Terms and conditions are legal contracts that govern the use of a service or product. They establish the terms of the relationship between the parties and mitigate against potential disputes.  

Terms and conditions are important to outline the rules and regulations around the use of a service or product. Businesses often put themselves at risk by not specifying that the terms form part of the contract. The enforceability of terms and conditions is regularly misunderstood, and they are not automatically legally binding. The success of a transaction depends on the agreements between parties. The content of these agreements will be subject to negotiation, which can give rise to the “battle of the forms”.

  1. The importance of incorporation

Effectively incorporating a business’ terms and conditions into a contract is therefore necessary to ensure that a transaction will be successful. It is all the more important to incorporate terms and conditions into a contract as it provides a certain clarity and certainty in relation to the rights and obligations of the parties involved. With clear terms and conditions in a contract, there is less room for disputes.

When it comes to express and implied terms, incorporating terms and conditions allows parties to specify their goal. By doing so, the parties’ reliance on implied terms will be reduced.

  1. Battle of the Forms

The battle of the forms will occur when two or more parties are looking to make a contract, and each party attempts to incorporate its own terms and conditions. The issue will be to determine which terms and conditions will govern the contract.

There are four different outcomes, depending on the circumstances:

 Offer and Acceptance

When incorporating terms and conditions, parties essentially apply the principles of offer and acceptance. In exchanging the forms, parties are making offers and the terms which are accepted will form the binding contract. It is therefore crucial to have clearly drafted terms and conditions as the parties will be relying on it throughout the life of the contract.

Incorporating terms and conditions into contracts promotes clarity and provides a certainty to the parties which is crucial to business relationships. This allows for the parties to be bound by the terms of the contract. This is a way to reinforce the contractual relationship. It is therefore important to clearly define the terms for the parties to establish some sort of legal certainty which is required when entering into a business relationship.

Our Commercial team has a wide range of experience when it comes to drafting terms and conditions, as well as advising on incorporation techniques, and will be happy to assist your business with this process.

For further advice and assistance please contact our Commercial Solicitors on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Sports have always been part of the entertainment culture in our society. The industry has undeniably grown throughout the years and with it, a real need to ensure the management of the legal aspects of sports. This is why the unique area of law that is sports law has emerged.

Sports law operates under commercial law and areas such as contract law or intellectual property feed into it. More specifically, broadcasting rights, sponsorship agreements, and even player contracts will fall under it.

  1. Player contracts

Contracts are fundamental and are the main component of sports law as they will regulate and govern the relationship between the players and the different clubs.

The terms of the contracts will include salary, transfer rights, terms of employment and how to deal with breaches of contracts and dispute resolution.

  1. Broadcasting rights

Broadcasting rights are effectively the rights to show the sporting event on television. It is undeniable that organisations heavily rely on broadcasting. Sports law will govern allocation of those rights, sublicensing and potential infringement.

  1. Sponsorship and Licensing

Sponsorship and Licensing agreements are complex legal documents. These will protect intellectual property to ensure exclusivity and govern the use of a team’s logo or name, or even a player’s likeness when it comes to merchandising or development of a video game.

Moreover, commercial law will generally uphold an athlete’s rights in protecting their rights from exploitation, facilitating transfers and ensuring timely salary payments.

By way of example, football player James Maddison won the Player of the Match award as the Tottenham team beat Fulham 2-0. He is considered as one of the most influential players in the Premier League. Maddison joined Tottenham this summer for a fee of £40million. His transfer from Leicester and contract of employment with Tottenham are governed by commercial law. Furthermore, this victory is bringing the club back to the top of the Premier League. It is therefore likely that the club’s sales in terms of merchandise will go up.

In view of the above, it is crucial for clubs and sports organisations to have watertight contracts in place to govern all aspects of the law.

For further advice and assistance please contact our Commercial Solicitors on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Terms and Conditions of a business are the legal contract between a provider and customer for the supply of goods or services. This contract regulates the business relationship between the provider and customer by setting out the rights and responsibilities of each party.

It is often the case that businesses decide to put in place standard terms and conditions as it is a quicker and easier process. However, more often than not, it turns out that the terms do not cover every aspect of the business relationship and these gaps can cause unwanted dispute. It is therefore important for a business to ensure that the terms provided to the customer clearly and fairly cover all the elements of the relationship.

Key provisions

Although most agreements vary from one another depending on the goods or services provided, there will be key provisions that remain similar.

The above is a non-exhaustive list of the provisions to consider and look out for when reviewing terms and conditions and it is therefore important for businesses to take legal advice when drafting terms and conditions or before signing said terms. Our Solicitors have a wide range of experience in advising businesses and dealing with drafting and negotiating terms and conditions in accordance with their client’s instructions so the contract is truly tailored to their needs. 

For further advice and assistance please contact our Commercial Solicitors on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

The video game industry is constantly expending with not only multi-national corporation but also small publishers who develop games worldwide making it a multi-billion-dollar global market. From developers to publishers and distributors, all parties involved in this industry have to navigate complex legal issues. These include, amongst other things, licensing.

Video game licensing encompasses areas such as intellectual property law, contract law and competition law.

  1. Copyright

Video game licensing is partly governed by copyright law as video games are considered to be literary and artistic works, which are protected under copyright law.

Under copyright law, the inventor of the game will be the owner of it and will therefore get exclusive rights to reproduce or distribute the game. With licensing, this allows the owner to grant specific rights to third parties (i.e. distributors, publishers etc) for a consideration.

  1. Trademark

When creating a video game, developers will often include distinctive names or logos. Under trademark law, these would be protected against unlawful use by third parties. However, licensing would play a significant role in the development and distribution of the game worldwide. As for copyright, the owner of the trademark would license the right to use the trademark, therefore allowing third parties to use the names, logos or character.

This would be the case when merchandise is developed, such as clothes, figurines or goods in general.

Notwithstanding the above, there are a wide range of elements to take into consideration when preparing a licence agreement and specific provisions would have to be included within such a document, such as:

Video games licensing is a complex field of law and our commercial team would be happy to assist companies with the process.

For further advice and assistance please contact our Commercial Solicitors on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

There is a constant evolution of the technology which impacts the use we make of media platforms. This can be seen through the development of social media. With the never-ending creation of new platforms, there is a need to adapt the rights and protections that come with the use of these services.

Intellectual Property (IP) plays an important part when it  comes to media and entertainment law. Mainly because media refers to artistic works, whether it is via making a movie, composing music, using social media or the internet in general. An individual or a business would therefore be looking to protect their creation and work.

IP refers to creations of the mind, whether literary and artistic or designs, symbols etc.  There are many types of IP and the most known are patents, copyrights or trademarks. It is very important to have IP rights in place, especially in the media and entertainment world. Without the protection of these rights, the chances for infringement will be higher.

  1. Copyright

A copyright protects one’s creative work. It gives its owner the exclusive right to copy, distribute, adapt, display and perform a creative work. The owner will benefit from the works being registered to a public record and therefore get protection from the usage of others without their permission.

Some examples of copyright works would be a novel, a photograph, lyrics to a song, a sound recording, or a movie. Most recently, the singer and songwriter Ed Sheeran faced a trial as he was accused of infringing the copyright of Martin Gaye’s song “Let’s Get It On”. Although he was later found not guilty of the infringement, this was still a long process which could tarnish someone’s image and reputation.

It is therefore incredibly important for inventors to record their works and how they arrived at them so that they can benefit from the protection of IP rights.

  1. Patent

Just as with copyright, a patent will protect the innovation of a person by excluding third parties from making, using or selling an invention for a limited period of time. In exchange, the inventor will have to publish a disclosure of the invention. By doing so, the inventor will have the monopoly of use of this invention for a period of time.

In the entertainment industry, patents will generally be used to protect technological advancements in production or distribution of content. One of the most famous patents filed would be for a 3D film process by William Friese-Greene. There is also the famous film director, James Cameron, who through the development of filming tools and techniques contributed to the immersive experience for the audience.

  1. Trademark

Trademark refers to any word, phrase, symbol, design or a combination of these that identifies a product or service. In the media and entertainment industry, trademarks will be used to protect a brand, merchandise, movie title, music or even a character.

Examples of trademarks would be “Netflix” or “Pixar” or movie titles such as “Star Wars” or “Harry Potter”. These would prevent anyone from creating a name and/or logo with the same font or colour which could lead to confusion as to whether the movie is part of a famous franchise.

  1. Images

In spite of the rights an individual or a business can have to protect their invention, there is nevertheless an issue in the entertainment industry around celebrities and their image. It is with no doubts that you have already come across photos or videos of a celebrity in the streets or having dinner. Most of the time, these are used without their knowledge or consent, and it is a problem, especially in the UK, since there are not any statutes or case law which covers it.

Most celebrities are paid to endorse a product and therefore use their image, although there is still a possibility that companies will use a celebrity’s face without their consent which can open a claim for passing off. A famous case was in 2012 when the clothes retailer Topshop used Rihanna’s image on its t-shirt. Although the retailer had a licence to use the photo from the photographer who took it, it did not have a licence from the singer herself. Rihanna therefore sued and succeeded on the grounds that using her image without her approval was an act of passing off.

There is a right to privacy under Article 8 of the European Convention on Human rights which would apply to celebrities. It is undeniable that intrusion in their lives can happen, if photos were taken in a private setting, a claim for breach of privacy may arise. This would however need to be balanced against the right to freedom of expression under Article 10 of the European Convention on Human rights.

In any case, it is highly recommended to take legal advice when it comes to Intellectual Property rights. Our commercial team would be happy to provide assistance to individuals or businesses on issues relating to Intellectual Property.

For further advice and assistance please contact our Commercial Solicitors on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

In the past few years, it has become apparent that there is a rise in the use of Artificial Intelligence (AI). There are obvious advantages in using AI. These include reduction of human errors, constant availability, efficiency and unbiased decision making. However, professionals must also take into consideration clear disadvantages.

  1. Disadvantages

Despite the advantages provided by AI, there are risks in using these algorithms.  These include:

  1. Copyright

In March 2023, OpenAI launched an artificial intelligence chatbot, ChatGPT. OpenAI is an American laboratory conducting research to develop artificial general intelligence.

The main function of the chatbot is to mimic a human conversation. Although, its use can be versatile. For example, ChatGPT is used to compose music, write essays and poetry, or summarise text. ChatGPT aims to perform tasks through software which is inspired by the structure of the brain.

The features of the chatbot can unfortunately cause issues in terms of copyright and plagiarism.

As a recent example, the comedian Sarah Silverman is suing OpenAI and Meta alleging that her copyright has been infringed. According to Silverman’s lawyers, her rights were infringed in the training of the AI systems.

AI programs are trained to improve its performance. ChatGPT is trained to imitate human language with a view to producing written documents the way a human would.

Authors Christopher Golden and Richard Kadrey joined Silverman. Their suits allege that the programs illegally acquired datasets containing their works. These datasets were used as training materials for the AI. However, the authors have confirmed that they never consented to their copyrighted works being used.

Suits like this one are challenging for not only the research laboratories such as OpenAI, but also challenge the limits of copyright.

  1. Defamation

As mentioned above, AI programs are trained by using online resources. Unfortunately, these resources are not always accurate. This can thus result in unwanted defamatory statements and damage to one’s reputation.

Since the release of ChatGPT, an Australian Mayor, Brian Hood, has threatened to sue OpenAI for defamation. Indeed, the chatbot falsely claimed that the Mayor was convicted of bribery. The truth is actually that Hood was a whistleblower and helped uncover a bribery scandal.

According to Euronews Next, Hood confirmed that he would give OpenAI an opportunity to correct the mistake. If, however nothing is done about the statement, then he would file a suit.

The rise of technology and AI can be stressful for businesses. Our commercial solicitors provide assistance on how to protect intellectual property and what happens in case of infringement and they would be happy to assist you on any related matters.

For further advice and assistance please contact our Commercial Solicitors on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

In early July 2023, Leicester City FC was found guilty of anti-competitive behaviour following an investigation of the Competition and Markets Authority (CMA).

Between 2018 and 2020, the football club and JD Sports had an arrangement to fix replica kit prices. In particular, they agreed the following:

The above continued until January 2021.

Arrangements which have for object or effect the prevention or restriction of competition within the UK are strictly prohibited by competition law.

The CMA Executive Office of Enforcement found that because of the club and retailer’s behaviour, fans may have ended up paying more than they would otherwise have done.

Although both parties have now admitted their involvement, JD Sports initially reported the illegal conduct. By doing so, JD Sports received immunity from penalties as part of the CMA’s leniency policy. Such a policy provides immunity from penalties, or significant reduction in penalty, to a business that has been involved in a cartel and who has reported the cartel activity as well as assisted the CMA with its investigation.

As a result of the above JD Sports will not receive a fine for its involvement. On the other hand, the Football Club received a fine of £880,000.00.

The rules around competition law are strict and aim to promote and maintain market competition. This is implemented by regulating anti-competitive behaviour. Our commercial solicitors provide assistance to businesses on issues involving competition law and would be happy to assist you on any related issues.

For further advice and assistance please contact our Commercial team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

The famous American hard rock band, Guns N’ Roses, are taking legal action against a Texas based gun store for trademark infringement.

‘Texas Guns And Roses’ is a Texas based online store that sells firearms, ammunition related apparel along with flowers. The American rock band, Guns N’ Roses (GNR), has filed a trademark infringement claim against the store for damages whilst alleging the store created its name “for the purpose of confusing consumers into believing that it was connected or associated with, or licensed by, GNR.”

Local newspapers have stated that despite GNR’s numerous attempts of sending cease and desist letters to the store in 2019, the store continues to “intentionally trade on GNR’s goodwill, prestige and fame without GNR’s approval, license or consent”. The store’s attorney has told local news that “There’s never been any confusion and they have no evidence of confusion. This is an attempt to run up costs and burn us out“. However, GNR have requested the store to change its name and pay damages for the alleged trademark infringement.

What is a trademark?  

A trademark is any sign which can distinguish the goods and services of one trader from those of another. A sign can include for example, words, logos, pictures, or a combination of these. A trademark is essentially a badge of origin which is used so that customers can recognise the product of a particular trader. They are therefore closely associated with business image, goodwill and reputation which is demonstrated in the Guns N’ Roses case mentioned above. Amongst many others, top trademarks include Apple, Microsoft, Coca-Cola and Kellogg’s.

Trademark Infringement

The Trade Marks Act 1994 (TMA) implemented the 2008 Trade Marks Directive and the 2015 Trade Marks Directive. A simple explanation of a trademark infringement is where a registered trade mark is used in the course of trade without the proprietor’s consent. The TMA uses the following instances as examples:

Section 10 (1) Trade Marks Act the sign used by the unauthorised third party is identical to the registered trade mark and is utilised in relation to goods or services which are identical with those for which the trade mark is registered.

The sign used by the infringer is:

Section 10 (2) Trade Marks Act in each case mentioned above, there exists a likelihood of confusion on the part of the public, which includes a likelihood of association. In the case of GNR mentioned above, GNR did not want to be associated with the defendant given the nature of Texas Guns and Roses’ business. 

Section 10 (3) Trade Marks Act where the trademark used by the infringer is identical with or similar to the registered trade mark, the trade mark has a reputation in the UK, and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.

To establish infringement, it is necessary to establish the following key elements:

Breach of Trademark Law

There are a vast range of remedies available to the proprietor of a registered trade mark if successful in proving trademark infringement. These include:

 Defences to Trademark Infringement Claim

The TMA, specifically s.11 provides exceptions to trade mark infringement claims which could apply even if the trade mark is already registered. In other words, you may be able to use a trademark and successfully defend an infringement claim. These include the following:- 

 For further advice and assistance please contact our Business Services Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

 

A recent decision by the Court of Appeal in Barclay-Watt v Alpha Panareti Public Ltd [2022] EWCA Civ 1169 brings further clarity on the principles that the Court will apply in determining whether a company director is personally liable for having assisted a wrongful act committed by the company.

Facts

Alpha Panareti Public Limited (APP) marketed luxury properties in Cyprus and appointed agents and salesmen to market the new build properties to investors residing in the UK. APP coupled this with a mortgage scheme whereby a Cypriot bank (Alpha Bank Cyprus) offered the investors low-interest mortgages denominated in Swiss francs. The properties were advertised as ‘armchair’ investments with the view of letting the properties in return for anticipated rental income to cover the mortgage repayments, specifically due to the stability of the Swiss francs. Unfortunately, economic changes resulted in significant falls in the exchange value of the Cypriot pound and sterling against the Swiss franc. This in turn spiralled up the mortgage costs whilst the properties in which the claimants had invested were incomplete, leaving the investors severely indebted to the Cypriot bank. As a result, the investors did not receive the completed properties or the anticipated rental income.

Mr Andreas Ioannou was a director of APP and the “driving force” behind the company’s scheme, although he had no direct involvement with the investors. The investors, including Mr Barclay-Watt, sought recovery of the sums spent on buying the properties. At first instance, the investors issue proceedings against APP and Mr Ioannou and successfully claimed that APP failed to warn the investors of the risks around the currency fluctuations, but the investors were unsuccessful in a claim against Mr Ioannou as director of the company.

The investors appealed to challenge the decision that Mr Ioannou was not personally liable, specifically on the basis that Mr Ioannou was jointly liable as an accessory to APP’s negligence in accordance with the principles set out in the case of Sea Shepherd UK v Fish & Fish [2015]. Hacon J summarised them as follows: “… in order to fix a joint tortfeasor with liability, it must be shown both that he actively co-operated to bring about the act of the primary tortfeasor and also that he intended that his co-operation would help bring about that act (the act found to be tortious).”

Court of Appeal Decision

The Court of Appeal dismissed the appeal, reiterating that whilst APP had a relationship with the investors and thereby assumed responsibility towards them, Mr Ioannou was not liable to the claimants for the failure to advise them on the currency fluctuation risks and therefore there was no assumption of personal liability. It also held that Mr Ioannou was not an accessory to APP’s negligence in accordance with the principles set out in the above-mentioned case and therefore was not liable to the investors as a joint tortfeasor.

Two-stage test

The Court of Appeal applied a two-stage test from Lifestyle Equities CV v Santa Monica Polo Club Ltd ([2021] EWCA Civ 675).

  1. The first stage is to consider whether the individual substantially assisted in the commission of the tort by the company under a “common design” by both parties. In other words, whether the individual’s participation and conduct in the wrongful act was sufficient to consider them a joint tortfeasor.
  2. The second stage is to consider if the director’s position afforded the individual ith a defence. Lifestyle Equities confirms that an individual may have a defence by virtue of their directorship status if their conduct amounts to no more than carrying out their constitutional role in the governance of the company. Similarly, a director will not be treated as a joint wrongdoer if the conduct in issue merely consists of voting at board meetings (MCA Records Inc v Charly Records Inc [2001] EWCA Civ 1441).  

In Barclay-Watt, the conditions specified in Fish were not met. In particular, the Court held there was no “common design” as it was APP that was marketing the properties to the investors and the claimants contracted with APP. In other words, APP committed the tortious acts and not Mr Ioannou personally. As Mr Ioannou was not personally liable, the court did not need to consider the second stage of the test. The Court of Appeal concluded that to allow the claim would lead to an “unduly wide view of the personal liability of directors”.

Conclusion

Whilst the term ‘separate legal personality’ is still a fundamental principle of Company Law, the Court of Appeal made it clear that the assessment of joint liability is highly fact specific. It also emphasised the court’s reluctance to impose personal liability on individuals acting on behalf of a company.

For further advice and assistance please contact our Business Services Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

The libel case involving football players’ wives Rebekah Vardy and Coleen Rooney resulted in what the BBC called a “humour” trademark registration.

The dispute between the two personalities began in 2019 when Coleen Rooney accused Rebekah Vardy of leaking posts from her private Instagram account to The Sun. Vardy subsequently sued Rooney for libel in 2020 and the case was heard in May 2022. Unfortunately for her, Vardy’s claim was dismissed by the court on the basis that Rooney’s statements were substantially true. The case was widely relayed by media as the parties are what the British media called “WAGs” (Wives and Girlfriends of high profile sportsmen) and, because of the steps taken by Rooney to investigate, the case became popular and known as the “Wagatha Christie” case.

The BBC reported that following her defeat in July 2022 when the case was dismissed, Vardy decided to trademark the phrase “Wagatha Christie” and applied for it to be registered in the UK in August 2022. The trademark was then officially registered in April 2023 and includes everything from broadcasting to beauty lotions to stationery, jewellery or even fashion design.

In simple words, a trademark encompasses a wide range of different distinguishing signs such as any words, phrase, symbol, design or a combination of all of these that identifies a good or service. Registering a trademark provides the owner with an exclusive right to use the registered trademark and it can be licensed to someone else in exchange of payment. The owner of the trademark will also have legal certainty in the event of dispute.

By registering the “Wagatha Christie” trademark, Vardy managed to pay off her legal costs from the trial as it was reported that the court ordered her to pay 90% of Rooney’s legal fees of circa £1.5million. This is because anyone who wishes to use the expression in a commercial way will have to get Vardy’s permission and pay her and this dispute was not only reported in the news, it was also adapted into a play and a TV show called “Vardy v Rooney: a courtroom drama” on channel 4.

This is a great example of how registering a trademark could be useful in protecting its owner’s rights but also turn out to be quite lucrative.

For further advice and assistance please contact our Buisness Services team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk