This chapter deals with trade mark infringement, as set out in sections 10(1)-(3) of the Trade Marks Act 1994. It first outlines a non-exhaustive list of the situations in which a person uses a sign, such as affixing the sign to the goods or to the packaging; importing or exporting goods under the sign; or using the sign on business papers or in advertising. It then discusses how the claimant’s and defendant’s marks may be identified for comparison purposes, and the range of situations in which an infringement claim is viable, including when a mark is used in a relevant manner, in the course of trade, within the territory of the UK, and in relation to goods and services. Finally, it examines the functions of a trade mark, commencing with the ‘origin’ function. It concludes by considering secondary or accessory liability for trade mark infringement, especially relevant for Internet platforms.
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40. Infringement
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
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16. Directors’ duties
This chapter deals with the seven general duties of directors as spelled out in the Companies Act 2006: duty to act within powers; duty to promote the success of the company; duty to exercise independent judgement; duty to exercise reasonable care, skill and diligence; duty to avoid conflicts of interest; duty not to accept benefits from third parties; and duty to declare interest in proposed transaction or arrangement. After providing a background on the codification of directors’ general duties, the chapter turns to the fiduciary duty of directors, including shadow and de facto directors. It also examines statutory requirements involving property transactions; loans, quasi-loans and credit transactions; associated companies and persons ‘connected’ with a director; equitable remedies for breach of duty; the ways in which directors can be relieved of liability; and secondary liability with regard to property.
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10. Vicarious Liability and Non-Delegable Duties
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores vicarious liability, a form of secondary liability which operates most often in the employment context, and non-delegable duties. It begins by outlining the nature and structure of vicarious liability before turning to two requirements of sufficient relationship and sufficient connection with the tort. It then explains possible justifications for vicarious liability, the relationship criterion, and the notion of ‘close connection’ as it has been developed through key recent cases.
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46. Breach and Defences
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter examines the defences available where a duty of confidence has been breached. It begins by considering the scope of the obligation that must be ascertained to determine whether the duty of confidence has been breached. It then discusses three factors for a breach of confidence to occur: derivation, the defendant’s state of mind, and whether the breach has caused damage. The chapter also tackles secondary liability for breach of confidence before concluding with an examination of the implementation of the Trade Secrets Directive.
Chapter
6. Parties to crime
David Ormerod and Karl Laird
A person who aids, abets, counsels or procures another to commit an offence is criminally liable and known as an ‘accessory’ or a ‘secondary party’. This chapter focuses on the basis of their liability, the distinction between accessories and principals, how secondary liability differs from inchoate liability, the principal offender, innocent agency, the accessory’s actus reus, whether an omission is sufficient and whether mere presence at the crime is enough. The chapter discusses the Supreme Court decision in Jogee, examining problems of ‘joint enterprise liability’, issues of terminology, the significance of the doctrine of joint enterprise in murder and why the Supreme Court characterized it as involving a ‘wrong turn’. It also deals with withdrawal by a secondary party before the principal offender commits the crime, victims as parties to crime and instigation by law enforcement officers for the purpose of entrapment.
