Category Archives: Humour

Mr Pettifog’s TUPE claim

It has been a stressful week at Anderson Towers. Jim Rough-Diamond, our employment law partner, has been trying to manage a TUPE claim that Mr Pettifog has brought against the UK government.

Regular readers will recall that Mr Pettifog has been acting a trade representative of the UK government to Nigeria, reporting to Dr Liam Fox, Secretary of State for International Trade. This has involved Mr P in several trips to Africa. Although he gets his expenses paid for these trips, including flying business class on British Airways (with the occasional, satisying upgrade to first class), he doesn’t receive any fee for his services. The thought of giving advice for free has rankled with Mr Pettifog, and he has been known to bore his friends for hours on this subject during drinking sessions at Ye Olde Cheshire Cheese.

Six months ago, over dinner with his friend Jumbo McCorquadale QC, they came up with a plan to resolve this financial lacuna. Mr Pettifog would form a company, Pettifog Research Limited, which would undertake trade-related research for the Department for International Trade (DIT). Jumbo knew a procurement officer at DIT and would wangle it for an invitation-to-tender to be issued to undertake research on the West African economy. The tender selection criteria would be “adjusted” to favour bidders who could demonstrate direct experience of representing the UK government in trade talks in West Africa.

At first, the plan seemed perfect. Mr Pettifog’s company won the tender, after making the only short-listed bid. The fee was to be £250,000 per report, with up to 6 reports to be prepared under the contract. Mr Pettifog hired two interns, on a fee of £10,000 per annum each, to do the research work and prepare the reports.

But after a month, it all started to fall apart. The procurement officer wrote an unfortunate email to Jumbo McCorquadale, asking for her fee, which was picked up by the DIT security department. She was fired. The contract was cancelled, as was Mr Pettifog’s role as trade envoy.

It wasn’t all bad. The work of the two interns had impressed the project manager at DIT, and they were recruited by DIT on salaries of £45,000 plus London allowance.

At this point, Mr Pettifog and Jumbo McCorquadale QC came up with a cunning plan. Mr Pettifog would bring a claim against DIT arguing that the activities of Pettifog Research Limited (PRL) had been brought in-house by DIT and therefore all employees of PRL automatically became employees of DIT under TUPE – the Transfer of Undertakings (Protection of Employment) Regulations 2006. The two interns had, of course, joined DIT as employees, which was evidence of a TUPE transfer.

It turned out that Mr Pettifog had a written contract of employment with PRL under which he was to be paid a salary of £250,000 per annum. So, Mr Pettifog brought a claim for unfair dismissal and breach of contract against DIT as his new employer.

Lord Falconer remembers what he said to Mr Pettifog

Much against his better instincts, Jim Rough-Diamond prepared the claim on behalf of Mr Pettifog. Mr Pettifog had reassured him that several leading advocates had agreed to act on his behalf, if it ever came to court, including Lord Falconer QC (former Labour Lord Chancellor), Sir Keir Starmer QC (former Director of Public Prosecutions) and Cherie Booth QC (former …well, current wife of Tony Blair).

Unfortunately, DIT has now counter-claimed, alleging fraud, and asking for security for costs. And Mr Pettifog has received in the post, without any covering letter, copies of some photographs that appear to be of him in a state of undress at a notorious club in Budapest. Jim Rough-Diamond opened the envelope in which these photos were sent, believing it to be connected with his employment claim. Which, in a way, it is.

Jim Rough-Diamond is now in a sanatorium, recovering from his ordeal, and our firm’s employment department is rudderless. Mr Pettifog is taking the weekend to decide whether to drop his case. He had hoped to ask Jumbo McCorquadale QC for advice, but it seems that Jumbo has gone on an urgent trip to Columbia, and cannot be contacted.

 

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Mr Pettifog speaks his mind. Unfortunately.

miseryWhat is your tube, and how do I get on it, asks Mr Pettifog at partners’ tea last week. Misery Line, Hampstead branch, replies Old Unreliable wittily. I generally use the lift, he adds, taking a ginger hobnob from the tray.

A puzzled silence descends on the room. Eventually, Bright Spark speaks. Do you mean YouTube, she asks? Yes, that’s what I said, replies Mr Pettifog.

Was there something in particular you wanted to see?, asks Young Hope. It’s mostly videos of cute cats, he adds.

Oh, I just wanted to see if someone had recorded something, Mr Pettifog replies.

catYoung Hope and Bright Spark quickly look at one another. Bright Spark renews her cross-examination. Was it something you recorded?, she asks. No, I wouldn’t know how to, replies Mr Pettifog smugly. Then something you said, but someone else recorded?, asks Jim Rough-Diamond, joining the cross-examination tag team.

Oh, I don’t know, replies Mr Pettifog, attempting an air of mild boredom. Does anyone want that last cucumber sandwich?, he adds, trying to deflect attention from his earlier question.

While this is going on, Young Hope has opened his iPad and searched on the YouTube site. An Anglo-Saxon expression escapes his lips.  Could this be the recording you were interested in?, he asks, quickly making a remote connection to the tea room’s flat-screen TV.

Everyone in the room turns towards the TV. It shows a panel discussion at a conference. Three middle-aged, white men in business suits are sat at a table. Mr Pettifog is one of them. On the wall behind the table, the logo of World IP Professionals is clearly visible. A voice can be heard, apparently a member of the audience who cannot be seen on the recording. The voice asks: how can you reconcile the government’s decision to go ahead with ratifying the World IP Arbitration Treaty, which is subject to the supervisory jurisdiction of the Court of Justice of the European Union, with the Prime Minister’s statements that the CJEU won’t have any jurisdiction in the UK after Brexit?

Mr Pettifog is the first to reply. Well, he says, we don’t trust a word that this government says, do we? (The audience laughs, and he warms to his theme.) And anyway, they’re too stupid to realise that ratifying the convention leads to CJEU jurisdiction. And so are the tabloid newspapers, and the oiks that write articles for them. (More laughter, some of it nervous.) They won’t be interested in this kind of subject, it’s far too intelligent for them.

The recording ends, and Young Hope switches off his iPad.

Jim Rough-Diamond is the first to speak. Oiks are too stupid to realise?, he asks.

chathamIt was a private meeting, subject to the Chatham House rule, replies Mr Pettifog sulkily. Whoever recorded it was clearly in breach of a legal duty. Can’t it be deleted from your tube?

Young Hope shakes his head. Mr Pettifog turns white, then hastily leaves the room. Partners’ tea resumes.

 

[Note: this is an entirely fictional story, inspired by a real-life incident, but with completely different facts, people, motivations and outcome, and written for humorous purposes only. No, really.]

 

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Use restrictions in contracts of sale

pink or black for court?

pink or black for court?

Long-term readers of this blog may recall earlier articles about whether a seller of a product may restrict the use that the purchaser can make of that product, and whether such restrictions are binding on subsequent owners of the product. For example, may the original seller exercise its IP rights against a subsequent owner to enforce any such restrictions? This subject raises questions of public policy that, in different jurisdictions, are channelled into legal principles such as exhaustion of rights, non-derogation from grant, and the first sale doctrine. See, for example, the EU UsedSoft case, discussed here in 2012.

This subject was forced back into IP Draughts’ mind by the recent spat between two artists, Sir Anish Kapoor and Mr Stuart Semple, reported here.

Apparently, Sir Anish has acquired an exclusive licence, in the field of art, to use Vantablack, the “blackest black” in existence, which is a technology based on carbon nanotubes. According to an FAQ on the website of Surrey Nanosystems, the creator of Vantablack, it seems that what Sir Anish has a licence to is a variant of Vantablack, known as Vantablack S-VIS:

Vantablack is generally not suitable for use in art due to the way in-which it’s made. Vantablack S-VIS also requires specialist application to achieve its aesthetic effect. In addition, the coating’s performance beyond the visible spectrum results in it being classified as a dual-use material that is subject to UK Export Control. We have therefore chosen to license Vantablack S-VIS exclusively to Kapoor Studios UK to explore its use in works of art. This exclusive licence limits the coating’s use in the field of art, but does not extend to any other sectors.

Let’s leave the interesting export-controls point to another day. It is not entirely clear what IP is being licensed, though presumably there is at least some know-how involved. Another FAQ indicates that:

Vantablack is a globally registered trademark and recognised brand owned by Surrey NanoSystems Limited. Companies would need written permission from SNS to use the Vantablack name in their products.

Incensed by Sir Anish’s actions in taking this exclusive licence, and the consequent restraint on artistic freedom, fellow artist Mr Stuart Semple has created the “pinkest pink” and is selling pots of the stuff, subject to the following condition:

Note: By adding this product to your cart you onfirm [sic] that you are not Anish Kapoor, you are in no way affiliated to Anish Kapoor, you are not purchasing this item on behalf of Anish Kapoor or an associate of Anish Kapoor. To the best of your knowledge, information and belief this paint will not make it’s [sic] way into that [sic] hands of Anish Kapoor.

Sir Anish has apparently responded to this provocation with a photograph of (inter alia) his hand:

pink

According to Surrey Nanosystems, one of the stated benefits of Vantablack is “its ability to absorb light energy and convert it to heat”. Mmm…

Readers are invited to comment on whether they think the contractual restriction on supply to Anish Kapoor is enforceable, and what the measure of damages for breach of contract might be.

 

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A song about Brexit

porterWith apologies to Mr Cole Porter, IP Draughts and others have re-written one of his best-known songs. This follows an exchange on Twitter yesterday with @law_and_policy and @iamthebaritone. The version below is further revised. Imagine a butler answering the phone to one of Miss Otis’ friends, in a swanky New York apartment in the 1930s.

Miss Otis regrets Article 50 will be delayed, madam.
Miss Otis regrets Article 50 will be delayed.
She is sorry it’s not yet done,
Though last Summer down at Leaver’s Lane
They won, madam.
Miss Otis regrets Article 50 will be delayed.
When she woke up and found
That her EU dream was gone, madam,
She ran to the man
Who had called the referendum.
And from under her velvet gown
She drew a gun and shot her PM down (politically), madam.
Miss Otis regrets Article 50 will be delayed.
When the Daily Mail turned on her
And dragged her from Number 10, madam,
They stitched her up, shouting that England ruled the world.
And the moment before she (politically) died
She lifted up her lovely head and cried, madam.
Miss Otis regrets Article 50 will be delayed.

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