Are laptops with pre-installed software “unfair” under the Unfair Commercial Practices Directive? The ECJ decides

Are laptops with pre-installed software “unfair” under the Unfair Commercial Practices Directive? The ECJ decides… 
Vincent Deroo-Blanquart v Sony Europe Limited, Case C-310/15, 7 September 2016.
The ECJ was asked to consider whether the sale of Sony laptops with software already pre-installed, without enabling the consumers to have the option to be able to purchase the laptop without the software, could be deemed as ‘unfair’ under the Unfair Commercial Practices Directive (2005/29/EC) (UCPD) which is implemented by the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) in the UK.
It was held that the sale of the laptop with the pre-installed software formed a combined offer and the fairness of the commercial practice could be scrutinised under the UCPD.
It must be highlighted however that a combined offer is not automatically unfair, as seen in the case of VTB-VAB NV v Total Belgium NV (C-261/07) and the fairness of each case must be considered on its own merit.
In this instance, in reaching their decision, the ECJ asked the following questions:
-Was the combined offer of laptop and pre-installed software contrary to the requirements of professional diligence?
-The ECJ found that consumers were already made aware that the laptop came equipped with pre-installed software, in addition, there was also strong evidence indicating that the majority of consumers wanted the pre-installed software.
-The retailer had also offered its consumers the option to have a refund for the combined purchase.
The ECJ noted that the consumer was told in advance that the software was pre-installed, there was evidence that a significant proportion of consumers wanted pre-installed software and the retailer had offered to cancel and refund the combined purchase. These factors were likely to satisfy the requirements for honest market practice or good faith in the field of the manufacturing of computer equipment for the general public. Click here for more details..

Contact Details:
Nath Solicitors Limited
4/4a Bloomsbury Square,
London, WC1A 2RP
Tel: 02036705540
Email: shubha@nathsolicitors.co.uk
Web: http://www.nathsolicitors.co.uk/

Encrypting Your Office Mobile Devices

Encrypting Your Office Mobile Devices.
The information Commissioners office ICO issued a monetary penalty notice to a private nursing home for breach of the Data Protection Act 1998 (‘DPA’) in August 2016.
In the matter of Whithehead Private Nursing Home Limited it was discovered that the nursing home provided an unencrypted laptop to its staff which the staff member took home.
The laptop contained personal data relating to 46 members of staff and 29 residents of the nursing home, including their date of birth, mental and physical health status and ‘do not resuscitate’ status and was subsequently stolen when a burglary occurred at the home of the staff member.
The nursing home did not have any policies governing the use of encryption and homeworking and did not provide its staff any training for data breaches.
The ICO also found that the nursing home had failed to take proper technical and organisational measures to prevent against the unlawful processing of personal data and against accidental loss in contravention of the 7th Principles of the Data Protection Act (DPA) 1998 had been breached. Click here for more details..

Contact Details:
Nath Solicitors Limited
4/4a Bloomsbury Square,
London, WC1A 2RP
Tel: 02036705540
Email: shubha@nathsolicitors.co.uk
Web: http://www.nathsolicitors.co.uk/

Deed -V- Agreement

Deed -V- Agreement                            
You may have noticed that sometimes contracts are expressed as a Deed, whereas at other times they are expressed as a simple written contract (sometimes referred to as an ‘Agreement’).
What is the Difference?
Parties to an Agreement should remember that consideration must be provided, such as money or goods and services, otherwise the Agreement will not be an enforceable contract. In stark contrast, Deeds do not require consideration and parties may often opt to have a Deed to avoid uncertainties surrounding the adequacy over their consideration.
Furthermore, the limitation period for Deeds and Agreements offer a further distinction and parties should take this into account when deciding which one to enter.
Parties that have entered into an Agreement have 6 years to bring an action for breach of contract which commences from the date that the breached occurred, whereas, parties to a Deed are afforded 12 years. Click here for more details..

Contact Details:
Nath Solicitors Limited
4/4a Bloomsbury Square,
London, WC1A 2RP
Tel: 02036705540
Email: shubha@nathsolicitors.co.uk
Web: http://www.nathsolicitors.co.uk/

How a famous designer lost the right to use her own name. Lessons to be learned.

Millen v Karen Millen Fashions Ltd & Anor [2016] EWHC 2104 (Ch).
The case of Karen Millen, who has recently lost her legal battle to use her own name serves to demonstrate the pitfalls for designers when considering whether or not they should trade under their own name or use an alternate name.
Karen Millen and her then partner Kevin Stanford set up the well-known fashion brand in 1983 using her own name. In 2004 both  sold their shares to Baugur for £95 million. One of the key provisions in the Share Purchase Agreement (‘SPA’) prohibited the use of Karen Millen using her own name in any future business ventures. Ms Millen later sought to overturn the provision for the use of her own name in the US and China for projects in different sectors.
The court had upheld the provision in the SPA. You may well ask “but why”?
The court found that the name had become synonymous with the business; when a buyer purchased such a business, the buyer would also be purchasing all of its goodwill and that included the name. i.e. the name had become part of the goodwill of the business.
Click here for more details..

Contact Details:
Nath Solicitors Limited
4/4a Bloomsbury Square,
London, WC1A 2RP
Tel: 02036705540
Email: shubha@nathsolicitors.co.uk
Web: http://www.nathsolicitors.co.uk/

Thinking of entering into business as a partnership but don’t have time to get a written agreement in place: think again.

Thinking of entering into business as a partnership but don’t have time to get a written agreement in place: think again.
Partnerships are akin to marriages; when things are going well there are likely to be no complaints – however, when things do not live up to a partner’s expectations, business tensions can arise which can result in ugly and expensive divorce proceedings for the partnership.
Partnerships which are formed without a written agreement are partnerships at will and are governed by the Partnership Act 1890 (Act).
This means they are regulated by the default provisions of the Act and may find themselves being bound by provisions which they had no intention of having. By way of example, under the Partnership Act all partners are entitled to a share of the profits and debts of the partnership equally, irrelevant of the level of contribution a partner has made to the partnership. Partners may also be jointly and severally liable towards third parties in respect of partnership liabilities.
However these points can be addressed in  a bespoke agreement in ways that are specific to the parties needs ; for example if one partner is to receive 30% of the profit share that can be expressly drafted into the partnership agreement. Click here for more details..

Contact Details:
Nath Solicitors Limited
4/4a Bloomsbury Square,
London, WC1A 2RP
Tel: 02036705540
Email: shubha@nathsolicitors.co.uk
Web: http://www.nathsolicitors.co.uk/

Patient Data: A warning for GP practices

The subject access request that cost a GP Practice £40,000.
A subject access request (SAR) is a formal request under the Data Protection Act by an individual to be able to see the information held about them by an organization. An organization receiving such a request has obligations imposed by law to provide the information. However, the data does not always have to be provided and organizations must be careful when assessing any such request.
In the matter of the Regal Chambers Surgery (GP Practice) a husband and wife were divorced acrimoniously. The husband made a SAR to the GP Practice in relation to information about his son asking for details of his son’s medical records. The son’s mother had specifically requested the GP Practice not disclose information to the father about their whereabouts. The GP Practice receiving the request responded promptly and within 4 days provided the son’s medical records which also contained the mothers telephone contact details.
The father obtained the records which were filed in the ongoing legal proceedings. Click here for more details..

Contact Details:
Nath Solicitors Limited
4/4a Bloomsbury Square,
London, WC1A 2RP
Tel: 02036705540
Email: shubha@nathsolicitors.co.uk
Web: http://www.nathsolicitors.co.uk/