Author: Burley Law

Bibbidi bobbidi boo – brands to the rescue

Written by Burley Law on May 17, 2021. Posted in Featured, Insights.

Household names, such as Topshop and Debenhams, have closed their doors forever. The attraction to visit stores is vanishing, but e-commerce thrives.

Online retailers are transforming consumer experiences. Consumers can shop at their convenience and, by utilising data to personalise the shopping experience, on-line businesses are building their consumer following in ways that retail businesses have struggled to do. The try before you buy mentality may have given traditional stores an edge in the past but with the introduction of buy now pay later apps such as Klarna, on-line clothing rental and the popularity of e-marketplaces encouraging circular fashion; e‑commerce really is stealing the throne from the high street to become the new star.

Recent retail acquisitions show there is still some magic left around retail fashion brands. Fast fashion group Boohoo came to Debenhams’ rescue, but cherry picked the intellectual property. Boohoo acquired Debenham’s website, 800 trade mark registrations and customer data. Asos also swooped for Topshop, Topman and Miss Selfridge, paying £265 million for their brands and other IP.

These knights in shining armour have emphasised the beauty and value retained in IP, meaning that even where the sparkle has left the building for a retail business, its brands can still go to the ball.

To protect, enhance and make your brand irresistible as the retail industry evolves, consider carefully:

Have you got trade mark protection in place for your logo and brand name? Trade mark registration will prevent third parties using your name and logo and protect your brand’s reputation.
Make sure your trade mark covers all your goods and services.
E-commerce extends your reach to new countries. Do your trade mark registrations cover all these territories?
Are you keeping up to date? If you don’t use a trade mark in its registered form or pay the renewal fees on time, then you could lose it.
Remain vigilant to anyone infringing your trade mark or any counterfeiting. There are processes in place to help with this.

Please get in touch if you have any questions around protecting your brand, trademarks, or taking your brand online.

Red flags that employers cannot afford to ignore

Written by Burley Law on May 4, 2021. Posted in Insights.

The decision in the recent case of Taplin v Freeths (www.gov.uk/employment-tribunal-decisions/mr-mj-taplin-v-freeths-llp-2602284-slash-2018) is surprising at first glance. Here, the Employment Tribunal ruled that a partner in a law firm who had control over the hours he worked, was ambitious and successful, and had a very strong work ethic, should have been protected from burning himself out by working too hard. In fact, they went as far as concluding that the firm had discriminated against him on grounds of disability by not supporting him properly to recover from the illness caused by his ‘workaholism’.

“Surely successful, highly paid professionals and managers should be expected to manage their workload and take responsibility for their own mental and physical wellbeing?” I hear you ask. Apparently not according to this case.

The judge was struck by the “lack of real engagement with the issues” by the partnership and noted the absence of a “holistic approach” to supporting Mr Taplin in his recovery from his serious mental illness.

Although the decision is fact-specific and it remains to be seen whether it is challenged on appeal, there are some sobering lessons we can learn from the (very long) judgement in this case:

Declining mental health, even in someone with no previous history of mental illness, can be so serious that it gives an employee protected legal status against being dismissed or treated unfavourably, no matter how senior they are in a business.
Where there are red flags that might indicate someone is struggling such as a change in behaviour or working excessive hours these should not be ignored. Prompt intervention is needed to make sure that employees are not overloaded and there aren’t other factors affecting their health.
Where someone has suffered from “burn out” because of their work, a properly thought-out and agreed return to work plan is key to making sure that they do not relapse.
Phrases like “We didn’t know how bad things were” or “we didn’t like to ask” will not impress Employment Tribunals. It is becoming increasingly important for employers to engage with employees about their health and well-being so as to get a good understanding of any problems at an early stage and take appropriate steps to address them. This can be hugely challenging when someone is off sick, is unwilling to engage, or exhibiting difficult behaviours, but there must be clear evidence that there have been efforts to engage in a supportive way.

In a time when many people are continuing to work from home and face to face contact is limited, businesses will have to think outside of the box to make sure they are supporting everyone in their teams appropriately and nipping issues such as overworking and deteriorating mental wellbeing in the bud.

Please contact us if you need support.

Should you gamble on online terms?

Written by Burley Law on April 19, 2021. Posted in Featured, Insights.

Andrew Green thought he had won big on a bet back in 2018 when the computer told him his winnings were £1.7m. Betfred refused to pay out citing a computer error and forced him to play litigation roulette. Backing their legal small print, Betfred picked a loser in Court and Mr Green finally collected his winnings. Generously, Betfred apologised.

Fortunately for Mr Green, Betfred’s very lengthy legal terms were described in the judgment as ‘unclear’, having ‘a number of infelicities of presentation’, ‘obscure’ – and not ‘fair’ and ‘transparent’ as required.

Betfred are not alone in having online terms that didn’t do as they had hoped and they got caught out. Is the answer to wait for your terms to be challenged and reviewed by a Court through expensive, long-running litigation– or would you prefer them to be reviewed at a time and cost of your choosing by your lawyer to ensure they do precisely what you expect? In our experience, gambling on your online terms going unchallenged isn’t worth a punt.

Please get in touch if you need any help.

Easing the lockdown – business as usual or a brave new world?

Written by Burley Law on April 7, 2021. Posted in Insights.

Key workers in areas such as health and social care, retail, food production and education have had to carry on with ‘business as usual’ for the last 12 months to keep our country safe and well – and what a brilliant job they have done. However, many workplaces have been closed with staff fully furloughed or working from home.

Now, with shops, pubs and restaurants and hair salons opening up from 12 April, there is change in the air. With the continuing easing of lockdown, thoughts will be turning very quickly to getting back to business and back to the physical workplace.

But, what are we returning to?

In many ways the last year has provided the catalyst for the biggest shake up in workplace culture for decades. The idea of ‘one size fits all’ working may be gone forever in some sectors. For some people the transition from furlough and social isolation back to full time work will be dreaded, for others it will be warmly welcomed. Some will be happy to go back to pre-Covid working hours and arrangements, but for others there is no going back now that more flexible ways of working have been tried and tested.

Add to this there is the on-going threat of the Covid-19 virus which has not gone away and needs to be well managed in every workplace to ensure that we are all kept safe. Overlaying everything will be the whole spectrum of different attitudes towards issues such as compulsory vaccination and testing, the wearing of masks, and social distancing in the workplace.

It promises to be a challenging time ahead and employers will need to be ready to pro-actively manage these issues so that situations do not escalate out of control and the various concerns of employees are balanced with the needs of the business.

There will be no substitute for good process, fair and consistent decision making, clear communication and genuine engagement with staff, because these are the cornerstones of effective change management in the workplace.

We are here to help you navigate the way ahead. Please get in touch.

University IP commercialisation virtual round table event

Written by Burley Law on March 22, 2021. Posted in Insights.

On 17 March we had a very insightful morning spent hosting our latest University IP Commercialisation Round Table event.

We were joined by a fantastic turnout of university representatives who collaborated by sharing their different perspectives on 3 topical issues: consultancy work by academic staff, issues around indemnity wording in commercialisation contracts and GDPR post-Brexit.

The Burley Law team was on hand to bring to the discussion their experiences working with universities and on employment law.

No jab no job – it’s catchy but is it legal?

Written by Burley Law on March 16, 2021. Posted in Featured, Insights.

With the UK Covid vaccination programme speeding ahead like an express train, employers are inevitably starting to think about imposing a blanket requirement on their existing staff and new hires of ‘no jab, no job’. After all, sensible employers will want to take steps to ensure that their workplaces are safe for their staff and customers, and as the Covid vaccination is freely available this seems like an obvious and sensible approach.

What are the risks of this kind of policy?

The legal position is likely to be different for new staff as compared to existing staff, but both should be approached with caution and a ‘one size fits all’ rule should be avoided. Not everyone is able to receive the vaccine, for example people with severe allergies and pregnant women. Others may refuse to have it on religious grounds. Many young people would also be unfairly prejudiced by a ‘no jab no job’ policy which is imposed now because they may not be offered the vaccine for many months to come.

Imposing this kind of blanket requirement on your existing workforce could create the risk of a number of different legal challenges. These include constructive dismissal and unfair dismissal if the employee has 2 years’ service or more, and breach of contract and discrimination regardless of length of service.

Any demand by an employer to know whether a member of staff has been vaccinated also raises questions about employee privacy and the handling of medical information which carries additional obligations for employers under data protection law.

Where new hires are concerned, there is nothing in law to stop employers from making the offer of employment conditional on vaccination and it is up to the individual to decide whether or not they want to take up an offer of employment on those terms. However, businesses would do well to take on board that this kind of recruitment practice could be called out as discriminatory, especially if it’s not justifiable for sound objective reasons which are well evidenced and clearly linked to the job and the needs of the business.

My first month working at Burley Law

Written by Burley Law on February 24, 2021. Posted in Insights.

Having worked as a Consultant Paralegal at Burley Law for a month now I wanted to reflect on the breadth of work and experience I have been exposed to. Firstly, I’d like to acknowledge how comfortable, natural and integrated I feel becoming a new member of the Burley Law team. Des and Liz have been nothing other than helpful and my transition into the office has been wonderful.

Burley Law works with innovative, technology-driven start-ups and this has meant that I have had to grapple with innovative concepts and ideas ranging from novel medical devices to cloud software contracts. This has encouraged me to think creatively to provide suitable and usually unconventional solutions to their commercial problems. I have conducted IP audits and offered advice to clients on how to identify and protect their intellectual property in the early stages of their business. I have learned a lot from interacting with clients and helping them in the start of their commercial ventures.

I have been delighted with the amount of responsibility, work and opportunities Burley Law has given me. Their intimate ‘in house feel’ has attracted a wide range of clients (big, small, high profile and new) looking for specialist commercial advice. I have enjoyed the client-facing opportunities available and I am impressed with the established relationships and reputation Burley Law holds. Drafting commercial contracts, filing trade marks, opposing trade mark applications and liaising with international law firms, oh and a touch of design law… Working at Burley Law has given me an invaluable opportunity to flourish and access the bright minds of Liz and Des. I am excited to see what the next few month at Burley Law has in store.

Something to declare?

Written by Burley Law on February 16, 2021. Posted in Insights.

Following Brexit, you should double check if you have filed any Applications for Action for customs to seize counterfeit products. If you filed from the UK to cover the UK and EU member states, then the UK-filed Application will now only extend to the UK. If you filed in an EU country, then it will not cover the UK.

What you need to know

If you want to cover both the UK and EU countries then you will need to file an Application in the UK and another one in an EU country designating the countries of interest.

Applications for Action can be a useful part of your armoury against copycat products. Contact us if you want to know more.

Are you letting your ip fall through your fingers

Written by Burley Law on February 8, 2021. Posted in Insights.

Two publicly funded schemes are available to businesses to access the expertise of IP professionals like ourselves. Support of between £2,500 (UK-wide) and £4,800 (Birmingham region) may be available. This has helped businesses access investment, and protect their key products to support their future.

“The IP audit scheme and the expert advice of Des Burley and his team were instrumental in us understanding how we could protect our product, and this enabled us to secure vital external investment for growth . I wouldn’t hesitate to recommend accessing the scheme through Burley Law.” Max Swinbourne, CEO, 4T2 Sensors Limited.

Please get in touch for more details des@burleylaw.co.uk.

Brexit – part three: a smooth transition

Written by Burley Law on February 3, 2021. Posted in Insights.

We have successfully helped a number of clients with a seamless transitioning process to ensure that they do not lose any vital protections for their EU/UK Trade Marks following Brexit on 1 January 2021 (see our Blog on 5 and 12 October).

If any businesses are unsure about the impact of Brexit on their EU or UK Trade Marks, we are on hand to help. Please contact Des Burley, des@burleylaw.co.uk.