Former Beresfords solicitors Jim Beresford and Douglas Smith are appealing against the Solicitors Disciplinary Tribunal’s decision to have them struck off. In December, the tribunal found the pair guilty of eight breaches of solicitors’ practice rules in their handling of cases under the Coal Health Compensation Scheme. A spokesman for Beresfords said that an appeal has been filed to the High Court. A skeleton argument will be submitted to the court next week. The spokesman for the Doncaster firm added: ‘The appeal has been entered and steps now taken to put this whole matter and circumstances, for the first time and after many years, before an independent, legal and objective court of law. It is a great pity that the former Beresfords’ partners were not able to do this a long time ago. Any suggestion of dishonesty and conduct unbefitting is, has and always will be, strongly refuted.’ The tribunal hearing was one of several to follow alleged irregularities surrounding the compensation scheme. The tribunal heard that the firm received more than £132m in fees after handling 97,500 claims and took a share of compensation intended for miners on top of fees automatically received from the government.
In the air: Magic circle firm Clifford Chance advised GKN, the helicopter designer, on a £423m rights issue. GKN said the extra capital will give it greater flexibility in current market conditions, reduce its reliance on debt financing, and allow it to take advantage of growth opportunities. Clifford Chance provided UK and US legal advice. Fired up: National firm Beachcroft advised John Laing and Shepherd Construction on securing private finance initiative contracts, worth £35m, to build five fire stations and a headquarters for three fire authorities in the north east. Newcastle firm Dickinson Dees advised the fire authorities. Powerful project: US firm Shearman & Sterling advised more than 20 lenders, including the US Government, on arranging $2.1bn (£1.3bn) of financing for Bahrain’s Al Dur water and power production project, which is expected to yield 1,230 megawatts of energy. A mix of commercial bank loans, export credit direct loans, export credit covered loans and Islamic financing instruments were used. The Bahraini government was advised by magic circle firm Freshfields. Pilgrims’ progress: City firm Simmons & Simmons advised Japanese businessman Yasuaki Kagami and Kabushiki Kaisha K&K Shonan Management, and City firm Field Fisher Waterhouse advised Mastpoint, on acquiring a controlling stake in Plymouth Argyle Football Club. The selling shareholders were advised by Plymouth firm Wolferstans. Hair today: City firm Herbert Smith, alongside Chinese firm King & Wood, advised herbal shampoo maker BaWang on its $215m (£133m) listing on the Hong Kong stock exchange. Magic circle firm Freshfields, alongside Chinese firm Commerce & Finance Law Offices, advised HSBC and Morgan Stanley as joint bookrunners. Share issue: City firm Norton Rose advised investment bank Jefferies International as sponsor on a share issue by investment company JZ Capital Partners, which raised £140m. City firm Ashurst advised JZ Capital Partners, while Guernsey firm Mourant du Feu & Jeune advised on Guernsey law.
A delegation of senior barristers has begun a visit to the Gulf this week in a bid to promote the English Bar. The Bar Council group. led by chairman Nicholas Green QC (pictured) and chairman-elect Peter Lodder QC, will visit Oman, the United Arab Emirates and Qatar. The group will comprise members of the council’s international committee, and senior representatives of its secretariat. It will hold meetings with members of the financial services sector, senior government figures and top lawyers and academics. The trip is part of a wider effort by the council to promote links with the legal systems, structures and legal professions of other jurisdictions. It follows a trip to China in September. Green said: ‘This is the Bar Council¹s third trip to the Gulf in successive years, demonstrating our commitment to building long-term relationships with the legal and business community in the region. ‘During our visit, we will be discussing the ways in which the Bar Council can support the work of legal professionals in the Gulf, focusing in particular on some of the Bar’s specialisms including commercial arbitrationand litigation, regulation, taxation, trusts and structured investments and business immigration.’ He added: ‘The Gulf is a growing centre of legal expertise and innovation and the bar has much insight to gain from the evolution of legal practice in the region. We are especially interested to learn more about the positive innovations in dispute resolution mechanisms and the ways in which we might provide more choice for clients.’
A Lincolnshire firm has been praised by a judge for the ‘exemplary’ way it investigated a series of thefts by a solicitor, who was jailed last week. Jacquelina Laverick, who was head of the wills and probate department at the 200-year-old firm, stole cash from estates she was administering and from the accounts of vulnerable clients for whom she was acting as a deputy appointed by the Court of Protection. Jailing Laverick for three years after she admitted stealing more than £200,000, the judge said she had been motivated by ‘pure greed’. Laverick, who practised under her maiden name of Jacqui Johns, even deceived her own grandmother, who was due to benefit by more than £50,000 from a legacy left to her in 2007, but received just £342. Laverick stole from 11 client accounts over a three-year period and shredded paper files in a bid to cover her tracks. She admitted 10 charges of theft involving a total of £214,870, and two charges of converting criminal property. The offences took place between December 2005 and June 2009. Judge Michael Heath said: ‘It was done out of pure greed… The solicitors’ profession is an honourable profession. The vast majority of solicitors up and down the country practise diligently and honestly. Among them are Chattertons, which is a long-established and highly regarded Lincolnshire firm. ‘As a result of what you did, a great deal of investigation work had to be carried out by the company. Chattertons has dealt with this in an exemplary fashion. It must have been a nightmare for them to discover that a trusted employee had behaved as you did.’ Patrick Cordingley, a senior partner at Chattertons, said after the case that the stolen money has been refunded by insurers. ‘We have ensured that no client has suffered any financial loss through this woman’s dishonesty, but the effect of what she has done has been devastating for our employees,’ he said. Meanwhile, Leeds solicitor Simon Morgan, 50, who was senior partner at Milners in Leeds, was convicted of six counts of theft, amounting to a total of £1.4m, at Leeds Crown Court last week. The Solicitors Regulation Authority said proceedings against Morgan have been lodged with the Solicitors’ Disciplinary Tribunal, and a hearing is inevitable in relation to Laverick.
Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies This story does not have Rebekah Brooks in it, nor details of high-wire acts to save the dollar and the euro. There are no wars or celebrities in sight. In other words, it is perfect summer reading. I have written before about the European Union’s efforts to accede to the European Convention on Human Rights, which is required by the Lisbon Treaty. When I wrote 18 months ago, I listed the problems that needed to be tackled. Well, here is the summer good news: a provisional agreement has been reached. The bad news is that complicated manoeuvres are still required. For instance, the draft will need the backing of the Committee of Ministers and Parliamentary Assembly of the Council of Europe. At the same time, the commission is expected to ask the European Court of Justice’s (EJC’s) opinion, after which the EU’s Council of Ministers and MEPs will have to give their approval. Only then will the draft be sent for ratification to the Council of Europe’s 47 member states and the EU’s 27 member states, many of them the same countries twice over. Phew, it must have been easier to obtain phone-hacking clearance at the former News of the World. The first problem I highlighted 18 months ago was the appointment of a judge by the EU to the European Court of Human Rights (ECHR). There has been no mechanism to date for the EU to appoint judges like this. The proposed solution is that a delegation of the European parliament will be entitled to participate, with the right to vote, in the sittings of the Parliamentary Assembly of the Council of Europe (and its relevant bodies) whenever it exercises its functions related to the election of judges. The European parliament will have the same number of representatives in the assembly as a state with the highest number of representatives, in other words 18. After all this, one judge will be appointed on behalf of the EU – and so democracy is saved. The next problem I outlined was the relationship between the highest court in the EU, the ECJ in Luxembourg, and the ECHR in Strasbourg. Which would govern when adjudicating on the same convention? Here the procedure is also complicated, for the following reasons. Normally, a claimant must exhaust domestic remedies before applying to the ECHR. Where the claim involves the EU, though, parties before the national courts may only suggest a reference to the ECJ and not enforce it. Therefore, this procedure cannot be considered as a legal remedy that an applicant must exhaust before making an application to the ECHR. However, and here comes the complication, without such a preliminary ruling, the ECHR would be required to adjudicate on the conformity of an EU act with human rights, without the ECJ having had the opportunity to do so first. This situation is expected to arise rarely, but an internal EU procedure will be put in place to ensure that the ECJ has the opportunity to review the compatibility with the convention of the provision of EU law which has triggered the participation of the EU as a co-respondent. This review procedure should take place before the ECHR decides on the merits of the application. The parties involved – including the applicant, who should be given the possibility to obtain legal aid – will have the opportunity to make observations in the procedure before the ECJ. The ECJ will not assess the act or omission complained of by the applicant, but only the EU legal basis for it. The subsequent assessment of the ECJ will not bind the ECHR. In order not to delay proceedings unduly, the EU will ensure that the ruling is delivered quickly. An accelerated procedure before the ECJ already exists – the ECJ is able to give rulings under it within six to eight months. Wow, that’s it – and I think the collapse of the euro, although more devastating, is easier to follow. All of this is important because, among other things, accession by the EU to the convention will give credibility to the EU when calling on its neighbours to adhere to the convention; it will give citizens of the EU the same protection against actions of the EU as we have against those of the member states, which is all the more important given that substantial powers have been moving towards the EU in recent years; and it will lead to more harmonious development of the case law on human rights between the Luxembourg and Strasbourg courts. Such progress makes a welcome change anyway from the rest of the summer’s dismal developments.
Out of the woods? Grasping the nettle The court briefly answered questions 1 and 2 by referring to Google France. If an advertiser purchases a keyword to appear as a sponsored link, then it is using the keyword and such use is in relation to the advertiser’s goods and services, even if the keyword does not appear in the sponsored link itself. It was common ground that at least one of the keywords purchased by M&S was identical to Interflora’s trademark and that the relevant goods and services were identical. It would appear that there was therefore a clear-cut infringement under article 5(1)(a). However, in line with previous judgments, the court stated that this use infringes only if it has an adverse effect on one of the functions of the trademark, such as: guaranteeing the origin or quality of the goods or services; advertising the goods or services; or investment in reputation. As to the ‘origin’ function, the court held that there would be an adverse effect if the sponsored link suggests an economic link between the parties or is so vague that reasonably well-informed and observant users are unable to determine whether or not there is such a link. The court also said that Interflora’s inability to block keyword purchasing through Google (the High Court’s question 4(b)) was irrelevant in this context. On the contrary, if Interflora had the opportunity to block the sponsored links, then failure to do so may form an implied consent. It is also irrelevant if only some users have difficulty in grasping the fact that M&S is not economically linked to Interflora – ‘some’ does not necessarily mean ‘all’, or even ‘most’. The court went on to hold that there was no adverse effect on the ‘advertising’ function. It may be that Interflora is forced to intensify its own advertising efforts, but this is inherent in any fair system of competition (see, again, Google France). Finally, as to the ‘investment’ function, the court held that any use that substantially interferes with the proprietor’s acquiring or preservation of reputation in the mark must be regarded as an adverse effect. However, there is no such adverse effect where the only consequences are to oblige the proprietor to adapt its efforts to acquire or preserve the reputation, or that consumers switch to other goods or services. This statement appears rather unhelpful and seems to contradict itself. What other consequences could there be? If there are no other consequences, then where does this leave the ‘investment’ function? Although the court was at pains to make a distinction between the ‘advertising’ and ‘investment’ functions, it did little to explain why that should be the case or, more importantly, how it can be applied in practice. Turning to the High Court’s question on article 5(2), the court distinguished between detriment to the distinctive character of a mark (‘dilution’) and taking unfair advantage of the distinctive character or repute of a mark (‘free-riding’). Where a sponsored link makes it clear that there is no connection between the parties, the court held that there is no dilution. However, it did not provide any substantive guidance on other cases where the position is not so clear or where no effort to distinguish has been made, instead leaving it for the High Court to reach its own conclusion. This was a missed opportunity for the court to fill an unfortunate gap in the guidance that many practitioners might have hoped for. As regards free-riding, the court relied on its findings in L’Oréal v Bellure (Case C-487/07) and almost fell into the same trap of suggesting that any advantage taken of a trade mark is unfair (see, for example,  EWCA Civ 535, per Jacob LJ at paragraphs 46-50). It being common ground that the ‘Interflora’ mark had sufficient reputation, the court was firmly of the view that the M&S use of the mark took real advantage of that reputation. The court indicated that offering a mere imitation of a trademark proprietor’s good or services, or use which adversely affects the functions of the mark, would not be fair competition and therefore is without due cause. However, the court refrained from providing any further substantial guidance on whether such use was with due cause or unfair, instead again leaving the question to the High Court. The Court of Justice of the European Union has handed down its long-awaited judgment in Interflora v Marks & Spencer (Case C-323/09). The final outcome remains to be decided by the High Court, but the judgment provides important guidance for businesses using competitors’ trademarks as Google ‘AdWords’. However, some parts may leave the High Court, and practitioners, with more questions than it has answered. Google provides a facility for advertisers to promote themselves in searches by purchasing keywords (‘AdWords’ in the Google system). When a user inputs one of these keywords into Google, the paid-for results will appear highlighted at the top or side of the page, with a brief advertising description, formerly marked as ‘Sponsored Links’ and now as ‘Ads’. Any number of parties can purchase the same keyword. Their ranking in the list of sponsored links depends on a combination of the price paid and the quality of the link. Taking advantage of this service, Marks & Spencer (M&S) purchased ‘Interflora’ and several other similar words and phrases as keywords so that a search for that word results in a sponsored link to the section of the M&S website that sells flowers. The word ‘Interflora’ does not appear anywhere in the sponsored link displayed to the user. Interflora sued for infringement of its UK and Community trademarks. It claimed that M&S was using an identical sign in relation to identical goods and services and used it in a way which, without due cause, took unfair advantage of or was detrimental to the distinctive character or repute of its marks (sections 10(1) and (3) of the Trade Marks Act 1994 and it equivalent Articles 5(1)(a) and 5(2) of Directive EEC/89/104). The High Court referred several questions to the Court of Justice for guidance. Some of these questions were withdrawn following the court’s decisions in Google France v Louis Vuitton (Case C-236/08) and related cases. The questions which remained were:1) Did M&S’s actions in relation to the keyword constitute ‘use’ of the mark?2) If so, was that use ‘in relation to’ the relevant goods and services?3) Did that use fall within the scope of either or both of Article 5(1)(a) and 5(2) of the Directive?4) Does it make any difference if: (a) the presentation of the sponsored link was liable to lead some users to believe that M&S is a member of Interflora’s commercial network; or (b) Google did not permit Interflora to block competitors from purchasing its trade mark as a keyword? Jim McDonnell, DLA Piper The outcome of the case remains to be decided upon its return to the High Court. On a wider basis, this judgment is likely to be welcomed by brand owners in confirming that there may be circumstances where they can restrict the use of trademarks as purchased keywords (in sharp contrast to the judgment in Google France). However, there remain a number of areas which might require better clarification, and it will be interesting to see what further guidance the English courts can provide.
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