PART-1: (2500 WORDS)

Welford Limited is a trading company that manufactures and sells specialist rugby boots and associated sports equipment under several of its own trademarks and patents, gaining substantial sales in the UK. It wishes to export now into the rest of the EU.

Advise Welford Limited of the legal and commercial benefits and risks in using a third party intermediary, with particular attention to the comparative position of an agent (Licence) or a distributor , in order to achieve its export wishes.

NOTE :  The scope of question is;

• Why anybody use license or distribution agreement and why it is important?
• Advise risks and benefits of using an intermediary

Benefits: Shared technology, increased sales, premium prices, royalties, spread overhead costs and financial risks, increased brand awareness, expanded markets

Risks: Harm reputation and legal goodwill, sharing trade secrets, a potential future competitor, EU Regulation, Article 101 TFEU over 10% or 15% of relevant market, distance between owner and consumer.

PART -2 (2500 WORDS)

Welford (Licensor) is willing to grant a 5 year licence of their WELFORD trade mark to Leicester Clothing Limited, a successful manufacturer of casual ware and have received the first draft of the proposed licence from them ; two clauses from this are listed below.

Analyse the clauses commenting upon the legal and commercial effect of their inclusion.  Suggest more favourable alternatives and explain why these are better for the interests of your client. You are not required to draft the alternative clauses.

You are advised to review the precedents and your notes on the clauses within licences that were discussed in seminars.

NOTE: Please analyse clauses respectively. For example;

1. Introduction
2. Article 2 – Royalty

(Article 2.1 – 2.2 Sub Paragraphs)

1. Article 5 – Quality control

(Articles between 5.1 and 5.6. Sub Paragraphs)

1. Conclusion

Extract from proposed Licence

2. Royalty

(What is the risks and benefits lump sum and royalty share? Do you advise lump sum or royalty share? Why? Political, economic and social issues can be considered.)

2.1 The Licensee shall pay to the Licensor a payment of £10,000 for the rights included in the Grant of this Agreement, payable within 30 calendar days of the Execution Date.

(we can add interest for late payment)

2.2 The provisions of this clause 2 shall remain in effect notwithstanding termination or expiry of this agreement until the settlement of all subsisting claims.

[Clauses 3 and 4 not copied]

5.      Quality control

(reputation / passing off)

5.1 The Licensee shall ensure that the Licensed Products and their packaging comply with the Minimum Quality Standards at all times.

5.2 In the event that the Licensee does not, in its own opinion, produce products that comply with Clause 5.1 it shall sell, market, distribute or use for any purpose, or permit any third party to sell, market, distribute or use for any purpose, these goods in an area outside the Licensee’s Territory.

5.3 The Licensee shall, on the Licensor’s request, provide the Licensor with details of any complaints it has received relating to the Licensed Products together with reports on the manner in which such complaints are being, or have been, dealt with and shall comply with any reasonable directions given by the Licensor in respect thereof.

5.4 The Licensee shall procure that all Licensed Products sold by the Licensee and all related quotations, specifications and descriptive literature, and all other materials carrying the Mark, be marked with:

“Made by Leicester Clothing Limited”

or with any other statement as notified in writing from the Licensor to the Licensee.

5.5 Any goodwill derived from the use by the Licensee of the Mark shall accrue to the Licensor. The Licensor may, at any time, call for a confirmatory assignment of that goodwill and the Licensee shall immediately execute it.

5.6 The Licensee shall not do, or omit to do, or permit to be done, any act that will or may weaken, damage or be detrimental to the Mark or the reputation or goodwill associated with the Mark or the Licensor, or that may invalidate or jeopardise any registration of the Mark.

SOURCES

BOOKS:

1. 1. Intellectual property – David I. Bainbridge 2012

1. 1. Intellectual property law – Lionel Bently, Brad Sherman 2014

1. 1. Digital opportunity: a review of intellectual property and growth –

Ian Hargreaves, Department for Business, Innovation and Skills 18 May 2011

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/32563/ipreview-finalreport.pdf

1. 1. An overview and the evolution of the Anti-Counterfeiting Trade Agreement (ACTA) –

Margot E. Kaminski 1st January 2011

http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1019&context=research

1. 1. Holyoak and Torremans intellectual property law – Paul Torremans, Jon Holyoak 2016

Chapters 17 (‘Rights in performances’) & 32 (‘Remedies in intellectual property litigation’) (2013, 7th) ed. which are the same in 2016 (8th) edition.

1. 1. Contemporary intellectual property: law and policy –

Charlotte Waelde, Abbe Brown, Smita Kheria, Jane Cornwell 2016

ARTICLES

1. 1. The new challenges of striking the right balance between copyright protection and access to knowledge, information and culture –

Patricia Akester 2010

Full text on ‘Westlaw UK’.

1. 1. O2 Holdings Ltd v Hutchison 3G Ltd: ECJ ruling adds to “confusion” –

Oliver Bray 2008

Full text on ‘Westlaw UK’.

1. 1. Circumstances importing an obligation of confidence: a subjective or objective test? –

Simon Clark 1996

Full text on ‘Westlaw UK’.

1. 1. What contracts cannot do: the limits of private ordering in facilitating a creative commons

Niva Elkin-Koren November 2005

Full text on ‘HeinOnline’.

1. 1. Are free licences suitable for cultural works? –

Joelle Farchy 2009

Full text on ‘Westlaw UK’.

1. 1. Prospects of further copyright harmonisation?

Simon Fitzpatrick 2003

Full text on ‘Westlaw UK’.

1. 1. From Berne to national law, via the Copyright Directive: the dangerous mutations of the three-step test

Christophe Geiger 2007

Full text on ‘Westlaw UK’.

1. 1. The enforcement directive – its effects on UK law –

Kirstin Huniar 2006

Full text on ‘Westlaw UK’.

1. 1. Copyright: over-strength, over-regulated, over-rated?

Laddie, Justice 1996

Full text on ‘Westlaw UK’.

1. 1. The protection of commercial trade secrets –

Jon Lang 2003

Full text on ‘Westlaw UK’.

1. 1. Secrecy, springboards and the public domain

Paul Lavery 1998

Full text on ‘Westlaw UK’.

1. 1. ACTA: the anti-counterfeiting crack-down

Emma Leith 2011

Full text on ‘Westlaw UK’.

1. 1. Who needs intellectual property? Competition law and restrictions on parallel trade within the European Economic Area

Christopher Stothers 2005

Full text on ‘Westlaw UK’.

1. 1. “Including trade in counterfeit goods”: the origin of TRIPS as a GATT anti-counterfeiting code

Christopher Wadlow 2007

Full text on ‘Westlaw UK’.

1. 1. Intellectual property – challenges for the future –

David Webber 2005

Full text on ‘Westlaw UK’.

1. 1. Intellectual property protection after GATT

John Worthy 1994

Full text on ‘Westlaw UK’.

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