Objectives of Directive 2016/943

      Comments Off on Objectives of Directive 2016/943
  • Objectives of Directive 2016/943

2.1 The 2016 Directive is to be implemented by all Member States by June 9th 2018 so as to conform to a singular approach to trade secret protection. This principle is set out in the preamble[1] as it is emphasized that various Member States have a different approach to trade secret protection and that there is no “equivalent level of protection throughout the Union”, which ultimately has a negative effect on the internal market in relation to cross-border trade. This illustrated the need for harmonization of trade secret protection law within the EU, which is ultimately the objective of this directive – to achieve a better functioning of the internal market through harmonizing the law in relation to trade secrets.[2]

2.2 When considering trade secrets, they can often be thought of in conjunction with intellectual property rights, however they do not possess the same protection as, for example trademarks, patents or copyrights. There are a number of directives and regulations[3] protecting the aforementioned intellectual properties, however the 2016 Directive seeks to afford a basic level of protection of the business know-how as well, by introducing legislation that sets out a basic definition of trade secrets and provides rules on when the infringement of trade secrets has occurred.[4] This is a welcome addition to the EU legal system, as now after the implementation of the 2016 Directive, across the EU, business runners will be afforded a level of protection in operating their business in relation to trade secrets, as all businesses are susceptible to being undermined by their competition in various ways, including unlawful use of those trade secrets.[5]

[1] Directive (EU) 2016/943, Recital (8), www.abogadosaccidenteskp.com

[2] Anna Aurora Wennakoski, “Trade secrets under review: a comparative analysis of the protection of trade secrets in the EU and in the US” [2016] E.I.P.R. 2016, 38(3), p 2

[3] The European Union has developed a number of protection directives and regulations for intellectual properties, most recently, in each area the Directive (EU) 2015/2436 to approximate the laws of the Members States relating to trade marks [16 December 2015], Regulation (EU) 2015/2424 amending Council Regulation (EC) No 207/2009 on the Community trade mark and Commission Regulation No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) [16 December 2015], the Council Regulation (EU) No. 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements [2012], Council Decision No. 2011/167/EU of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection [2011] and Directive on the term of protection of copyright and certain related rights amending the previous 2006 Directive (“Term Directive”) [27 September 2011]

[4] Directive (EU) 2016/943 Article 4

[5] Jon Lang “The protection of commercial trade secrets” E.I.P.R. [2003], 25(10), 462-471

 

Adultery question

      Comments Off on Adultery question

This post is sponsored by Notary public London

The Grounds of Divorce and Dissolution

The grounds for invalidity of a civil partnership mirror those of marriage – a civil partnership cannot thus be valid if the parties are

  • Of different sexes
  • Under 16
  • Within the prohibited degrees of relationship
  • Already in a civil partnership
  • Incapable of understanding nature of civil partnership
  • Do not give consent to the marriage
  • However, as in marriage, the parties cannot claim that there was tacit withholding of consent at time of constitution of partnership and so the marriage is not valid.

Adultery

By S1(2)(a) of the Divorce (s) act 1976, irretrievable breakdown of marriage is established if “since the date of marriage the defender has committed adultery”

Statutory ground but A itself defined by common law

  • DSA 1976, s1(2)(a) & s1(3A)
  • IB is estab’d by proof of A since date of marriage
  • A not a ground for dissolution of CP as such [impossible – A is gender specific, voluntary vaginal sexual intercourse by a married person with another person of opposite gender who is not their spouse]
  • Civil P’ship – vaginal sexual intercourse with another probably constitutes intolerable behaviour in context of CP. And homosexual activity too.
  • Same sex mge – vaginal sexual intercourse with person of opposite sex you are not married to is A
  • Same sex mge – homosexual activity with another not A by definition but probably intolerable behaviour

Sands v Sands, OH, 1964 S.L.T. 80, Lord Walker

  • W brought a fresh action for divorce on the grounds of cruelty & adultery.
  • W had previously been granted divorce on the ground of cruelty but that that decree had been reduced on the ground of personation & perjury.
  • The adultery of the H committed between the raising by H of the action of reduction of the former decree of divorce and the date when decree of reduction was pronounced.
  • H pleaded that the averments relating to his adultery were irrelevant inasmuch as at the date when the adultery was alleged to have been committed the decree of divorce had not been reduced and no matrimonial guilt could be attached to his actings.
  • Held, that the averments of adultery were relevant and proof of adultery allowed.

Continue reading

Briefly outline ALL the grounds of divorce and dissolution

      Comments Off on Briefly outline ALL the grounds of divorce and dissolution

Q4 Briefly outline ALL the grounds of divorce and dissolution of civil partnerships in Scotland then select one of the irretrievable breakdown grounds and explain in detail, how it applies in practise with reference to legal principles and cases as appropriate

Two grounds of divorce or dissolution. Gender recognition certificate or irretrievable breakdown. Divorce (s) Act 1976 & Civil Partnership Act 2004

CP – Grounds for invalidity mirror marriage – cannot be valid if; different sexes, under 16, already in CP or does not give consent to marriage. DeathPresumption of Death (s) Act 1977 Actual/presumed – if spouse/cp is not known to be alive for 7yrs. Presumption is rebuttable by proof up to granting of CT decree.  Can re-marry (does not revive marriage however)

Adultery S1 (2) a Divorce (s) Act 1976

Irretrievable breakdown of marriage is established if “since the date of marriage the defender has committed adultery”. Cheating essentially. Adultery is not a ground for divorce for dissolution for CP as it would be impossible. Adultery is gender specific, voluntarily having sex by married person who isn’t their spouse. CP – constitutes intolerable behaviour. Same sex is not adultery its intolerable behaviour

Hunter v Hunter 1900 – Presumption of death case

Mr H deserted her and ran off to Canada and had not contacted her in a long time. She presumed he was dead and got involved in a new marriage. He returned, sought divorce on her adultery. She didn’t ask for one when he deserted so court held her to be guilty of adultery. Divorce was granted.

Defences for Adultery

Lenocinium s1 (d) Divorce (s) Act 1976 “Pimping”

Essence of defence us that pursuer actively promoted the defenders adultery or was Art and Part of defence. E.g “pimping”

Gallacher v Gallacher

Mr G wrote to wife urging her to give him grounds for divorce. So she found new lover. Held, she wouldn’t have done this but Mr G was urging. However no divorce was granted. 6yr later, he tried again and at the time Mrs G was still with new lover. Her defence for Lenocinium failed this time as she chose herself to live with new man and could say she was forced. Divorce granted.

Condonation s1 (1) 3 – Pursuant know of the adultery but continue to live with the defender and amounts to “legal forgiveness” period of cohabitation up to 3 months is permitted, this act encourages reconciliation.

Behaviour – s1 (2) Divorce (s) Act 1976 + 117 (3) Civil Partnership act 2004

Intolerable behaviour in marriage or CP is “since date of marriage or registration of CP, the defender has at any time behaved in such a way the pursuer cannot reasonably be expected to cohabit with defender. A mere physical condition doesn’t constitute as behaviour.

Tharlow v Tharlow 1975

Continue reading

The legal formalities required for a valid marriage or civil partnership

      Comments Off on The legal formalities required for a valid marriage or civil partnership

Q3 Describe the legal formalities required for a valid marriage or civil partnership to proceed together with an explanation of the disqualifications or impediments (apart from lack of consent) that might render the proceedings void.

Marriage (s) Act 1977 laid down conditions and impediments constituted in marriage.

ConditionsAGE S1 (In MSA 1997 and CSA 2004 s86) Individuals are free to marry in Scotland as long as they are 16 + on or before date of marriage. You can get married if you and your partner are of the opposite sex, you are both aged 16 years or over and are either single, widowed, divorced or have dissolved a civil partnership.

You cannot marry in Scotland if you are: – Already married or in a civil partnership. You and your partner must both be single, widowed, divorced or have dissolved a previous civil partnership, under 16 years old, of the same sex (although same sex marriage will shortly be introduced in Scotland), but a same sex couple can register their relationship. The laws are different in Florida check out the system and provisions

Forbidden DegreeS2 – Marriage may take place as long as the individual are not within prohibited degree of relationship.

  • Consanguine – blood related (not allowed)
  • Adoptive – Adoptive parents cannot enter into a marriage with their adoptive children however adoptive siblings may
  • Affinitive – created through marriage or cp – person may not marry/cp with the ex-spouse/cp with her parent.

S5 – Provides legal impediments to marriage which may render it void.

S4 (d) parties cannot understand the nature of the marriage or incapable of consenting to marriage                                 (e) Parties must be opposite sex (f) only valid when it would be valid in a place where parties are domiciled. (If not in scot) applies to both parties.

Corberrtt v Corbertt 1971 – same sex – The court granted a decree of nullity to the husband of a post-operative male-to-female transsexual on the grounds that the respondent ‘is not, and was not, a woman at the date of the ceremony of marriage, but was, at all times, a male’: Two men married, when relationship collapsed, April sued for divorce and other man pleaded marriage was null and void as both men. Held, April was not “female” – could not perform essential role of female. Natural not artificial vagina. No divorce as no marriage.

Continue reading

Parental rights and responsibilities

      Comments Off on Parental rights and responsibilities

Q2 Parental rights and responsibilities. Explain what they are, how they are acquired and how they may be regulated or lost in a legal contest. And how the relevant criteria are interpreted by the courts. Use relevant case authorities. http://www.legislation.gov.uk/ukpga/1995/36/contents

Part 1 of the Children’s (s) Act 1995 – A “child” is generally defined as someone under 18yrs old.

Parental responsibility is the term used to describe the legal duty that a parent has to their child. While biological mothers automatically have parental responsibility, not all biological fathers do. Those who are not automatically given parental responsibility need to apply for it or risk losing their say in how their child is raised. Having parental responsibility gives a father the right to contribute to decision making regarding his child’s future.

The rights and responsibilities are in S1 of the act which gives the following responsibilities; subject to 3(1) (3) A parent has the Responsibility to; Safeguard and promote child’s health and development. To provide in an appropriate manner to development in direction and guidance. If the child is not living with parent, to maintain personal relations and direct contact, act as child’s legal representative but only in interest of child. (Health, education discipline etc)

Fathers who do not have parental responsibility still have to pay child maintenance. Having parental responsibility also does not give someone greater powers over the other parent of the child.

How they are Acquired – 3 types; Automatic, Agreement and court order.

Automatic – child’s mother S3. All mothers at birth. Father but only if married at time of conception or subsequently S3 (b) & Non martial father who registers as such S3 (b) (ii) only applies when man registers on or after 4th may Family law (s) act 2008.

Human Fertilisation and Embryo Act 2008 – Since 2009 S42, civil female partner of birth mother and a women who is a parent by virtue of act = parent. Adoptive parents who jointly adopt a child both have parental responsibility. Neither parent loses parental responsibility through divorce

Agreement – If the mother has not been previously deprived of some or all of her PRR she may enter an agreement with i) father under which he is to obtain PRR if he had married the mother. S4 Children (s) act 1995 ii) with child’s second female partner which she would have obtained if she was spouse or CP s4 CSA 1995. However, NO agreement with mother and second female partner until it is prescribed from and registered in books of council and session. On a side note, if you are interested in SEO, check out Dynamic Launch in Glasgow

Continue reading

Explain the legal principles governing parentage

      Comments Off on Explain the legal principles governing parentage

Explain the legal principles governing parentage (how parents are legally recognised) in situations such as; Infertility treatment, surrogacy, and births outside marriage as well as within marriage.

The principle statue in this area is Parent and Child (scot) Act 1986.

DNA profiling – taking a sample of blood fluid or tissue from child, mother and alleged father to establish positively if man = father. Easiest way to find out if someone is wrongly accused

Infertility treatment – When a woman becomes pregnant through some form of infertility treatment, the law deems her to be the mother when she gives birth to the child. Human Fertilisation and Embryology act 1990 s27. Infertility means not being able to get pregnant after one year of trying. Or, six months, if a woman is 35 or older.

Even when she has no genetic link to the child. So the woman who gives birth to the child for all purposes, is the mother of that child.

The man is deemed to be the father, unless he did not consent to the infertility treatment s28 (2) 1990 act. If she is Not married to the partner, then the man is deemed to be the father if the treatment has been provided to the woman and man” together” s28(3) 1990 act

The donor of sperm (and the man who has the genetic link) is in law not the father if the donation was to a licenced clinic and he consented to his donation being used for the creation of the child.

There are two situations where a child born through infertility treatment will be deemed to be legally fatherless.

  • Donor of sperm has had is paternity cut off.
  • When the sperm or the embryo created with the sperm was “used” after the death of the provider of the sperm. It is possible to register the dead man as the father, so long as he consented to this happening.

Surrogacy – Surrogacy Arrangements Act 1985[as amended by HFEA 1990]

“Full surrogacy” – involves the woman (surrogate) agreeing to carry a foetus, produced from the gametes (sperm and ovum) obtained from the commissioning couple with the intention that the child be handed over to the couple to be raised by them as their child.

Continue reading