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A B C D E F G H I J K L M N O P R S T V W Y

Onerous practices in Public Procurement – new CCS Guidance
Wednesday 21st December 2016

The Crown Commercial Service has released its latest procurement policy note (PPN 10/16). The newly published guidance marks an attempt to reduce the number of public procurements (a.k.a. OJEU tenders or OJEU procurements) which involve onerous or inappropriate risk allocation between contracting authorities and suppliers. 

PPN 10/16 comes into force with immediate effect and applies to all central government departments, their executive agencies, and non-departmental public bodies.

The PPN reiterates the importance of contracting authorities conducting public procurement and contracting activity in accordance with published guidance and best practice. In particular, it highlights the following:

1. Pre-procurement market engagement between contracting authorities and potential suppliers, as permitted by provisions included in the Public Contracts Regulations 2015, is described as ‘essential good practice’. It is envisaged that such engagement will encourage innovation and maximise value for money.

2. Contracting authorities should ensure that accurate and reliable data is made available throughout the procurement process, especially when such data relates to forecasting volumes, and managing demand and performance under the contract.

3. Contracts should be awarded based on the supplier’s ability to provide value for money over the life of the contract.

4. Proportionate mechanisms should be employed to identify and address risks inherent in the contract and contracting authorities are encouraged to discuss these risks and possible solutions with suppliers at the pre-procurement stage.

5. When establishing limits of liability in contracts, contracting authorities should use the guidance developed by the Crown Commercial Service to support their Model Services Contract and in particular, they should ensure that:

  • The commercial risks of each contract are considered in detail;
  • Risk management proposals are discussed with potential suppliers in the pre-procurement stage;
  • Bespoke liability provisions are drafted to reflect the requirements, value and complexity of the contract, avoiding unlimited liability except where required by law; and
  • Deeds of Guarantee and Performance Bonds are only used where the contract is at high risk of performance or supplier failure.
     

6. Contracting authorities should adopt a collaborative relationship with suppliers, using established contract management tools and techniques so that any changes in contract delivery are identified early enough to be able to be resolved without creating unmanageable risk for either party.

The release of PPN 10/16 highlights the concern of suppliers that their adoption of risk in performing public contracts is disproportionate to the risk adopted by the contracting authority. Following this guidance, contracting authorities, acting in accordance with best practice, will need to consider the level of risk each party to the contract is best placed to bear and to consider the cost consequences associated with such risks, even before issuing an OJEU notice.

 

For further information regarding risk allocation in public contracts, or public procurement law in general, please visit our public procurement page or contact Victoria Trigwell at 0151 600 3429 or email victoria.trigwell@brabners.com

 


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Data Protection Bill – Exemptions
Thursday 14th December 2017

The UK’s proposed Data Protection Bill (the “Bill”) creates a number of exemptions to the requirements under the EU General Data Protection Regulation (GDPR), many of which mirror similar provisions in the Data Protection Act 1998 (DPA). For businesses which rely on these provisions to process personal data without breaching the legislation, it is important to understand the scope and the limitations of the exemptions due to the increasing penalties for non-compliance.

Public functions

The existing DPA exemptions for public bodies are largely unchanged in the Bill, with the majority of data subjects’ rights being excluded where the processing of personal data is necessary for the prevention or detection of crime and the assessment and collection of taxes, the public functions of certain regulatory bodies and for various functions in the public interest, including protecting the public against financial malpractice, protecting charities and securing the health and safety of workers.

A contentious new addition in the Bill relates to the processing of personal data for the maintenance of effective immigration controls (and, significantly, has nothing to do with the prevention of crime), which the advocacy group Liberty described in its report of October 2017 as a “brazen violation of the data protection and privacy rights of migrants”.

Exemptions from access and transparency rights

Data subjects’ rights of access can sometimes conflict with the rights of privacy of other individuals. For this reason, an important exemption is recreated in the Bill which provides that data controllers are not required to disclose information in response to an access request where another individual can be identified from that information (unless they give their consent).

Rights of access, and the requirements to provide certain information to data subjects upon the collection of personal data (a.k.a. “transparency”), are also excluded where the data could have the benefit of legal professional privilege, or are processed for the purposes of business management forecasting. If the data consists of confidential references (for employment, education or training), the controller’s records in relation to any negotiations with the data subject, or information recorded by candidates during an exam, the exemption will also apply.

A person will also not be required to comply with an access request if doing so would reveal incriminating evidence of their commission of a criminal offence (however, note that this rule against self-incrimination does not apply to offences under the Bill, or to perjury offences).

Corporate finance providers enjoy a similar exemption; rights of access and transparency will not apply where compliance would likely affect the price of corporate finance instruments, or where compliance would prejudicially affect the functioning of financial markets by affecting the decisions of business people in relation to corporate finance.

Freedom of expression and research

There have been concerns that the increased protection for individuals under the GDPR could have a detrimental impact on the general right of freedom of expression. However, the Bill contains a wide exemption – which covers almost all of the rights of data subjects, the lawful grounds for processing and requirements relating to consent (including children’s consent) – for the processing of data for journalistic, academic, artistic or literary purposes, where the controller reasonably believes that the publication of the material would be in the public interest.

Rights of access, rectification, restriction of processing and objection to processing are also excluded where personal data is processed for scientific or historical research, statistical purposes, or for archiving purposes in the public interest.

Health, social work, education and child abuse

In most proceedings in the Family courts, if the court processes personal data relating to health, social work or education (e.g. where it is contained in evidence or other reports in the proceedings) and, under the relevant court rules, the court may withhold the information from the data subject, then the rights of the data subject (such as access rights) will not apply.

In relation to health, social work or education data, there are also exemptions from the right of access where disclosure would be likely to cause serious harm to the physical or mental health of the data subject (or another individual).

Where an access request is made by a person either with parental responsibility for a child (under 18) data subject or who has been appointed by a court to manage the data subject’s affairs: in relation to data concerning child abuse, the right of access will not apply to the extent that compliance would not be in the best interests of the data subject; and in relation to data concerning health, education or social work, the right of access will not apply where the data was obtained from or provided by the subject with an expectation of privacy (or where the subject expressly indicates that the information should not be disclosed).

Any businesses concerned about the changes under the GDPR, or unsure whether or not exemptions might apply, should seek advice before the GDPR (and the Bill) come into force next May; our experienced Commercial team can assist in deciphering the legislation and preparing your business for the new rules.

This article is part of a series produced between November and December 2017 for Brabners Data Protection Month – you can find all of our data protection articles on our Data Protection Month page.


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GDPR - Data Subject Rights
Thursday 14th December 2017

The EU General Data Protection Regulation (GDPR) provides important changes to the rights of data subjects. As well as introducing new rights, some provisions in the Data Protection Act 1998 (DPA) have been revised to strengthen protection for individuals and bring further clarity for controllers.

Bolstering existing rights

The DPA obligation for controllers to provide certain information to data subjects has been rechristened as “transparent communication” in the GDPR. As well as information about their identity and the purposes for which personal data are processed, controllers will have to provide subjects with information about:

·         the legal basis for processing data;

·         any intended recipients of the data or transfers to non-member states;

·         data retention periods;

·         information about subjects’ rights and how to withdraw consent or lodge complaints; and

·         the existence of any automated decision making or profiling systems.

This information must be provided at the time the data is obtained, in a concise, intelligible and easily accessible form, using clear and plain language (particularly in respect of child subjects).

Data subject access rights subsist in the GDPR and subjects may request access to their personal data as well as the information as listed above at any time. The timescale for complying with such requests is reduced from 40 days to one month, and businesses will no longer be able to charge a £10 fee for this service. However, if subject access requests are manifestly unfounded or excessive (and it is for the controller to prove that they are), controllers may either charge a reasonable fee to cover their costs or refuse to act on the request. Controllers may also request information from the subject if they have reasonable doubts as to their identity (and, therefore, the validity of the request), and may refuse an access request where the requested data contains personal data relating to other individuals (which could not reasonably be separated).

The right to rectification of personal data (correcting errors and omissions) is largely unchanged in the GDPR, but data subjects currently have to apply for a court order to request rectification; under the GDPR controllers will usually have to respond to such requests within a month, but this can be extended by two further months for complex or multiple requests.

The right for data subjects to object to the processing of personal data is also broadened; subjects may currently object only where the processing of personal data is likely to cause them substantial unwarranted damage or distress or where it is used for direct marketing. Under the GDPR an objection may be made in relation to any processing which is justified on the grounds of either public interest or the legitimate interests of the controller (the latter being particularly significant as many controllers may turn to this as an alternative to consent, which is becoming harder to demonstrate). Controllers will have to cease processing the data following such a request unless they can demonstrate compelling legitimate grounds which override the subject’s rights; from a practical standpoint, this topic is yet to be explored in detail, but such grounds may include where the controller and the subject have an existing relationship (e.g. for the provision of services) and the processing is necessary in order to provide the level of service that the subject expects and continues to desire.

New rights in the GDPR

Under the GDPR’s new right to erasure (a.k.a. the “right to be forgotten”), subjects may require controllers to erase personal data concerning them where the data are no longer necessary for the purposes for which they were collected or have been unlawfully processed, where the subject withdraws the consent upon which the processing is justified, or where the subject objects to the processing of that data. This has garnered criticism as, where personal data has been made public (e.g. by posting online), controllers are also required to take reasonable steps to inform all controllers processing the data of the erasure request, which is likely to be difficult to comply with in practice (although it is worth noting that in taking such “reasonable steps”, controllers are entitled to take into account limitations in technology and the costs of implementation).

Another contentious addition in the GDPR is the right to restriction of processing. If a data subject contests the accuracy of personal data held by a controller, they may compel the controller to cease processing that data (e.g. by removing content from a website) until the controller is able to verify its accuracy. The potential impact of this provision on freedom of speech is concerning; websites will undoubtedly be encouraged to comply with all take down requests (regardless of their validity) rather than incurring the time and expense of a verification process.

The right to restriction of processing also applies as an alternative to erasure where the processing is unlawful, where the controller no longer needs the data but the subject requires them in connection with a legal claim, and where the data subject objects to the processing (pending verification of any overriding legitimate grounds of the controller).

The GDPR also creates a right of “data portability” which allows subjects to require personal data to be provided to them in a structured and commonly-used format, or to be transferred between controllers. While designed to improve interoperability between processing systems and to prevent people from becoming “locked in” to a particular service provider, the impact on businesses that will have to comply with such requests is uncertain.

Additional protection for individuals

It is important to remember that a lot of the GDPR has been designed, generally, to increase data protection for individuals.

For example, consent remains an important lawful ground for processing personal data but will be harder to demonstrate under the GDPR, as it must be freely given, specific, informed, unambiguous and given by a “clear affirmative action” (goodbye, pre-ticked check boxes). There are also new rules allowing data subjects to object to decisions that have been made by the automated processing of personal data (including “profiling”, where subjects are evaluated by reference to certain aspects of personal data).

Some organisations may benefit from exemptions (implemented in the UK’s new Data Protection Bill but authorised under the GDPR) in respect of some of their processing activities. Exemptions exist for various public functions (such as the prevention of crime, immigration controls and regulatory bodies), public interest purposes (such as avoiding self-incrimination, maintaining legal professional privilege and freedom of speech), and also for data relating to healthcare, social work, education and child abuse.

In order to stay on top of the new rules, we recommend that businesses have in place robust data security and privacy policies, tailored to their particular circumstances and practices.

This article is part of a series produced between November and December 2017 for Brabners Data Protection Month – you can find all of our data protection articles on our Data Protection Month page


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HR Forum: Preventing Sexual Harassment at Work - Manchester

Date

Thursday 25 January 2018

Time

08:00 - 10:00

Cost

Free

To reserve your place please click here.

Venue

Brabners LLP, 55 King Street, Manchester, M2 4LQ

We would be delighted if you could join us for our HR Forum in Manchester on 25 January 2018.

In light of recent media coverage, our topic for this session will be sexual harassment in the workplace.

Points for discussion will include:

  • When is it sexual harassment?
  • How to reset the culture
  • When a policy isn’t enough
  • Handling a complaint and repairing the damage

Our event promises to be lively.

Come along, join in, share best practice and increase your knowledge and experience.

Our HR Forum is a networking group aimed at HR and Operations Managers, together with anyone who is responsible for managing people in their organisation.

This is a perfect opportunity for you to get up to date whilst building a supportive network of like-minded peers.

Speakers

Lee Jefcott, Partner
Amy Anderson, Solicitor

Timings

08:00 - Registration, refreshments and networking
08:30 - Welcome and introduction
08:40 - Round table discussion / Q&A
10:00 - Close

RSVP

To reserve your place please click here or alternatively contact Jenny Sabeva by emailing events@brabners.com.

Enhancing the Angel’s Perspective

Wednesday 13th December 2017

Mark Rathbone, Brabners LLP, Head of Corporate in Liverpool, discusses what to expect when becoming an angel investor and what to consider when entering into a possible deal, in the first of a series of articles.

It has long been our view that a strong sophisticated angel community is essential to a growing entrepreneurial economy fit for tomorrow. Angels are a key element of the funding matrix for businesses. A good angel transaction delivers early stage funding with significant added value. Angel investing at best covers two prime functions: it marries funding requirements of early stage businesses to a series of funding rounds and so needs angels with sufficient funding capacity to meet more than one round of funding; in addition, it marries the knowledge, experience, network and entrepreneurial skills of the angels to the needs of the early stage business, enhancing its growth potential and better enabling it to solve issues quickly.  

Given the massive changes in technology and the world that it is creating, angels who are willing to invest in tech businesses, who understand the technology and the market into which it is to be sold, are a rare breed. Many early stage tech businesses are pre revenue, with technology not yet proven in a fast changing market. Understanding the risks in the technology and the market is difficult. It is therefore of paramount importance that transactional risk, the governance risk in business and shareholder relations and the risk in illiquidity of the investment, is fully understood and minimised or managed to the fullest extent.

The bare bones of a proposed deal should be available for consideration before a lot of time is spent on due diligence and negotiating legal documentation. Initially some work will be involved in getting to know the management team to get a feel for whether you can work with them. In addition, a good understanding of what the technology’s capability is and what market it is anticipated to be attractive to. Understanding latest financial performance and immediate prospects is also hugely important at this point. Having got to this stage it is important to map out with the founder what the deal is. To understand the deal as a whole, there are a few constituent parts:

Valuation
The financial performance, immediate prospects and business plan forecasts will inform the valuation that might be placed on the business as a whole. The valuations placed in any previous funding rounds might assist, but should not be taken as gospel. There is no fixed valuation methodology, though there are many gurus who make their own methodology freely available on the internet. Whatever value is placed on the business in these negotiations will be what is used to derive the price for your investment, which will be the same percentage of that value as the percentage of the shares in the business you subscribe for. You should make sure that the value includes the cash being invested by you and others in this funding round, as that goes straight to the balance sheet.

The various shareholdings
The other investors in the business, in this round and those already invested, needs to be understood. A cap table should be prepared, showing the investor shareholdings before your investment, after your investment and showing further expected dilutions through exercise of share options. Share options might be already held by employees, including the existing managers. Equally, share options may be proposed to be issued to employees and the deal may give consent to the grant of those options as a percentage of share capital. The cap table will provide an understanding of the historic funding rounds, it will illustrate the percentage of the equity that you are to purchase and will show how that equity is expected to be diluted at exit. What it will not do is show you what further funding rounds might do to dilute your equity percentage further.

Equity vs loan notes
Is all of your investment to be made in equity, or are you acquiring loan notes? If you are looking to benefit from Enterprise Incentive Scheme (EIS) status for your investment and the reliefs then available, this will only be available in relation to your investment in equity, so it may be ill-advised to invest by way of loans. If EIS is not available, you may want more of your investment to be by way of loan, but that will depend on the valuation and the other investors (both present and historic).

Control
It is important to understand where the power is in the business and amongst the shareholders. Who are the managers or founders? Are they to control the Board or the shareholders? One shareholder or a group of shareholders may hold the every day balance of control. Do any of the shareholders have ultimate control in certain circumstances, such as a right to swamp the board if the business is in financial difficulty? You should note also whether any shareholders have debt in the business and so have an ability to control the business by calling in their funds, or exercising or enforcing any security they have over the assets of the business?

Shares in a private company are not liquid assets. Should you or any group of shareholders be seeking a right to force an exit after a certain amount of time?

Later rounds
Another issue that must be considered is the next expected funding round. It is unusual that an angel investment will be the last fund raise of a business. Any later fund raise will impact on the equity percentages of the shareholders. An ability to participate in later funding rounds should be a key consideration of any angel.

It is important that all of these matters are considered by the angel at this early stage and discussed openly with the managers/founder and the other investors. A term sheet should be prepared, setting out the key terms required and giving some exclusivity to the angels. This then gives time for due diligence and key legal documentation to be drafted and negotiated.

As part of our partnership with Tech North on the Angel Network, Brabners LLP will be covering all stages of investing in articles over the coming months, aimed at assisting business angels to comprehend and manage risk in transactions. The intention is to equip angels to better understand the deals proposed to them, to better enable them to negotiate those deals, as well as to evaluate the risks against rewards.

Lookout for our next article considering some of the key provisions you would expect to see in Heads of Terms and considering how you manage risk on the way into the investment.

Air Rifles - A Cautionary Tale…
Tuesday 12th December 2017

Mr Haroon Javed was arrested in early 2015 upon his return from a holiday in Pakistan.  On his outbound journey to Pakistan some weeks earlier he had been stopped by police officers and had seized from him two Edgun air rifles along with a range of other related equipment.  The rifles had been declared to the airline prior to arrival at the airport and prior to travelling Mr Javed had depressurised the air reservoirs on both rifles and removed the hammer springs from both weapons.  When he arrived at the airport he presented them for examination to UKBF and the guns were cleared and accepted for loading into the aeroplane.  In a separate bag along with other items, was a jiffy type bag containing some screws, washers, and some hammer springs although he did not have the spring’s original to the rifles with him.

Whilst Mr Javed had been visiting his family’s farm in Pakistan, the UK authorities instructed an expert to test the rifles.  The expert concluded that both rifles should be defined in law as firearms subject to section 1 certification since both weapons operated at well above the permitted UK limit of 12ft/lb muzzle velocity.  Since Mr Javed did not have a firearms certificate authorising possession of the rifles he was interviewed by the police and, despite making his position clear in interview, was prosecuted for two counts of possession of a firearm without a certificate and for two counts of possession of a firearm and ammunition in a public place.

Lachlan Nisbet, BASC’s Solicitor for England & Wales instructed Matthew Perring of BASC’s firearms team to inspect the weapons and to prepare expert evidence.  It was conceded by the prosecution expert that the rifles were both inoperable in the condition that he had received them in – both having no hammer springs fitted.  In his report to the Court, Mr Kabbani from Key Forensics who provided expert evidence to the Crown report set out that he had selected a pair of hammer springs from the jiffy bag referred to above and fitted them to the rifles causing them to operate.  However, Mr Kabbani failed to set out which springs (of the three sets present) he had fitted and why he had selected those springs.  He also did not say whether any of the other springs, if any, would have fitted either of the weapons and, had they fitted, what the weapons’ kinetic capability might have then been.  Mr Kabbani treated the air rifle and the various screws, washers and springs as if they were capable of being defined as section 1 component parts in their own right.

Probably the most alarming aspect of this case however was the idea that is was acceptable for an expert examiner to interfere with exhibits i.e. fitting the hammer springs in such a way as to create a potential offence.  As the guns were received by the expert, they were inoperable.  Their legal status at that time was little more than two pieces of wood and metal.  It also seems difficult to understand how the matter was deemed suitable to prosecute, there was after all no evidence that anything other than the manufacturers supplied hammer springs had ever been fitted to these weapons whilst they were in the UK.  Mr Javed’s case was eventually listed for trial and the Crown offered no evidence on the day of trial.

Regrettably, because this case was something outside of the ‘norm’ for criminal cases, the passage of the matter through the Court system was difficult.  The case was listed for trial on no fewer than 4 occasions and on two of the previous occasions that Court had been unable to provide sufficient Court time for the matter to proceed.  These delays are common in privately funded cases because they are usually non-custody cases and so generally where resources are tight, cases where defendants are in prison tend to be prioritised.  This all results in a significant increase in costs to the privately paying defendant. 

Through his membership to BASC Mr Javed was entitled to assistance of the Association’s firearms team who provided expert evidence including the provision of the reports and supplementary reports and the expert’s time in attending Court – all without charge.  Mr Javed’s membership of BASC also meant that his membership legal expenses insurance responded to pay all of his legal fees including Counsels’ fees. 


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The Boundary Disputes Protocol – a cheaper, faster, friendlier option.
Tuesday 12th December 2017

The Property Litigation Association has recently published The Boundary Disputes Protocol (the Protocol) with the aim of facilitating the swift resolution of neighbour disputes while keeping costs to a minimum.

As you might expect, boundary disputes can be very stressful for those involved. On the one hand people are proud of their homes and do not wish to lose valuable parts of what they consider to be their land. On the other, a feud between you and your neighbour will inevitably lead to a hostile and stressful home environment.

The Protocol is not binding nor does it form part of the Civil Procedural Rules (CPR). It is therefore up to the neighbours in dispute to agree to abide by it.

The Protocol provides guidance in the following areas:

Preliminary Issues – The parties should not interfere with any physical feature, or with any land which the other party claims to be theirs.

Exchange of Information – The Protocol sets out the time frames in which information should be exchanged with either side.

Appointment of professional advisors / Negotiation – The Protocol acknowledges that there may be some instances in which professional advice should be sought e.g. where there may be a claim for adverse possession.

Expert – The Protocol considers the circumstances in which it may be necessary to appoint an expert such as a surveyor in order to help identify the exact boundary line.

Adverse Possession – The Protocol provides some advice and guidance in the event that either party considers that there may be a claim for adverse possession.

Dispute Resolution – The Protocol sets out the possible alternative dispute resolution options available to the parties as well as the “final step” option of referring the dispute to the appropriate tribunal.

Agreement – The Protocol provides guidance on the precautions both parties should take in reaching an agreement. The parties should be clear on what they are agreeing to and once finalised, a written agreement (which may be drawn up by a lawyer) should be signed and have the agreed plan annexed to it.

The Protocol also provides a Guidance Note and Supplementary Guidance Note which expands on the main principles.

It is clear that the Protocol provides a fair and structured approach for neighbours in dispute to adopt. The result of which is a streamlined and cost effective method of resolving what may otherwise be a more costly, protracted and stressful dispute.

If you find yourself facing a boundary dispute with a neighbour please do not hesitate to contact a member of our Dispute Resolution Team who will be able to provide further advice.  


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Red Bull GmbH - v - EUIPO - A Turning Point for Colour Combination Marks?
Tuesday 12th December 2017

In a decision which may cause concern to businesses which adopt distinctive colour schemes as part of their branding, the European General Court (Second Chamber) (hereafter “the Court”) has recently handed down its judgment in the case of Red Bull GmbH v European Union Intellectual Property Office (‘EUIPO’).

This case concerned an appeal by Red Bull against the EUIPO’s decision to cancel two of its existing European trade mark registrations (which were registered in 2005 and 2011 respectively).  Each of Red Bull marks in question were “colour combination” marks which aimed to protect the well-known blue and silver colour scheme which Red Bull uses uniformly across its global branding. 

Applicants seeking to register colour combination marks are required to provide the EUIPO with:

(i)             an appropriate representation of the mark that shows the systematic arrangement of the colour combination in a uniform and predetermined manner; and

(ii)            a reference to a generally recognised colour code (e.g. Pantone) relating thereto. 

As a matter of best practice, an applicant should therefor provide the examiner with a precise written description of the use of the colour(s) that they are seeking to protect to accompany the visual representation.

The two Red Bull registrations concerned are depicted below, along with their respective ‘descriptions’:

Dismissing Red Bull’s submissions that the EUIPO had interpreted existing case law in this area ‘unduly strictly’, and that its decision was both “disproportionate and discriminatory”, the Court considered that Red Bull’s marks, even when taken together with their respective descriptions, were no more than the “mere juxtaposition of two or more colours, designated in the abstract”.  As the extent of the protection given by the two registrations could not be “grasped clearly or precisely”, the Court concluded that both ought to be cancelled for lack of precision. 

Among commentators, the Court’s decision has been regarded as the effective ‘death knell’ for the registration of ‘colour combination’ marks.  Indeed, the extensive list of requirements set out in the judgment, which the Court suggests should be met before such marks may be considered valid for registration, could well be seen as being prohibitive in the eyes of prospective applicants. 

However, on closer inspection there do appear to be a number of underlying factors in play here which may better explain the Court’s decision in this case:

1.                The devil is in the detail?

Firstly, the Court was clear in its judgment that, where a description is included in an application for a mark, it will necessarily become an ‘integral’ part of the registration (along with the graphic element).  Looking back at the above descriptions submitted in support of the Red Bull marks, that the Court took issue with the lack of precision in the scope of these registrations is understandable.

To illustrate how the Court’s concerns as to the ‘precision’ of a description might be allayed, it is helpful to consider an example of another colour combination mark which is protected on an EU-wide basis, which is owned by John Deere plc:

This mark protects the distinctive colour scheme adopted across its product range by the global manufacturer of agricultural and construction machinery.  The detailed description submitted in support of this mark certainly helps the reader to visualise how the colour scheme to which it attaches will be systematically used in respect of John Deere’s products (in a way which the Red Bull descriptions do not).  With this in mind, one might well argue that the Court’s decision in the present case was less to do with the registrability of colour combination marks per se, and more to do with the inadequate descriptions which accompanied Red Bull’s registrations.

2.                …and the Legislation?

Secondly, the fact remains that, pursuant to existing EU legislation and accompanying EUIPO guidance, colour combination marks are eligible to be registered as trade marks per se irrespective of any specific shape or configuration attached to them.  The fact that combinations of colours “in the abstract” are stated to be registrable would therefore appear to contradict the Court’s position in this decision that the colours of a combination mark must be presented in some ‘systematic arrangement’ which associates the colours in some ‘predetermined and uniform way’.

The wording of the EU legislation therefore creates scope for an applicant to argue that it is the colours of the combination mark themselves that are the distinctive (and registrable) element, and the arrangements of the colours thereon should not have bearing on the examiner’s decision. Therefore, if an applicant can show that the colours themselves are distinctive in the minds of consumers (as Red Bull had managed to do in their initial applications) then surely there should be no need to also prove that customers can identify with any specific embodiment of them.  Indeed, it could even be argued that if an applicant went too far in describing their colour combination mark, it could inadvertently be rendered a figurative mark.  It is not apparent that Red Bull developed such arguments sufficiently in this case, which could again help to explain why it was ultimately unsuccessful in its appeal.

Conclusion

The decision in this case is perhaps not as significant as it may seem at first glance, and we would submit that, instead of marking a turning point in the law relating to the registration of colour combination marks, should be seen as one which is specific to its facts.  Undoubtedly, the Court was presented with two marks which were accompanied by vague descriptions, though the EUIPO’s objections could well have been effectively rebutted by reference to the legislation underpinning the EU trade mark regime.  While this is little comfort to Red Bull, who must now consider whether there is merit in appealing this decision to the Court of Justice of the European Union, those considering the filing of applications to register colour combination marks in future should not be too disheartened.


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Safe and sound

Monday 11th December 2017

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Richard Hough discusses the consultation on the regulation of unregistered pharmacy staff

On 11 October 2017, the General Pharmaceutical Council (GPhC) concluded a 12-week consultation on guidance for pharmacy owners about ensuring a safe and effective pharmacy team. The GPhC regulates pharmacists, pharmacy technicians and registered pharmacy premises. However, many pharmacy staff are unregistered and outside the scope of GPhC regulation, including delivery drivers, dispensers and medicines counter assistants and some pharmacy managers.

The consultation guidance is intended to support the GPhC’s standards for registered pharmacies by focusing on unregistered pharmacy staff. Pharmacists have a professional obligation to ensure that dispensing, pharmacy and medicines counter assistants are competent for the areas in which they work. The guidance does not affect the accountability of individual pharmacists, but provides that pharmacy owners should be jointly responsible for ensuring that unregistered staff are competent for their roles. The guidance is to replace the GPhC minimum training requirements that were approved in 2011.

Other policies for support staff have been in place since 2010, but these are now viewed as outdated and inconsistent with the modern approach to quality governance and teamwork. The consultation document states that the current framework fails to reflect the diversity of roles within pharmacies, and a more flexible outcome-focused approach is necessary to address the needs of current and future patients.

The GPhC’s regulatory powers do not extend to unregistered staff and its statutory powers of accreditation for training courses are explicitly for courses leading to a regulated position. The GPhC proposes that pharmacy owners should be responsible for selecting appropriate training for staff, but be accountable to the GPhC for their decisions.

The guidance (summarised below) is based upon the GPhC’s principle that “staff are empowered and competent to safeguard the health, safety and wellbeing of patients and the public”, and focuses on pharmacy owners’ responsibility for unregistered staff.

Governance
Pharmacy owners should ensure that staff numbers and roles are appropriate for the services they provide (including suitable plans to cover absences) and that everyone in the team knows their own, and each other’s, duties and responsibilities. Pharmacy owners should be open to innovation and the development of roles in line with the evolving nature of modern pharmacy practices. Effective risk management procedures should be implemented and all staff should know how to assess and reduce risks in their roles. Unregistered staff should work only within the limits of their competence and refer to pharmacy professionals where necessary, and everyone in the team should be able to raise safety concerns or suggest improvements. All staff should uphold the principles of confidentiality and privacy and should understand their responsibilities for record keeping and the storage and sharing of information.

Training, skills and development
Pharmacy owners should ensure that all staff are appropriately trained and that training records are retained. Training requirements should be flexible to address the needs of patients (both generally and specifically in the local area). Role-specific inductions and competency assessments should be undertaken for all new staff to identify training needs, and those dispensing or supplying medicines must meet the minimum training requirements. Unregistered staff requiring training to achieve competency should be enrolled on appropriate courses within 3 months of starting. Continuous learning and development for all staff is also vital. Pharmacy owners should ensure that procedures are in place to identify and address skills gaps at an individual and team level so that the knowledge and skills of all staff are up-to-date and appropriate for the services provided. Interpersonal skills are also important in providing the quality of care that patients expect. Pharmacy owners should ensure the provision of compassionate care which is adapted to the needs of the patient, identifying vulnerable patients and acting accordingly and taking steps to overcome communication barriers.

Management
Pharmacy managers need not be registered pharmacists, but have a significant influence on culture and practices within pharmacies. Pharmacy owners should assess and ensure the competence, skills and experience of their managerial staff so that they can carry out their roles without compromising safe and effective care. Managers should understand the relevant legal and regulatory frameworks and the obligations and responsibilities of different members of the pharmacy team, as well as the need for pharmacy professionals to prioritise patient safety and wellbeing.

What’s next?
The GPhC aims to agree the new framework by the end of 2017 after having considered responses to the consultation. The overarching theme of the guidance, and the direction in which the GPhC appears to be steering the regulatory framework, is that pharmacy owners need to take charge of their businesses at all levels and, above all, must be responsible and accountable to the GPhC for the safe and effective provision of pharmacy services by the whole pharmacy team. The current policies and minimum training requirements continue to apply in the meantime.

For more information on the topic, contact Richard on 0151 600 3302, or email him at richard.hough@brabners.com. You can also read the full article on the Independent Community Pharmacist website.
 


HR Forum: Preventing Sexual Harassment at Work

Date

Thursday 18 January 2018 

Time 

08:00 - 10:00

Cost

Free 

To reserve your place please click here.

We would be delighted if you could join us for our HR Forum in Liverpool on 18 January 2018.

In light of recent media coverage, our topic for this session will be sexual harassment in the workplace.

Points for discussion will include:

  • When is it sexual harassment?
  • How to reset the culture; when a policy isn’t enough
  • Handling a complaint and repairing the damage

Our event promises to be lively. Come along, join in, share best practice and increase your knowledge and experience.

Brabners HR Forum is a networking group aimed at HR and Operations Managers, together with anyone who is responsible for managing people in their organisation.

This is a perfect opportunity for you to get up to date whilst building a supportive network of like-minded peers.

Speakers

Kate Venables, Senior Associate
Susan McKenzie, Solicitor

Timings

08:00: Registration, refreshments and networking
08:30: Welcome and introduction
08:40: Round table discussion followed by Q&A
10:00am: Close

RSVP 

To reserve your place please click here or contact Jenny Sabeva by emailing events@brabners.com.

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