Fujitsu launches trademark fight over iPad

While software manufacturer Apple’s new iPad has received mixed reactions across the blogosphere, the company’s biggest battle may be against its rivals as Fujitsu launches a trademark dispute over the iPad moniker.

Press reports have revealed that the Japanese technology giant is consulting lawyers over the use of the iPad trademark as Fujitsu has been selling products under that name since 2002.

In a leaked memo being promoted by a barrage of American news outlets, Fujitsu employees were told that Apple’s new product is a “possible infringement on our trademark, which has been in use in connection with Fujitsu mobile retailing computer products since 2002”.

Fujitsu’s iPad, mostly used by retail professionals for checking stock levels, was entered for trademark recognition in 2003 but failed after a separate company, Mag-Tek, claimed ownership of the name.

The application was listed as “abandoned” in 2009 but Fujitsu has asked for the case to be reopened as the Mag-Tek product is entirely different from its own.

In September last year, Fujitsu’s application was made public and was challenged by Apple’s lawyers. Apple, while filing its own iPad application, will now argue that Fujitsu was wrong to enter an initial application as the iPad name bears too close a resemblance to its hugely popular iPod brand.

Several other companies have also laid claim to the name, with Siemens using it in conjunction with its engines and motors, while a Canadian firm sells a breast-enhancing iPad bra.

The complex dispute mirrors the furore surrounding Apple’s IP rights and its iPhone trademark. During the product’s 2007 release, Cisco manufacturers was already producing an iPhone product but was forced to hand over rights in the face of Apple’s unforgiving legal team.

And the iPad issue looks set to continue before its ‘eagerly awaited’ launch in March this year.

HSE publishes new asbestos guidance

The Health and Safety Executive (HSE) has published guidance on avoiding asbestos-related illnesses in the construction sector.

Architects, surveyors and demolition or removal contractors have been warned of the dangers currently residing in almost 500,000 non-domestic properties around the UK.

Asbestos: The Survey Guide highlights a number of practices that should be followed to avoid more incidents of asbestos-related illness for both the sector and the general public, underlined by The Control of Asbestos Regulations 2006.

Regulation 4 of the Control of Asbestos Regulations instils an explicit duty on all those responsible for the maintenance and repair of non-domestic premises to manage the risks. The HSE guide, in conjunction with the Regulations, will try to slash the rate of asbestos-relateddeaths plaguing the nation, currently around 4,000 a year.

“Asbestos is still a real risk if it is not managed properly,” said HSE’s Asbestos Programme Manager, Steve Coldrick.

“The regulations set out who is responsible for managing the risk in non-domestic buildings and what this should involve. This updated and user-friendly guidance clearly sets out the role of the survey in managing asbestos and really helps people make sense of it and relate it to real-life situations.

“We’ve worked with more than 30 organisations to develop it. We wanted those people who were most likely to use the guidance suggest what they would find most useful.”

The asbestos guidance is available to download on the HSE’s website; www.hse.gov.uk

Landmark Australian ruling delights British ISPs

As the Australian government states that Internet Service Providers (ISPs) cannot be held liable for the downloaded material of their users, British ISPs have rejoiced in the hope that such laws will be upheld in this country’s courts.

Perth-based ISP iiNet was harassed by some of Hollywood’s biggest film companies in recent years, including Universal and Sony, but an eight-week trial in front of Sydney’s Federal Court has deemed it unnecessary for ISPs to police their users.

And this week a number of British ISPs have voiced their “delight” at the verdict, claiming that “basic consumer rights” have been upheld and that the Digital Economy Bill should take note.

Expected later this year, the Digital Economy Bill will attempt to slash widespread internet piracy amongst UK residents. But the Australian ruling will have dented plans to impose liability on ISPs and could safeguard consumers from exposing sensitive internet usage to unwanted eyes.

The Bill, currently working its way through parliament, has argued that ISPs should be charged with cutting-off persistent downloaders from the internet whilst giving the Business Secretary, currently Lord Mandelson, sweeping rights to change copyright laws when needed.

“We hope parliamentarians see sense and do not pass the digital economy bill without changes to protect consumer and human rights,” a spokesman from TalkTalk said.

The ruling, a first of its kind, claimed that enforcing policing would make ISPs “responsible for the acts of their customers. Essentially they become this giant and very cheap mechanism for anyone with any sort of legal claim”.

The government’s response to the overseas judgement will become apparent when the Digital Economy Bill is published in April.

Building delays bring rise in contractual disputes

The construction industry faces a tough year as financially struggling customers will launch more and more contractual dispute cases, experts have warned.

Figures released by the Construction Products Association, the industry’s leading trade body, predict that the output will drop by 3% in the construction industry and will force more customers to seek damages through commercial lawyers.

According to several commercial property lawyers, the number of liquidated damage cases has greatly increased due to overrunning construction projects not delivering the finished property by the dates agreed.

Typically costing a constructor £10,000 for every supplementary week a project takes, liquidated damage cases occur on approximately 10% of all building contracts, up by 2% since last year.

Where the parties agree that in the event of a breach of contract, the party who is in breach will pay a specified sum of money. When making the decision, the Court will have to take into account the terms and inherent circumstances of each particular contract.

In the past, developers and investors were keen to take unfinished projects off constructors to force tenants into properties early and quickly start recouping investment funds. But the current trend of by-the-law contract enforcement is likely to bring increased litigation against weakened developers.

“There is going to be an increase in this kind of problem as projects get squeezed from the top downwards and some of the smaller guys on these sites will be forced out of business,” added Rudi Klein, Chief Executive of the Specialist Engineering Contractors’ Group.

Major phone merger questioned by OFT

Two of the country’s biggest mobile network providers, Orange and T-Mobile, have announced a market-changing merger but an investigation by the Office of Fair Trading (OFT) may derail the deal.

Orange and T-Mobile, the third and fourth largest mobile telephone providers respectively, will grab a market-leading 37% share when they join forces. But the OFT has asked the European Commission to transfer the case to UK jurisdiction as the merger could “significantly reduce competition”.

Mergers that initially fall within the jurisdiction of the EU Merger Regulation may be referred to the UK to be examined by the OFT under the Enterprise Act.

The possible investigation could delay the merger by almost a year as the Competition Commission would also need to examine the legitimacy of the pact.

Consumer groups have welcomed the OFT’s call for the investigation to be brought to the UK.

Peter Vicary-Smith, Chief Executive of Which?, said: “It’s only right that a deal affecting UK consumers should be scrutinised by UK regulators. This merger will clearly have a huge impact on the mobile market, since it will form the biggest mobile operator in the UK and bring the number of networks down to just four.”

But Orange and T-Mobile have maintained that the proposed deal would benefit the market. In a joint statement, the pair said: “We are in close contact with all of the authorities involved, including the OFT and Ofcom. We strongly believe that the proposed merger is good for Britain and will continue to work closely with all interested parties.”

Employment lawyers ‘could enter disciplinary hearings’

Public sector employees may soon be allowed legal representation at internal disciplinary meetings following a landmark ruling by the Court of Appeal.

The case revolved around the disciplinary hearing of a former primary school music assistant. The unnamed assistant was accused of sexual contact with a 15-year-old work experience trainee and was eventually dismissed by a disciplinary committee.

The employee argued that, as his chances of future employment were tarnished, he should have had legal representation several times before the internal hearings. But the local authority’s policy did not provide for this and no lawyers were ever permitted.

However, the Court of Appeal sympathised with the assistant’s argument and agreed that, as the hearing was “determinant of the claimant’s right to practice his profession”, Article 6 of the European Convention on Human Rights, regarding the right to legal representation when charged with a criminal offence, applied.

The assistant should therefore have been granted legal representation should he/she have chosen to do so. But the Court’s decision would only be enforced when an internal hearing would have a direct effect on the future employment of a reprimanded employee.

Employers have now been warned to assess the damage a disciplinary will have on an employee’s career. If the consequences of dismissal are wider than losing employment, such as jail or failure to work in that profession again, employers should seek their own legal advice before initiating proceedings.

Intestacy forcing bereaved out of homes

Widowed spouses and relatives of loved ones are being forced out of family homes after their partners failed to make a will, City law firms have revealed.

Approximately 50% of the British public have not made a will, yet hundreds of people are being pushed out the front door as current intestacy laws, enforced when no will is provided, are allowing disgruntled offspring and relatives to lay claim to family properties.

“Some of the most sensible people still shy away from making a will. Perhaps it is because they fear their own mortality,” Richard Mannion, National Tax Director at accountancy firm Smith & Williamson, told the Financial Times.

According to one City firm, 1,200 widows and widowers were evicted under intestacy rules last year.

Currently, those with children will automatically get their spouse’s personal possessions and the first £250,000 of the estate’s worth, with the rest going to said children.

In cases where the deceased was childless but there is a surviving parent, sibling, nephew or niece, their spouse will receive the first £450,000 and half of what remains, with the rest going to relatives.

But substantial problems arise for partners in second marriages who must fight with children from a previous marriage for a fair share of an estate. Children’s disenchantment with their step parents is causing lengthy court battles to the detriment of an estate’s overall value.

Earlier this year, the Law Society called on the British public to approach regulated solicitors to make sure their wills are legal and legitimate. This week’s news will hopefully persuade more people to properly organise their estate planning or risk untimely legal squabbles.

Risk assessments for pregnant workers

The Employment Appeal Tribunal (EAT) has ruled that employers have no obligation to carry out risk assessments on pregnant workers unless there is a significant health and safety problem.

Although the EAT has reduced the health and safety burden for many employers, it has ruled that, if an employer should fail to conduct an assessment when a risk does exist, then they can be challenged for sexual discrimination.

If there is a health and safety risk in relation to a new or expectant mother, the employer must take steps to avoid that risk, either by altering working hours and conditions, or by suspending the employee when no reasonable steps can be taken.
However, in terms of the Employment Rights Act, the employee must also be offered suitable alternative work and the terms of this must not be substantially less favourable than her existing role.
This means that an employee who was offered less pay for doing a job at a lower grade would be entitled to refuse that offer and be suspended on health and safety grounds with full pay.
A set of pre-conditions that would trigger the need for a risk assessment are:

• Employee’s work is of a kind that could involve a risk of harm or danger to the health and safety of a new expectant mother or to that of her baby; and
• Employee risk arises from either processes or working conditions or physical, biological or chemical agents in the work place.

According to the EAT, employers do not need to hold face-to-face meetings with pregnant staff to conduct a risk assessment. A ‘paper exercise’, which gives employees comprehensive and relevant information on health and safety risks, is sufficient.

Sky wins landmark fraud battle

Broadcasting giant BSkyB has won a long-running dispute with technology firm Hewlett Packard (HP) for fraudulent misrepresentation after the “woeful” performance of its £48m software programme.

Software supplier Electronic Data Systems (EDS), which was bought by HP in 2008, has been found liable after its ‘overselling’ of a Customer Relationship Management (CRM) system in 2000.

BSkyB investors were told that the CRM was “proven leading-edge technology” but the reality was that its reliability, costs to install and drain on resources was never revealed until after the pricey contract had been signed.

HP is expected to challenge the Technology and Construction Court’s ruling which could cost up to £200m in compensation, although BSkyB originally sought £709m in compensation, on the grounds that EDS was forced into an untenable position by BSkyB bosses.

Billed as one of the most expensive and drawn-out disputes ever seen in the technology sector, BSkyB brought several accusations against EDS and HP, but the only charge in agreement is that of fraud by misrepresentation.

“I find that there was liability on the first defendant (Hewlett Packard) to the claimant (BSkyB) for fraudulent misrepresentation giving rise to damages,” Mr Justice Ramsey said.

Speaking after the ruling, HP vowed to challenge BSkyB’s award.

“This is a legacy issue, dating back to the EDS business in 2000, which HP inherited when it acquired EDS in 2008,” said a company statement. “We are pleased the Court dismissed the majority of the allegations made. While we accept that the contract was problematic, HP strongly maintains EDS did nothing to deceive BSkyB. HP will be seeking permission to appeal.”

Brain damaged schoolgirl wins £6.5m compensation

A 15-year-old girl left severely brain damaged from birth has been awarded a £6.5m compensation package after a Welsh NHS Trust admitted substantial failings in front of the High Court.

Rhiannon Hayman has lived with cerebral palsy since being starved of oxygen during her mother’s labour. She has never been able to talk or walk without help and will always require round-the-clock care from her parents and doctors.

But her family’s constant struggle was made a little easier after the High Court’s decision to award an initial £2m to the Haymans, followed by supplementary payments for the rest of her life.

The Hayman’s lawyers argued that staff from the former Bro Morgannwg NHS Trust, working at Bridgend’s Princess of Wales Hospital, had failed to provide a “reasonable standard of care” when Mrs Hayman went through labour in 1994. Rhiannon suffered from asphyxia, and eventually brain damage, as a result of being born feet first.

“Sadly, there is nothing the health board can now do to change the very regrettable outcome of Rhiannon’s birth, but we hope the settlement will enable her to receive the ongoing care she needs,” the ABM University Health Board said after the award.

Before approving the settlement, High Court judge Mr Justice Owen told the Haymans that Rhiannon was a “remarkable young lady” who has lived on despite the “grievous misfortune she suffered at birth”, adding: “The settlement means that her financial future is secure.”