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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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A key proposition underpinning UK competition law Rival undertakings are expected to pursue their strategies independently in the marketplace. In general, head-to-head rivalry should deliver maximum consumer benefit and allocate resources most efficiently. As a result, the Competition and Markets Authority ( CMA) treats with caution any arrangement liable to soften competition or lessen the commercial uncertainty that would otherwise separate competitors. Nonetheless, businesses may have sound reasons for entering agreements whose clauses or obligations risk constraining competition. That is particularly true where such arrangements are intended to create or advance beneficial outcomes (efficiencies) that would not materialise without the restriction included in the agreement. UK competition policy aims to balance safeguarding effective competition (notably by outlawing illegitimate collusion) against securing advantages that arise-and are often only attainable-through co-operation. Chapter I sets out the legal framework for this balanced appraisal, weighing the...
This Practice Note outlines the rules on disclosure in IP disputes. It centres on the disclosure regime in CPR PD 57AD (together with the former pilot under CPR PD 51U) and sets out how it operates for cases in the general Intellectual Property List within the Chancery Division of the High Court. It also addresses the disclosure provisions applicable in the Patents Court sub-list—including the modifications in CPR 63.9 and CPR PD 63, paras 6.1–6.3—and the bespoke regime in the Intellectual Property Enterprise Court ( IPEC) sub-list, explaining how these sit alongside the scheme in CPR PD 57AD. Practical guidance is included on meeting the duty to preserve documents, scoping the search exercise, and handling confidential material and privilege. Disclosure in IP proceedings—the framework Disclosure in the Business and Property Courts is generally governed by CPR PD 57AD. CPR PD 57AD took effect on 1...
The UK’s formal withdrawal from the EU took effect at 11 pm on 31 January 2020 (exit day). At that point, the withdrawal period under Article 50 TEU concluded, and the ratified Withdrawal Agreement, which set the legal terms of the UK’s departure, entered into force. On exit day, the ratified Withdrawal Agreement was released in the Official Journal of the European Union, together with the Political Declaration outlining the framework for the future relationship between the UK and the EU: Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ L 29 31.01.20, p 7-187 Political declaration setting out the framework for the future relationship between the European Union and the United Kingdom, OJ C 34 31.01.20, p 1-16 Exit day stood as a significant milestone, being the date on which the UK...
What is the World Trade Organization ( WTO)? The WTO oversees trade agreements that regulate commerce between states. It is also a venue for governments to negotiate bilateral or multilateral trade agreements and to settle trade disputes, helping countries trade with as little friction and disruption as possible. For background reading on the WTO, see: WTO— Who we are and WTO— In brief. The WTO came into being on 1 January 1995, though its trading rules are older. The General Agreement on Tariffs and Trade ( GATT) has provided a framework for global trade in goods since 1948, amended through successive negotiating rounds. Talks in the mid-1980s and early 1990s, known as the Uruguay Round, sought to extend the system to services and intellectual property. That round concluded with an agreement signed on 15 April 1994 by most of the 123...
This Practice Note monitors developments in UK trade mark case law, legislative initiatives, and ongoing UK consultations, guidance and reports on trade marks. For EU trade mark ( EUTM) judgments, legislative proposals and current EU consultations, guidance and reports, see Practice Note: Trade marks tracker— EU. For archived trade mark material, see Practice Notes: 2023–2024 [ Archived] and Trade marks tracker 2017–2022 [ Archived]. Legislation, consultations, guidance and reports For legislation archived on trade marks, refer to Practice Notes: 2023–2024 [ Archived]— Legislation, consultations, guidance and reports, and Trade marks tracker 2017–2022 [ Archived]— Legislation. For archived consultations on trade marks, see Practice Notes: 2023–2024 [ Archived]— Legislation, consultations, guidance and reports, and Trade marks tracker 2017–2022 [ Archived]— Consultations. For detail on the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023), consult Practice Note: Brexit...
This Practice Note addresses breaches of UK trade marks registered pursuant to the Trade Marks Act 1994 ( TMA 1994). It examines the varieties of trade mark infringement, who may bring a claim, the interpretation of the statutory provisions, and significant case law. Rights conferred by a trade mark registration Registering a trade mark grants the proprietor the exclusive legal entitlement to stop others from using that sign without consent. The purpose of this protection is to ensure the registered trade mark operates as a true ‘guarantee of origin’ for the goods and services to which it relates. When a member of the public purchases a can of Coca- Cola, they are entitled to expect that they are receiving the well-known original soft drink rather than an imitation product. Consequently, if another party employs a registered trade mark, or one that is...
This Practice Note sets out to clarify and explore the relationship between artificial intelligence ( AI) (or machine learning) and IP. What is artificial intelligence? ‘ Artificial intelligence’ describes a field of computing where machines are built to imitate human intellect - the capacities to perceive, analyse, learn, reason and draw inferences. AI has progressed from its 1950s origins to today’s highly adaptable and unprecedented form. Early thinking centred on systems encoded by developers with the know-how of human specialists, producing intricate decision trees that allowed non-experts to reach a desired outcome. A notable early instance was the Deep Blue system, engineered to trawl a data bank of possible chess moves, compiled by grandmasters, and, using the current board position, assess options and choose its next move. In more recent usage, ‘ AI’ commonly refers to machine learning, where computers adjust and improve through...
A UK trade mark Section 1 of the Trade Marks Act 1994 ( TMA 1994) describes a UK trade mark as any sign that is capable: of being represented on the register in a way that enables the registrar, other competent authorities and the public to determine, clearly and precisely, the subject matter of the protection granted to the proprietor; and of distinguishing the goods or services of one undertaking from those of other undertakings. TMA 1994, s 1 also notes that a trade mark may, in particular, comprise words (including personal names), designs, letters, numerals, colours, sounds, or the shape of goods or their packaging. The definition in TMA 1994, s 1 is drawn from Article 3 of Directive ( EU) 2015/2436, which was brought into UK law on 14 January 2019 by the Trade Marks Regulations 2018, SI...
This Practice Note outlines how intellectual property ( IP) and other rights arise in relation to linking on the internet, with emphasis on the standpoint of a website operator. See also, Precedent: Linking policy. Brexit This Practice Note includes references to case law from the Court of Justice. For guidance on whether decisions of the Court of Justice bind UK courts, see Practice Note: Assimilated law. It also refers to EU-derived domestic legislation (that is, UK statutes that implemented EU law). From IP completion day at 11.00 pm on 31 December 2020 until the end of 2023, these measures were categorised as retained EU law ( REUL). Assimilated law is the label given to REUL that remains in force after the end of 2023. The re-categorisation of REUL (and associated terms) as assimilated law indicates a change in its status and treatment under UK law, in that it is...
The rationale behind patents Patents safeguard novel inventions and are intended to drive innovation by rewarding the owner with a period of 20 years or more during which they can stop others from infringing—that is, making, using, importing or selling the invention without permission. For further guidance, see Practice Note: Patent infringement. In the UK, patents are granted after a formal filing and assessment. During this phase—known as patent prosecution—a patent examiner at the relevant intellectual property office (for example, the UK Intellectual Property Office or the European Patent Office ( EPO)) reviews whether the claimed invention is patentable (meets the patentability criteria) and whether the application satisfies specified formalities. Practice Notes: Patentability and exclusions from patentability Patent applications—how to obtain patent protection in the UK European patents—application procedure Following Brexit, the UK remains within the European patent system and may still be designated in European patent...
This Practice Note outlines UK law as it relates to the use of deepfakes. A deepfake is audiovisual material created or altered with artificial intelligence to misrepresent a person or subject. The Practice Note explores: what a deepfake is; how deepfakes work; and uses and applications of deepfakes—including entertainment, parody, political satire and healthcare. It also considers the application of UK law to deepfakes, the steps taken by social media platforms and search engines to tackle issues arising from deepfakes, and future technological controls, including problem areas linked to technological and legislative or common law controls. What is a deepfake? The term blends ‘deep learning’ with ‘fake’. Ofcom’s Deepfake Defences Discussion Paper characterises a deepfake as audiovisual content generated or manipulated by AI that misrepresents someone or something. Such content often features individuals from the entertainment, fashion, or sports sectors....
Absolute and relative grounds A trade mark’s core role is to signal commercial origin. It sets apart one undertaking’s goods and services from those of others. In principle, any mark can be registered as a trade mark unless a particular basis for refusal applies. Registration is permitted only where no specified ground for refusal exists at all. These refusal bases fall into two categories: ‘absolute grounds for refusal’ (addressing the inherent characteristics of the mark and whether it can operate as a trade mark) and ‘relative grounds for refusal’ (concerned with clashes with earlier rights). It is also possible for an application to be refused only in part where the relevant ground affects just some of the goods or services designated in the application. When a trade mark application is filed, the UK Intellectual Property Office ( IPO) examines the...
This Practice Note outlines the key legal and practical considerations for rights owners and their advisers when deciding whether to pursue a private prosecution for counterfeiting or piracy. It also examines the advantages of criminal action, the categories of offences and potential hazards, and sets out an overview of the principal phases of a prosecution together with the pertinent legal and procedural issues that might arise in practice. This Practice Note focuses on England and Wales; rules differ slightly in Scotland and Northern Ireland. Why prosecute? Certain infringements are treated as criminal offences under the Trade Marks Act 1994 ( TMA 1994), the Copyright, Designs and Patents Act 1988 ( CDPA 1988) and the Registered Designs Act 1949 ( RDA 1949). Proceedings for these offences may, from time to time, be instituted by a range of bodies (eg the Crown Prosecution Service ( CPS) and...
Where conduct carries a stronger public policy dimension—such as dealing in counterfeit goods or acts of piracy—it is open to pursue criminal proceedings alongside civil action as well. Typically, infringements reaching the criminal threshold are systematic, repeated operations deliberately designed to produce revenue through the infringing behaviour. There is, moreover, a clear rationale for treating these matters as criminal, as those engaged may divert the proceeds to finance other, more serious forms of organised crime. Even so, in practice, copyright owners tend to prefer civil routes rather than criminal prosecution, in no small part because the criminal standard of proof presents a greater obstacle for the prosecution in criminal cases; note, however, that if a permitted act is invoked by way of defence, the defendant carries a balance of probabilities burden. For criminal allegations, the owner must also establish knowledge or reason to...
Having an online presence is essential for most brands. Most brands now market and sell online, either through their own sites or via marketplaces like e Bay and Amazon. They may boost visibility with key word advertising and maintain social profiles on Instagram, Facebook, X (formerly Twitter), You Tube or Tik Tok, often collaborating with influencers to build recognition. To safeguard reputation and make effective use of these channels, it is vital that IP rights are properly secured and enforced. As a result, a dedicated online brand protection strategy is indispensable for any business operating on the internet. This Practice Note provides guidance for brand owners developing an online protection plan. It highlights the key online risks-such as IP infringement and reputational harm-and proposes practical steps to address them. It outlines approaches to brand protection, portfolio management, compliance and ongoing monitoring. It also examines...
This Practice Note This Practice Note offers practical guidance for preparing a jurisdiction clause in a commercial, business-to-business ( B2B) contract. It explains what a jurisdiction clause is, why it is required and how it differs from governing law clauses. It outlines key drafting issues, including scope; whether to choose exclusive, non-exclusive or asymmetric jurisdiction; carve-outs to allow alternative dispute resolution; the effect of using the word ‘irrevocably’; waivers of forum non conveniens; the 2005 Hague Convention on Choice of Court Agreements; the 2019 Hague Judgments Convention; and the approach to clauses submitting to the courts of England and Wales where proceedings are brought outside England and Wales. This Practice Note does not address the position for jurisdiction clauses in business-to-consumer ( B2C) contracts. For more detail, see Practice Note: Governing law and jurisdiction in contracts with UK consumers. This Practice Note is...
What is a letter of claim? A letter of claim alerts an alleged infringer that legal proceedings might be initiated against them. It is also known as a ‘letter before action’ or a ‘cease and desist letter’. This Practice Note outlines the approach to drafting a letter of claim in an IP dispute. It identifies the specific factors relevant to IP matters and, in particular, the strategic points to consider to minimise exposure to an unjustified threats claim. It summarises the essential components of such a letter and offers practical guidance on preparing it. It also provides links to Precedent letters of claim covering the principal IP rights. Whether to open with an informal approach or commence with a formal letter of claim will depend on the circumstances. Using an informal letter leaves the IP rights holder free from any commitment to issue...
Background This Practice Note offers a concise overview of principal UK– EU points of comparison concerning designs that have emerged since the UK left the EU on 31 December 2020 ( IP completion day). It examines the effect of the Retained EU Law ( Revocation and Reform) Act 2023 ( REUL( RR) A 2023) on design law and takes into account the UK Intellectual Property Office’s ( IPO) designs consultation alongside the EU’s reforms to design legislation. For comparisons across other IP rights in the UK and EU, refer to Practice Notes: Patents and SPCs— UK/ EU comparison, Trade marks— UK/ EU comparison, and Copyright and databases— UK/ EU comparison. Across the EU, IP law is heavily harmonised and broadly consistent in approach. Before Brexit, many elements of UK IP law were aligned with the EU framework, in substance and effect, and certain unitary EU IP...
ARCHIVED: This Practice Note is archived and no longer maintained and is not being updated. It was originally prepared for Lexis Advance® Practical Guidance Singapore. Singapore’s trade mark registration framework operates under the Trade Marks Act ( Cap 332) and is overseen by the Intellectual Property Office of Singapore ( IPOS). Even where a trade mark used in Singapore has not been registered, it may still receive protection through the common law action of passing off. Extent and term of trade mark registration As with many other jurisdictions, protection arising from trade mark registration in Singapore is territorial, meaning it applies only within Singapore and has effect domestically. Registration endures for ten years from the filing date of the application and takes effect from that filing date. It is capable of unlimited renewal in further ten...
ARCHIVED: This Practice Note is archived and no longer maintained. This Practice Note was first prepared for Lexis Advance® Practical Guidance Singapore and addresses infringement of a trade mark under the Trade Marks Act ( Cap 332). Infringement A person infringes a registered trade mark when, without the owner’s consent, they use in the course of trade a sign identical with or similar to the mark for identical or similar goods or services, and that use is liable to confuse the public. Where both the sign and the goods or services are identical to the mark, there is no need to prove confusion. The Trade Marks Act ( Cap 332) accords a special level of protection to ‘well-known’ trade marks, regardless of whether they have been registered in Singapore. This will be discussed below. The requirement of ‘use’ A non-exhaustive list of acts amounting to use of a sign...
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This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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