Trade Marks Act 1994

  • Trade Marks Act 1994

4.1 Under the 1994 Act it is stated that trade mark infringement can occur where one uses, “in the course of trade” a sign identical with the trade mark in relation to goods or services which are identical with those for which it is registered.[1] From this, it can be gathered that a sign used to sell goods or services identical to an existing and registered trade mark is an infringement of that trade mark. The case of Arsenal Football Club[2] illustrates this concept of “course of trade” and further expands by focusing on the economic context in which the infringement occurred. It is evident that a view to profit is crucial in determining that infringement of a trade mark has occurred. The CJEU further emphasized the importance of a trade mark, notwithstanding its function as a sign of origin, but further denoting the trademarks wider economic functions, thereby widening the definition of “in the course of trade.”[3] Another aspect to be considered is the use “in the course of trade” in relation to goods or services. This can be understood as meaning to use a trade mark to distinguish goods or services from a particular origin, therefore, as shown in the case BMW v Deenik[4] the use of a trade mark for a descriptive reason does not constitute the infringement of a trade mark. In the case an independent trader operating a maintenance and repair shop used the BMW trade mark to identify that the associated motor vehicles and engines could be repaired there and to convey this to the public. The use of the BMW trade mark was determined not to be an infringement of the trade mark.

4.2 The 1994 Act also covers infringement wherein a sign may be identical or similar to a registered trade mark and is used in relation to goods or services similar to those for which the trade mark is registered and this similarity may cause likelihood of association.[5] This is illustrated in the case Bimbo[6] where a word-mark BIMBO DOUGHNUTS was challenged by the registered Spanish word mark DOGHNUTS. The likelihood of association was dismissed however, as the examination to conclude if there was possibility of association was determined to have to be conducted on the word mark as a whole, rather than in part. Therefore, by not assessing the similarity of the dominant part of a word mark, in which case here it would be “DOUGHNUTS” and “DOGHNUTS”, the word marks were deemed to not confuse the public by creating likelihood of association, as the word marks, on the whole, where two distinct entities.

[1] Trade Marks Act 1994 c. 26, s. 10 (1)

[2] Arsenal Football Club Plc. v Elite Sports Distribution Ltd [2002] EWHC 3057 (QB)

[3] Alice Blythe “Internal company emails: should the inclusion of trade marks be regarded as use in the course of trade or a private matter?” E.I.P.R. [2014] 36(2), 106-111

[4] Case C-63/97 Bayerische Motorenwerke AG v Deenik [1999] E.C.R. I-905

[5] Trade Marks Act 1994 c. 26, s. 10 (2), abogados de accidentes de trafico

[6] Case C-519/12 P Bimbo SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

2009 contract law

2009 Contract Law

Q1) Explain the law on capacity to contract. Provide full authority for your answer

In order to enter into a valid contract, both parties must have capacity. Capacity is effected by a person’s age and mental capacity.  The formalities are prescribed in certain contracts set out in the Requirements of Writing (scot) Act 1995.

Minors

Capacity of legal age in Scotland is 16. There are special provisions for those under 16. Anyone over 16 and in full command of their faculties can make contracts. Age of legal capacity (Scotland) Act 1991. This separates a person’s capacity into 3 periods. In general, anyone under 16 is deemed to have no capacity to enter into transactions (parents usual legal representatives) . Children are able to enter a transaction provided two conditions are met; 1) transaction must be of a kind commonly entered into by persons of that age and circumstances. 2) The terms of the transaction must be reasonable. Cumulative. If one is breached transaction is void.

Insane

A person of unsound mind has no contractual capacity. Most “contracts” made by an insane person are void. If a curator bonis has been appointed to manage the insane person’s affairs, the latter has no contractual capacity at all. If a curator has not been appointed and the person’s mental state is fluctuating then his contracts will only be valid if made during a lucid interval. An on-going contract does not necessarily lapse in the event of the supervising insanity of one party

Louden v Elders CB 1923

Dundee meat retailer ordered supply from Liverpool firm while insane, unknown to supplier , certified insane after order but before delivery, CB appointed and cancelled order, supplier sought damages for breach. Held, No liability as contract void.

Contrast with English Law – Hart v Connor 1985

For a breakdown of the laws in America, Florida abogados de accidentes

Mentally unsound P bound to sell land as the other P did not know of incapacity when bargain was made.

Wink v Mortimer 1849 ( find cases)

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The common law attitude to long term or perpetual trusts

Q3) “The common law attitude to long term or perpetual trusts was that in general such trusts were upheld. The existing restrictions on trust provisions (in relation to accumulations and successive lifrents) are statutory in origin”. Explain those restrictions and the arguments for their retention or whether they should be reformed or repealed.

In England and Wales, the beneficiary in general is able to claim from the trust the income generated from the property when they turn 18. The law of Scotland differs from this as there is no equivalent entitlement to the income of trust at the age of 18 however, scot law does limit the accumulation period.

https://www.lexisnexis.com/en-us/gateway.page

An accumulation of income has rules derived from the Accumulation Act 1880 and 1848 act. Accumulation is adding income to a capital fund rather than distributing it. This act was introduced to remedy situations when this occurs. An example of this being put to play was illustrated in the Thellusson v Woodford 1805 case. Mr T directed the income of his property to be accumulated during the lives of his children and grandchildren. The accumulation fund amounted to £600,000 which continued over 60 years. The bequest was held to be valid. In order to prevent property being distributed like this in the future, the parliament passed the “The Thellusson Act 1800” to prohibit perpetuities. The courts summaries both of the above acts as serving the purpose to prevent allowing accumulation to continue growing over a certain duration of time in order to generate mass capital for the benefit of a generation yet to come.

Limiting the periods allows the funds to be actually be distributed to a beneficiary rather than being held doing nothing collecting dust. The relevant provisions which deal with the specific periods of time are The Trusts (s) Act 1961 s5 and the Law Reform (Miscellaneous Provision) (S) 1966 s6. Both acts working together, place six possible periods to prevent accumulation. It will be up to the courts to decide which to enact depending on the facts of the case.

Accumulations limited by the Trusts (S) Act 1961 s5 sets out four periods. The first states that if the deed is an inter vivos deed, the accumulation may continue throughout the life of the grantor. If the accumulation continues after death one of the permitted periods may apply however, it can continue if the direction makes a reference to a minority which will not apply the rules of Age of Legal Capacity 1991 Act, instead it will take the definition for section 6 of the act which states a minority is 21, it will continue after death.

Section 5 (b) allows the accumulation to continue for a term of 21 years after the death of the grantor. This is illustrated in Carey’s Trs v Rose 1957 where Mr C directed his trustees to hold the residue of his estate for his son for when he turns 21 however he failed to give direction to the income of the estate. The son was born two years after the death of Mr C which lead to the period amounting to 23 years. The question was whether this was illegal. It was held that any income subsequent to a period of 21 years must fall into intestacy. The direction is void if it’s over 21 years and the person who, if the direction had not been made, would be entitled to the income will receive it.

Section 5 (c) states that the duration of the minority or respective minorities of any person or persons living or in utero at the death of the granter may continue.

And section 5 (d) duration of minority or minorities of any person or persons who, in terms of the will, or settlement, or other disposition directing the accumulation, would, for the time being, if of full age, be entitled to the income directed to be accumulated.
The limitations placed by the Law Reform (Miscellaneous Provisions) (S) Act 1966 s6 are as follows; S6 (a) provides that income may be accumulated for a term of 21 years from the making of the settlement or other disposition and also the duration of the minority of any person living or in utero at the date of the making of the settlement or other disposition at the date of the deed.

In addition to this, Scots law have developed a rule that limits the creation of life rents. This derived from the Entail Amendment Act 1843 (now section 18 of Law reform act 1968)  What this entails is that a life rent can only be created in favour of a person who is alive or in utero at the date when the deed creating the life rent comes into operation. If a life rent is created in favour of any other person, that person is entitled to a right of fee either as soon as the life rent comes into operation or, if later, when he or she attains majority. If not in life when deed comes into operation but is subsequently born, take the life rent until 18 then take capital absolutely to exclusion of intended capital beneficiary

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“Auctor in rem suam”

Q7) Breach of Trust “Auctor in rem suam”

Trusts are in a fiduciary relationship both to the truster and to the beneficiaries. There is a requirement for the trustees clearly separate their personal interests from the interests of the trust. They must avoid placing themselves in a position where two interests conflict. This puts trustees in a strong position as it makes it relatively easy to commit fraud. Therefore to prevent this, the law precluded a trustee from being Auctor in rem suam.

Trustee must act in the best interests of the beneficiaries personal considerations, if allowed to interfere, would clash with this fiduciary capacity. The trust is entitled always to independent advice. Trustees have knowledge of trust affairs which 3rd parties dealing with at arm’s length would not have and it would be regarded as unfair if they used this knowledge for their own benefit as seen in the case of Hamilton v Wright 1842. The rule of a trustee being Auctor in rem suam is strictly applied. It’s irrelevant whether a transaction is perfectly fair or if the trust estate would gain a benefit and suffer no loss. The trustee would be in breach and the transaction would be voidable. Any profit made would have to be paid back to the trust estate. Transaction voidable at instance of beneficiaries or co-trustee or judicial factor appointed by court.

There are certain exemptions of this principle. A trustee may act as Auctor in rem suam when it is expressly sanctioned by the truster who has foreseen the conflict of interests. This was illustrated in the Buckner v Jopps Trs 1887 case. Section 32 of the Trust Act states to still act honestly and reasonably.

A trustee must not transact with the trust estate, trustee may not borrow from trust estate, may not sell property to trust and may not buy property from trust. If a trustee agrees with a 3rd party that the latter will purchase the trust property and then sell it on to him, it would be possible to seek interdict to prevent the transfer to the trustee or have it reduced if it had taken place as illustrated in the case of Clark v Clarke Exrx 1989 offer received from third party for farm this qualified acceptance issued purchaser failed to pay price missives assigned to widow (also trustee).   Notary public London held that this was a clear conflict of interest granted reduction of assignation of contractual rights .

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Explain to the trustees the legal principles applicable to the investment of trust funds

Q5) 

Trusts are not confide to the world of wills and family settlements, they have a considerable and increasing relevance in many commercial enterprises such as investment trust funds. However, over the course of time the economic and social nature has evolved so rapidly that the law governing the powers and duties has not been able to keep up. The Scottish Law Commission have stated that the Trusts Act 1964 is out of date, it was examined critically by them and they propose it should be replaced by new statutory provisions which give trustees power to make an investment of any kind if they are entitled to the trust absolutely or beneficially. And that trustees should have the power to acquire land on behalf of a trust.

A trust deed if it involves an investment will have to be adhered to whether it be to invest in a particular area or to avoid certain investments. However, under the Trusts (S) Act 1921 s4 it states that, if the trust deed is silent it gives trustees the power to make “any kind of investment”. This covers heritable property, moveable or incorporeal such as shares. Lord Watson gave his description in the case of Learoyd v Whiteley 1887 he stated that

As a general rule the law requires of a trustee no higher a degree of diligence in the execution of his office than a man of ordinary prudence would exercise in the management of his own private affairs. It is the duty of a trustee to confine himself to the class of investments which are permitted by the trust, and likewise to avoid all investments of that class which are attended with hazard”.

Before the 1921 Act, if there was no power conferred in deed very limited power to invest. The 1921 Act sought to improve situation by conferring certain powers in addition to those in deed provided they did not conflict with deed however, this provision was not really satisfactory. The Trust Act 1961 divides investment of trust into two groups; the narrow range of investments which are fixed securities and wide range such as shares. The act states that if a trustee seeks to invest in a wide range he must firs divide the fund into two parts. This however, was regarded as being a burden and that the “wide range” investments were restricted as it did not include investments to purchase land. A reform was sought by the Scottish Law Commission.

Visit notarypubliclondon-mmk.co.uk for more information!

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Breach of trust

Q7) Breach of Trust “Auctor in rem suam”

Trusts are in a fiduciary relationship both to the truster and to the beneficiaries. There is a requirement for the trustees clearly separate their personal interests from the interests of the trust. They must avoid placing themselves in a position where two interests conflict. This puts trustees in a strong position as it makes it relatively easy to commit fraud. Therefore to prevent this, the law precluded a trustee from being Auctor in rem suam.

Trustee must act in the best interests of the beneficiaries personal considerations, if allowed to interfere, would clash with this fiduciary capacity. The trust is entitled always to independent advice. Trustees have knowledge of trust affairs which 3rd parties dealing with at arm’s length would not have and it would be regarded as unfair if they used this knowledge for their own benefit as seen in the case of Hamilton v Wright 1842. The rule of a trustee being Auctor in rem suam is strictly applied. It’s irrelevant whether a transaction is perfectly fair or if the trust estate would gain a benefit and suffer no loss. The trustee would be in breach and the transaction would be voidable. Any profit made would have to be paid back to the trust estate. Transaction voidable at instance of beneficiaries or co-trustee or judicial factor appointed by court.

There are certain exemptions of this principle. A trustee may act as Auctor in rem suam when it is expressly sanctioned by the truster who has foreseen the conflict of interests. This was illustrated in the Buckner v Jopps Trs 1887 case. Section 32 of the Trust Act states to still act honestly and reasonably.

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Law of Succession pt.2

Q2) “The common law attitude to long term or perpetual trusts was that in general such trusts were upheld. The existing restrictions on trust provisions (in relation to accumulations and successive lifrents) are statutory in origin”. Explain those restrictions and the arguments for their retention or whether they should be reformed or repealed.

In England and Wales, the beneficiary in general is able to claim from the trust the income generated from the property when they turn 18. The law of Scotland differs from this as there is no equivalent entitlement to the income of trust at the age of 18 however, scot law does limit the accumulation period.

An accumulation of income has rules derived from the Accumulation Act 1880 and 1848 act. Accumulation is adding income to a capital fund rather than distributing it. This act was introduced to remedy situations when this occurs. An example of this being put to play was illustrated in the Thellusson v Woodford 1805 case. Mr T directed the income of his property to be accumulated during the lives of his children and grandchildren. The accumulation fund amounted to £600,000 which continued over 60 years. The bequest was held to be valid. In order to prevent property being distributed like this in the future, the parliament passed the “The Thellusson Act 1800” to prohibit perpetuities. The courts summaries both of the above acts as serving the purpose to prevent allowing accumulation to continue growing over a certain duration of time in order to generate mass capital for the benefit of a generation yet to come.

Limiting the periods allows the funds to be actually be distributed to a beneficiary rather than being held doing nothing collecting dust. The relevant provisions which deal with the specific periods of time are The Trusts (s) Act 1961 s5 and the Law Reform (Miscellaneous Provision) (S) 1966 s6. Both acts working together, place six possible periods to prevent accumulation. It will be up to the courts to decide which to enact depending on the facts of the case.

Accumulations limited by the Trusts (S) Act 1961 s5 sets out four periods. The first states that if the deed is an inter vivos deed, the accumulation may continue throughout the life of the grantor. If the accumulation continues after death one of the permitted periods may apply however, it can continue if the direction makes a reference to a minority which will not apply the rules of Age of Legal Capacity 1991 Act, instead it will take the definition for section 6 of the act which states a minority is 21, it will continue after death.

Section 5 (b) allows the accumulation to continue for a term of 21 years after the death of the grantor. This is illustrated in Carey’s Trs v Rose 1957 where Mr C directed his trustees to hold the residue of his estate for his son for when he turns 21 however he failed to give direction to the income of the estate. The son was born two years after the death of Mr C which lead to the period amounting to 23 years. The question was whether this was illegal. It was held that any income subsequent to a period of 21 years must fall into intestacy. The direction is void if it’s over 21 years and the person who, if the direction had not been made, would be entitled to the income will receive it.

Continue reading “Law of Succession pt.2”

Law of Succession – Past Paper Help!

Q1) Facility & Circumvention and Undue Influence. Explain both and simple procedures to prevent this.

In Scots law, for a will to be valid it must have been created by a testator who possess two things at the time it was made; capacity and intention to test. For it to formally valid, it must meet the statutory requirements which are laid out in the Requirements of writing act 1995. The decisive factor to raise a case is whether or not the testator’s had been misguided to allow someone else to take advantage of their wishes.  Problems can arise from allegations that the will was made under pressure.

An individual may suffer a degree of mental deterioration which, without amounting to insanity, leaves him vulnerable and easy to take advantage of. When this is the case, three elements must be present at the time the will was made. These are; being in a weakened state of mind, signs of fraud and also lesion. In other words, not being able to freely express his intention to allow personal gain for beneficiary. Lady Smith summarised this in the case of Horne v Whyte 2005 where it was stated that:

“… Three elements are clearly interrelated, they require to be looked at as a whole and the strength of the pursuer’s case on one matter may compensate for weakness on other matters.”

The concept of facility is clear, when an individual can be easily misled who suffers from a weakened state of mind, but not diagnosed with insanity. Where the water becomes clouded is when defining facility. If the testator is under the influence of drugs or alcohol or suffers from a mental illness, facility may arise from these however, it does not automatically qualify the testator to be facile. The facts of each case must be questioned and analysed. Lord Justice Clerk described it as where

“A person is in such a mental state that he is unable to resist pressure and… someone else can mould and fashion his conduct as he pleases.”

Bearing this in mind, the court are not quick to label a testator as facile. The views of medical practitioners hold a heavy weight in the decisions made as their opinions are conclusive. In Rennie v Stephen 1991 it was held that mild dementia was concluded by medical experts to not interfere with a person’s judgement. This highlights how strong medial opinions are, as they are objective.

Thus, the question to be asked will be the testator’s state of mind morally and constitutionally: Openness to machination, not a lack of understanding. The Perception of persuasion is vital in this matter.

Circumvention is defined as fraud or deceit. It is an intimidation operating on the mind as to bring the individual within entire control. This is challenging to prove as, it is generally only witnessed by the testator and by the time the challenge has been brought to light the testator may have already passed. When the alleged facile person is still alive, facility must be proved and also specific acts of circumvention or facts of circumvention for the court to infer. In Parnie v Maclean it was held that the degree of circumvention would depend on the degree of facility.

In the Horne v Whyte 2005 case, a housekeeper who was included in the homeowners will could only have been caused by her circumvention which amended his will. http://legalresearch.westlaw.co.uk

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