Monthly Archives: June 2012

Disclaimer sign pollution: time for a Rio summit?

IP Draughts is back at work after a week’s canoeing in Scotland.  During that time, he thought little about intellectual property, except when the canoe club’s Chairman mentioned his trip, the previous week, sea-kayaking around the Hebridean island of Lewis and Harris, and the gift that he had received from a local weaver of some pieces of Harris Tweed. As all UK IP lawyers know, Harris Tweed is protected by a trade mark that consists of an orb with a cross on it.

One legal issue kept intruding into IP Draughts’ life as he stayed in hotels and visited tourist attractions: warning signs.  By paying close attention to these helpful signs, IP Draughts avoided (just in the nick of time, in some cases) burning his hand on a hot towel rail, scalding his fingers in hot water, drowning in the outfall pool of a hydro-electric power station, and falling down a concrete staircase.

By careful attention to yellow plastic signs, he also managed to avoid slipping on a dry floor in a Tesco supermarket in Lockerbie and on another dry floor in a pub in South Queensferry, just by the iconic Forth Rail Bridge.  As he didn’t visit a McDonalds, he is unable to report on whether he would have been warned that his coffee was hot, as apparently is required in the USA.

Go for it, towel rail – you can do it!

Meanwhile, IP Draughts’ far more dangerous (okay, slightly more dangerous) activities of canoeing and scrambling about in the countryside (often during heavy rainfall) involved no warning signs.  At one point on our canoe trip we passed a class of primary school children who seemed to be on a field trip, and who were throwing stones in the water with minimal supervision by their teachers.  Our half-joking offer to give some of the children a “go” in the canoe was met with a teacher’s deadpan response that they couldn’t accept because they hadn’t done a risk assessment.  We had passed them by before we thought of asking whether a risk assessment had been done on throwing stones in the water while canoeists were passing.

So, what is the point of these meandering thoughts?  Merely that we are bombarded with warning signs in public places that often have very little meaning.  A cynic might say that the signs are really there to avoid liability in tort.  An optimist might say they are there to help the public to avoid harm.  A realist might say they are there because a risk adviser recommended them or said they were necessary to comply with health and safety legislation.  (In IP Draughts’ experience, hotel warning signs are often much more prevalent in cheap hotels than in expensive ones, perhaps because the cheap hotel relies on the advice of a health and safety consultant who takes a very risk-averse approach.)

What is this sign asking us to do?

As a companion to IP Draughts’ campaign to banish terms and conditions booklets that come with consumer products, IP Draughts hereby announces a campaign to reduce disclaimer sign pollution in public places.  If we all point out how ridiculous these signs are, we can end this global scourge….  Or is IP Draughts being too idealistic?

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Filed under General Commercial, Legal practice

Top 5 licensing lawyers in the UK

IP Draughts is delighted to report that IAM Patent 1000 – The World’s Leading Patent Practitioners 2012 has recommended him as one of the top patent licensing lawyers in the UK.

IAM Patent 1000

Eagle-eyed readers may spot that 5 names are shown in the image next to this text.  One of the 5, Julian Thurston, appears to have retired from practice to join an investment firm in April 2012, leaving 4 names in the top category [but see comment below, indicating that Julian has not retired].  Another 28 names appear in the recommended category for the UK.

Anderson Law LLP is listed as one of 14 firms that are recommended for IP licensing work in the UK, and is the only small firm in the list.  The full list comprises:

Allen & Overy LLP
Anderson Law LLP
Ashurst LLP
Bird & Bird LLP
Bristows
Covington & Burling LLP
Fasken Martineau LLP
Linklaters LLP
Morrison & Foerster
Olswang LLP
Reed Smith
Simmons & Simmons LLP
Taylor Wessing LLP
Wragge & Co LLP

IP Draughts is particularly pleased to see the recognition by IAM that Anderson Law now has a significant team of IP specialists, who collectively deserve to be ranked as one of the leading IP transactional teams in the UK.  IAM’s editorial comments:

[Anderson Law’s] compact size and concentrated know-how have enabled the firm to become “indispensable” to clients, which consider it “a seamless part of our in-house department”, thanks to its “responsiveness, practicality and grasp of the technology”. The team has expanded to seven lawyers, although it remains centred around name partner Mark Anderson, who brings “unrivalled technical skill” to bear on complex issues. He is considered one of the country’s foremost experts on technology transfer from university research departments and publishes regularly on the subject.

IP Draughts is also delighted to announce that some of his fellow contributors to Drafting Agreements in the Biotechnology and Pharmaceutical Industries (Oxford University Press, looseleaf, general editor Mark Anderson, 2008 onwards) have been recognised in IAM Patent 1000, including:

  • Christine Kanz (see Germany recommendations – litigation)
  • Pam Cox and Patrick Ertel (see Illinois, USA recommendations)
  • Eric Runnesson (see Sweden recommendations)
  • Dulce Miranda (see Spain recommendations)

Other friends of IP Draughts who are recommended in IAM Patent 1000 include:

  • Matthew Warren (see UK recommendations)
  • Khaterina Scheja (see Germany recommendations)
  • Thierry Calame (see Switzerland recommendations)

A big thank you to our generous clients in the UK and overseas who have provided the references to IAM that have led to the fabulous rankings mentioned above.

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Filed under &Law Updates, Intellectual Property, Legal practice

International disclaimers of liability: useful for kindling?

IP Draughts bought a Kindle this week, as a present for someone close to him.  He was pleasantly suprised by the simplicity of the packaging and the lack of bumph; some consumer products seem to come with a large pile of leaflets, including guarantee registration forms, instruction manuals, simplified “getting started” instructions, terms and conditions of sale, and special offers on other products that the seller wants you to buy.

Most of the information required to use the Kindle is to be found in electronic form on the home screen.  Two paper documents are, however, included in the packaging.  One is a set of simple instructions on how to charge the device.  Clearly one needs to charge it up before the home screen can be accessed.

The second paper document is the inevitable set of contract terms, written in 11 languages in something like 6-point type on very thin paper.

IP Draughts is as guilty as the next person of clicking on “I accept” buttons on websites without reading the terms.  Studying these documents is a busman’s holiday for a contract lawyer.  So he may have already accepted the terms provided with the Kindle, when he ordered the product online. However, the terms that appear on the support page of the Kindle website seem to be completely different to these paper terms, even in the area of warranties and exclusion of liability.

If IP Draughts didn’t accept the terms set out in the paper version at the time of placing the order, then it is unclear how these terms can be binding on him, as they only became apparent after the contract is formed.  There is some wording at the beginning of the terms about returning the Kindle if you don’t want to be bound, of a kind that is familiar in traditional shrink-wrap licences.  It seems unlikely, however, that the typical buyer will be interested in reading these terms, unless he is really bored while waiting for the Kindle to charge.

It appears to IP Draughts (and it is good that it is morning, because reading this small font in the evening might be problematic for IP Draughts’ worn-out eyes) that the terms have been drafted by a US lawyer.  There are the usual paragraphs in block capitals, in a forlorn attempt to make the text conspicuous for the purposes of the Uniform Commercial Code.  There is the reference to merchantable quality, which has meaning under US law but has long ago been superseded by the term “satisfactory quality” in English law.  There is the exclusion of implied warranties, but no exclusion of implied conditions, as is important under English law.

The terms make a half-hearted attempt to work internationally, with some general “safety valve” wording acknowledging that certain terms may not be enforceable in some jurisdictions.  And right at the end of the terms is the following statement:

THIS “LIMITATIONS” SECTION DOES NOT APPLY TO CUSTOMERS IN THE EUROPEAN UNION.

Okay, thanks for telling us now, after we have carefully read the preceding two paragraphs!

At this point, IP Draughts is left wondering what is the point of including the terms in the packaging.  He turns to the French version of the text, to see how well the terms have been adapted to French law and legal concepts.  So far as he can tell (his French is only at a conversational level and does not extend to legal terminology), the French text is just a straight translation of the English-language text.  It includes an exclusion of:

LES GUARANTIES DE QUALITE MARCHANDE, D’ADEQUATION A UN USAGE PARTICULIER ET DES VICES CACHES OU LATENTS

Somehow, vices caches ou latents sounds more exciting than hidden or latent defects. IP Draughts claims no expertise in French law, but is under the impression that there is no legal concept of merchantable quality (as distinct from fitness for purpose) in French law.  If that is correct (and our very knowledgeable readers will no doubt put IP Draughts right if it is incorrect), then  it raises the question in IP Draughts’ mind as to why Amazon has bothered to translate the text into 10 other languages.

It seems very strange that a company would try to exclude liability to a French-speaking consumer using complex, US-based legal language.  Isn’t it time we made a bonfire of these pointless disclaimer booklets, which probably don’t achieve their desired effect in most jurisdictions that have consumer legislation?

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Filed under Contract drafting, General Commercial

Final call for next week’s course: Introduction to Contracts

Next Tuesday (12th June), IP Draughts is running an all-day course, Introduction to Contracts at the Faculty of Laws, University College London.  The course is designed to be suitable for people who work with contracts but have not had any prior training in contracts.  Past participants have included:

  • staff who have recently joined the research contracts and technology transfer teams at universities
  • PAs, secretaries and support staff in the legal department of a leading media company
  • project managers (mostly with an engineering background) at a regional utility company

The course covers the life cycle of a contract, from initial drafting and negotiations, through preparation of versions for signature and signing, administration of existing contracts, amendment and termination.  It provides an introduction to a range of issues including the structure and typical format of contracts, use of red-lining, signing authority, maintaining a contracts database, interpreting existing contracts, and managing contract disputes.  The course includes an explanation of certain terminology used by lawyers such as subject to contract, legally privileged, and without prejudice.

Course details, including comments from previous participants, can be found in the course brochure here. The price of the course is £350 plus VAT, with a discount for multiple bookings made at the same time.

If you would like to learn more about contracts, or have a junior colleague or assistant who might benefit from a structured discussion of contracts, please contact Mark Anderson at mark@andlaw.eu or on 01865 858 878.  Bookings are open until close of play this Friday.

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Filed under Contract drafting, courses and training