The dispute between James Dyson and Max Conze

It appears that Dyson are intending to sue their former CEO, Max Conze, for leaking closely guarded secrets.

Max was CEO for Dyson and headed the company from 2011 to 2017. He stepped down last month, in what initially appeared an amicable agreement, with Jim Rowan stepping into his shoes. Conze was thanked by Dyson for his “great contribution” over his six year tenure, during which revenue doubled for Dyson.

Conze himself confirmed, as provided through his legal representation Mishcon de Reya, “(d)uring my six years as CEO of Dyson the sales and profits tripled, with the company growing from 2,500 to 10,000 staff”.

Conze also supported new products such as the supersonic hairdryer being developed, which contributed to the rise in underlying                                                                                                                      profit by 41% last year, on revenues of                                                                                                                                £2.5 billion.

However, it appears that perhaps Conze’s departure was not on such amicable terms as it first appeared. Dyson are looking to sue Conze for leaking the company’s closely guarded secrets. There are also allegations that Conze used company resources for his own benefit.

In a brief statement, the company said: “The Dyson board has decided to bring a claim against Max Conze at the high court in London in relation to his actions while chief executive, including the disclosure of confidential information and a breach of his fiduciary duties.”

Max’s response to Dyson’s claims is that “[he] did nothing of the sort.”

Conze himself has hit back in stating that he believes Dyson’s supposed intention to sue is actually a “naked threat” to disguise and distract the claim being made by Conze against Dyson.

What Max Conze’s claims

Max Conze believes that the only reason Dyson is looking to sue him, on grounds which he states are false, is to distract from the claim for wrongful dismissal which he intends to bring against Dyson.

The claims Conze intends to bring are against James Dyson and the company, and are said to come to court in due course.

Wrongful dismissal arises as a breach of contract where an employer has breached either express or implied terms of an employment contract. If an employer is found guilty of wrongful dismissal, the employee can claim damages for the loss caused by their employer in wrongfully terminating their contract of employment. This is the stance Conze is taking against Dyson and the reason why he believes they are attempting to muddy the water with claims of their own against him.

If you have concerns regarding data protection or confidential information, or have any queries regarding an employee or the termination of your own employment we would be delighted to assist you with the same.

Christopher Buck is a Solicitor and Associate Partner in the Corporate Commercial department of Franklins Solicitors LLP, which has offices in Milton Keynes and Northampton.  Christopher seeks to provide cost effective solutions to businesses and can be contacted on 01908 660966 or Christopher.Buck@franklins-sols.co.uk.

Ben Stanton is a Solicitor and Associate Partner in the Employment department of Franklins Solicitors LLP, which has offices in Milton Keynes and Northampton.  Ben seeks to provide tailored advice to both employers and employees and can be contacted on 01908 660966 or Ben.Stanton@franklins-sols.co.uk.

American rap group, Wu-Tang-Clan, is currently looking to pursue a New York dog walking group, Woof-Tang-Clan, for breach of copyright and Trade Marks. The group claims that Woof-Tang-Clan’s attempt to trademark their name is in breach of their rights.

After seeking legal advice, Marty Cuatchon for Woof-Tang-Clan explained “I am a fan. We walk dogs. I thought it was a good idea.” This is not the first time that somebody has used this play on words, as there is an Alaskan Dog Sled Team sporting the name ‘Woof-Tang-Clan’ also.

Is Wu-Tang-Clan’s bark worse than their bite or will they be found to have legitimate claims against the New York company regarding breaches of copyright and Trade Marks?

Copyright

Copyright is simply a right to prevent copying. Copyright arises automatically and protects artistic output, it therefore requires no registration. Generally it prevents unauthorised copying of a work for the lifetime of the author of the work, and for 70 years after the end of the calendar year of that author’s death. However, the Copyright protection for artistic items which are mass produced is currently restricted to 25 years.

In the U.K. a successful finding of a breach of copyright can see the following remedies being granted:

• injunctions;
• costs;
• damages (most common remedy sought); and
• delivery up/destruction.

Breach of a Trade Mark

The protection granted by Trade Marks prevents others from using the protected marks otherwise the owner’s rights would be infringed.

Words, letters and numbers are just three of many marks which can be protected by Trade Marks. Other marks include any of the following: slogans; gestures; designs; smells; sounds; and internet domain names.

If someone then uses a Registered Trade Mark in relation to identical or similar goods or services, or takes unfair advantage of it, an infringement action can be pursued. Any such infringement is automatically illegal provided the registration is valid, and hence strict liability is imposed upon an infringer. This protection lasts indefinitely for 10 years running from the date of filing the application of registration. The protection can then be renewed for further periods of 10 years, subject to renewal fees being paid.

Should you require legal assistance in relation to understanding or obtaining Trade Marks, or copyright protection our intellectual property specialists would be delighted to assist.

If you have been considering applying for a Trade Mark and require assistance, or if you would like further information in relation to registered or unregistered Trade Marks and/or copyright please feel free to contact Christopher, or one of our team on 01908 660 966.

After looking to bring legal action against those producing John Lemon lemonade, Yoko Ono has successfully prevented the association of her late husband’s name with the brand.

The drinks company, a small Polish company which distributes to the UK and 13 other European countries, started developing the drink brand in 2012.

They registered the name, John Lemon, in2014 and argued that this was two years before the registering of Lennon’s trademark.

Yoko was upset at the use of her late husband’s name and would not “Let It Be”. After threatening fines of £4,500 a day and over £400 for every bottle sold, the small drinks company agreed to avoid a court battle and rebrand. The drinks company knew that they would not be able to meet

Yoko’s costs and as such, from November of this year they will rebrand as “On Lemon”. As such, all of the John Lemon stock must be sold by October of this year and only the sale of “On Lemon” lemonade will be allowed from November onwards.

Yoko’s legal representation, Joris Van Manen of Hoyng Rokh Monegier said that “they were abusing and misusing the legacy of John Lennon to sell their soda.”

In particular, a Facebook post depicting a mural of John Lennon holding lemons with the brand’s logo underneath was referenced in showing how the brand was misusing Lennon’s name. This was further supported by advertising materials portraying Lennon’s distinctive circular glasses accompanied by song lyrics.

Despite Karol Chamera, the founder of Mr Lemonade Alternative Drinks Ltd, insisting that UK sales of the John Lemon lemonade have not been linked to Lennon’s name or image, the decision to rebrand will come into effect in just over a month’s time. Both the real risk of litigation, and the funds required to support the same appear to have led to the decision to continue making the drinks under the new name.

Expert advice

It is always worth considering what, if any, implications may arise from any actions you are looking to take. Whether that be looking to develop works without infringing the rights of the original material, or protecting your own original material from infringement.

If you would like further information in relation to copyright matters, whether that be protecting your own interests or ensuring you are not breaching the rights of others, our experienced Intellectual Property team would be delighted to assist.

ePrivacy legislation Reform in line with GDPR:

In addition to the implementation of the General Data Protection Regulation (“GDPR”) there is also the intention of updating ePrivacy legislation so as to align the same with these new rules. Although the new ePrivacy legislation, as previously set out In blood pressure the ePrivacy Directive 2002/58/EC, is intended to come into force alongside GDPR in May 2018, the new Regulation is not yet in approved form.

The purpose behind updating the ePrivacy legislation is to create a harmonised method of data and privacy management in every member state. Like with the GDPR, consent is highly important.

ePrivacy regulation consent is also required

In the same way that consent is required under GDPR, consent in respect of the new ePrivacy Regulation is required to be:

1. informed, specific and given freely and unambiguously;
2. as easy to withdraw as it is to provide;
3. by opt-in actions rather than silence or perhaps not opting-out;
4. evidenced; and
5. identifiable as independent from consent in respect of other terms and conditions.

Fines for nuisance calls

This month, Your Money Rights was fined £350,000 by the Information Commissioners Office (“ICO”) after making a staggering 146 million nuisance calls. Most of the calls were automated leaving the recipients feeling both harassed and threatened. Not only was the pure volume of calls shocking, but the calls made were made without the consent of the recipient and also did not disclose the name or contact details of the entity behind the call.

Furthermore, Easyleads Limited has also been fined a sum of £260,000 by the ICO for their making of 16.7 million automated calls where they did not have the recipients consent. Again, the company further broke the rules by failing to provide their company name and contact details.

The implementation of new ePrivacy legislation will prevent callers from withholding their number or require them to use a specific code so as they can be identified by the same. This will allow the recipient of the calls to block the number preventing further communication. This is in an attempt to reduce the amount of nuisance calls which can be viewed as harassment, particularly by the elderly or other vulnerable people.

Presently the fines have been directed to the companies themselves. The implementation of the new ePrivacy Regulation is intended to allow claims to be made personally against the Directors of any such company.

Liability of directors

The new Regulation is intended to include provisions allowing fines to be made personally against directors. This personal liability of directors for nuisance calls is intended to prevent them from avoiding fines, as done presently, by placing the company into liquidation. With the fines being made against them rather than the company, this unorthodox attempt of avoiding paying the fine is removed. Directors should be aware that any unlawful nuisance calls may have personal repercussions.

Cookies

The new ePrivacy Regulation is also likely to alter how we accept and are affected by cookies. Under the GDPR, informed consent is required prior to processing and controlling a data subject’s data. Cookies monitor information regarding the visitors to the specific site and ultimately are a way of collecting an individual’s data. These will still be required to be consented to, as is often seen in banners or boxes on each individual site.

Presently, the procedure of having to accept cookies for each website you visit that uses them, although complying with the requirements, is a little cumbersome. Instead, the intention is to take a more user-friendly approach and for individuals to opt-in to receiving cookies during their browser set-up. However, whether this will be enough to satisfy the requirements for opting in is yet to be fully determined.

Summary

Please do read my previous articles on GDPR for further information and exploration of this topic. It may be worth reviewing the potential requirements under the ePrivacy Regulation alongside any developments so required to comply with GDPR. However, as the ePrivacy Regulation is still in draft form, there may be further changes to the legislation.

Should you wish to seek any tailored advice in respect of the above, my previous articles on GDPR or any other intellectual property matters please do not hesitate to contact me on 01908 660966 or christopher.buck@franklins-sols.co.uk.

In a statement of intent the Government has committed to updating and strengthening existing data protection laws via the introduction of a new Data Protection Bill. The Bill will implement the European Union General Data Protection Regulation (GDPR) and will replace the Data Protection Act 1998.

Under the plans individuals will have more control over their data by having the right to be forgotten and to ask for their personal data to be erased. This will also mean that people can request social media channels to delete information they posted in their childhood. The Bill will introduce the requirement for explicit consent to be necessary for processing sensitive personal data, it will make it simpler for individuals to withdraw consent previously given for the use of personal data, the definition of “personal data” will be expanded to now include information such as IP addresses, internet cookies and DNA, it will enable parents and guardians to give consent for their child’s data to be used and it will be easier and free for individuals to require an organisation to disclose the personal data which it retains for them.

Data protection rules will be made clearer and businesses will be supported to ensure they are able to manage and secure data properly however those who handle data will be made more accountable for the data which they process with the priority being focused on personal privacy rights.

Those organisations carrying out high-risk data processing will be obliged to carry out impact assessments to understand the risks involved and the data protection regulator, the Information Commissioner’s Office (ICO), will be given more power to defend consumer interests and to issue higher fines for breaches of the regulations, up to £17million or equivalent to 4% of the global turnover of the company in breach in the most serious cases.

New criminal offences will also be created to deter organisations from either intentionally or recklessly engaging in or creating situations where an individual could potentially be identified from anonymised data.

Matt Hancock, Minister of State for Digital said of the proposed new bill:

“It will give us one of the most robust, yet dynamic, set of data laws in the world. The Bill will give people more control over their data, require more consent for its use, and prepare Britain for Brexit. We have some of the best data science in the world and this new law will help it to thrive.”

If you should have any queries in respect of Data Protection or your rights and responsibilities in respect of the same, please do not hesitate to contact me on 01908 660966 or alternatively at christopher.buck@franklins-sols.co.uk.

The Data Protection Act 1998 (DPA) applies to the “processing” of “personal data”. Pursuant to section 1(1) of the DPA “processing” includes obtaining, recording, holding, using, disclosing or erasing data and “personal data” is data relating to living individuals who can be identified from such data for example; names, addresses, telephone numbers, job titles and dates of birth.

It therefore follows that practically any business operating in the United Kingdom which holds information about individuals in the course of its business activities will be affected by and must therefore comply with the provisions of the DPA.

The Information Commissioner’s Office (ICO) has warned employees in particular about the potential consequences of illegally sharing personal data after a recruitment manager was prosecuted and fined for illegally disclosing the personal information of job applicants to another employment agency.

The recruitment manager was employed by HomeServe Membership Ltd and was found to have sent copies of 26 CVs containing the personal data of applicants seeking employment with HomeServe to another recruitment firm during his employment, without a business need to do so. The court held the recruitment manager to be guilty of an offence under section 55 of the DPA and imposed a fine in the sum of £573.00 together with an order for costs in the sum of £421.00, totalling £994.00 which was to be paid within seven days of the order.

The ICO is responsible for enforcing the regime under the DPA and where it finds a breach of the DPA, the ICO may elect to serve data controllers with information notices requiring the data controller to provide information about their processing operations and policies, enforcement notices requiring the data controller to comply with the data protection principles and may impose a fine up to a maximum of £500,000 for serious contraventions of the DPA.

Before the ICO elects to impose a fine, it must first be satisfied that the contravention was serious and was of a kind likely to cause substantial damage or distress and that the data controller either deliberately contravened the DPA or knew or ought to have known that there was a risk that the contravention would arise and still failed to take reasonable steps to prevent the same from happening.

Since breaches of the DPA can result in both criminal and civil liability, it is vital that any business holding information about individuals is aware of the obligations set out in the DPA. If you should have any queries in respect of the Data Protection Act or your responsibilities in respect of the same, please do not hesitate to contact me on 01908 660966 or alternatively at christopher.buck@franklins-sols.co.uk.

When we think of Brexit and the potential implications it will have on the UK we often consider the effects upon the economy and immigration, what we tend to think less about is the effect it will have upon our access to plant varieties and the agricultural industry.

EU Plant Variety Rights (EU PVRs) were first introduced in 1995 and provide protection for new plant varieties which had previously only been protected by a patchwork of unharmonised national rights. Since the introduction of EU PVRs it has been standard practice for plant breeders to make a single PVR application providing protection throughout the EU, proving much more efficient and less costly than making multiple applications in different Member States. The application allows new varieties to be listed on the “common catalogue” and marketed in all EU Member States.

Once granted and for as long as the right is maintained, PVRs give the holder protection for a period of 25 years (or 30 years in the case of trees, vines and potatoes) in the UK or the EU over certain acts in relation to the protected variety including; production or reproduction, conditioning for the purposes of propagation, offering for sale, selling or other marketing and exporting out of or importing into the UK. The rights not only offer protection for the specific variety for which the application is made but also to any variety that is dependent on the protected variety such as hybrids.

The plant breeding industry is entirely dependent on its ability to protect new varieties and generate income through the collection of seed royalties. Approximately 95% of the UK plant varieties (equating to a £35m royalty market) have EU PVRs and there is currently no UK alternative protection in place. From the moment that the UK leaves the EU, none of the varieties protected by EU PVRs will have protection unless the UK Government successfully enacts specific legislation dealing with the transfer of all EU-protected varieties to a UK register with the same level and extent of PVR protection.

A failure to achieve necessary plant breeding rights in negotiating Brexit is likely to result in the complete withdrawal of the plant breeding industry from the UK market which will not only see closures of research and development facilities, business premises and widespread job losses but will also deny access to the latest genetic advances both in the sale of seed and vegetable produce for UK farmers, growers, retailers and consumers alike.

If you should have any additional queries in relation to intellectual property rights, please do not hesitate to contact me on 01908 660966 or alternatively at christopher.buck@franklins-sols.co.uk.

What is a trade mark?

A trade mark or “brand” is a sign used by a trader to differentiate their goods from those of other traders and may come in the form of a name, slogan or simply the distinctive style of packaging of a product. A trade mark provides the consumer not only with reassurance about the origin of the product but also about other features such as quality, price or practicality and the creation, management and protection of trade marks are therefore crucial to building brand loyalty and ensuring commercial success.

UK registered marks and international (UK) marks are enforceable throughout the UK and the Isle of Man only. The European Union Trade Mark (EUTM) provides a means of obtaining a single trade mark registration covering the whole of the EU. An EUTM therefore gives the owner the right to object to infringement throughout the EU. In addition, the proprietor may be entitled to apply for EU-wide relief in respect of all infringing acts in the EU, instead of having to run several actions in several different member states.

Following Brexit, the UK will no longer be an EU member state and whilst an EUTM will continue to be valid in the remaining EU member states it will no longer cover the UK, subject to any agreements to the contrary. So far the government has not announced what, if any, arrangements will be put in place to ensure that EUTM holders will continue to enjoy UK trade mark protection however one suggested model is that there will be an agreement between the UK and the EU whereby EUTMs will continue to have effect in the UK either by these being automatically mirrored as UK trade marks or rights owners opting-in to apply for recognition of their existing EUTMs as national UK trade marks.

It is impossible to know definitively at this stage which mechanism will be used to ensure the safeguarding of trade mark rights in the UK and if there will be cost implications or any necessary steps or procedures to be taken by the owners of EUTMs to obtain the necessary corresponding UK national rights.

The UK Intellectual Property Office continues to provide further updates and information in relation to the effect of Brexit upon intellectual property rights which is available at gov.uk.

If you should have any additional queries in respect of trade marks or intellectual property rights generally, please do not hesitate to contact me on 01908 660966 or alternatively at christopher.buck@franklins-sols.co.uk.

What are the Privacy and Electronic Communication Regulations?

The Privacy and Electronic Communication Regulations (PECR) set out specific rules which govern the use of marketing by electronic communications such as; e-mail, telephone, text message and automated calls.

The Regulations only apply to unsolicited marketing, that is marketing that has not been specifically requested by the receiver. The Regulations make it clear that direct marketers must obtain a positive indication of consent and this may involve clicking an icon, sending an email or subscribing to a service. The Information Commissioner’s Office (ICO) provides that there must be some form of communication or positive action, by which the individual clearly and knowingly indicates consent to receiving the marketing material.

In most cases where direct marketing is conducted by way of email, the individual’s opt-in consent will be required. This provides a box for the individual to “tick” to indicate that they agree to receive the specified marketing or alternatively to leave blank in the event that they do not wish to receive such marketing material.

Why were Morrisons found in breach?

An investigation by the ICO found that WM Morrison Supermarkets PLC attempted to send 236,651 emails to customers who had previously opted out of receiving marketing relating to their Morrisons More reward card of which 130,671 were successfully received by customers. The emails invited customers to amend their marketing preferences to enable them to start receiving money off coupons, additional reward card points and the “latest news” from Morrisons.

The ICO considered Morrisons to have sufficient knowledge of their obligations under the Data Protection Act and the PECR and despite such knowledge they continued to email customers who had explicitly opted out of receiving direct marketing.

As a result of its findings, the ICO decided to take action against Morrisons for a deliberate breach of Regulation 22 of the PECR which provides that a person shall neither transmit nor instigate the transmission of unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that they consent for the time being to such communications being sent by the sender.

The ICO has the power to enforce certain sanctions for a serious breach of the PECR and in consideration of the extent of the breach by Morrisons, the supermarket chain has been issued with a fine in the sum of £10,500.00.

The ICO has published detailed guidance for firms carrying out direct marketing by phone, text, email post or fax which is available here.

If you should have any additional queries in respect of the PECR or data protection law generally, please do not hesitate to contact me on 01908 660966 or alternatively at christopher.buck@franklins-sols.co.uk.

Private banks in Switzerland are known for being used by the wealthy people of the world in essence to evade tax. However, since the global financial crisis, tens of billions of dollars have been removed from these accounts in a flurry to protect themselves and their sensitive information from exposure.

There is real concern that the safeguards to be implemented by Switzerland’s financial industry expose clients to the risk of becoming subject to crimes such as kidnapping and blackmail. This is an anticipated result of the banks contacting foreign tax agencies with the details of their customers’ accounts.

The Chairman of the Association of Swiss Private Banks, Yves Mirabaud, who is also the senior managing partner of Genevan bank, Mirabaud, voiced concerns that “[d]ata could be sold or used to put pressure on clients or their families”.

Yves went on to confirm that the main concern is “countries where we’re not very sure that the democratic process is the same as ours, or where corruption is very high.” Where corruption is rife, it is viewed that there is more risk of data falling into the wrong hands and serious crimes being committed.

Sensitive information is due to be exchanged between Switzerland and 38 tax agencies in 2018, with a further 41 to become recipients of such information in 2019.

Data protection is being recognised as more and more important, especially with the impending implementation of the General Data Protection Regulation (“GDPR”) in May 2018.

Should you wish to review any further information in respect of the GDPR please do read my previous article. If you should have any additional queries in respect of the GDPR, or data protection in general, please do not hesitate to contact me on 01908 660966 or alternatively at christopher.buck@franklins-sols.co.uk.