Mondaq Business Briefing articles from May 2005

Mondaq Business Briefing archives from May 2005

Protecting Colour Trademarks.
May 3, 2005... By Keltie Sim and Heather Tonner Originally published June 2004 In May 2003 the European Court of Justice ruled that colour per se (unaccompanied by other factors such as size or shape) is capable of constituting a sign, provided that...

Trading Rank To Alter Priority.
May 3, 2005... Section 241 and concordant of 1947 Mortgage Regulations Judgment of Province Court of Asturias of 23 June 2004 By virtue of the principle "prior in tempore, potior in iure", our jurisdiction giver preference over and ranks rights...

Compliance, Risk Management and Internal Controls.
May 3, 2005... Robert Bostrom of Winston & Strawn discusses the evolving roles and responsibilities of boards of directors and audit committees Boards of directors, audit committees and management must be aware of the impact of the proposed new US...

Global Indirect Tax News.
May 3, 2005... Originally published April 2005 This article discusses international tax developments and has been prepared by professionals in the member firms of Deloitte Touche Tohmatsu. America - free trade talks with Middle East and SE Asia On 18...

Second Circuit Holds that Identical Marks Give Rise to Presumption of Actual Dilution.
May 3, 2005... In Savin Corporation v. The Savin Group, 391 F.3d 439, 73 USPQ2d 1273 (2d Cir. Dec. 10, 2004), the United States Court of Appeals for the Second Circuit adopted a presumption of actual dilution where the trademarks at issue are identical, but...

Independence of Directors Under Canadian Securities Law.
May 3, 2005... Canadian securities regulators have amended Multilateral Instrument 52-110, Audit Committees, which contains the tests for determining whether directors are independent. The definition of independence in MI52-110 applies not only for...

The High Price of Popularity.
May 3, 2005... Originally published in Managing Intellectual Property, February 2004 In November 2003, McDonald's Corporation made national headlines by objecting to dictionary publisher Merriam-Webster's inclusion of the term "mcjob" in the latest...

Bankruptcy Reform Legislation Includes Changes Affecting Employee Benefit Plans and Executive Compensation.
May 3, 2005... On April 20, 2005, President Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 into law. This article highlights the most significant provisions of the Act affecting employee benefit plans and executive...

Disqualification of non-executive director of listed company.
May 3, 2005... Delegation or abdication? Directors' disqualification case examines when further questions must be asked The trend for bringing non-executives to account for corporate failings has continued with the disqualification of a non-executive...

Commission Issues Guidance on the Implementation of Regulation 178/2002 on General Food Law - Including Guidance on Traceability.
May 3, 2005... On the 20 January 2005 guidelines were issued to facilitate the implementation of some of the major requirements set out in Regulation 178/2002 laying down general principles and requirements of food law and establishing the European Food...

Ownership Matters-But Only at the Start and Finish.
May 3, 2005... Addressing the relationship between patent ownership and jurisdiction, the U.S. Court of Appeals for the Federal Circuit held that a judgment is not void when there is a temporary transfer of the patent in suit to a non-party during litigation...

Air Passenger Rights In The EU: Denied Boarding And Other Recent Developments.(European Union)
May 3, 2005... This article is a brief review of the status of new EU legislation on denied boarding, flight cancellation and delays which came into force on 17 February 2005. We also look at some other developments including proposed new legislation on...

Federal Circuit Can't Stomach PB&J Patent.
May 3, 2005... The U.S. Court of Appeals for the Federal Circuit affirmed, without opinion, an obviousness rejection by the U.S. Patent and Trademark Office of claims to a crustless peanut butter and jelly sandwich in which outer layers of peanut butter...

Air Carrier Liability: Exclusivity Of Warsaw Regime.
May 3, 2005... Potgeiter -v- British Airways, High Court, South Africa, January 2005: The South African High Court has followed existing case law from the UK and the US in finding that the Warsaw Convention provides an exclusive remedy, therefore striking out...

Air Carrier Liability: EPA Study Reveals Water Contamination In One Aircraft In Seven.(Environmental Protection Agency )
May 3, 2005... A recent study by the US Environmental Protection Agency ("EPA") has revealed that one in seven aircraft tested had unwanted stowaways in their water supply - potentially dangerous bacteria that can make passengers and crew sick. We examine the...

Reed Smith Government Contract Practice Federal Schedule "Check-Up".
May 4, 2005... While the government is purchasing billions of dollars of supplies and services annually from Federal Supply Schedule ("FSS") contracts, manufacturers and suppliers are paying millions of dollars back to the government in fines and penalties...

The Class Action Fairness Act of 2005.
May 4, 2005... On February 18, 2005 the President signed into law the Class Action Fairness Act of 2005 (the "Act" or "CAFA"). The Act, whose stated purpose is "to amend the procedures that apply to consideration of interstate class actions to assure fairer...

Federal Agencies Jointly Issue FAQs Concerning Customer Information Programs.
May 4, 2005... The FRB, FDIC, FinCEN, NCUA, OCC, OTS and the U.S. Department of the Treasury (the "Agencies") jointly issued an updated set of frequently asked questions (the "FAQs") to provide interpretive guidance regarding the customer identification...

Supreme Court Rejects 'Price Inflation' Theory of Pleading and Proving Loss Causation in Securities Fraud Cases Under Rule 10b-5.
May 4, 2005... Resolving an issue that had divided the courts of appeals, the United States Supreme Court decided on April 19, 2005 that plaintiffs in federal securities fraud actions cannot satisfy their burden of pleading and proving that defendant's fraud...

SEC Offers Guidance on IPO Allocations.(Securities & Exchange Commission (US government))(intial public offerings)
May 4, 2005... By Stephen T. Adams and Ettore A. Santucci The SEC recently offered interpretive guidance to underwriters with respect to the allocation of securities and prohibited conduct under Regulation M, particularly with respect to IPO allocations....

The Enforceability of Service Credits and Liquidated Damages under New York Law.
May 4, 2005... Liquidated damages ("LDs") allow parties to a contract, at the time of contracting, to specify an estimate of damages as a remedy for breach. LD clauses are generally structured to address specific types of breaches and for a particular breach...

Supreme Court Rules That Older Workers May Bring Age Discrimination Claims Under Disparate Impact Theory.
May 4, 2005... Originally published April 28, 2005 The U.S. Supreme Court recently held that employees protected by the Age Discrimination in Employment Act (ADEA) can sue their employer for age discrimination if a practice, policy or employment criterion...

ADR and building disputes.
May 4, 2005... Under the Civil Procedure Rules, litigants are expected to give serious consideration to whether their dispute can realistically be resolved out of court. The Court of Appeal has given recent indications that a party who unreasonably...

Registration Data Protection: Transition To The New System.
May 4, 2005... The registration data protection enables competitors in the field of medical preparations to ensure for a certain limited period of time exclusive rights to data gathered for testing the safety and effectiveness of a medical preparation, namely...

Deloitte Weekly VAT News - Week ended 29 April 2005.(Value Added Tax)
May 4, 2005... Retrospective Legislation allowed under EU law - sometimes According to the ECJ, Governments can announce changes in law that deal with avoidance in press releases and legislate later, but with effect from the date of the press release, if...

The Liability Of Foreign Residents Doing Business In South Africa To Register For Value Added Tax Purposes.
May 4, 2005... Foreign residents doing business in South Africa often neglect to register as a value added tax ("VAT") vendor in circumstances where services are rendered to South African enterprises. The misunderstanding generally arises because the foreign...

The BVI Guide To The European Union Savings Tax Directive.(British Virgin Islands)
May 4, 2005... How Does It Affect BVI Investment Funds? With a little over two months before the European Union Savings Tax Directive ("EUSD") is due to come into force across much of Europe, the Government of the British Virgin Islands has published a...

The Issue of Preliminary Injunctions in the Light of the Essential Amendment of the Civil Procedure Code.
May 4, 2005... An important amendment of the Civil Procedure Code (Law No. 99/1963 Coll., civil procedure code) will become effective as of April 1, 2005. This amendment introduces major changes namely with respect to preliminary injunctions (Section 74 et...

The World Tax Advisor (Part One).
May 5, 2005... This article discusses international tax developments and has been prepared by professionals in the member firms of Deloitte Touche Tohmatsu. Originally published May 2005 ECJ Advocate General Gives Qualified Support for Cross-Border...

The arm's length standard.(Italian Tax Code)(IRA's Sixth Annual APA Report)(transfer pricing audits by Venezuela's National Tax Administration Services (SENIAT))
May 5, 2005... The information in this article has been prepared by professionals in the member firms of Deloitte Touche Tohmatsu. Originally published April 2005 Italian Ministry of Finance Issues Resolution on Deductibility of Costs of Italian...

Final SEC Rule on Asset-Backed Securities and Its Implications for the Canadian ABS Market.(Securities & Exchange Commission (US government))(asset-backed securities)
May 5, 2005... Article by Andrew Beck, Michael Feldman, Simon Knowling and Rose Bailey On December 15, 2004, the U.S. Securities and Exchange Commission approved a comprehensive final rule (SEC Rule) that sets out the registration, disclosure and...

The World Tax Advisor (Part Two - Continued).(Ramsay principle in estate duty case)
May 5, 2005... HONG KONG Court of Final Appeal Rejects Commissioner's Application of Ramsay in Estate Duty Case In January 2005, a second case involving the Ramsay principle was decided in a Hong Kong court, this time in favor of the taxpayer. The...

Hyundai v Vigour Appeal - Enforcing Agreements to Negotiate or Mediate.(Hyundai Engineering And Construction Company Limited)(Vigour Limited)
May 5, 2005... Originally published April 2005 Is an agreement to negotiate in good faith or an agreement to mediate without any defined mediation procedure enforceable? Is an agreement not to arbitrate or litigate enforceable or is it against public...

Roundtable Discussion on Implementation of Internal Control Reporting Provisions (Section 404 of the Sarbanes-Oxley Act of 2002) The U.S. Securities and Exchange Commission.
May 5, 2005... Overview of Roundtable On April 13, 2005, the Securities and Exchange Commission hosted an all-day roundtable discussion about the implementation of Section 404 of the Sarbanes-Oxley Act of 2002 ("SOX 404"). The roundtable took the form of...

Court may consider function of invention in determining meaning of claim terms.(MRI Devices Corp)
May 5, 2005... The U.S. Court of Appeals for the Federal Circuit affirmed the district court's summary judgment that Medrad's patent is invalid as anticipated by the prior art. The Court held it is proper to consider how the invention functions in construing...

Claim construction that excludes all disclosed embodiments vacated.(Nellcor Puritan Bennett, Inc., et al. v. Masimo Corp.)
May 5, 2005... The U.S. Court of Appeals for the Federal Circuit, finding the district court erred in its construction of two critical claim terms, vacated the district court's summary judgment ruling of non-infringement and remanded the case. Nellcor Puritan...

Adjudication - 28 days means 28 days.(Ritchie Brothers (PWC) Limited v David Philp (Commercials) Limited)
May 5, 2005... Originally published March 2005 On 24 March 2005 the Scottish Court of Appeal (the Inner House of the Court of Session) issued its decision in the appeal against the decision of Lord Eassie in Ritchie Brothers (PWC) Limited v David Philp...

Traditional causation principles affirmed: the Chester decision seen in context.
May 5, 2005... In Chester v Afshar, a gap was left open for claimants to argue that traditional causation principles should be by-passed in the interests of justice. In the case of Beary v Pall Mall Investments [2005] EWCA Civ 415, the Court of Appeal has...

International Client Alert - May 4 2005.
May 5, 2005... WOULD YOU LIKE A BUDWEISER WITH YOUR FETA CHEESE? WTO Panel Strikes Down E.U. Protections for Geographical Indicators On March 15, 2005, a panel of the World Trade Organization ruled on the United States' complaint against the European...

Probity in Ecuadorian Justice.( British American Tabacco Company Limited )(Brief Article)
May 5, 2005... Bustamante & Bustamante help British American Tabacco Company Limited (BAT) establish trademark priority rights; ends 8-year battle against competitor Phillip Morris. The Second Chamber of District Administrative Litigation Court No. 1...

Considerations for retail space in an office building.
May 6, 2005... Originally published First Quarter 2005 By Irwin J. Fayne (Fort Lauderdale) A successful relationship between an office building owner and a retail tenant involves educating each party to the particular attributes of the other party's...

When Is real property exempt from property taxes?
May 6, 2005... Originally published First Quarter 2005 By Andrea Briski (Chicago) A "View to Profit" May Defeat the Tax Exempt Status of Real Property Used for Educational Purposes Any individual or entity that owns real property is well aware of...

High performance green building: How to L.E.E.D.(Leadership in Energy & Environmental Design)
May 6, 2005... Originally published 1st Quarter 2005 By Robert Joseph Stanz (Lakeland) Part one of this two-part series, which can be found in the 2004 third quarter issue of Property Writes, ( Click here to read this issue addressed certain elements...

The National Health Act: A Guide For Beginners.
May 6, 2005... FROM THE WRITER Certain provisions of the National Health Act No. 61 of 2003 are due to come into force on 2 May 2005. These provisions change fundamentally the manner in which health policy in this country is to be formulated, patients...

Employee Stock Options - An Incentive for Employees?
May 6, 2005... More and more often Lithuanian companies face with a problem as to how to attract and retain qualified employees. In order to compete successfully with foreign employers, Lithuanian companies will not merely have to offer their employees...

Energy Reform and Access Programme underway.
May 6, 2005... Mozambique is one of the largest power producers in Southern Africa. The Cahora Bassa dam, built some 30 years ago in the Tete province, is Africa's second largest hydroelectric plant and supplies South Africa with what is considered to be the...

Employee Benefits Briefing - April 2005.
May 6, 2005... Contents Medicare Prescription Drug Act-What Do Employers Need To Do? HIPAA Security Rule Takes Effect District Court Blocks EEOC Rule Allowing Retiree Benefit Reductions At Medicare Facility Medicare Prescription Drug Act-...

Mandatory Sexual Harassment Training for Supervisors.
May 6, 2005... California employers now face an additional requirement in the prevention of workplace harassment--mandatory sexual harassment training for all supervisors. The new law, codified at Section 12950.1 of the California Government Code,...

Working Mothers and Sexual Discrimination.
May 6, 2005... Despite women's recent advances in nontraditional areas and professional occupations, certain sexual stereotypes persist. One of those stereotypes is that working mothers are unable to manage their work and family responsibilities and thus,...

Communications Law Bulletin -- April 2005.
May 6, 2005... The Month In Brief April brought us the final chapter in the bidding war for ownership of MCI, further fallout from the Federal Communication Commission's ("FCC" or "Commission") Triennial Review Remand Order, and the opening of an...

Claims are definite when understood by one of ordinary skill.(Howmedica Osteonics Corp. v. Tranquil Prospects Ltd.)
May 6, 2005... The U.S. Court of Appeals for the Federal Circuit reversed the district court summary judgment that the claim terms of a pair of patents was indefinite and invalid under 35 U.S.C. s.112, noting that one of ordinary skill in the art would...

Invest in Antigua & Barbuda?
May 6, 2005... "You are an enemy of the State - no white woman can be allowed to own such property!" screamed Senator Asot Michael, Antigua's former Junior Finance Minister in the face of Mrs Natalia Querard, Managing Director of HMB holdings Limited. ...

The Newly Consolidated Brazilian Foreign Exchange Market.
May 6, 2005... At a special session of March 4, 2005, the Brazilian Monetary Council approved Resolution N[bar] 3265 that simplifies the exchange rules theretofore in force and are part of the broader effort of economic reforms aimed at boosting the Brazilian...

Can Internal Documents be Used in a Defamation Suit?
May 6, 2005... Many employers have probably never considered the possibility that a supervisor's negative performance review of another employee, leading to the employee's termination but never circulated outside the office, could support a defamation claim....

Beware - Signing Of Credit Agreements Containing Suretyship Clauses!
May 6, 2005... FROM THE WRITERS If a person signs a credit application form in a representative capacity on behalf of a company or other juristic person and is not advised that the form also contains a personal suretyship by the signatory, such document...

Minimum Security Measures For Personal Data Protection.
May 6, 2005... This article was first published in Computer Law Review International, Issue 6 Editor Verlag Dr. Otto Schmidt, Koln, Germany The new Italian Data Protection Code (Legislative Decree no. 196 of 30 June 2003, which came into force on 1...

Motion Picture Reform In Hungary.
May 6, 2005... By Szabolcs Gall Esq. and Stefan Moldovan The past year has marked a monumental reform in the motion picture industry and on the motion picture culture in Hungary by the adoption of Act II of 2004 on Motion Pictures (the "Film Act") which...

Employee Share Incentive Schemes - A Comparison Of The Old And The Newly Promulgated Income Tax Rules Affecting Such Schemes.
May 6, 2005... FROM THE WRITER Employers are advised to review their existing employee share incentive schemes in the light of the latest tax amendments and accounting disclosure requirements. The changes may place employer and employee in a...

Patents Disclosed During Prosecution Part of Intrinsic Evidence.(V-Formation Inc.)(Benetton Group S.p.A.)
May 6, 2005... The U.S. Court of Appeals for the Federal Circuit recently upheld a district court's grant of summary judgment of non-infringement in favor of the maker of Rollerblade in-line roller skates under a claim construction arrived at, in part, by...

Trust Preferred/Tier 1 Capital and FRB Final Rule.(Federal Reserve Board)
May 6, 2005... Originally published March 2, 2005 The Federal Reserve Board (FRB) recently released1 its final rule2 continuing to allow the inclusion of qualifying trust preferred securities in tier 1 capital subject to certain qualitative requirements...

Employment Law Commentary - April 2005.
May 6, 2005... Case Law Potpourri: Age Discrimination Claims, Pre-employment Medical Tests, Commission Chargebacks, and More This new year has brought a variety of new employment law cases from both federal and state courts. Most offer clarification on...

Opportunities For Investment In Real Property In Cyprus.
May 6, 2005... Cyprus, the third largest island in the Mediterranean, is situated at the crossroads of Europe, Asia, the Middle East and Africa. Its strategic location, sound legal system, excellent infrastructure and reliable communications, relatively low...

Computer Support Specialist Entitled to Overtime and Liquidated Damages.
May 6, 2005... Many employers continue to struggle with the proper classification of computer support personnel under the FLSA. One recent case highlights common mistakes employers make and the consequences that arise from misclassification. In Martin v....

Qualified Retirement Plans: April 2005 Developments.
May 9, 2005... The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the "Act") was signed by the President on April 20, 2005. The Act is generally effective with respect to bankruptcy filings made after October 17, 2005, although some...

No 'Raise or Waive' Rule Regarding Anticipation/Permanent Injunctions Appropriate Absent Exceptional Circumstances.
May 9, 2005... In a case closely watched by the e-commerce world and involving patents asserted by MercExchange against eBay, its subsidiary Half.com and others, the U.S. Court of Appeals for the Federal Circuit affirmed the jury's verdict regarding...

Federal Circuit Affirms Denial of Registration of Surname and Rules Paris Convention Not Self-Executing.
May 9, 2005... The U.S. Court of Appeals for the Federal Circuit upheld the decision of the Trademark Trial and Appeals Board (TTAB) affirming the U.S. Patent and Trademark Office's (USPTO) refusal to register the marks RATH and DR. RATH, even though the...

Qualified Retirement Plans: March 2005 Developments.
May 9, 2005... Schedule A (Insurance Information) of Form 5500 may be more interesting reading soon. The Department of Labor has released Advisory Opinion 2005- 02A providing further guidance on the duty of insurance companies providing insurance coverage...

Labor Law Newsletter - May 2005.
May 9, 2005... Contents Class Action Update: New Class Action Fairness Act Possible "Joint Employer" Status Allows FMLA Claim To Advance Think "Big Picture" When Addressing Workplace Harassment Seventh Circuit Scolds Lower Court For Excusing...

Private Equity in Canada: Recent Developments and Selected Issues.
May 9, 2005... Private equity activity in Canada has, as in the U.S. and elsewhere, continued to suffer the effects of the relatively weak investment environment that has persisted since 2001. Nevertheless, the total amount of capital committed to private...

IP Litigation - The 'Lingzhi' Chinese Medicine Dispute.
May 9, 2005... Background Some of you may have seen or heard a recent TV or radio commercial in Hong Kong in which three famous TV stars announce that the names of the "Lingzhi" Chinese herb products which they have been promoting in a series of...

Health and safety regulations - changes to civil liability.
May 10, 2005... The Health and Safety Executive's consultation process on proposals for amendments to the Management of Health and Safety at Work Regulations 1999 and the Health and Safety (Consultation with Employees) Regulations 1996 ends on 18 May. ...

Economic Update - Interest rates could soon start falling.
May 10, 2005... Today's decision by the MPC to keep interest rates on hold at 4.75% for the ninth month in a row all but confirms that interest rates have peaked, in line with my longstanding forecast. If the MPC was going to raise interest rates once...

Supreme Court Docket Report - October Term, 2004 - No. 10.
May 10, 2005... Originally published April 25, 2005 On April 25, 2005, the Supreme Court granted certiorari in two cases of interest to the business community. Barring extensions, amicus briefs in support of petitioners will be due on June 9, 2005, and...

Breathing New Life into Brownfields Redevelopment: UBTI Exclusions and Benefits.
May 10, 2005... Originally published April 2005 The term "Brownfields," used to describe abandoned, idled or under-used industrial or commercial properties with real or perceived environmental contamination, is now wellentrenched in the American lexicon....

Guide to Establishing a Subsidiary in China.
May 10, 2005... As China's strength in the global economy continues to grow, businesses need to consider the prospect of establishing operations within its borders. In order to successfully transact business in China or with Chinese enterprises, foreign...

Sex Discrimination Act : Reforms Ahead.
May 10, 2005... Originally published May 2005 Nearly 30 years after the UK first introduced laws to outlaw sex discrimination in the workplace, the Sex Discrimination Act is to receive a major overhaul. The reforms, which are designed to implement...

The Disability Discrimination Act 2005 - further developments.
May 10, 2005... The Disability Discrimination Act 2005 received Royal Assent on 7 April 2005. The Act amends the Disability Discrimination Act 1995, introducing provisions that will affect providers of transport, public authorities, membership of private clubs...

Commercial Use: Requirement Differs Under Trademark Infringement and Anticybersquatting Laws.
May 10, 2005... Article by Robert W. Zelnick and Kathrin Tauber Addressing the issue of whether "non-commercial use" of a trademark is actionable under the trademark infringement and anticybersquatting portions of the Lanham Act, the U.S. Court of Appeals...

Rights of Copy Owner not Necessarily Dependent on Formal Title.
May 10, 2005... The U.S. Court of Appeals for the Second Circuit has held that the owner of a copy of a copyrighted software program can lawfully exercise the rights of s.117(a) copyright "owner," even without formal title to the copy. Krause v. TitleServ,...

Deloitte Weekly VAT News - week ended 6 May 2005.
May 10, 2005... Property outsourcing - "virtual" assignments Businesses that wish to "outsource" their property requirements may not be facing an extra VAT hurdle. The High Court has decided that where a landlord contractually prevented a tenant from...

SBA Regulatory Change Enhances the SBIR Program and Provides new Investment Opportunities for Venture Captal Firms in SBIR Participants.(Small Business Administration)(Small Business Innovation Research)
May 10, 2005... Article by David T. Ralston, Jr. and Stephen B. Maebius1 The Small Business Innovation Research (SBIR) program implements the Small Business Innovation Development Act, which requires certain federal departments to reserve 2.5% of their...

New Restrictions (and New Opportunities) in Donating Trademarks, Copyrights and Other Intellectual Property.
May 10, 2005... Article by Richard F. Riley, Jr. and Terri W. Cammarano* Congress has radically changed the rules for deducting charitable contributions of copyrights, trademarks, patents and other intellectual property. The new rules apply to donations...

BVI News update.(British Virgin Islands)(Brief Article)
May 10, 2005... On 29 March 2005, the Supreme Court ( Non-Contentious) Probate Rules, 1986 were amended by the Supreme Court (Non-Contentious) Probate (Amendment) Rules, 2005 to do away with the requirement for bonds and sureties in applications for letters of...

Basel Committee Publishes Guidance on Bank Compliance Function.
May 11, 2005... The Basel Committee on Banking Supervision ("Basel Committee") published guidance on compliance and the compliance function in banks (the "Guidance"). The Guidance describes "compliance risk" as the "risk of legal or regulatory sanctions,...