Latest updates

Defender v HSBC: impact of settling with one concurrent wrongdoer
Matheson
  • Litigation
  • Ireland
  • 23 April 2019

Defender v HSBC highlights the need for plaintiffs to understand the blameworthiness of all wrongdoers before settling a claim against any of them. This case concerned Defender, a fund which invested with Bernard Madoff and subsequently suffered a loss when Madoff was revealed to be operating the world's largest Ponzi scheme.

Help is here for audit committees – CAQ offers updated auditor assessment tool
Cooley LLP
  • Company & Commercial
  • USA
  • 22 April 2019

To fulfil their oversight responsibilities, audit committees typically evaluate external auditors at least annually to determine, in part, whether they should be engaged for the subsequent fiscal year. The Centre for Audit Quality (CAQ) recently published an updated External Auditor Assessment Tool. Like many other helpful CAQ tools, this one provides a number of sample questions to help audit committees satisfy their oversight obligations with regard to external auditors.

Federal Court finds invalidity allegations relating to patent for metformin formulations unjustified
Smart & Biggar/Fetherstonhaugh
  • Intellectual Property
  • Canada
  • 22 April 2019

Valeant Canada's application for an order prohibiting the minister of health from issuing a notice of compliance to Generic Partners for its generic version of Valeant's Glumetza, a metformin formulation, was recently granted. With respect to anticipation and double patenting, the court found that the prior art document on which Generic Partners had relied for both allegations did not disclose all three of the size, shape and time elements of the claimed formulations.

Counterfeiting through small shipments – new border measures expected
Deris Attorney At Law Partnership
  • Intellectual Property
  • Turkey
  • 22 April 2019

The absence of a clear reference to small shipments in customs legislation has created doubt over whether customs officers should seize small shipments of counterfeit goods. This unfortunately encourages manufacturers of counterfeit goods to minimise the risk of seizure by using small shipments. However, the government looks set to enact a new Customs Law to regulate small shipments and protect rights holders.

Battle of the bottles: EU Trademark Court of Appeal finds infringement of well-known Malibu bottle
  • Intellectual Property
  • European Union
  • 22 April 2019

In December 2018 the EU Trademark Court of Appeal declared that the Ibiza Beach drink marketed by Productos Ibicencos, SL and Aromáticas de Ibiza, SL – whose bottle was highly similar to the well-known Malibu bottle – infringed The Absolut Company AB's (TAC's) 3D and graphic trademarks which protect the shape of such bottle. Among other things, the court held that the defendants had taken unfair advantage of TAC's trademarks, as their product was very similar in appearance.

Biosimilars and the BPCIA: past, present and future
Venable LLP
  • Intellectual Property
  • USA
  • 22 April 2019

While the biosimilar market in the United States has gotten off to a relatively slow start compared with Europe – where biosimilars have been available since 2006 – it has recently gained momentum and will continue to grow in the coming years as more blockbuster biologics lose regulatory exclusivity and patent protection.

Andreas Stihl registers orange and grey colour combination as trademark
Wanhuida Peksung IP Group
  • Intellectual Property
  • China
  • 22 April 2019

Colour combinations have been registrable as marks since the Trademark Law was amended in 2001. However, in practice, this has been difficult, as examiners often opt for the easy solution of refusing such marks on account of their lack of distinctiveness. The Beijing IP Court case involving Andreas Stihl AG & Co KG's orange and grey abstract colour combination trademark illustrates the difficulties in this regard and showcases how to register a colour combination trademark in China.

Flashlight decision illuminates compensation guidelines for unlawful use of IP rights
Graf & Pitkowitz Rechtsanwalte GmbH
  • Intellectual Property
  • Austria
  • 22 April 2019

The Supreme Court recently had to decide whether the infringer of a registered Community design had to hand over the entire net profit or just a share of profit earned due to its use of an infringed design. The decision has great practical importance, as it gives IP rights holders clear guidelines regarding what to expect when claiming compensation for an unlawful use of their rights.

Directors duty to act in company's best interests: how much is too much?
Bodipalar Ponnudurai De Silva
  • Company & Commercial
  • Malaysia
  • 22 April 2019

A recent case suggests that there are limits to the way in which directors can act when taking steps to protect a company. The case is a useful reminder that while directors may avail themselves of the shield provided by the judicial management regime in order to allow a company time to regain its footing, the courts will not hesitate to put checks and balances in place to prevent the misuse of such legislation, albeit for the purpose of safeguarding a company's survival.

Technology's role in commercial contracts
  • Company & Commercial
  • Brazil
  • 22 April 2019

Simple legal transactions and contracts can often be completed at the click of a button. However, there are a growing number of investment rounds in start-ups based on Brazilian versions of Silicon Valley contracts that unfortunately have not benefited from the critical eye and practical expertise of experienced lawyers who can examine the contracts under Brazilian law.

Royalties, currency conversion and taxes: what rights holders need to know
KISCH IP
  • Intellectual Property
  • South Africa
  • 22 April 2019

South Africa has significant exchange control regulations in place that restrict and require approval for payments in international IP licensing relationships. Typically, if an IP right in issue has been commercialised or if its commercialisation is imminent, exchange control requires an appropriately motivated valuation substantiating the price to be furnished.

Bankruptcy estate liability for mutual real estate company's maintenance charges
HPP Attorneys Ltd
  • Insolvency & Restructuring
  • Finland
  • 19 April 2019

The Eastern Finland Court of Appeal recently ruled on a bankruptcy estate's liability for a mutual real estate company's maintenance charges. This decision further defines the scope of bankruptcy estates' liabilities and is a logical continuation of Supreme Court precedent in this area. As payments of bankruptcy estates' administrative expenses are privileged compared with claims against debtors, the definition of 'administrative expenses' should be interpreted cautiously.

Taxation of virtual currencies
Porobija & Porobija
  • Banking
  • Croatia
  • 19 April 2019

The Croatian Tax Authority has issued several relevant opinions regarding the taxation of virtual currencies. Since 2015 the Croatian Tax Authority, in line with the European Court of Justice's Skatteverket decision, has exempted virtual currency exchange services from value added tax, established relevant tax treatments for the mining and trading of virtual currencies and provided its opinion on payments in virtual currencies.

Brexit decree-law comes into force
Legance – Avvocati Associati
  • Banking
  • Italy
  • 19 April 2019

The government recently issued Decree-Law 22/2019, which is aimed at ensuring the security, financial stability and integrity of financial markets in the event of a so-called 'hard Brexit'. Under the decree-law, UK banks that carry out activities subject to mutual recognition on the United Kingdom's withdrawal date can continue carrying out their activities in Italy by serving notice to the Bank of Italy. Further, Italian branches of UK banks may continue to carry out their activities by serving notice to the Bank of Italy.

Protection of minors in respect of films and video games: consultation process commenced
Walder Wyss
  • Tech, Data, Telecoms & Media
  • Switzerland
  • 19 April 2019

The Federal Council recently launched the consultation process on the preliminary draft of the new Federal Act on the Protection of Minors in respect of Films and Video Games (Youth Protection Act). The Youth Protection Act, which will comprehensively regulate the protection of minors and close existing legislative gaps, is embedded in a complex set of ongoing legal revisions in a national and international context.

Budget 2019: intensifying fight against tax evasion and new risks for tax professionals
Thorsteinssons LLP
  • Corporate Tax
  • Canada
  • 19 April 2019

In Budget 2019 the federal government has continued to bolster its tools and resources to detect and prosecute tax evasion. As such, several measures have been proposed, including a C$150.8 million investment over the next five years to fund new initiatives. More so than ever, tax professionals should be well acquainted with various definitions to ensure that their client services and advice cannot be construed as the commission or facilitation of a criminal offence.

Company law versus income tax law: amalgamations now regularised
Cliffe Dekker Hofmeyr
  • Corporate Tax
  • South Africa
  • 19 April 2019

One of the amendments proposed by Budget 2019 aims to reconcile the incongruency that exists between South African company law and income tax law with regard to the deregistration or liquidation of companies that are involved in amalgamation transactions. The amendment is a welcome change, as it will ensure that the Companies Act and the Income Tax Act operate in conjunction with, and in support of, each other.

Border update: importers should expect slowdowns and delays
Arent Fox LLP
  • International Trade
  • USA
  • 19 April 2019

While various news accounts have now indicated that President Trump will not close the US-Mexico border, the administration will take further actions. As such, there will likely be a slowdown in border processing and longer wait times at all land ports of entry on the Mexican border for an extended period. Among other things, importers are advised to factor in that wait times will markedly increase or even double.

Licence to contract – licence agreements and insolvency law
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • 19 April 2019

In an insolvency situation, the fate of ongoing contracts is something to be discussed. Such contracts are often closely linked to the essence of a company's business. For example, for (commercial) leases, a lessor's bankruptcy or a tenant's judicial reorganisation will probably result in discussions about the agreement, its (forced) execution and rental payments. If a company's activities are based on patent or software licences, the effect on these agreements will also be of crucial importance.

Fund managers' perspective on Guernsey substance rules
Ogier
  • Private Client & Offshore Services
  • Guernsey
  • 18 April 2019

The government has approved new regulations which impose an economic substance test on Guernsey tax-resident companies in order to meet the requirements of the EU Code of Conduct Group. The regulations, which came into force on 1 January 2019, establish tests for tax-resident companies carrying on 'relevant activities', including fund management.

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