Public Law exam tips

[Question 3]

The senior partners have been invited to attend a CPD session on trade mark law. Review the case law concerning s10 of the Trade Mark Act 1994 and clearly establish the various heads of claim available to a pursuer depending on the nature of the ‘infringing’ conduct to aid their preparation.

I am asked to address the following issues in this opinion:

1. The infringement of a registered trade mark
2. The heads of claim available to a pursuer

• Trade mark definition

1.1 In order to consider these questions, it is important to consider the definition of a trademark. Trade Marks Act 1994 provides that a trade mark is “any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings”.[1] The main purpose and function of a trade mark, besides the aforementioned indication of origin of the goods or services, is the capability of a specific trade mark distinguishing its goods or services from that of another business.[2]

1.2 It is evident from this that a trade mark functions as a “badge of origin”.[3] This “badge” serves the function of being distinctive and therefore ensuring the recognition of particular goods or services by a substantial amount of consumers. It was stated in the case of Perry v Truefitt[4] that a merchant “cannot be allowed to use names, marks, letters or other indicia, by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person”,[5] which shows that UK common law, in as early as the 19^th century, was familiar with what a trade mark represents, – the goods or services of one producer/manufacturer that has an established reputation in the area they operate and that needs to be safeguarded.

[1] Trade Marks Act 1994 c. 26, s.1 (1),  Visit the abogados de accidentes website

[2] White Paper, Reform of Trade Marks Law, DTI, September 1990, Cm 1203, ch.2

[3] David I. Bainbridge “Smell, sound, colour and shape trademarks: an unhappy flirtation?” J.B.L. [2004 Mar] 219-246

[4] Perry v. Truefitt, 5 Beavan 66 (1842)

[5] ibid. para 73

Rights (Residence) CD 04 replaced 68/360

RIGHTS OF WORKER

The rights of free movement for workers are under Article 45 (3) TFEU[1].  Through case law it is easier to gain a better understanding of the principles that Article 45 TFEU lays down. Under Article 45 (2); it has abolished discrimination in employment based on nationality between workers of member states. Article 18 TFEU reinforces this concept by stating; “Any discrimination on grounds of nationality will be prohibited. Article 7-9[2] prohibits discrimination on grounds of remuneration, dismissal or re-employment on becoming unemployed. In the Wurttembergische case,[3] the court of justice concluded that it is indeed a breach of the regulation[4] to subject differences in conditions of pay, dismissal etc in regards to migrant workers and national workers in member states. The court of justice also took the view that it was indirectly discriminatory for German nationals to qualify for higher allowances than people whose family home was not in Germany.[5] Article 45 (2) also has horizontal direct effect as illustrated in the case of Angonese,[6] Mr Agonies was required to obtain a certificate of bilingusilm to prove his linguestive knowledge in order to participate in a requirement competition. The courts took the view that the prohibiting of discrimination musty be valid towards individuals too in regards to nationality. Thus, concluding that the requirement amounted to discrimination which was not in line of Article 45.[7]

The emerging concept of EU Citizenship has been the main drive behind the development of the free movement of workers which emerged from the treaty of Maastricht in 1992. EU citizenship is not determined by EU law however, it is determined under national law. Article 21 states that: ‘every citizen of the Union shall have the right to move and reside freely within the territory of the Member State, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give them effect.’ These limitations are set out in Article 45[8] which will be discussed later on. .[9] In the case of Baumbast and R[10] the courts held that Article 21 TFEU was directly effective in both of these cases where in both scenarios, the court held that without a primary carer for children; it would deprive their rights under the regulation.[11] Respect for family life is a fundamental right in the eyes of EU law and refusing this right infringes Article 12 of the regulation.

https://www.lawsociety.org.uk

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Hearsay evidence was long rejected by the common law. Hearsay evidence is not the best evidence. The essence of the trial is orality, the witness present, on oath or affirmation, subject to cross-examination, displaying his demeanour. Hearsay evidence could be inaccurate, distorted, or fabricated, remain uncorrected, and mislead the jury or magistrates. The trial could be lengthened by irrelevant or unreliable evidence.

“Primary hearsay” is evidence of the fact that the statement by the other person was made, irrespective of its truth or falsehood.Evidence that a statement was made may be allowed, if relevant, for that limited purpose. The general rule of Common Law is that Hearsay evidence, inadmissible to prove factual content or veracity, but is admissible to prove that remark was made, Witnesses are confined to giving evidence of firsthand, personal perceptions, experience & knowledge.

The most comprehensive is Hearsay rule is;

“An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted”in R. v. Sharp

http://www.lawscot.org.uk

This highlights the fact that not all evidence of what a witness not present in court has said is hearsay: it is essential to determine the purpose for which the evidence is tendered. A question of hearsay only arises where the words spoken are relied on a‘testimonially”, that is, as establishing some fact narrated by the words. Statements not given for the purpose of asserting the truth of the matter asserted fall outside the hearsay rule.

Hearsay evidence is inherently unreliable, misleading,  can’t be tested in cross, objectionable and thus inadmissible generally. The Admissibility of Primary Hearsay as Original  was seen in McLaren v McLeod 1913,  where Leith brothel keeping charge, police witnesses allowed to give evidence of overheard conversations (not for truth of content) despite accused not present at time & persons overheard not called to give evidence

 

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