Monthly Archives: December 2016

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.

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Two recruits join our Insurance Law Practice Group

December 1, 2016 — RSS recently added two litigators to its Insurance Law Practice Group:

  • Georgia Papadolias, who joined us in the early days of November after having been with a boutique litigation firm. Her practice will comprise an important share of transportation and maritime law cases.
  • Sandrine Bédard, called to the Bar a mere few days ago, will remain on a course that began in 2014 as a student and continued when she articled with us. She will continue to represent before the courts a clientele that is already familiar to her.
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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.

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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.
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