Legal Updates

IP housekeeping – a canter through EU reforms coming your way during 2016

Here’s a quick “heads up” of what I see as the key reforms of IP laws in the pipeline at the European Union (EU) level that are likely to affect EU regional registrations of IP, as well as the national laws of each and every EU Member State.  You will no doubt be reading more about these topics during 2016.

Patents

The new EU Unitary Patent (UP) is on the starting blocks: most of the key documents, including secondary rules and regulations for the UP and the associated arrangements for the Unitary Patent Court (UPC), are now agreed[1]. But ratification of the UPC agreement is still awaited from the 13 Member States required, including the UK and Germany (both of whose ratification is mandatory) for it, and so the UP, to come into force.  This is expected to occur during 2016 and the hope is that the UP will be up and running by the beginning of 2017.  Once that happens, innovators will be able to apply for one patent to cover the whole EU (without the need for converting to individual national registrations).

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Launch of consumer-friendly EU online dispute resolution platform

The EU Commission’s drive to encourage EU cross-border trade through increased consumer confidence took a step forward today (9 February 2016) with the operational launch of its online dispute resolution platform (ODR platform). The portal (which is accessible at the following link: http://ec.europa.eu/consumers/odr/) is specifically designed to help consumers who have bought goods or services online, but subsequently experienced a problem with their purchase.

The ODR platform is the result of the 2013 EU regulation on consumer online dispute resolution (ODR Regulation). This sought to address a perception that consumers are not making complaints to online traders because they believe the procedure will be too long-winded, or is unlikely to result in a satisfactory solution.

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Business as usual – Supreme Court confirms Court of Appeal decision in Marks and Spencer plc v BNP Paribas

The interpretation of tenant break clauses has always been an area where the court routinely finds in favour of upholding the exact wording in the lease, regardless of the seemingly unfair impact that this may have upon the tenant and the tenant’s business.

As such the recent decision of the Supreme Court in Marks & Spencer plc v BNP Paribas Security Services Trust Company (Jersey) Limited and another [2015] UKSC 72 will not come as a surprise to most practitioners. It should also give landlords the confidence to both demand and keep a full quarter’s rent from any tenant seeking to terminate their lease in the middle of a quarter by operation of a break clause, except in cases where there is a clear clause to the contrary.

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Government Consults over Reforms to Public Sector Redundancy

The UK Government has launched a consultation exercise over plans to modernise public sector redundancy rules.

The Government says that its proposals will reduce the cost of pay-outs and ensure greater consistency between workforces across the public sector.

Currently, redundancy payments vary across the public sector, even for people with similar levels of pay and length of service. The proposals in the consultation will put pay-out terms between different workforces on a more equal footing, ensuring a fairer deal for public sector workers.

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Agreement on EU-U.S. Privacy Shield to Replace Safe Harbor Faces Hurdles

Negotiators from the European Commission and the United States have announced an agreement to replace the U.S.-EU Safe Harbor Framework for certain cross-border data transfers which was struck down last October by the European Union’s Court of Justice. However, complete details of the agreement have not yet been made available, and significant hurdles remain before it can take effect.

Background
The European Commission’s Data Protection Directive requires that countries to which the personal data of EU residents are transferred maintain adequate standards for data protection (to see a previous D&G Alert on data protection, click here). Over 15 years ago, the Safe Harbor program was put in place to enable the transfer of personal data from EU residents to companies in the United States in a manner that, it was expected, was in compliance with the EU standards.

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Call Me Whatever I Tell You to Call Me Under New York City Human Rights Law

John M. O’ConnorRetail employers and other businesses that serve the public in New York City should take particular notice of the New York City Commission on Human Rights’ detailed written guidance issued on December 21, 2015, reinforcing its desire that the protections afforded to transgender individuals by the New York City Human Rights Law (“NYCHRL”) be broadly interpreted to ensure that transgender individuals receive the full protection of the NYCHRL. The guidance includes specific examples of what the Commission believes constitutes unlawful discrimination based on an individual’s actual or perceived transgender status, gender identity, self-image, appearance, behavior or gender expression.

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Best Will for…..providing for minor children

Parents, in particular, face a bewildering choice of structure options when it comes to making provision for their children in their Wills.  Often the prospect of their child inheriting a large sum of money at age 18 does not appeal.  Instead, being able to delay a child taking control of their inheritance until age 21 or 25, or later, or arranging for a series of staggered payments over the years is preferred.  However, the tax consequences of the various options are not always explained and parents can end up making inappropriate choices. 

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Paul L. Feldman Co-Chairs MCLE’s “Zoning Practice” Program

On January 26, Davis Malm shareholder Paul L. Feldman co-chaired the Massachusetts Continuing Legal Education (MCLE) “Zoning Practice” Program. The full-day program covered a wide range of zoning topics. Mr. Feldman’s presentation focused on obtaining special permits and variances under municipal zoning by-laws.

Mr. Feldman’s real estate practice involves all aspects of real estate work, including acquisition, leasing, permitting, and financing. He represents several active and substantial real estate developers and handles transactions in many parts of the country. He appears before municipal boards and state agencies, as well as before all levels of the Massachusetts state court system. 

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New York Ethics Commission’s Proposed Regulation Draws Fire From Public Relations Firms

New York’s leading public ethics authority recently issued an Advisory Opinion expanding the reach of the State’s lobbying laws to public relations consultants. These rules could have far-reaching effects on the public relations industry.

The Advisory Opinion, however, has drawn fire from government officials, journalists and the public relations industry, who believe it raises serious practical questions and First Amendment concerns. For this reason, the new rules appear likely to be challenged in court.

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Low Tariff for Solar PV Projects: The Good and the Not So Good

Tariffs for solar power have been falling steadily since 2010 when the Jawaharlal Nehru National Solar Mission (“JNNSM”) was launched – from the lowest tariff of ₹10.95 per kWh, discovered for photovoltaic (“PV”) projects in batch I of phase I of JNNSM, to ₹7.49 per kWh (being the lowest tariff discovered in reverse auctions based on discounted feed-in tariff) for PV projects in batch II of phase I of JNNSM, to a levelised tariff of ₹5.45 per kWh (₹4.95 per kWh in case benefit of accelerated depreciation is availed) for PV projects selected under reverse auctions based on viability gap funding (“VGF”) under batch I of phase II of JNNSM. 

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