court of Appeal in long-running Sky v Skykick saga

Published on 09 Aug 2021. By Ben Mark, Partner and Sarah Mountain, Partner

On 26 July 2021, the Court of Appeal (CoA) handed down its much-anticipated decision in the latest instalment of the Sky v Skykick trade mark dispute.

William Grant & Sons v Lidl: where to be-gin?

Published on 16 Jun 2021. By Ciara Cullen, Partner and Ben Mark, Partner and Sarah Mountain, Partner

On 25 May 2021, the Scottish Court of Session (SCOS) granted an interim interdict (akin to an interim injunction), which prevents Lidl from selling its own brand 'Hampstead gin' in Scottish stores, pending the outcome of the matter at trial.

Copyright: Online platform operators’ liability for users illegally uploading copyright material

Published on 02 Nov 2020. By David Cran, Partner, Head of IP & Tech

C-682/18 Frank Peterson v Google LLC and others and C 683/18 Elsevier Inc. v Cyando AG EU:C:2020:586 – A-G opinion

Landmark case sees trade mark specifications cut down on grounds of bad faith.

Published on 29 Apr 2020. By Ben Mark, Partner and Sarah Mountain, Partner

Today, the High Court handed down judgment in Sky v SkyKick. The judgment follows the CJEU's 29 January 2020 decision, which answered various questions that the High Court had referred to it, back in June 2018.

COVID-19 prompts changes to working arrangements for the Court of Justice of the European Union

Published on 09 Apr 2020. By Louise Morgan, Senior Associate

Prompted by the COVID-19 pandemic, the CJEU announced, on 19 March 2020, that it will be temporarily changing its working arrangements.

ICO publishes guidance on AI decision making

Published on 02 Nov 2020. By Oliver Bray, Senior Partner

How can companies comply with data regulation when using AI to make decisions affecting individuals?

Proposed removal of requirement for shareholder vote on significant transactions and related party transactions: FCA provides update on Listing Rule reforms

Published on 03 Apr 2023. By Karen Hendy, Partner, Head of Corporate and Connor Cahalane, Partner, Head of Public Companies

The FCA has provided an update on reforms to the Listing Rules proposed last year in its discussion paper DP22/2.

Key takeaways from the first year of the national security regime

Published on 22 Mar 2023. By Bridget Lockhart, Associate

The UK's new national security screening regime has now been in operation for over a year. This blog discusses the key takeaways from the first decisions to be made under the UK's new national security screening regime.

Spring Budget 2023 - Main Tax Announcements

Published on 16 Mar 2023. By Ben Roberts, Partner

This blog discusses some of the key tax changes announced in this week's Spring Budget.

When is a director personally liable for a company's wrongs?

Published on 28 Oct 2022. By Ben Magahy, Senior Associate

A recent Court of Appeal judgment considers when a director might be liable for wrongs committed by the company (including, specifically, by way of accessory liability).

Meaning of contractual duty of good faith

Published on 26 Oct 2022. By Neil Brown, Partner and Clare Rooney, Associate

The Court of Appeal has taken a restrictive interpretation of an express duty of good faith in a decision handed down on 21 October 2022 - Re Compound Photonics Group Ltd; Faulkner v. Vollin Holdings Ltd [2022] EWCA Civ 1371. This decision is important as (i) the Court of Appeal judgment provides a lengthy examination of the meaning of a contractual duty of good faith, and (ii) the decision casts doubt on some previous case law on this point (including overturing the High Court's decision).

Restrictive covenants in shareholders' agreements and commercial contracts

Published on 06 Mar 2020. By Ben Magahy, Senior Associate

The Court of Appeal has recently reaffirmed the approach to the enforceability of restrictive covenants in shareholders' agreements and other commercial contracts.

Corporate governance for large private companies

Published on 14 Oct 2019. By Nneka Ezekude, Trainee Solicitor

For financial years beginning on or after 1 January 2019, large private companies will need to adhere to the requirements contained in a new corporate governance code published by the Financial Reporting Council. The introduction of the new code followed multiple scandals which revealed poor corporate practices and neglect of stakeholders' interests. As a result, the code seeks to rebuild confidence and trust in these large private companies.

'Green Finance' enters the mainstream

Published on 25 Jun 2019. By Edward Colville, Partner

With the UK's recent commitment to cut emissions to net zero by 2050, the financial sector is looking to 'green finance' to encourage investment in sustainable and environmentally-friendly businesses. Recent examples, like Nokia's €1.5 billion credit facility announced last week, show that environmental impact is becoming a key consideration for lenders and borrowers.

National Security and Investment – the EU's response

Published on 07 Jun 2019. By Tim Anderson, Partner and Neil Brown, Partner

National security concerns regarding Huawei continue to make headlines around the world, against the backdrop of an ongoing US / Chinese trade war. This blog looks at new EU rules on foreign investments which raise security or public order concerns.

More than you bargained for: the implied duty of good faith

Published on 26 Apr 2019. By David Wallis, Partner and Neil Brown, Partner

The recent High Court decision in Bates v. Post Office (No. 3) confirms a general principle that if a contract is a "relational" contract then it will include an implied obligation of good faith. Previously, there had been doubt whether such a general principle exists, as historically this was not an approach recognised by the English courts.

Derivative transactions – the obligation to report

Published on 25 Apr 2019. By Edward Colville, Partner

As the recent £34.9m fine for Goldman Sachs shows, the FCA takes the obligation to report derivative transactions seriously. How does this affect parties who trade infrequently, and what changes to the reporting requirement can we expect post-Brexit?

Part Three: Five practical implications of side letters and most favoured nations clauses for fund investors and managers

Published on 15 Feb 2019.

In this third and final part of our series on side letters and most favoured nation (MFN) clauses in private equity funds, we examine five practical implications for investors and managers.

Part Two: Side letters and fundraising

Published on 28 Jan 2019.

In this second of a three part series, we look more closely at side letters and most favoured nation (MFN) clauses in the private equity space.

Part One: Overview of side letters & MFNs when investing in private equity funds

Published on 14 Jan 2019.

In the first of a three part series we consider the importance of side letters and most favoured nations (MFN) clauses in private equity funds.

Budget 2018 – 10 key business tax takeaways

Published on 08 Nov 2018. By Ben Roberts, Partner

UK retail sector M&A deals increase to 34 – up 21% on last year

Published on 05 Sep 2022. By Karen Hendy, Partner, Head of Corporate

• M&A targeting fashion retailers particularly active

Changing retail landscape leads to decline in employee numbers

Published on 21 Nov 2019. By Kelly Thomson, Partner, ESG strategy lead

The retail sector continues to face change and challenge from every conceivable angle and employment within the sector is following this trend.

SRA fining powers – putting the SDT out of business?

Published on 29 Aug 2023. By Graham Reid, Partner and Tom Wild, Senior Associate

The SRA is on a mission to increase its powers to levy financial penalties. The last 12 months have seen a substantial increase in its fining powers, and a grant of unlimited fining powers in matters relating to financial crime and SLAPPs is imminent. The SRA has now dramatically upped the ante, seeking the power to levy unlimited fines in all cases of serious misconduct. With the Legal Services Board appearing supportive, the proposal has the potential profoundly to affect the enforcement of professional discipline within the profession.

Enhanced Regulatory Supervision of Asset Managers in Europe – Greenwashing Risks

Published on 12 Jul 2023. By James Wickes, Partner and Nick Cumming, Associate

A common methodology has been developed by ESMA to allow national European regulators to share knowledge and experiences to facilitate convergence in how they supervise sustainability related disclosures.

Costs recovered in the Small Claims Track from an unreasonable Litigant in Person

Published on 24 Jan 2023. By Rhian Howell, Partner & Head of Office, Bristol and Daniel Charity, Associate

Most (if not all) litigators will be familiar with the challenge of being on the other side of a claim brought by a litigant in person ("LiP"). The courts expect practitioners to be sensitive to their opponent's lack of legal expertise and familiarity with court rules, but judges have also been clear that they expect all parties – including LiPs – to follow the rules regardless of their legal representation.

SRA issues Warning Notice on solicitors' involvement in SLAPPs

Published on 20 Dec 2022. By Graham Reid, Partner

SLAPPs (aka 'Strategic Lawsuits Against Public Participation') is a term coined in the USA. They are becoming the object of increasing concern over here too.

Hong Kong – Claim pleading duty of care against auditor struck out for "putting the cart before the horse"

Published on 28 Oct 2022. By Antony Sassi, Managing Partner, Asia and David Smyth, Senior Consultant and Anson Lo, Associate

In Chan Kam Cheung v Ronnie K W Choi & Anor [2022] HKCFI 3028, a judge upheld a master's (judicial officer's) decision to strike out the plaintiff shareholder's action against the former auditors of the company.

Solicitors Entitled to Insurance Cover for Liability for Fees: Royal Sun Alliance Insurance Limited & Others v Tughans (a firm)

Published on 27 Oct 2022. By Nick Bird, Partner and Cheryl Laird, Senior Associate (Scottish Qualified)

In a recent judgment, Foxton J held that a claim for damages against a firm of solicitors for fees which it was contractually entitled to was covered under the firm's professional indemnity insurance. He held that it did not matter if the fees were obtained through the solicitor's fraudulent misrepresentation provided that the solicitor had done what was required under the contract to earn the fees. The decision will not be welcomed by insurers.

Shorter time limit for Third Parties (Rights Against Insurers) Act 2010 claims

Published on 08 Sep 2022. By Robert Morris, Partner

A recent judgment has reduced the limitation period for third parties to make direct claims against insurers under the Third Parties (Rights Against Insurers) Act 2010 when compared to claims under the predecessor 1930 Act. The decision will make it easier for insurers to defend such claims on limitation grounds.

Risky Business: what to do when former clients ask further questions

Published on 22 Aug 2022. By Anna Murley, Senior Associate and Claire Revell, Partner

In Spire Property Development LLP & Anor v Withers LLP [2022] EWCA Civ 970, the Court of Appeal considered the scope of a solicitor's duty when a former client posed questions to a solicitor concerning a transaction after the retainer had ended. The judgment will be of interest to solicitors who are asked for advice in circumstances where no retainer exists.

The Professional Negligence Law Review, Edition 5

Published on 29 Jul 2022. By Nick Bird, Partner

The Professional Negligence Law Review provides an indispensable global overview of the law and practice of professional liability and regulation. It covers the fundamental principles of professional negligence law in each jurisdiction, including obligations, fora, dispute resolution mechanisms, remedies and time bars. The authors then review factors specific to the main professions and conclude with an outline of recent developments and issues to look out for in the year ahead.

Double warning for legal professionals: do not cut corners with disclosure

Published on 26 Jul 2022.

Further to a recent decision made by the Bar Tribunals and Adjudication Service, the Bar Standards Board has suspended a "top criminal silk" from practice on grounds of professional misconduct in respect of his failure to disclose material evidence during criminal proceedings in 2007. The decision, and the judgment made by the Court of Appeal in those proceedings, reiterates the importance of the ongoing obligation on legal professionals to give disclosure and comply with their duties to the court.

Post COVID-19 UK: What Will the Professional Negligence Claims Landscape Look Like?

Published on 28 Jun 2022. By Cheryl Laird, Senior Associate (Scottish Qualified) and Will Sefton, Partner and Head of Professional and Financial Risks

The cost of living is at an all-time high, with interest rates increasing and inflation currently sitting at around 9%. The chances of a recession in the UK over the next two years have increased. It will come as no surprise that we expect the number of claims against law firms to rise as the economic downturn takes hold, as was the case in 2008 and recessions before it.

Lawyers Covered - April 2022

Published on 28 Apr 2022.

Welcome to the latest edition of our Lawyers Liability & Regulatory Update, in which we look back over the last month at key developments affecting lawyers and the professional risks they face.

Important Court of Appeal clarity on the operation of s1(4) of the Civil Liability (Contribution) Act 1978

Published on 12 Apr 2022. By Rhian Howell, Partner & Head of Office, Bristol and Sam Kneebone, Senior Associate

A recent Court of Appeal decision (in which RPC acted for the successful barrister Appellant) provides important clarification on the operation of section 1(4) of the Civil Liability (Contribution) Act 1978 (“the Act”). Although the matter concerned a contribution claim by a solicitor against a barrister brought pursuant to the Act, the decision is of wider relevance/application for litigation practitioners and the Insurance market.

The X-Client Files: who owns a solicitor's file

Published on 23 Feb 2022. By Claire Revell, Partner

It's a perennial headache for solicitors: what exactly am I supposed to do when a client asks me for 'their file'?

Good faith does not go both ways

Published on 31 Jan 2022.

It is common knowledge that solicitors owe fiduciary duties to their clients but what about the other way around? Do clients owe a duty of good faith to their solicitors (as an implied term of the retainer)?

FOS proposals to clear the back-log - attractive or not?

Published on 18 Oct 2021. By Cory Gilbert-Haworth, Associate and Rachael Healey, Partner

The Financial Ombudsman Service (FOS) has proposed a temporary approach to the classification of certain complaints in an attempt to alleviate their complaints backlog exacerbated during the COVID-19 pandemic. The approach could see firms looking to pro-actively resolve complaints before a defined cut off date before FOS reaches a decision so that the complaint is recorded separately and not as a "change in outcome" (i.e. where a complaint has been rejected by a business and upheld by FOS). The consultation was open for a short two-week period between 4 and 18 October 2021.

The Professional Negligence Law Review, Edition 4

Published on 13 Aug 2021. By Nick Bird, Partner

This fourth edition of The Professional Negligence Law Review provides an indispensable overview of the law and practice of professional liability and regulation in 15 jurisdictions. The Professional Negligence Law Review contains information that is invaluable to the large number of firms, insurers, practitioners and other stakeholders who are concerned with the liability and regulatory issues of professionals across the globe. The variation in law and practice across the different jurisdictions is very noticeable and underlines the usefulness of a guide such as this.

Aggregation under the solicitors' minimum terms: are primary layer insurers ready for potentially limitless liability?

Published on 13 Aug 2021. By Laura Stocks, Partner and George Barratt, Senior Associate

In Baines v Dixon Coles & Gill the Court of Appeal has substantially limited the extent to which claims against solicitors can aggregate.

It's Cocoa, Jim, but not as we know it: Court's modern interpretation of underwriters' and brokers' duties #4 - getting the witness evidence right and new rules

Published on 12 May 2021. By Tim Bull, Partner and Matthew Wood, Senior Associate and Elizabeth Singleton, Senior Associate (Australian Qualified)

This is the fourth and final article in our series following the decision in ABN Amro Bank N.V. v Royal Sun Alliance Insurance plc and 13 Underwriters and Edge Brokers (London) Limited, in which RPC acted for Edge.

It's Cocoa, Jim, but not as we know it: Court's modern interpretation of underwriters' and brokers' duties #2 – The underwriters defence

Published on 09 Apr 2021. By Tim Bull, Partner and Matthew Wood, Senior Associate and Elizabeth Singleton, Senior Associate (Australian Qualified)

A modern show of the historic defence strategy at its worst, or should that be best? We'll let you decide.

It's Cocoa, Jim, but not as we know it: Court's modern interpretation of underwriters' and brokers' duties #1 - An overview of the case

Published on 30 Mar 2021. By Tim Bull, Partner and Matthew Wood, Senior Associate and Elizabeth Singleton, Senior Associate (Australian Qualified)

In this series of articles we take a look at the decision in ABN Amro Bank N.V. v Royal & Sun Alliance plc and 13 Underwriters and Edge Brokers (London) Limited. In this article we give an overview of the case. The remaining articles will focus on particular areas of the case, these will be: 1. Underwriters' duties 2. Brokers' duties 3.Witness evidence

A shifting landscape? The outlook for data regulation in 2023

Published on 09 Jun 2023. By Jon Bartley, Partner and Amy Blackburn, Senior Associate

With a relatively new Information Commissioner in the UK and a renewed focus on getting post-Brexit data protection laws through Parliament, attention is turning to the ICO’s priorities and how they fit into this new landscape.