Mondaq Business Briefing articles from September 2006

Mondaq Business Briefing archives from September 2006

Hear the Band - Trademarks Also Move to the Beat of the "Sublicensing Rule".(Miller v. Glenn Miller Productions Inc.)
September 1, 2006... The U.S. Court of Appeals for the Ninth Circuit affirmed a district court's extension of the well-established "sublicensing rule" from copyright and patent law, i.e., that a licensee is not entitled to sublicense the licensed rights to a third...

Good Faith Is Predicate to Fair Use Trademark Defense.
September 1, 2006... Addressing the issue of the good faith requirement as an element of fair use in a trademark infringement matter, the U.S. Court of Appeals for the Eleventh Circuit held that the standard of good faith is the same as in any other trademark...

Trade Secret Protection and the World Wide Web Don't Mix.(Midsummer Financial Products, Inc. v. Rapid Filing Services LLC)
September 1, 2006... In a rare decision focusing on trade secret law, a New York court held that a corporation providing online tax preparation services cannot receive trade secret protection for its online content because it is "publicly exhibited on the website...

Agricultural Bulletin - August 2006.
September 1, 2006... Featured in this issue are developments in the bioenergy industry that could change the outlook for the arable sector. Another article discusses the best way to structure farming companies, especially if land has significant development value....

Biofuels Drive Confidence.
September 1, 2006... With the harvest season upon us, there appears to be growing optimism in the arable sector. The main reason is the increasing interest in bioenergy and the effect this is having on crop values. The high price of oil and Government...

Single Payment Scheme Round-up.
September 1, 2006... Payment target missed David Miliband, the new Head of DEFRA, has admitted that the Rural Payments Agency (RPA) has missed its payment target for 2005. Under EU rules, 96% of payments needed to be made by the end of June. It was calculated...

Congress Passes Sweeping Charitable Incentive And Reform Package: Considerations For Nonprofit Organizations.
September 1, 2006... The pension reform bill, H.R. 4, recently passed by Congress and soon to be signed into law by President Bush, contains a sweeping package of incentives and reforms related to charities and charitable contributions. While these measures are...

International Client Alert, August 2006.
September 1, 2006... The Chinese "Catch-All" Saga Continues Article by Clif Burns On August 9, the Bureau of Industry and Security ("BIS") announced a series of regional meetings on the Chinese "catch-all" rules in an effort to quell the rising tide of...

The Stock Option Backdating Scandal: Lessons for Privately-Held Companies.
September 1, 2006... The publicity surrounding backdating of stock option grants has focused on publicly traded companies. Pillsbury Winthrop Shaw Pittman and its Stock Option Task Force are actively engaged in the representation of companies and boards of...

Litigating Environmental Claims Against The United States: One Post-Aviall Bar Removed.(Cooper Industries Inc. v. Aviall Services Inc.)
September 1, 2006... As experienced environmental litigation counsel know, since Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004) (holding that the plain language of CERCLA s. 113(f) does not allow parties to bring a contribution claim unless...

China Law Bulletin, August 2006.
September 1, 2006... Amended China M&A Rules Alter the Landscape of Offshore-Onshore Restructurings in China On August 8, 2006, the Ministry of Commerce ("MOFCOM"), joined by other government authorities, amended and released the M&A rules of domestic...

Personality Tests: Proceed With Caution.
September 1, 2006... In a world where dating services promise to identify ideal mates through personality tests, it's tempting for employers to imagine the same might be true for identifying ideal employees. Indeed, roughly 30% of all companies, including big names...

Arrangements for Reciprocal Enforcement of Commercial Judgments Between Mainland China and Hong Kong.
September 1, 2006... For a long time, businesses in Mainland China and Hong Kong have proceeded on the belief that judgments obtained in the courts of Hong Kong are unenforceable on the Mainland and vice versa. Up to now, no laws or treaties existed that...

Communications Law Bulletin, August 2006.
September 1, 2006... The Month in Brief August of 2006 saw Congress and state legislatures in recess, much of Washington on vacation and the election season heating up. Although these are not the best conditions for momentous regulatory and legislative...

Employee Benefits Report: The Pension Protection Act of 2006 - Health and Welfare Plan Changes.
September 1, 2006... The Pension Protection Act of 2006 (the "PPA," the "Act") was signed by President Bush on August 17, 2006. The Employee Benefits practice group of Thelen Reid & Priest LLP has issued a series of reports that summarize selected provisions of...

Employee Benefits Report - Defined Benefit Funding Changes.
September 1, 2006... This Employee Benefits Report is the fifth of a series being issued regarding the Pension Protection Act of 2006. This Report summarizes the new funding rules the Act provides for single and multiemployer defined benefit plans. The Act...

Employee Benefits Report: The Pension Protection Act Of 2006-Defined Contribution Plans.
September 1, 2006... The Pension Protection Act of 2006 (the "PPA," the "Act") was signed by President Bush on August 17, 2006. The Employee Benefits practice group of Thelen Reid & Priest LLP has issued a series of reports that summarize selected provisions of...

CMS Issues Final Standards For Suppliers Of Durable Medical Equipment, Prosthetics, Orthotics, And Supplies.( order to receive Medicare reimbursement)
September 4, 2006... Executive Summary Action: On August 14, 2006, the Centers for Medicare & Medicaid Services ("CMS") issued quality standards that suppliers of durable medical equipment, prosthetics, orthotics, and supplies ("DMEPOS") must meet in order to...

Agreements To Submit Disputes To A Judicial Referee May Allow Employers To Avoid The Pitfalls Of Jury Trials And Arbitration.(Case overview)
September 4, 2006... The United States Supreme Court endorsed the use of binding arbitration to resolve employment disputes in 1991. Since that time, many employers have implemented policies of binding arbitration as a way to avoid the vagaries of a jury trial....

More Support Changes On The Way?(agricultural policy)
September 4, 2006... The industry is still struggling with the fallout from previous reforms of the CAP, but attention is now switching to what might come next. As part of the 2003 Fischler Reforms, it was written into the legislation that a review of the...

Use Of Farming Companies.( companies paid on profits and the income tax)
September 4, 2006... Historically, many farming companies were set up to take advantage of the large disparity between the rates of corporation tax that companies paid on profits and the income tax an individual pays. These advantages have slowly been eroded by...

Milk Production In Decline.(farm business consultants, for their contribution to this bulletin)
September 4, 2006... It seems that the 2005-06 milk year will see a record shortfall of wholesale UK production against quota. The RPA has not yet confirmed the figures, but the final position could see production levels at more than 300m litres below quota....

Hill Farm Allowance.(Regulated by the Institute of Chartered Accountants in England )(Brief article)
September 4, 2006... Therefore the information that producers entered on their 2006 SPS forms will be used to calculate the payment levels. Rates are unknown at present - they tend to be set once all the claims have been processed. Looking forward, it seems...

Environment Calendar - September 2006.(environment management system)(European Commission proposal)
September 4, 2006... The environment calendar highlights key dates for proposed and existing legislation and policy and closing dates for consultation papers relating to major environment issues in the EU and England. It will provide a useful tool for...

New Caps On Supplier Liability In Government ICT Contracts.
September 5, 2006... Article by Irene Zeitler, Partner, Freehills. On 16 August 2006, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan released Guide to limiting liability in Information and Communication Technology...

More Than An Inconvenient Truth: Making Sense Of The California Global Warming Solutions Act Of 2006.
September 5, 2006... On August 30, 2006, Governor Schwarzenegger announced that he had reached an "historical agreement" with the California Legislature to create a new regulatory regime to combat global warming. The deal will lead to the enactment of AB 32, a bill...

A Series of Recent Regulations Pose New Challenges for China's Private Equity and Venture Capital Industry.
September 5, 2006... Less than a year after the State Administration of Foreign Exchange ("SAFE") Circular No. 75, heralded the resumption of private equity and venture capital ("PE/VC") investments which had stalled under SAFE Circulars No. 11 and 291, the PE/VC...

The Monopolist's Lament.
September 5, 2006... The dawn of liberalisation It's tough running a monopoly: you need a thick skin. The pay is good, of course, but after a while the slings and arrows of public discontent start to prick. At the Islands' Christmas pantomime last December,...

Sebi Permits Launch Of Capital Protection Schemes.(Securities Exchange Board of India )(Brief article)
September 5, 2006... Initially, Securities Exchange Board of India (SEBI) had banned all assured returns and capital schemes, constituting popular investment grounds globally, from the Indian market. After considerable lobbying, primarily by the Association of...

Liberalization Of Overseas Investment By Mutual Funds.(Brief article)
September 5, 2006... At present Mutual Funds registered with the Securities and Exchange Board of India (SEBI), are entitled to invest in American Depository Receipts (ADRs) / Global Depository Receipts (GDRs) issued by Indian companies, rated debt instruments and...

BP's (Green) Colour Mark Revoked By Australian Full Court.
September 5, 2006... Take home On 4 September 2006, the Full Court of the Australian Federal Court handed down judgment in Woolworths Limited v BP plc [2006] FCAFC 132. In essence, to establish that a colour has in fact become distinctive of your goods and...

The Impact Of Non-Party Access To Court Documents.
September 5, 2006... Statutory Instrument 2006/1689 - the Civil Procedure (Amendment) Rules 2006 - comes into effect on 2 October 2006. Its effect is to amend Rule 5.4 of the CPR to widen access that the public (including the press) may gain to court documents and,...

Hotel TV Is "Communication To The Public".
September 5, 2006... The common understanding of "the public" probably conjures up images of a large gathering of people who are audience to an act such as the showing of a film or performance of a play. But the question of what constitutes "the public" in a...

Leading Offshore Law Firms Appleby Spurling Hunter And Bailhache Labesse Complete Merger.
September 5, 2006... Offshore law firms, Appleby Spurling Hunter and Jersey-based Bailhache Labesse, have today - 1st September 2006 - formally completed their merger. First announced in May 2006, the combined group is now called Appleby Hunter Bailhache and...

Acheson & Glover Helps Weave Old With New At Linen Green.
September 5, 2006... Northern Ireland based paving specialist, Acheson & Glover Group has weaved its magic into the landscaping of the new Linen Green designer outlet village, close to the Company's Headquarters in Dungannon, County Tyrone. They developed a...

SEC Staff Provides No-Action Relief As A Result Of Court's Goldstein Decision.(Securities and Exchange Commission)
September 5, 2006... On August 10, 2006, the staff of the Division of Investment Management of the Securities and Exchange Commission issued a "no-action" letter to the American Bar Association's Subcommittee on Private Investment Entities to provide guidance to...

Data Exclusivity - TRIPS Compliant or TRIPS Plus?(Trade-Related Aspects of Intellectual Property Rights)
September 5, 2006... Intellectual Property as such gives a right to control the activities of others and this has a number of implications, which could give rise to issues resting on delicate grounds. The theory behind the patenting system is that the financial...

Exploring Legal Spaces in Fashion.
September 5, 2006... Creativity is not an IP "Fashion is not something that exists in dresses only; fashion is something in the air. It's the wind that blows in the new fashion; you feel it coming, you smell it... in the sky, in the street; fashion has to do...

Curbing the Menace of Typosquatting.
September 5, 2006... Every website has a unique and distinctive Internet Protocol Address. This IP Address comprises of a set of numerals. The Domain Names System allocates an easy to remember name to the numerals and these are the domain names. Thus these...

Patenting Insurance Innovations.
September 6, 2006... Originally published in the July/August 2006 issue of Canadian Insurance The Emergence of Software and Business Method Patents Has Marked a Shift in the Competitive Landscape for a Number of Industries, Including Insurance. In recent...

Document Destruction - A New Criminal Offence.
September 6, 2006... The introduction of the Crimes (Document Destruction) Act 2006 (Vic) (Act) will impact everyone that does business in Victoria. The new legislation follows the widely publicised, Victorian Court of Appeal decision in British American...

USCIS Announces Premium Processing Service Expansion to Some EB-3 I-140 Immigrant Visa Petitions.(United States Citizenship and Immigration Services)
September 6, 2006... On August 18, 2006, the United States Citizenship and Immigration Services (USCIS) announced that commencing August 28, 2006, applicants for certain third preference (EB-3) immigrant petitions may pay a premium processing fee and receive an...

Recently Enacted Pension Protection Act Establishes New COLI Rules.(new restrictions on employers wanting to benefit from certain tax)
September 6, 2006... On August 17, 2006, President Bush signed into law the Pension Protection Act of 2006 (Pub. L. No. 109-280) (the "Act") which imposes new restrictions on employers wanting to benefit from certain tax advantages on corporateowned life insurance,...

The Cross-Border Woes Of Conrad Black - The Dilemma Of Differing Approaches To Self-Incrimination In Canada And The US.
September 6, 2006... Conrad Black and other officers and directors of Ravelston must attend to be examined under oath, even though there is a risk that their evidence could be used against them in criminal proceedings in the US, the Ontario Court of Appeal ruled in...

Is Collective Rights Management The Future Of Italian Soccer?
September 6, 2006... The 'Soccergate' scandal, which erupted following a wire-tapping investigation of many of the key figures in Italian football, finally resulted in the relegation of Juventus football club from Serie A, the top division, to Serie B. Juventus...

Share Options Corporate Fraud.
September 6, 2006... Article by Sally Ramage * The backdating of share option grants by public companies may possibly have occurred in thousands of companies in the USA, UK and elsewhere. In the United States, several dozen companies have received inquiries...

Health And Safety Calendar - September 2006.(prosecuted for dealing with an unlicensed labour provider)
September 6, 2006... The health and safety calendar highlights key dates for proposed and existing legislation and policy and closing dates for consultation papers relating to major health and safety issues in the UK and EU. It will provide a useful tool for...

Client Alert - Energy.(Federal Energy Regulatory Commission )
September 6, 2006... On August 23, 2006, the Federal Energy Regulatory Commission ("FERC") issued a final rule (Order No. 682) requiring natural gas companies to report serious damage to their facilities caused by hurricanes, other natural disasters, or terrorist...

Fraud Watch - September 2006.
September 6, 2006... Welcome to the September edition of Mishcon Fraud Watch, prepared by the Corporate Investigations & Asset Recovery Group at Mishcon de Reya. Its aim is to provide businesses and their advisors with a snapshot of what has been happening in the...

Culture vs Corruption Diary - September 2006.
September 6, 2006... Welcome to the September edition of Mishcon's Culture vs Corruption Diary, the object of this diary is to provide businesses and their advisors with a snapshot of what is happening in the world of corruption in the last month. We make no...

Public Awaits New Rules Limiting Continued Examination Filings And Limiting The Initial Examination Of Claims.
September 6, 2006... Article by Jim Brogan, Bill Galliani, Christopher Hutter, Michael Tuscan & Kevin Zimmer On January 3, 2006, the United States Patent and Trademark Office ("the PTO") proposed new rules aimed at limiting continued examination filings (71...

Pension Protection Act Of 2006: Ice Age For The Defined Benefit Dinosaur?(changes to the rules governing 401(k) and other defined contribution plans)
September 6, 2006... The Pension Protection Act of 2006 (the "Act"), which was signed into law by President Bush on August 17, 2006, represents the most comprehensive revision to the laws governing retirement plans since the enactment of the Employee Retirement...

New Partner Appointed To Hong Kong Office.(Harney Westwood & Riegels )(Brief article)
September 6, 2006... The Hong Kong office of Harney Westwood & Riegels is pleased to announce the arrival of Michael Gagie, a partner from the BVI office. Michael is regularly cited in the global legal directories as one of the leading corporate lawyers in the BVI....

The UK Design & Build Market Development Report - July 2006.(Industry overview)
September 6, 2006... After researching the UK Design & Build Market Development and taking into account various other factors the following major conclusions can be drawn from MBD's report. Market Review 2001 - 2005 The UK market for design & build...

UK Launch Of Roofing Supplies Direct.(Company overview)
September 6, 2006... Roofing Supplies Direct is a new UK based business specialising in the supply and delivery of products for builders merchants. Operating throughout the UK, the company stocks an extensive range of roofing and insulation materials, including a...

ACE Welcomes Results Of Government Energy Review Particularly Statement Of Support For Nuclear Power.(Association for Consultancy and Engineering)
September 6, 2006... The Association for Consultancy and Engineering (ACE) this week broadly welcomed the results of the government's recent energy review, the re-affirmation of support for new energy technologies and renewables and the statements relating to...

'Health And Safety Critical To Olympic Project' - Lemley.(Interview)
September 6, 2006... A new Health and Safety Standard showing how the ODA intends to ensure that workers constructing the venues and facilities for the London 2012 Olympic and Paralympic Games are kept safe and healthy was published today. As part of the 'Be Part...

Hyder Bridge Specialists Scoop [pounds sterling]30m Abu Dhabi Contract.(contracts and sales and earnigns of the company)
September 6, 2006... Hyder Consulting, the leading environmental, planning, engineering and management consultancy, has been awarded a [pounds sterling]30 million (AED 200 million) detailed design contract for three major structures at the Mafraq Interchange in Abu...

Ceramic Fuel Cells Achieves Key Further European Safety Approval.(for NetGenTM)
September 6, 2006... Ceramic Fuel Cells Limited (CFCL), a world leading manufacturer of solid oxide fuel cells and provider of enabling technology for micro-combined head and power (m-CHP) units, has been awarded European "CE" safety approval for NetGenTM, its...

Safety On The Railway: Good Progress, But More To Achieve.(Brief article)
September 6, 2006... Originally published 12th July, 2006 Network Rail welcomes the publication today of the Office of Rail Regulation's (ORR) Railway Safety Annual Report. The figures, for calendar year 2005, show further significant improvements in key safety...

Pearce Appointed To Sovereign Housing Association Framework.(Sovereign Development Consortium)
September 6, 2006... Originally published 11th July, 2006 Pearce Group has won a four year framework with the Sovereign Development Consortium, joining a panel of four contractors who will build up to 500 affordable homes per year over the next four years. 60...

Atkins To Be Represented On RTIG Executive Committee.(Gareth Tilley, Real Time Information Group)
September 6, 2006... Gareth Tilley from Atkins Transport Systems has been elected by the Real Time Information Group's supplier community to help represent them on the executive committee. RTIG is the industry body seeking to enable the deployment of real time...

Phillips Fox Announces Merger With Gadens Lawyers In Perth.
September 6, 2006... Leading commercial law firm Phillips Fox today announced a merger with the Perth partnership of Gadens Lawyers. The merger excludes Gadens' volume banking practice. The merger comes four months after Phillips Fox opened its fully...

Preparation and Monitoring: The Keys to Brand Protection in China.
September 6, 2006... In contemplating doing business in China, companies tend to gravitate to one of three approaches to intellectual property risk. Some avoid the country altogether out of concern about counterfeiting, the black market or product diversion....

Pension Protection Act Of 2006 Makes Sweeping Changes To Funding, Investment, Qualification And Other Employee Benefit Plan Rules.(Employee Benefit Plan Rules)
September 7, 2006... The Pension Protection Act of 2006 (H.R. 4) (the "Act"), which was passed by the House of Representatives on July 28 and the Senate on August 3 and has been sent to the President for his signature, makes significant changes to a wide variety of...

New Federal Waters To Navigate For Foreign Investment In The United States.(foreign direct investment)
September 7, 2006... The federal government is moving toward increased scrutiny of foreigners' efforts to acquire "critical infrastructure" in the United States, particularly assets that could be related to national security. This means that foreign companies,...

HHS Issues Final Regulations To Facilitate Donations of Health Information Technology.(Department of Health and Human Services)
September 7, 2006... The Federal fraud and abuse laws have acted as barriers to health information technology (HIT) products being fully utilized in the health care industry, despite the obvious advantages of HIT for efficiency and patient safety. For example, a...

Climate Change: California Global Warming Solutions Act Of 2006.(comprehensive greenhouse gas)(Climate Action Team)
September 7, 2006... Yesterday, on the last day of its two-year session, the California Legislature passed Assembly Bill 32, the "California Global Warming Solutions Act of 2006." Passage by the Legislature followed an "historic agreement" between the legislative...

Export Controls Reduced On Libya And Iraq - Amendments To Regulations Expand Opportunities For Exports.(Export Administration Regulations )
September 7, 2006... On August 31, 2006, the U.S. Department of Commerce's Bureau of Industry and Security (BIS) amended the Export Administration Regulations (EAR) to implement the decisions by the U.S. Government to remove Libya and Iraq from the list of state...

Evolution Of The Multiyear Rule Requires Removal Of The Five-Year Term Limitation.
September 7, 2006... Originally published in Public Contract Law Journal, Vol. 35, No. 4 , August 01, 2006 I. INTRODUCTION Federal appropriations law requires that agencies have specific statutory authority in order to enter into contracts in excess of one...

Gift Rule Guidelines: Ensuring Goodwill Gestures Do Not Backfire.(Government contractors are bound by stringent rules)
September 7, 2006... Originally published in The Government Contractor, Vol. 47, No. 5, February 2, 2005 Government contractors are bound by stringent rules surrounding gift giving to Government employees. For example, last year a contractor was sentenced to...

Investigation Agents And The Law*.(Information Commissioners Office)
September 7, 2006... The advice most often given to prospective litigators usually appears in the form of three questions. First, do you have a case? Then, is the claim time barred? And, finally, is the Defendant "good for the money"? It is when lawyers come to...

New Independent Oversight Regime Adopted For Investment Funds.
September 7, 2006... NI 81-107 aims at improving fund governance by requiring investment funds to establish Independent Review Committees. The Canadian Securities Administrators (CSA) have finalised NI 81-107 - Independent Review Committee (IRC) for Investment...

SEC Overhauls Rules On Executive Compensation Disclosure.(Securities and Exchange Commission)(Brief article)
September 7, 2006... Hardly a day goes by without an incendiary story in the press depicting the perceived excesses of executive compensation or the purported well-upholstered lifestyles of a select group of corporate executives: enormous pay and perquisite...

Immigration From Eastern Europe.(conference on immigration issues)
September 7, 2006... At a recent conference on immigration issues held at CMS Cameron McKenna's offices, Jack Dromey, the Secretary General of the TUC, told a poignant story about a complaint he had received from trade union leaders concerning the use of Polish...

Northern District Of California Rules Online Auction Buyer Must Sue In Seller's Forum.
September 7, 2006... Recently, Chief Judge Vaughn Walker of the Northern District of California ruled in Boschetto v. Hansing (Case No. C-06-1390, order issued July 13, 2006) that a Wisconsin resident's sale of a vehicle on eBay to a California resident did not...

Injured Workers May Claim Disability Discrimination Under California's Fair Employment And Housing Act.
September 7, 2006... As California worker's compensation caseloads decline due to the 2004 overhaul of the state's Worker's Compensation system, many applicants' attorneys are now filing disability discrimination claims for injured workers under California's Fair...

Perspective: Fiddling While Rome Burned.(Data security)
September 7, 2006... Reprinted with permission from CNET News Despite all the attention lavished on data security, most U.S. corporations still do not think that they can prevent data breaches. A just-released report provided first to this columnist,...

Hedge Fund Services: An Industry Whose Time Has Come.
September 8, 2006... Originally published in Hedgeweek Special Report, Sept 2006 It can be argued that in the past Jersey missed opportunities to enter the hedge fund market when it was still in its infancy. In the 1980s and early 1990s, service providers and...

SEC Adopts Sweeping Changes To Executive And Director Compensation Disclosure Rules - Part 1.(Securities and Exchange Commission)
September 8, 2006... On July 26, 2006, the SEC adopted sweeping changes to its rules for disclosing compensation of executive officers and directors of public companies, information about related person transactions, director independence and other corporate...

SEC Adopts Sweeping Changes To Executive And Director Compensation Disclosure Rules - Part 2.(Securities and Exchange Commission)
September 8, 2006... If the exercise price of an option is not the closing price of the company's stock on the date of grant (regardless of whether it is higher or lower than the closing price), narrative or footnote disclosure must describe the methodology for...

The Cost Of Good Health - Court Awards [pounds sterling]800,000 To Bullied City Worker.
September 8, 2006... Mishcon de Reya represented Helen Green against Deutsche Bank in this landmark case, which saw her being awarded over [pounds sterling]800,000 in damages. Miss Green was the victim of "a relentless campaign of mean and spiteful behaviour...

Introduction To Doing Business In Myanmar.
September 8, 2006... The following pages outline the legal environment in Myanmar applying to a foreign investor wishing to invest in Myanmar through a locally incorporated limited liability company.1 WHY INVEST IN MYANMAR? For several reasons Myanmar is a...

California Court Rejects "Narrow Restraint" Exception To State's Prohibition On Non-Compete Agreements.
September 8, 2006... A California appellate court expressly rejected a "narrow restraint" exception to California's non-compete statute, an exception relied on by federal courts to enforce non-competes against California employees where the restraint excludes an...