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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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Universities and other academic institutions Universities and other academic bodies carry out extensive research and consequently create significant volumes of protectable IP. Safeguarding and exploiting this IP is both costly and time‑consuming, and frequently the university is better placed to manage this than individual academics. Many larger institutions operate IP policies requiring academics to assign all IP rights arising from their research to the university. In return, incentives such as a share of the income generated by the IP are provided. After a university secures ownership of IP, it can be commercialised in several ways, including: donation for the wider benefit of the public licensing to established third parties or start‑ups selling or assigning the IP to third parties creating spin‑offs to exploit the IP A university ‘spin‑off’ or ‘spin‑out’ is a new company established to capitalise on research...
This Practice Note The UK government has long aimed to make the country one of the world’s most appealing places for innovation and enterprise. To achieve this, it has introduced a range of tax incentives that support innovative companies and their investors, spanning every stage of a business’s life cycle. These include: R& D tax reliefs the patent box business asset disposal relief (formerly entrepreneurs’ relief) amortisation deductions for companies acquiring intellectual property capital allowances for purchases of: knowhow patents plant and machinery venture capital trusts enterprise investment scheme seed enterprise investment scheme This Practice Note outlines the UK perspective on key tax considerations when deciding how to structure an...
In contrast with numerous jurisdictions, the UK lacks a general unfair competition regime of its own. Brand owners aiming to stop rivals from selling lookalike goods or deploying deceptive adverts must depend on a mix of intellectual property rights, used together in practice rather than relying on a lone, overarching rule. Among these is also the common law action of passing off. Such claims proceed, in essence, on the basis that nobody may present their goods or services as those of another party. A frequent pattern involves a defendant reproducing the claimant’s packaging, get-up or branding so as to misstate the origin of its offerings. Set out below are the essential elements to prove passing off, together with an outline of potential defences, available remedies and pragmatic considerations to bear in mind. Passing off is regularly pleaded alongside trade mark...
ARCHIVED : This Practice Note has been archived and is no longer maintained. It addresses jurisdictional questions that arise in UK IP disputes, with particular emphasis on the EU jurisdiction regime and the construction of Regulation ( EC) 44/2001 ( Brussels I) and Regulation ( EU) 1215/2012 ( Brussels I (recast)). It also considers the jurisdiction of the courts in the UK. The Note sets out the position for patents, trade marks, copyright and design rights, and signposts more specialist notes in those IP areas where appropriate. It introduces concepts relating to jurisdiction only (not applicable law). Although IP rights are protected on a national or regional territorial basis, the character of the subject matter (eg inventions, written works, etc) enables, in the internet age, almost instantaneous cross-border movement. Accordingly, deciding whether the English court has jurisdiction over an IP...
This Practice Note sets out the purpose and importance of time of the essence clauses in commercial contracts. It outlines the general rule and its exceptions, and considers practical points for both supplier and customer when evaluating time of the essence provisions in supply of goods or services agreements. For a Precedent time of the essence clause with detailed drafting notes, see Precedent: clause. See also: Drafting and negotiating a time of the essence clause—checklist. For discussion of time of the essence clauses in the context of: construction contracts, see Practice Note: —construction contracts rent reviews, see Practice Note: A guide to rent review for property lawyers— When is time of the essence? Consequence of a time of the essence clause Where a contract stipulates that ‘time is of the essence’ for the performance of an obligation, there is a...
ARCHIVED: This Practice Note has been archived and is not being maintained. It was originally prepared for Lexis Advance® Practical Guidance Singapore. Priority date Section 17 of the Patents Act ( Cap 221) states that a Singapore patent application takes as its priority date the filing date of the first patent application made in another country. That country must be a Paris Convention party or a World Trade Organisation member. Where the initial filing occurred in Singapore, the Singapore filing date serves as the priority date for subsequent applications abroad. This date fixes the state of the art for evaluating patentability. Paris Convention Treaty application An international application under the Paris Convention Treaty ( PCT) can be filed with the Intellectual Property Office of Singapore ( IPOS) as the receiving office. Doing so safeguards the applicant’s ability to seek patent protection across all PCT...
This Practice Note was first prepared for Lexis Advance Practical Guidance Singapore. Patent infringement In Singapore, actions for patent infringement are governed by Part XII of the Patents Act ( Cap 221). All infringement claims must be commenced in the Singapore High Court— Patents Act, s 67 read with s 2. Who can sue? Only the registered proprietor of the patent and/or the holder of an exclusive licence has locus standi to sue for infringement under the Patents Act, ss 67(1) and 74(1). A co-proprietor may commence infringement proceedings without the concurrence of the other co-proprietors, provided all co-proprietors are named; however, if they are made defendants, they will not be liable for costs or expenses unless they enter appearance and participate in the proceedings. Where an exclusive licensee brings the claim, the proprietor of the patent need not be a party; if the...
ARCHIVED: This Practice Note has been archived and is not maintained. It was originally prepared for Lexis Advance® Practical Guidance Singapore. Ownership of copyright Copyright is a personal right that arises where a qualified person has materially contributed to the particular expression of a work. See Asia Pacific Publishing Pte v Pioneers & Leaders ( Publishers) Pte [2011] 4 SLR 381 (not reported by Lexis Nexis®). This is distinct from ownership of the physical item embodying the work, which may rest with someone other than the copyright owner. Under section 30(2) of the Copyright Act ( Cap 63), the creator is regarded as the author and, once the work is fixed in material form, will be the first owner. There are, however, express statutory exceptions to this default position within the Copyright Act,...
ARCHIVED: This Practice Note is archived and is not being maintained. It was originally prepared for Lexis Advance® Practical Guidance Singapore. It outlines actions by authorities, including customs and the police, together with civil proceedings and private criminal prosecutions brought by rights owners. In certain countries, administrative action against infringers is also available, but that is not covered here. Customs Singapore Customs enforces IP rights within Singapore and oversees goods entering the border. Customs officers are empowered to inspect and detain goods imported into Singapore for a broad range of IP infringements. The principal legislation is the Trade Marks Act 1998, which took effect on 15 January 1999, and its subsidiary legislation, namely the Trade Marks ( Border Enforcement Measures) Rules ( Cap 332, R2). Under s 82(1) of the Trade Marks Act, rights holders should make an application, by way of a written notice, to the...
Background to semiconductors A semiconductor is, at its core, a material with electrical conductivity that can permit or, alternatively, obstruct the passage of electric current. Chips based on semiconductors—seen in devices such as computers, mobile phones and microwave ovens—are typically produced from circular silicon wafers. Intellectual property rights operate to safeguard the semiconductor sector, encompassing electronic circuit boards and the component chips. Semiconductor topography rights The semiconductor topography right sits alongside unregistered design law and is aimed at protecting a particular industrial article, namely, as noted above, the electronic circuit board and the layout of semiconductors. This right entered UK law through the Design Right ( Semiconductor Topographies) Regulations 1989, SI 1989/1100, which implemented European Directive 87/54/ EC and now form assimilated law as EU‑derived domestic legislation. Assimilated law is the term applied to retained EU law ( REUL) that continues in force after the end of 2023. The...
Practice Note Use this Practice Note to identify the governing law before the courts of England and Wales for harmful events that took place between 11 January 2009 and 31 December 2020. Where incidents happened outside those dates, the UK courts will apply an alternative choice-of-law regime, and the regime engaged turns solely on the date of the occurrence. If the date falls outside that span, a different regime applies, selected by reference to timing of the event. For direction on those regimes and how they interrelate, see Practice Note: Applicable law regimes. It summarises the special rules governing particular heads of claim under Regulation ( EC) 864/2007 on the law applicable to non-contractual obligations ( Rome II). The topics include product liability, unfair competition and restraints on free competition, environmental harm, intellectual property ( IP) rights, industrial action, unjust...
This Practice Note offers practical direction on correctly executing documents when one or more parties to a contract are not physically together, often referred to as virtual signing or a virtual closing. The Law Society has brought together established materials covering: execution of documents by virtual means, use of electronic signatures, its ‘ Tips on how to operate in practice’ concerning virtual execution and the use of e‑signatures, and Q& A on using electronic signatures and completing virtual executions, including ‘ Our position on the use of virtual execution and e‑signature during the coronavirus ( COVID‑19) pandemic’. We have assembled a comprehensive, interactive collection to help users identify and navigate the concepts and common issues involved in executing documents, including by virtual means. Each section or phase contains practical guidance, precedent clauses and Q& As relevant to that stage. For more...
ARCHIVED: This Practice Note has been archived and is no longer maintained. First prepared for Lexis Practice Advisor in the United States, it sets out an overview of federal trade dress protection and enforcement under the Lanham Act. It considers the potential categories of trade dress, the conditions for protection—distinctiveness and non‑functionality—the benefits of federal registration, and enforcement options, including infringement, dilution, and counterfeiting claims. It also underscores the value of an integrated protection strategy combining trade dress with copyright and design patent protection, where feasible... Trade dress basics Broadly, trade dress captures the overall look and general impression of a product or service. It can encompass features such as: size shape colour or colour combinations texture graphics sounds, scents, and flavours motion and moving images particular business techniques the look and feel of a...
ARCHIVED: This Practice Note is archived and not maintained. It was originally prepared for Lexis Practice Advisor®, in the US. What is a patent? Under the US Patent Act 1952 ( Patents Act), patents are issued by the US Patent and Trademark Office ( USPTO). A patent owner holds a time-limited right to stop others from practising the claimed invention within the United States. The most common form is the utility patent, typically claiming a tangible thing or a set of steps. Design patents protect the ornamental appearance of an article of manufacture. Plant patents safeguard a plant variety produced through grafting, budding, or comparable methods (rather than by seed). Importantly, eligible subject matter must be stated in the patent claim itself; a disclosure in the specification alone is not enough. See Two- Way Media Ltd v Comcast Cable Communs, LLC, 874 F.3d 1329,...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally prepared for Lexis Practice Advisor®, in the US. It addresses trade mark infringement and false designation of origin under the Lanham Act, including standing to sue, the elements needed to prove such claims, and possible remedies (such as injunctive relief, damages, and attorneys’ fees). It also summarises defences commonly raised in trade mark litigation. Trade mark owners may bring proceedings to prevent others from using, imitating, or otherwise harming their trade marks or service marks (collectively, trade marks or marks). Indeed, trade mark owners (and in some cases exclusive licensees) have a legal obligation to monitor and enforce their rights. Failing to do so can result in loss of those rights. Owners should consider issuing a claim when: swift intervention is required to protect the mark from...
ARCHIVED: This Practice Note is archived and no longer updated. It was initially prepared for Lexis Practice Adviser, in the US. It outlines similarities and differences between the protections available for typical categories of IP, such as literary works (copyright and trade secret); marketing imagery, characters and slogans (copyright and trade mark); product designs (design patent, copyright and trade dress) and inventions (patent and trade secret). It addresses coverage and duration, as well as scope and eligibility requirements too. Literary works—copyright versus trade secret protection For information to amount to a trade secret, it must truly be confidential, the proprietor must take steps to preserve that confidentiality, and it must confer a competitive economic benefit on the owner. Trade secrets usually comprise commercial or business information and may endure without limit, provided the secrecy is maintained. Copyright, by contrast, applies to subject matter such as...
ARCHIVED This Practice Note is archived and is no longer maintained. It was first produced for Lexis Practice Adviser, in the US. The charts present an at-a-glance summary of copyright terms (also known as copyright duration or duration of copyright) for works first published on or after 1 January 1978 (post-1978 works) and for works first published before 1 January 1978 (pre-1978 works), including whether renewal terms are needed or available. For a general overview of copyright law, see: US—copyright fundamentals [ Archived]. Post-1978 works All original works of authorship created and fixed in a tangible medium of expression on or after 1 January 1978 (the effective date of the Copyright Act of 1976) are automatically protected upon fixation. The duration varies by the nature of the work: Works of an individual author: life of the author plus 70 years Works of joint authorship: life of the...
This Practice Note was originally prepared for Lexis Practice Advisor®, in the US. It outlines the exclusive rights granted to US copyright owners: the ability to reproduce the protected work, to create derivative works, to distribute copies or phonorecords, to perform the work publicly (including by means of a digital audio transmission), and to display the work publicly. Explanation of exclusive rights Although people often speak of owning ‘a’ copyright in a work, copyright is in fact a bundle of six distinct and independent rights held exclusively by the owner, ie a monopoly over those rights, for the period during which copyright remains in effect. Exclusivity means only the copyright owner may carry out, or authorise others to carry out, any of the six activities set out in Section 106 of the Copyright Act. If someone other than the owner engages in one of those...
ARCHIVED This Practice Note is archived and no longer updated. It outlines the pre-amendment law on unjustified threats relating to trade mark infringement, before changes introduced by the Intellectual Property ( Unjustified Threats) Act 2017 ( IP( UT) A 2017). Communications issued before 1 October 2017 remain subject to the earlier regime for patents, trade marks and designs, where relevant. Any citations in this Practice Note to the Trade Marks Act 1994 and the Community Trade Mark Regulations 2006 refer to those instruments as they stood before amendment by the Intellectual Property ( Unjustified Threats) Act 2017 ( IP( UT) A 2017) on 1 October 2017. For details of the current threats regime applying to communications from 1 October 2017 onwards, consult the maintained Practice Note: Unjustified threats of intellectual property right...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note was originally prepared for Lexis Practice Advisor®, in the US. It outlines core trade mark law concepts, covering protection requirements, ownership, correct trade mark use, how rights can be forfeited, constraints on protection, enforcement, and remedies. Loss of rights: abandonment, genericide, naked licensing, assignments in gross. Limits on protection: the first-sale doctrine, descriptive and nominative fair use, laches, acquiescence. What is a trademark? Trade marks generally comprise words, phrases, symbols and/or designs that function as indicators of source for specific goods. Service marks mirror trade marks but identify the source of particular services. In practice, both are often called ‘trade marks’ or simply ‘marks’. Under the ‘ Information matter’ doctrine, registration is refused where a mark, instead of denoting the source of a product or service, merely...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
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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