Legal Updates

Russian IP Court clarified how to tackle “cooling-off” period in parallel import disputes

Russian IP Court clarified how to tackle “cooling-off” period in parallel import disputes

Read full article

PINK LADY in Chile: Australian industry wins trade mark case on appeal

Apple and Pear Australia Limited (APAL), the owner of well-known PINK LADY trade marks in over 80 countries, has been successful in its appeal to the Court of Appeal of Victoria against Pink Lady America, LLC (PLA) regarding rights over PINK LADY trade marks in Chile.

Background

While the matter concerned valuable trade marks which are registered in Chile, it was essentially a contractual dispute concerning the scope of rights granted under a trade mark licence. The licence, being a contract between APAL and PLA, a company incorporated under the laws of Washington State, in The United States, was governed by the laws of the State of Victoria, Australia. The appeal has relevance not only for the construction and implication of terms for trade mark licences but also, more generally, commercial contracts.

The PINK LADY trade mark was first used in connection with the Cripps Pink apple variety. The Cripps Pink variety was bred by John Cripps at the Department of Agriculture and Food, Western Australia (DAFWA) in the 1970s, by crossing the Golden Delicious and Lady William apple varieties.

Read full article

Compensation Based on Assets Under Management May Raise Conflict of Interest Concerns Requiring a Prohibited Transaction Exemption

Advisers and financial institutions that are compensated based on a fixed percentage of the value of assets under management may want to reconsider that compensation methodology as it could require compliance with a prohibited transaction exemption, such as the Best Interests Contract Exemption (the “BIC Exemption”), which is a component of the fiduciary rule issued by the Department of Labor (the “DOL”) in April 2016 (the “Final Rule”).  While stating in the recently published “Conflict of Interest FAQs” (the “FAQs”) that the ongoing receipt of a fixed percentage of the value of a customer’s assets under management, where such values are determined by readily available independent sources, typically does not require compliance with a prohibited transaction exemption, the DOL cautions that such compensation may still raise conflict of interest concerns and require that the adviser comply with a prohibited transaction exemption.  The FAQs, like the Final Rule, are generally limited to advice concerning investments in employee benefit plans covered by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), individual retirement accounts (“IRAs”) and certain other plans.

Read full article

Get ready for another ATED valuation date

The Autumn Statement on 23 November contained no further detail about how the Government’s proposals for achieving Inheritance Tax transparency for offshore structures from 6 April 2017 is going to work in practice.  However, in rather ominous fashion, the Government did use the occasion to confirm that the changes are going ahead as planned from 6 April 2017. 

Non-doms owning UK residential property through offshore trusts, companies or other vehicles need to get their skates on if they are to get any reorganisations finished by 6 April 2017 (see my blog of 3 November 2016 for one reason why doing so may be desirable).  However, there may be another good reason – some may find their company’s Annual Tax on Enveloped Dwellings (ATED) bill goes up substantially too.  Here’s why.
Read full article

Hall & Wilcox adds to commercial dispute resolution team

Leading independent business law firm Hall & Wilcox has added to its Melbourne commercial dispute resolution practice with the appointment of Hamish McNair as senior associate.

Mr McNair joins Hall & Wilcox from Norton Rose Fulbright. He brings diverse experience in disputes involving breach of contract, corporations law, consumer law, equity, financial services, product liability, real property and intellectual property.

He has advised on disputes in several industries including healthcare, technology, finance, government, pharmaceutical, property, retail and transport. Mr McNair has acted for clients in relation to complaints made to the Australian Human Rights Commission and has appeared for clients at inquiries conducted by the New South Wales Independent Commission Against Corruption (ICAC). He is a member of the NSW Young Lawyers Civil Litigation Committee.

Read full article

Hall & Wilcox boosts Sydney Private Clients practice with two new appointments

Leading independent business law firm Hall & Wilcox has added further depth to its Sydney Private Clients team by appointing two new special counsel, Eileen Meehan and James Whiley.

Eileen Meehan has extensive experience in estate planning, and joins from Bartier Perry, where she was consulting to the private clients team. Eileen was previously a Director in PWC’s private clients team specialising in estate planning.

James Whiley has specialist expertise in estate planning, dispute resolution and succession planning for high net worth clients. He was previously at Bartier Perry where he was responsible for a large portfolio of clients. Prior experience includes a succession and estate planning role at PWC and a senior role at a leading private client team in an international London-based law firm.

Read full article

Status of proposed reduction of bankruptcy term to one year

In December 2015 the Federal Government announced proposed reforms to insolvency laws as part of its National Innovation Statement (NIS).

The NIS includes a controversial proposal to reduce the current minimum bankruptcy term from three years to one year. The rationale is to encourage individuals who innovate to ‘fail quickly’. This proposal has received a lot of attention in the mainstream press and we have received many queries regarding the status of this proposed reform.

The Government called for submissions – which closed on 27 May 2016. 72 submissions were received, including from Australia’s peak insolvency body – ARITA and various law societies and insolvency practitioners Australia-wide.

The proposed reform forms part of the Government’s second tranche of insolvency reforms, which according to the Minister for Revenue and Financial Services are being progressed.

However, since the Federal election, the progress of the mooted reforms appears to have slowed.

Read full article

NLRB Majority Strikes Down Overly Broad Employee Handbook Policies

Our colleagues Lauri F. Rasnick and Jonathan L. Shapiro, attorneys at Epstein Becker Green, have a post on the Financial Services Employment Law blog that will be of interest to many of our readers: “Policies Prohibiting ‘Insubordination or Other Disrespectful Conduct’ and ‘Boisterous or Disruptive Activity in the Workplace’ Struck Down by NLRB Majority.”

Following is an excerpt:

Read full article

Policies Prohibiting “Insubordination or Other Disrespectful Conduct” and “Boisterous or Disruptive Activity in the Workplace” Struck Down by NLRB Majority

Once again seemingly appropriate work rules have been under attack by the National Labor Relations Board (“NLRB”). In a recent decision (Component Bar Products, Inc. and James R. Stout, Case 14-CA-145064), two members of a three-member NLRB panel upheld an August 7, 2015 decision by an Administrative Law Judge (“ALJ”) finding that an employer violated the National Labor Relations Act (“NLRA” or the “Act”) by maintaining overly broad handbook rules and terminating an employee who was engaged in “protected, concerted activity” when he called another employee and warned him that his job was in jeopardy.  Member Miscimarra concurred in part and dissented in part, arguing that the Board should overrule applicable precedent interpreting the Act.

Factual background

Read full article

Talking Tax – Issue 59

ATO updates

Practical Compliance Guideline on Simplified Transfer Pricing Record Keeping

The ATO has published for consultation a draft Practical Compliance Guideline (PCG) setting out the seven existing Simplified Transfer Pricing Record Keeping measures as well as providing an additional simplification option for outbound low-level loans.

The measures are designed to reduce the record keeping burden required under Subdivision 284-E of Schedule 1 to the Taxation Administration Act 1953 and therefore improve compliance by offering an administrative safe-harbour. They are available to companies, trusts and partnerships that meet the self-assessed eligibility criteria.

The new simplification option for outbound low-level loans compliments the existing simplification measure for inbound low-level loans, ensuring that low level related party cross-border loans are eligible for the simplification measures regardless of which party is the issuer of the related party debt.

Feedback on the draft PCG is due by 16 December 2016.

The complete list of ‘simplification options’ in the draft PCG are:

Read full article