Featured documents
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:
Most recent Practice notes
ARCHIVED: This Practice Note is archived and is no longer maintained. Originally prepared for Lexis Practice Advisor®, in the US, it responds to fundamental queries about the courts and other tribunals that adjudicate patent disputes in the United States. It supplies essential introductory material for lawyers new to US patent law and functions as a concise overview... US district courts The United States has two main court systems: state courts, which vary by state, and the US federal judiciary, which is the judicial branch of the federal government. US district courts are the general federal trial courts, located in every state. They possess subject-matter jurisdiction over all matters arising under the patent laws; accordingly, disputes over patent infringement and validity are tried in US district courts. In district court trials, juries commonly decide questions of infringement and...
This Practice Note was first prepared for Lexis Practice Advisor®, in the US. It outlines immunity under Section 230 of the US Communications Decency Act, explaining who is covered, what claims fall within scope, and how to avoid forfeiting that shield. Section 230 affords wide-ranging protection to internet service providers ( ISPs) and online users against liabilities stemming from third-party speech. Anyone hosting a site or disseminating third-party material online, accessible in the US, should grasp how Section 230 functions. The Note starts with context on Congress’s efforts to police online obscenity and the liability framework that existed before Section 230. It then addresses core definitions and provisions, and the safeguards related to hosting, moderating, encouraging, and paying for third-party content. Finally, it sets out the boundaries of those safeguards, including whole areas of law excluded from Section 230...
ARCHIVED: This Practice Note has been archived and is not maintained. Originally prepared for Lexis Practice Advisor® in the US, this Practice Note outlines prevalent music‑industry agreements and drafting points, covering music licences (mechanical, master use, synch and public performance), work‑for‑hire arrangements, exclusive recording deals and 360 agreements, online distribution accords, and live performance contracts. It also introduces fundamentals on selling music catalogues, along with issues relating to non‑fungible tokens and artificial intelligence ( AI). It further addresses key copyright topics, including termination rights and the legal framework for music licensing, such as the Music Modernization Act ( MMA). Copyright considerations and registration To understand the licence types referenced in this Practice Note, a basic grasp of copyright law is required, including: the exclusive rights of a copyright owner how long those rights endure (copyright duration) the importance of copyright...
ARCHIVED: This Practice Note has been archived and is not maintained Originally prepared for Lexis Practice Advisor® in the United States, this Practice Note outlines the copyright registration process and covers: the advantages of federal registration preparing and lodging a copyright application (online or on paper) applicable filing fees the deposit obligation replying to enquiries from the US Copyright Office the potential for preregistration of particular categories of works The Copyright Office also issued notices revising certain timing provisions and widening electronic submission options in response to the coronavirus ( COVID-19) pandemic. For an overview of copyright law, see Practice Note: US—copyright fundamentals [ Archived]. Benefits of copyright registration Copyright arises the moment an author commits an original work of expression to a fixed medium (for example, on paper, in a computer file, or as a sound...
ARCHIVED: This Practice Note has been archived and is not maintained. It was originally prepared for Lexis Practice Advisor®, in the US. This Note examines the fair use defence in US copyright law, including the preamble and the four statutory factors set out in 17 U. S. C. § 107, and leading fair use decisions from the United States Supreme Court and the Courts of Appeals. It also offers guidance on advising clients who wish to use copyrighted works as to whether a particular use is fair. Overview of Fair Use Defense Fair use is perhaps the most commonly invoked response to an allegation of copyright infringement. Codified in section 107 of the Copyright Act, the doctrine provides that even when a protected work is used without the copyright owner’s permission, the unauthorised use will not infringe if the use is fair. The burden of...
The purpose of the Copyright Tribunal The Copyright Tribunal (the Tribunal) is a standalone adjudicatory body created under the Copyright, Designs and Patents Act 1988 ( CDPA 1988). It exists to settle commercial licensing disputes between copyright holders or their agents and commercial users of protected material. The Tribunal sets the terms and conditions for collective copyright licensing schemes administered by licensing bodies, and also rules on disagreements concerning the terms of individual licences offered by those bodies. Under CDPA 1988, s 116(1), a licensing scheme means a scheme that specifies the classes of case in which the operator of the scheme, or the person on whose behalf he acts, is prepared to grant copyright licences, and the terms on which licences would be granted in those classes of case. The Tribunal does not hear claims for copyright...
ARCHIVED: This Practice Note has been archived and is not maintained. It brings together major milestones on cross-border services between the UK and the EU, as well as a chronology of the UK/ EU talks over their future trade relationship from exit day (31 January 2020) through to IP completion day (31 December 2020). For guidance on how IP completion day affects services trade, see the Practice Notes: What does IP completion day mean for Commercial? and What does IP completion day mean for the supply of services? STOP PRESS: On 24 December 2020, the European Commission and the UK government declared an agreement in principle on the legal framework for the future UK– EU relationship. Announced just a week before IP completion day, the EU– UK Trade and Cooperation Agreement ( TCA), together with related agreements, arrived at the last minute, leaving minimal time to...
On 23 June 2016, the United Kingdom held a referendum on its EU membership, with a majority opting for the UK to leave the EU. On 29 March 2017, the Prime Minister sent formal notice of the UK’s intention to withdraw, setting in motion the Article 50 TEU process. At 11 pm on 31 January 2020 (exit day), the UK’s withdrawal took effect in law and the UK ceased to be an EU Member State. Exit day signalled the close of the Article 50 withdrawal phase and the beginning of a time-limited transition/implementation period, during which the interim arrangements in Part 4 of the Withdrawal Agreement applied. These transitional measures created a standstill period while the UK and the EU set about implementing the Withdrawal Agreement and negotiating the legal terms governing their future relationship, to apply after the transition ended. The EU- UK Trade and...
ARCHIVED: This Practice Note is archived and no longer updated. It brings together the principal developments concerning the import and export of goods between the UK and the EU, alongside a chronology of the UK/ EU negotiations on their future trade relationship, covering the period from exit day (31 January 2020) through to IP completion day (31 December 2020). For information on the effect of IP completion day on the trade in goods, see Practice Notes: What does IP completion day mean for Commercial? and What does IP completion day mean for supply of goods? STOP PRESS: On 24 December 2020, the European Commission and UK government confirmed an agreement in principle on the legal basis for the future UK- EU relationship. Announced just a week before IP completion day, the EU- UK Trade and Cooperation Agreement ( TCA), together with associated...
ARCHIVED: This archived Practice Note sets out details of the Data Protection, Privacy and Electronic Communications ( Amendments etc) ( EU Exit) Regulations 2019, SI 2019/419, together with the Data Protection, Privacy and Electronic Communications ( Amendments etc) ( EU Exit) Regulations 2020, SI 2020/1586, plus salient elements of the EU- UK Withdrawal Agreement and the EU- UK Trade and Cooperation Agreement insofar as they concern data protection. It is no longer updated and is provided for background only. For guidance on continuing divergence between data protection requirements under the GDPR frameworks, refer to Practice Note: Introduction to the EU GDPR and UK GDPR. This Practice Note examines how Brexit affects routine processing of personal data under the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), which took direct effect in the UK and all other EU Member States on 25 May 2018, and,...
This Practice Note outlines which intellectual property rights ( IPRs) may subsist in a website, and the extent to which they can be used to protect website components and deter unlawful behaviour by others, including rivals. It also addresses how site owners can obtain IPRs during development, alongside the obstacles they encounter when trying to safeguard their intellectual property, particularly amid advances in technology such as generative artificial intelligence ( AI). A concise overview of internet service provider ( ISP) liability is included; for a more extensive analysis of the position in the UK and the EU, see the Practice Notes: The liability exemptions/defences under the E- Commerce Regulations 2002 and The liability exemptions/defences under the EU Digital Services Act. This Practice Note does not deal with registration, use or protection of domain names; for that, see Domain...
This Practice Note sets out how trade secrets and confidential information are protected in a commercial context, particularly where technical material is concerned. It outlines the Trade Secrets ( Enforcement, etc) Regulations 2018 ( Trade Secrets Regulations), SI 2018/597, and their interaction with the common law action for breach of confidence. This Practice Note also addresses: how breach of confidence intersects with infringement of intellectual property rights and other causes of action the meanings of ‘confidential information’, ‘trade secrets’ and ‘know‑how’, and how these concepts are handled in commercial practice case law on secondary liability, common design and knowledge of breach, together with the position on subconscious use, derivative use and reverse engineering remedies available for breach of confidence, including injunctions, springboard injunctions, damages, account of profits, delivery up and...
This new starter guide offers a primer on trade mark law, distilling the core principles and signposting numerous Lexis+® UK sources and materials for fuller detail. It is aimed at trainee solicitors and readers new to trade marks. Details of other intellectual property ( IP) rights, including further starter guides, appear in Practice Note: Intellectual property ( IP)—new starter guide. Where topics sit beyond this basic outline, explore the three Trade marks/passing off subtopics: Trade mark transactions and management; Trade mark and passing off disputes; Anti-counterfeiting. For concise summaries of each, see: Trade mark transactions and management—overview; Trade mark and passing off disputes—overview; and Anti-counterfeiting—overview. This guide also explains how to subscribe to the IP daily and weekly news alerts and how to contact Lexis Ask... Introductory materials Absolute and relative grounds for refusal to register a UK trade...
This Practice Note offers a concise primer on trade marks, covering: what is a trade mark? registering a trade mark dealing with trade marks in agreements asserting trade marks unregistered trade marks and the law of passing off trade mark litigation For guidance on the filing and prosecution of trade marks, portfolio management and transactions involving trade marks, see: Trade mark transactions and management—overview. For information on disputes concerning registered and unregistered trade marks, see: Trade mark and passing off disputes—overview. What is a trade mark? A trade mark is a sign that differentiates one undertaking’s goods or services from those of another. Put simply, it allows consumers to recognise products or services as originating from a particular business or associated with a specific offering. While trade marks are often words or logos, protection can extend to less...
ARCHIVED: This Practice Note is archived and no longer updated. It compiles closed legislative proposals, published judgments and concluded consultations from 2023–2024 that are not included in the current Trade marks tracker— UK as they are not from this year. To monitor active legislative proposals, relevant judgments, consultations, guidance and reports on trade marks, see Practice Note: Trade marks tracker— UK. For archived developments prior to 2024, see Practice Note: Trade marks tracker 2017–2022 [ Archived]. Legislation, consultations, guidance and reports For current legislation, see Practice Note: Trade marks tracker— UK— Legislation, consultations, guidance and reports. For archived trade mark legislation before 2024, see Practice Note: Trade marks tracker 2017–2022 [ Archived]— Legislation. For archived trade mark consultations before 2024, see Practice Note: Trade marks tracker 2017–2022 [ Archived]— Consultations. What’s happening? When? Find out more Trade Marks ( International Registration) ( Amendment) Order 2024, SI...
Applying to register a trade mark at the UK Intellectual Property Office ( IPO) This Practice Note sets out guidance on seeking registration of a trade mark at the UK Intellectual Property Office ( IPO) and the steps involved. It addresses matters such as carrying out searches before filing, the three‑phase application procedure, preparing and submitting the application, application fees payable, filing dates, claiming priority, classification of goods and services, the IPO’s search and examination, eligibility of the mark or sign, absolute and relative grounds for refusal, examiner’s objections, and publication of the application. It summarises the relevant provisions of the Trade Marks Act 1994 ( TMA 1994). Registration of a trade mark confers on the proprietor the exclusive right to prevent others from using that mark without permission. Anyone—individual or company—intending to use a name or brand for particular goods or services ought to apply to...
This Practice Note delivers strategic and practical guidance on running a trade mark portfolio that dovetails with a company’s wider business strategy, competitive intelligence and market assessment, acting as a platform for growth and expansion. For details on the principal considerations for registering and protecting UK trade marks, including the technical points to address when drafting the trade mark specification, see the following Practice Notes: Application to register a UK trade mark Opposing a UK trade mark application Trade mark registration—strategy This Practice Note centres on managing a trade mark portfolio. For advice on overseeing a broader portfolio that includes other IP rights, see Practice Note: How to manage an IP portfolio and How to manage an IP portfolio—checklist. Brexit At 11.00 pm on 31 December 2020 ( IP completion day), Regulation ( EU) 2017/1001 was revoked in the UK. As a result, the UK is no longer within the EU trade mark (...
Managing a trade mark and/or passing off dispute This Practice Note outlines the practical and strategic factors for practitioners and their clients when pursuing claims for trade mark infringement and/or passing off in the UK, as well as when resisting such actions and/or counterclaiming for a trade mark’s invalidity. It highlights key considerations for right holders (or claimants) when selecting which rights to invoke and the core points to establish when planning an infringement action, including practical guidance on gathering evidence. It also addresses best practice for drafting statements of case and the strategic choices involved in selecting the most suitable forum for the dispute... It further identifies the principal issues for alleged infringers (or defendants) to consider when preparing their defence and/or counterclaim. The Note provides guidance on efficient case management and summarises alternative pathways to resolve disputes where litigation may not be...
ARCHIVED: This archived Practice Note reviews the effect on the TMT sector following the end of the implementation period under the Withdrawal Agreement and the EU ( Withdrawal Agreement) Act 2020. At 11 pm ( GMT) on 31 December 2020—‘ IP completion day’—the implementation period ended, which had enabled the UK to move away from the EU’s laws and institutions, and the UK’s legal regime altered immediately and substantially. It explains the implications across the following areas of TMT law and practice: Overview—what happened on 31 December 2020 TMT implications of the EU- UK Trade and Cooperation Agreement Access to EEA workers Technology contracts Drones Internet of things Software licensing Cloud computing E-commerce Domain names e Privacy Data protection Media Telecoms Advertising Databases ...
Transfers of IP in M& A—taxation issues IP can be moved in corporate transactions either via a share sale in the company that owns the rights, or as part of a transfer of a business’s trade and assets (whether out of a company, or by individual sellers where the business was unincorporated). The tax position will differ based on the nature of both the seller and the buyer. For tax, IP has a defined scope. For guidance on what does or does not qualify as IP for tax, see Practice Notes: What is an intangible fixed asset? and Excluded intangible fixed assets. The UK broadly adopts two approaches to taxing IP deals: the corporate intangibles tax rules: these apply to IP created or acquired by a company on or after 1 April 2002 (unless the asset was acquired before 1 July 2020 from a related party that held the...
Popular documents
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 ]...
Discover more from LexisNexis
