Taylor Wessing


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Insolvency & Restructuring

Liability of administrators for economic loss of a creditor
United Kingdom | 06 September 2019

In a recent ruling, the Court of Appeal confirmed that administrators owe a duty to all creditors and cannot be held personally liable for the economic loss of a creditor where no special relationship exists. In coming to its decision, the court showed a willingness to look at the commercial realities of the decisions that administrators must make on a daily basis.

Major restructuring and insolvency reforms announced
United Kingdom | 26 October 2018

The government recently announced that it will legislate to update the restructuring and insolvency systems, with the aim of the United Kingdom retaining the gold-standard regime. The reforms are a response to international developments (with countries such as Spain and the Netherlands recently introducing updated insolvency systems) and some domestic corporate collapses which have put the UK system under stress.

United Kingdom set to strengthen corporate governance of insolvent companies
United Kingdom | 20 April 2018

The United Kingdom's corporate governance regime has been stress tested in the past decade and in many respects it has done well. However, in response to certain high-profile corporate collapses which have caused heavy losses for creditors – in particular, individuals and suppliers with little opportunity to protect themselves against losses – and in the spirit of continual improvement, the government recently launched its Insolvency and Corporate Governance consultation.

Former director found to have entered into transaction at undervalue
United Kingdom | 16 March 2018

A liquidator recently pursued a claim that the transfer of a company's trading inventory in satisfaction of money owed to the company's former director was a transaction at an undervalue and preference. The judge agreed, holding that the inventory transfer had been entered into with the intention of putting the former director in a better position than she would have been in on the company's liquidation.

Liquidator's claim struck out for insufficient drafting and abuse of process
United Kingdom | 09 March 2018

The High Court recently struck out a claim by a liquidator who had already brought a claim arising from the same facts against the same defendants. The court relied on the fact that the economic benefit of pursuing the claim would accrue only to the liquidator and held that the second claim constituted an abuse of process, as monies recovered would simply be paid back to the respondents as creditors, less the liquidators fees and costs.

What not to miss out when pursuing a fraudulent trading claim
United Kingdom | 23 February 2018

A liquidator recently applied for permission to amend his claim for fraudulent trading. The claim related to purported defrauding of Her Majesty's Revenue and Customs (HMRC) for non-payment of value added tax. Among other things, the judge held that whilst the costs order constituted loss to HMRC as a creditor, no valid claim in respect of costs was pleaded against the respondents and therefore there was no reasonably arguable case on the point.

Dealing with distress
United Kingdom | 09 February 2018

Investors may, for reasons outside of their control, find themselves with a financially distressed company in their portfolio and possibly in unfamiliar territory. For any distressed situation, being mindful of early warning signs and initiating contingency planning options sooner rather than later will assist in navigating what can sometimes seem like a minefield of issues which arise on an insolvency.

Committal of bankrupt for contempt
United Kingdom | 12 January 2018

A plaintiff recently applied for a bankrupt's committal to prison for contempt of court, providing certification that the bankrupt's conduct had breached the Insolvency Act 1986 without reasonable excuse. The court's decision appears to be the first to clarify the procedure for applying for a committal order on the basis of breaches of the Insolvency Act and provides helpful guidance to practitioners on this issue.

Payment of interest on proved debts
United Kingdom | 05 January 2018

The Court of Appeal recently held that there is a complete statutory code for interest recovery on proved debts in administrations and liquidations. Further, the court stated that statutory interest represents compensation for dividends paid after the administration, and does not depend on any right to interest under the underlying claim.

Court provides further clarification on distinction and appropriate use of rescission and annulment of bankruptcy order
United Kingdom | 22 December 2017

A recent Court of Appeal case has clarified that where the underlying liability on which a bankruptcy order is made is subsequently set aside, the correct remedy is rescission under Section 375(1) of the Insolvency Act. Further, annulment under Section 282(1)(a) is the appropriate remedy when, on grounds existing at the time of making the bankruptcy order, the order ought not to have been made.

Can the terms of a settlement agreement be challenged under Section 127 of the Insolvency Act 1986?
United Kingdom | 24 November 2017

In between the presentation of a winding-up petition and the making of a winding-up order, a company entered into a settlement agreement with its founder. The judge concluded that the intended claims by the company's liquidators were not barred by the agreement. The judge also held that the release of contractual rights constituted a disposition, as did a promise not to sue. The provisions of the settlement agreement were therefore void.

Application by Lehman's administrators on distribution to shareholders
United Kingdom | 17 November 2017

The administrators of Lehman Brothers Europe Ltd recently brought an application for directions on whether to make a substantial distribution of surplus to the company's sole shareholder while the company was in administration and the administrators' role in that distribution. To navigate around the Insolvency Act, the administrators devised a nifty strategy whereby the distribution would be made using the residual powers still vested in the directors and shareholders of the company pursuant to the Companies Act.

Legal professional privilege and bankruptcy
United Kingdom | 03 November 2017

A court recently confirmed that legal professional privilege does not automatically vest in the trustee in bankruptcy. Legal professional privilege is a fundamental human right such that express statutory powers would be necessary to deprive the bankrupt of that right. Therefore, the bankrupt would need to waive privilege or consent to the use of privileged documents.

Intellectual Property

Claridge's, candles and cautionary tales
United Kingdom | 07 October 2019

The name Claridge's brings to mind one of the most luxurious hotels in London rather than court rooms and trademark law. Trading since 1856, the hotel is unlikely to have foreseen its recent dispute with a company which has sold candles and reed diffusers under the name Claridge since 2018. The case serves as a stark reminder that trademark searches must be completed prior to launching a new brand or product name.

UKIPO considers whether LINKEDIN is similar to KINKEDIN
United Kingdom | 05 August 2019

The UK Intellectual Property Office recently upheld LinkedIn Ireland Unlimited Company's opposition to JK Solutions' registration of the word mark KINKEDIN in Class 45 designating, among other things, internet and video dating services. Despite the high degree of aural and visual similarity between LINKEDIN and KINKEDIN, the examiner held that there was no likelihood of confusion on the basis of conceptual dissimilarity alone.

UKIPO considers distinctiveness of OKAYEST for consumer products
United Kingdom | 25 March 2019

In 2016 McMug Ltd successfully filed a UK trademark application for the mark OKAYEST for a number of products, including beer mugs, chinaware and flasks. However, AMC Photographics Limited challenged the mark's validity on the grounds that, among other things, it was devoid of distinctive character and was a wholly descriptive dictionary word (a superlative of okay). This case is a useful reminder that, even after registration, a mark can be challenged on the grounds of non-distinctiveness and descriptiveness.

UKIPO considers dispute between football clubs
United Kingdom | 28 January 2019

Leicester City Football Club Limited recently opposed Leeds City Football Club Limited's application for a graphical trademark covering various goods and services in Classes 16, 25, 26 and 41. Leicester City's claims relied on its earlier mark for the acronym 'LCFC'. In comparing the goods and services covered by the two trademarks, the UK Intellectual Property Office held the parties' goods to be identical and their services to be identical or at least highly similar.

UKBAY v eBay – opposition based on eBay's earlier rights
United Kingdom | 21 January 2019

A UK Intellectual Property Office (UKIPO) opposition was recently brought by eBay Inc against an application by the games company SC Zumedia Games SRL to register a figurative trademark. eBay relied on two earlier registered UK word marks for EBAY in Classes 35, 38 and 41 and figurative EU trademarks in various classes. While the UKIPO accepted that eBay has a protectable goodwill, it was satisfied that there was no likelihood that a substantial number of eBay's customers would be misrepresented.

Trademark dispute over Life Wear for clothing
United Kingdom | 14 January 2019

In 2017 an application was filed to register LIFEWEAR CLOTHING as a UK trademark for clothing and headgear. The application was opposed by Fast Retailing Co, Ltd, the owner of the well-known UNIQLO brand, based on their trademark registrations and the reputation of UNIQLO LifeWear, as well as their unregistered rights in the term 'life wear' for clothing. UNIQLO's earlier rights covered identical goods to those applied for, making it easier to argue a likelihood of confusion (or association) between the marks.

Use it or lose it (and make sure you prove it)
United Kingdom | 07 January 2019

Under Section 46 of the Trademarks Act 1994, a registered trademark can be removed from the register if there has been no genuine use of that mark for five years or more. This is the crux of the so-called 'use it or lose it' argument. But how much evidence is needed to prove genuine use? This question was put to the UK Intellectual Property Office during a recent revocation application.

Supreme Court rules on pregabalin patent
United Kingdom | 03 December 2018

The Supreme Court recently handed down its judgment in the Warner-Lambert v Generics (UK) (Mylan) case concerning the validity and infringement of a patent claiming the use of pregabalin for treating neuropathic pain. The key issues which the court had to resolve were the tests for infringement of a second medical use claim and the test for plausibility of a claim such that it is sufficient.

Supreme Court says trademark owners should bear costs of implementing blocking injunctions
United Kingdom | 13 August 2018

The Supreme Court has ruled that trademark owners should indemnify internet service providers (ISPs) for the costs incurred in blocking access to websites that infringe their marks. The decision reverses the lower courts' rulings that these costs should be picked up by ISPs. However, the indemnity must be limited to reasonable compliance costs. Therefore, the ruling should not deter brand owners from applying for blocking orders in appropriate cases.

Bolar and the experimental use exemptions in the United Kingdom
United Kingdom | 25 June 2018

The exemptions to patent infringement applicable in the United Kingdom to life sciences products are often a source of confusion. This is not least because of the introduction of a third exemption in this area on 1 October 2014. The extent of protection offered by each exemption differs, but to some extent overlaps, and there is only slim guidance from the courts on two of the three.

Trademark hearing officer's decision vaporised by High Court
United Kingdom | 21 May 2018

The High Court has overturned a decision of the registrar of trademarks in which an opposition against an application for a stylised mark featuring the words 'VAPE & CO' was upheld. The opposition was filed by London Vape Company Ltd based on its stylised UK registration featuring the words 'THE vape.co'. The High Court upheld the appeal, noting that "if the only similarity between the respective marks is a common element which has low distinctiveness, that points against there being a likelihood of confusion".