Commercial and Intellectual Property Law and Practice 2021

Bamford

Sujets

• Droit et juridique
• Commercial law

Informations

• Publié par: College of Law Publishing
• Date de parution: 01 janvier 0001
• Nombre de lectures: 0
• EAN13: 9781913226954
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

COMMERCIAL AND INTELLECTUAL PROPERTY LAW AND PRACTICE
COMMERCIAL AND INTELLECTUAL PROPERTY LAW AND PRACTICE
Judith Embley, Keir Bamford and Nick Hancock
Published by
College of Law Publishing,
Braboeuf Manor, Portsmouth Road, St Catherines, Guildford GU3 1HA
© The University of Law 2021
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher.
Crown copyright material is licensed under the Open Government Licence v3.0.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
ISBN 978 1 913226 83 1
Typeset by Style Photosetting Ltd, Mayfield, East Sussex
Tables and index by Moira Greenhalgh, Arnside, Cumbria
Preface
This book is intended to reflect modern vocational training practice. It is hoped that the level of detail and analysis of the cases and statutes will be suited to both vocational study and to the early years of practice. Clearly, with such a diverse range of discrete topics, many limitations are imposed upon such a work, but it is intended that the reader should be assisted in gaining a firm grasp of the general principles and a flavour of the current state of legislation and case law.
In the interest of brevity, the masculine pronoun is used throughout to include the feminine.
Judith Embley would like to thank her colleagues at Bloomsbury, Susan Sang, Alex Laski and Mary Medyckyj, who reviewed and contributed invaluable suggestions to the Sale of Goods and Marketing chapters.
JUDITH EMBLEY
KEIR BAMFORD
NICK HANCOCK
The University of Law
Further Study
The following books may be of interest to readers wishing to pursue a particular topic further. In addition, there are some references to Internet sources in the text, as well as the obvious ones such as the European Commission sites and the UK legislation ones.
Sale of Goods
Canavan et al, Atiyah and Adams’ Sale of Goods (14th edn, Pearson, 2020)
Bridge, Benjamin’s Sale of Goods (11th edn, Sweet & Maxwell, 2020)
Encyclopedia of Forms and Precedents (2011 reissue 5th edn, LexisNexis Butterworths), vol 34 on Sale of Goods
Rosenberg, Practical Commercial Precedents (Sweet & Maxwell), section on Sale of Goods
(The above works have useful sections on exclusion of liability.)
Drafting
Beale, Chitty on Contracts (33rd edn, Sweet & Maxwell, 2018)
Christou, Drafting Commercial Agreements (6th edn, Sweet & Maxwell, 2016)
Christou, Boilerplate: Practical Clauses (8th edn, Sweet & Maxwell, 2019)
Marketing Agreements
Practical Commercial Precedents and the Encyclopedia of Forms and Precedents have useful sections on agency distribution and other types of marketing agreement. See also:
Christou, International Agency, Distribution and Licensing Agreements (6th edn, Sweet & Maxwell, 2011)
Goyder, EU Distribution Law (5th edn, Hart Publishing, 2011)
Commercial Law
Byles on Bills of Exchange and Cheques (30th edn, Sweet & Maxwell, 2019)
Carr, International Trade Law (6th edn, Routledge, 2017)
Goode, Commercial Law (5th edn, LexisNexis Butterworths, 2017)
International Chambers of Commerce, Incoterms 2020 (ICC Publishing, 2019)
Malek and Quest, Jack: Documentary Credits (4th edn, Bloomsbury Professional, 2009)
Murray, Holloway, Timson-Hunt and Dixon, Schmitthoff’s Export Trade (12th edn, Sweet & Maxwell, 2012)
Sealy and Hooley, Commercial Law (5th edn, Oxford University Press, 2017)
Wilson, Carriage of Goods by Sea (7th edn, Pearson Educational, 2010)
Competition Law
Whish and Bailey, Competition Law (9th edn, Oxford University Press, 2018)
Goyder, EC Competition Law (5th edn, Oxford University Press, 2009)
Bellamy and Child, European Union Law of Competition (8th edn, Oxford University Press, 2018)
A number of works have been written specifically on the Competition Act 1998, including:
Coleman and Grenfell, The Competition Act 1998: Law and Practice (Oxford University Press, 1999), plus second cumulative supplement (2002)
Intellectual Property
Cornish and Llewelyn, Intellectual Property (9th edn, Sweet & Maxwell, 2019)
CIPA Guide to the Patents Acts (9th edn, Sweet & Maxwell, 2019)
Bainbridge, Intellectual Property (10th edn, Pearson, 2018)
(For works which consider the relationship of competition law and intellectual property, in particular in relation to licensing, see the list under ‘Marketing Agreements’ above.)
Information Technology
Reed and Angel, Computer Law (7th edn, Oxford University Press, 2011)
Susskind, Transforming the Law (Oxford University Press, 2004)
Todd, E-Commerce Law (Routledge-Cavendish, 2005)
Contents
PREFACE
FURTHER STUDY
TABLE OF CASES
TABLE OF PRIMARY LEGISLATION
TABLE OF SECONDARY LEGISLATION
TABLE OF ABBREVIATIONS
Part I COMMERCIAL AGREEMENTS
Chapter 1 INTRODUCTION TO COMMERCIAL CONTRACTS
1.1 Introduction
1.2 Sources of commercial law in the UK
1.3 The supply chain
1.4 Standard terms and conditions
1.5 Drafting and content of a commercial contract
Chapter 2 INTERNATIONAL ASPECTS OF COMMERCIAL CONTRACTS
2.1 Introduction
2.2 International conventions and agreements
2.3 Civil law and common law
2.4 The hierarchy of international commercial laws
Chapter 3 NEGOTIATION, CONTRACT FORMATION AND POST-CONTRACTUAL CONSIDERATIONS
3.1 Introduction
3.2 UK contract principles
3.3 International considerations
Chapter 4 SALE OF GOODS: INTRODUCTION
4.1 Introduction
4.2 Relevant legislation
4.3 Sale of goods to consumers
4.4 Definitions
4.5 Structure of the UK SGA 1979
4.6 Effects of a sale of goods contract
4.7 Other types of contract under which goods may pass
Chapter 5 SALE OF GOODS: CORE TERMS – PRICE, PAYMENT AND DELIVERY
5.1 Introduction
5.2 The price
5.3 Payment
5.4 Delivery
5.5 Rights and remedies of the seller
5.6 Rights and remedies of the buyer
Chapter 6 SALE OF GOODS: OWNERSHIP AND RETENTION OF TITLE
6.1 Introduction
6.2 Transfer of ownership
6.3 Introduction to retention of title
6.4 Drafting a retention of title clause: a basic checklist
6.5 Examples
6.6 ‘Backing up’ a retention of title clause
6.7 International aspects of retention of title clauses
Chapter 7 SALE OF GOODS: IMPLIED TERMS – TITLE AND QUALITY PROVISIONS
7.1 Introduction
7.2 The seller’s duty to pass good title to the goods
7.3 Sale by description
7.4 Satisfactory quality
7.5 Fitness for purpose
7.6 Sale by sample
7.7 Overlap between ss 13, 14 and 15 of the SGA 1979
7.8 Buyer’s remedies for breach of the implied terms
7.9 Consumer Rights Act 2015
Chapter 8 EXCLUSION CLAUSES: GENERAL PRINCIPLES
8.1 Introduction
8.2 Basic rules for successful drafting of exclusion clauses
8.3 Preparing to draft
8.4 Testing the clause
8.5 Incorporation
8.6 Construction
8.7 Unfair Contract Terms Act 1977
8.8 Consumer Rights Act 2015
8.9 Unfair terms in consumer contracts
8.10 International provisions
Chapter 9 EXCLUSION CLAUSES: DRAFTING FOR REASONABLENESS
9.1 General principles
9.2 Drafting for reasonableness: relevant factors
9.3 Effectiveness of different types of exclusion clause
Chapter 10 MARKETING AGREEMENTS: INTRODUCTION TO AGENCY AND DISTRIBUTION
10.1 Introduction
10.2 Agency
10.3 Distribution
10.4 Advantages and disadvantages of each type of agreement
10.5 Exclusivity
10.6 Basic rules for successful drafting of marketing agreements
Chapter 11 MARKETING AGREEMENTS: DRAFTING AGENCY AND DISTRIBUTION AGREEMENTS
11.1 Drafting an agency agreement
11.2 Planning, form and content of an agency agreement
11.3 Commercial Agents (Council Directive) Regulations 1993
11.4 International agency agreements
11.5 Drafting a distribution agreement
11.6 Planning, form and content of a distribution agreement
11.7 Competition issues in distribution agreements
11.8 Other forms of marketing arrangement
Chapter 12 MARKETING AGREEMENTS: DRAFTING LICENSING, MERCHANDISING AND FRANCHISING AGREEMENTS
12.1 Introduction
12.2 Licensing
12.3 Merchandising agreements
12.4 Franchising
12.5 Licences and assignments of IP rights – formalities and consequences
Part I Summary – Commercial Agreements
Part II INTERNATIONAL SALE AGREEMENTS
Chapter 13 INTRODUCTION TO INTERNATIONAL SALE AGREEMENTS
Chapter 14 CHOICE OF JURISDICTION AND LAW
14.1 Introduction
14.2 Brussels I – Regulation 1215/2012
14.3 Outside the EU/EFTA
14.4 Rome I – Regulation 593/2008
14.5 Brexit
Chapter 15 INTERNATIONAL SALE OF GOODS
15.1 Introduction
15.2 The documents
15.3 Effect of transfer of the documents
15.4 Arranging transportation of the goods – Incoterms
15.5 UCC mercantile or shipping terms
Chapter 16 FINANCING AND SECURITY ARRANGEMENTS IN INTERNATIONAL SALE OF GOODS
16.1 Introduction
16.2 Bills of exchange
16.3 Documentary credits
Part II Summary – International Sale Agreements
Part III INTELLECTUAL PROPERTY
Chapter 17 INTRODUCTION TO INTELLECTUAL PROPERTY
17.1 What is intellectual property?
17.2 Types of intellectual property
17.3 Public registration and administration
17.4 The UK’s withdrawal from the EU
17.5 Summary of intellectual property rights
17.6 Origins of intellectual property law in the US
17.7 Introduction to international property rights treaties
Chapter 18 PASSING OFF
18.1 Introduction
18.2 The three elements of passing off
18.3 Defences to passing off
18.4 Remedies for passing off
18.5 International aspects
Chapter 19 TRADE MARKS
19.1 Functions and purposes of trade marks
19.2 Advantages and consequences of registration
19.3 The registration system, its problems and recent changes
19.4 Can the trade mark meet the statutory definition?
19.5 Absolute grounds for refusal
19.6 Evidence of use to overcome absolute groun