Latest updates

Hema crocodile takes bite out of Lacoste trademark
AKD The Netherlands
  • Litigation
  • Netherlands
  • 19 February 2019

The Hague District Court recently issued a preliminary ruling in which it held that Lacoste could not invoke its famous crocodile trademark in order to prohibit the use of a crocodile motif on children's underwear. This preliminary judgment is one of only a few examples in which the use of a sign has been considered purely decorative (and thus could not be perceived as trademark use). Typically, the courts are restrictive in accepting such a defence.

Is a 'good arguable case' good enough? Court of Appeal considers test for establishing jurisdiction
RPC
  • Litigation
  • United Kingdom
  • 19 February 2019

A recent Court of Appeal decision has confirmed that the test for deciding whether a claimant has a good arguable case is relative. Where a court lacks the evidence to decide which party has the better argument, a more flexible approach should be adopted. In circumstances where the evidence is thin, it is not all relative and claimants are required only to demonstrate a plausible evidential basis that the gateway exists.

Precautionary taking of evidence in support of current proceedings
Lenz & Staehelin
  • Litigation
  • Switzerland
  • 19 February 2019

Under the Civil Procedure Code, the Swiss courts usually take evidence only after the parties have fully pleaded all particulars. The taking of evidence is often preceded by multiple exchanges of written submissions; however, in certain cases, it may be unreasonable to wait until the proceedings have fully developed to take certain evidence. For such cases, Swiss law allows parties to request the so-called 'precautionary taking of evidence'. The Zurich Commercial Court recently issued a decision on one such request.

Amendments to securitisation framework under Budget Law
Legance Avvocati Associati
  • Securitisation & Structured Finance
  • Italy
  • 19 February 2019

Parliament recently approved Law 145/2018 within the context of the Budget Law 2019 and introduced some notable changes to the Italian securitisation framework. Among other things, Law 145/2018 allows the securitisation of proceeds that arise from the ownership of real estate or registered movable assets, as well as other ancillary rights. The amendments are effective as of 1 January 2019 and aim to further develop Italy's securitisation market by offering new tools and refining existing ones.

Constitutional Tribunal deems information claim mechanism unconstitutional
Sołtysiński Kawecki & Szlęzak
  • Intellectual Property
  • Poland
  • 18 February 2019

The Constitutional Tribunal recently found that the information claim mechanism provided for in the Industrial Property Law does not comply with the Constitution. Following the tribunal's ruling, the scope of the legal mechanisms to obtain information to determine the scale of an IP infringement has been reduced. However, the decision also makes it possible to protect entrepreneurs from the unjustified and unnecessary disclosure of business secrets.

New transparency law in oil and gas sector aims to fight corruption
Alem & Associates
  • Energy & Natural Resources
  • Lebanon
  • 18 February 2019

Preventing corruption is a key challenge faced by the oil and gas sector worldwide. This is particularly true in developing countries, as the high level of financial resources generated by recent discoveries can create a breeding ground for corruption and abuse. Lebanon recently took a major step towards achieving transparency and accountability in this regard when it adopted Law 84 on Transparency in the Oil and Gas Sector.

China promulgates 2018 national IP action plan
Wanhuida Peksung IP Group
  • Intellectual Property
  • China
  • 18 February 2019

The Office of the Inter-ministerial Joint Meeting for Implementation of the National IP Strategy recently promulgated the Action Plan for Furthering the National IP Strategy and IP Rights Powerhouse Initiative 2018. The action plan offers few new proposals and instead reiterates the major IP initiatives which the government has promoted over the past two years, including institutional and judicial reform, a legislative plan and various national enforcement campaigns.

Exclusion clauses – abuse of freedom of contract?
Bodipalar Ponnudurai De Silva
  • Company & Commercial
  • Malaysia
  • 18 February 2019

It is common for large conglomerates to require customers to execute agreements with standard boilerplate terms and conditions. The fine print of these boilerplate terms and conditions typically contains an exclusion clause which seeks to restrict or limit the liability of the corporations. However, what happens when these corporations default under the agreement and then seek refuge behind the exclusion clause to disclaim liability?

CII advises on disclosure of board evaluation processes
Cooley LLP
  • Company & Commercial
  • USA
  • 18 February 2019

The Council of Institutional Investors (CII) Research and Education Fund recently released a report regarding disclosures of board evaluation processes in proxy statements. While companies have been discussing their board evaluation processes in their proxies with increasing frequency, the CII suggests that these discussions could be more robust and has identified seven indicators of strong board evaluation processes, including a three-tiered review.

Hema crocodile takes bite out of Lacoste trademark
AKD NV
  • Intellectual Property
  • Netherlands
  • 18 February 2019

The Hague District Court recently issued a preliminary ruling in which it held that Lacoste could not invoke its famous crocodile trademark in order to prohibit the use of a crocodile motif on children's underwear. This preliminary judgment is one of only a few examples in which the use of a sign has been considered purely decorative (and thus could not be perceived as trademark use). Typically, the courts are restrictive in accepting such a defence.

Court of Milan clarifies retrospective effects of patent limitation during civil proceedings
IP Law Galli
  • Intellectual Property
  • Italy
  • 18 February 2019

The Court of Milan Companies and IP Specialised Division recently found three companies guilty of infringing a patent owned by Saima Sicurezza. The patent was held to be valid based on claims that the owner had made during the course of the proceedings under an application for limitation under Article 79 of the Industrial Property Code. This decision further aligns the Italian legal system with its EU counterpart and confirms Italian judges' attention to detail and reliability in patent cases.

Foreign worker permits: frequently asked questions
  • Immigration
  • Israel
  • 15 February 2019

Israeli and international organisations seeking to employ foreign workers in Israel in management positions or in positions that require special expertise or training must apply for a foreign expert work permit (B/1 permit) from the Population and Immigration Authority. The employment of foreign workers without a proper work permit constitutes a criminal offence, which may lead to fines and other criminal penalties being levied on the employer and its senior management, as well as on the employees.

Reference rates for notional interest deduction for 2019
Elias Neocleous & Co LLC
  • Corporate Tax
  • Cyprus
  • 15 February 2019

Article 9(B) of the Income Tax Law 2002 (as amended) provides for a notional interest deduction for tax purposes on new equity capital injected into companies and permanent establishments of foreign companies on or after 1 January 2015 to finance business assets, calculated by applying a reference rate to the new equity. The Tax Department recently announced the 10-year government bond yields for 31 December 2018, which will be used as the basis for the notional interest deduction for the 2019 tax year.

Taxability of profit from sale of shares
BDO in India
  • Corporate Tax
  • India
  • 15 February 2019

While the classification of gains arising from a sale of shares has previously been litigated, the Bombay High Court recently dealt with the issue of whether gains arising from such a sale by a private trust would be taxable as capital gains or business income. The ruling examines not only the treatment of shares, but also the use of sales proceeds to conclusively adjudicate on the intentions behind the sale.

One less issue when issuing tax invoices
Cliffe Dekker Hofmeyr
  • Corporate Tax
  • South Africa
  • 15 February 2019

A recent Value Added Tax Act amendment has created certainty regarding suppliers' ability to correct tax invoices that have already been issued and provides a remedy to recipient vendors which previously had difficulty obtaining a corrected tax invoice from suppliers. However, it remains unclear whether suppliers will be allowed to issue manual tax invoices reflecting the correct details where their systems do not allow for the issued tax invoice's particulars to be amended.

Intra-group debt financing: updated safe haven rates and thin capitalisation rules
Walder Wyss
  • Corporate Tax
  • Switzerland
  • 15 February 2019

The Swiss Federal Tax Administration recently published the 2019 safe haven interest rates to be used on intra-group loans. Against this backdrop, this article provides an overview of the relevant Swiss tax rules associated with determining whether intra-group financing constitutes equity or debt for tax purposes and the consequences of each characterisation.

Top five myths about nuptial agreements: dispelling the most common misconceptions
Forsters LLP
  • Private Client & Offshore Services
  • United Kingdom
  • 14 February 2019

Many feel apprehensive about raising the subject of nuptial agreements, partly due to the lack of impartial information and the influence of popular misheld beliefs. Despite the widespread belief that nuptial agreements are unfair, worthless and unromantic, they can be a sensible, fair and transparent way to discuss the financial aspects of a marriage and agree the outcome if ever it breaks down.

Foreign direct investment in real estate market
Lennox Paton
  • Private Client & Offshore Services
  • Bahamas
  • 14 February 2019

Foreign direct investment (FDI) remains one of the key catalysts to the Bahamian economy's growth and sustainability. The Bahamas National Investment Policy seeks to boost the economy through investments and provide favourable returns for investors. To this end, it encourages FDI in key areas in the real estate market, including tourist resorts, upscale condominiums, timeshares and second-homes and marinas.

Does lack of impartiality justify a reduction in arbitrators' compensation?
Norburg & Scherp Advokatbyrå
  • Arbitration & ADR
  • Sweden
  • 14 February 2019

Although parties have the right to appeal arbitrators' compensation that has been decided by an arbitral institution and included in an arbitral award, a recent Svea Court of Appeal judgment suggests that strong reasons are required to adjust such a decision when it has been made in accordance with an arbitration agreement between said parties. Further, the existence of circumstances which could diminish confidence in an arbitrator's impartiality is insufficient to justify a reduction in compensation.

Secretariat of Swiss Competition Commission advises on changes in shareholder structure of joint venture
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 14 February 2019

The Secretariat of the Swiss Competition Commission recently issued advice in respect of Article 23(2) of the Cartel Act to two shareholders in a jointly controlled joint venture. The advice clarifies that joint control is given when the parent companies must agree on all important matters relating to the joint venture. Where several parent companies have unequal stakes in a company, minority shareholders must have a right to veto decisions that are essential to the strategic commercial behaviour of the joint venture.

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