The government recently announced that it will legislate to update the restructuring and insolvency systems, with the aim of the United Kingdom retaining the gold-standard regime. The reforms are a response to international developments (with countries such as Spain and the Netherlands recently introducing updated insolvency systems) and some domestic corporate collapses which have put the UK system under stress.
The United Kingdom's corporate governance regime has been stress tested in the past decade and in many respects it has done well. However, in response to certain high-profile corporate collapses which have caused heavy losses for creditors – in particular, individuals and suppliers with little opportunity to protect themselves against losses – and in the spirit of continual improvement, the government recently launched its Insolvency and Corporate Governance consultation.
A liquidator recently pursued a claim that the transfer of a company's trading inventory in satisfaction of money owed to the company's former director was a transaction at an undervalue and preference. The judge agreed, holding that the inventory transfer had been entered into with the intention of putting the former director in a better position than she would have been in on the company's liquidation.
The High Court recently struck out a claim by a liquidator who had already brought a claim arising from the same facts against the same defendants. The court relied on the fact that the economic benefit of pursuing the claim would accrue only to the liquidator and held that the second claim constituted an abuse of process, as monies recovered would simply be paid back to the respondents as creditors, less the liquidators fees and costs.
A liquidator recently applied for permission to amend his claim for fraudulent trading. The claim related to purported defrauding of Her Majesty's Revenue and Customs (HMRC) for non-payment of value added tax. Among other things, the judge held that whilst the costs order constituted loss to HMRC as a creditor, no valid claim in respect of costs was pleaded against the respondents and therefore there was no reasonably arguable case on the point.
In 2016 McMug Ltd successfully filed a UK trademark application for the mark OKAYEST for a number of products, including beer mugs, chinaware and flasks. However, AMC Photographics Limited challenged the mark's validity on the grounds that, among other things, it was devoid of distinctive character and was a wholly descriptive dictionary word (a superlative of okay). This case is a useful reminder that, even after registration, a mark can be challenged on the grounds of non-distinctiveness and descriptiveness.
Leicester City Football Club Limited recently opposed Leeds City Football Club Limited's application for a graphical trademark covering various goods and services in Classes 16, 25, 26 and 41. Leicester City's claims relied on its earlier mark for the acronym 'LCFC'. In comparing the goods and services covered by the two trademarks, the UK Intellectual Property Office held the parties' goods to be identical and their services to be identical or at least highly similar.
A UK Intellectual Property Office (UKIPO) opposition was recently brought by eBay Inc against an application by the games company SC Zumedia Games SRL to register a figurative trademark. eBay relied on two earlier registered UK word marks for EBAY in Classes 35, 38 and 41 and figurative EU trademarks in various classes. While the UKIPO accepted that eBay has a protectable goodwill, it was satisfied that there was no likelihood that a substantial number of eBay's customers would be misrepresented.
In 2017 an application was filed to register LIFEWEAR CLOTHING as a UK trademark for clothing and headgear. The application was opposed by Fast Retailing Co, Ltd, the owner of the well-known UNIQLO brand, based on their trademark registrations and the reputation of UNIQLO LifeWear, as well as their unregistered rights in the term 'life wear' for clothing. UNIQLO's earlier rights covered identical goods to those applied for, making it easier to argue a likelihood of confusion (or association) between the marks.
Under Section 46 of the Trademarks Act 1994, a registered trademark can be removed from the register if there has been no genuine use of that mark for five years or more. This is the crux of the so-called 'use it or lose it' argument. But how much evidence is needed to prove genuine use? This question was put to the UK Intellectual Property Office during a recent revocation application.