Guidance on Birmingham Commonwealth Games Association Right

Birmingham National Indoor Arena in 2007

Author Cls14 Licence CC BY-SA 3.0 Source Wikimedia Commons

 

Jane Lambert

An "association right" is a monopoly of the commercial exploitation of a major sporting event. It is usually conferred by statute on the body responsible for delivering the event.  Governments promise to enact such legislation when one of their cities bids to host the event.  An example of the obligation undertaken recently by the Japanese government is to be found in Part VII of the Host City Contract for the 23rd Olympiad dated 7 Sept 2013 between The International Olympic Committee, the City of Tokyo and the Japanese Olympic Committee,  I first discussed association rights in Olympics Association Right and London Olympics Association Right in NIPC Law on 31 July 2012.

Parliament has conferred a similar monopoly upon the “Birmingham Organising Committee for the 2022 Commonwealth Games Ltd” ("the Organizing Committee") by s.3 (1) of the Birmingham Commonwealth Games Act 2020.  I discussed that legislation during its passage through Parliament in Birmingham Commonwealth Games Association Right on 12 Jan 2020.   It is to be noted that no similar monopoly was conferred upon Glasgow 2014 Limited which delivered the Commonwealth Games in Glasgow by the Glasgow Commonwealth Games Act 2014.

S.9 (1) of the Birmingham Commonwealth Games Act 2020 required the Organizing Committee to publish guidance about the operation of the legislation conferring association right within 31 days of the passing of the Act.   In accordance with that requirement, the Organizing Committee has published a 14 page booklet entitled Guidance on the Birminghm Commonwealth Games Act Association with the Games.  In its Introduction the booklet explained:

"The Commonwealth Games Federation (www.cgf.com) owns the rights to the Commonwealth Games and grants the rights to host the Commonwealth Games to cities based in the Commonwealth, such as Birmingham. When Birmingham was awarded the right to host the 2022 Commonwealth Games (the “Games”), the UK Government, as part of its hosting commitments, was required to put legislation in place to protect the intellectual property of the Games and the indicia relating to the Games against any unauthorised use, thereby managing public investment in the Games."

It should be made clear at this point that International Olympic Committee  owns the intellectual property rights in the Olympic Treaty by virtue of the Nairobi Treaty on the Protection of the Olympic Symbol and national legislation such as the Olympic Symbol etc. (Protection) Act 1995. There is no equivalent to the Nairobi Treaty or the 1995 Act in favour of the Commonwealth Games Federation.   In my previous article I referred to the Commonwealth Games Federation Constitution of 2019.   It has been updated by the Federation's constitution of 2019.   It has now been updated to October 2020.

 The introduction continues:

"!The Act is intended to be proportionate and not unnecessarily restrictive. It will be enforced reasonably with a view to being positive, to enhance the operation and delivery of the Games in Birmingham in 2022, and, not to overly restrict the operation of legitimate local and/or national businesses in the area."

The steps likely to be taken by the Organizaing Committee if it suspects an infringement are set out on page 8 of the guidance.   It would try to resolve disputes amicably wherever possible while reserving the right to apply for injunctions, delivery up of infringing materials, damages or an account of profits and costs where necessary.  Infringement proceedings could be issued out of the Birmingham District Registry as well as London and applications for interim injunctions could be sought from the judges sitting in Birmingham or other Chancery hearing centres (see CPR 63.13 and para 16 (1) (6)  and (2) of the Part 63 Practice Direction).

Page 4 of the guidance explains the effect of the Act in everyday terms.   Page 5 identifies the signs that are protected by the legislation.   Page 6 explains what is likely to be regarded as representing a connection and also what is not.   That is supplemented by a useful appendix of examples of permitted and prohibited usage on pages 12, 13 and 14.   Page 10 explains how to obtain authorization to represent a connection with the games.   Further information is supplied in the No Marketing Rights Protocol.

Anyone wishing to discuss this article or association rights in general may call me on 020 7404 5252 or send me a message through this form.

Birmingham Commonwealth Games Association Right

Birmingham Commonwealth Games Flag

Author Eliot Bowen Licence CC BY-SA 2.0 Source Wikipedia 2022  Commonwealth Games

Jane Lambert

One of the bills currently before Parliament is the Birmingham Commonwealth Games Bill. It was introduced into the House of Lords by Baroness Barran, Parliamentary-Under Secretary of State for Civil Society and Loneliness and received its first reading on 7 Jan 2020.  Part 2 of the Bill would create a new intellectual property right which I shall refer to as "Birmingham Commonwealth Games association right".

The new right is defined by clause 3 (4) of the Bill as "an exclusive right of the Organising Committee to use any representation (of any kind) in the manner described [in clause 3 (1)]".  Clause 3 (1) prohibits any the use of any representation (of any kind) in a manner likely to suggest to the public that there is an association between the Birmingham Commonwealth Games and goods or services, or a person providing goods or services.   In that regard, it is similar to the exclusive rights created by the London Olympic Games and Paralympic Games Act 2006, London Olympic Games and Paralympic Games (Amendment) Act 2011, and the Sunday Trading (London Olympic Games and Paralympic Games) Act 2012 for the Olympic and Paralympic Games of 2012. I discussed those rights in Olympics Association Right and London Olympic Association Right in NIPC Law on 31 July 2012.

There are, of course, some obvious differences between Birmingham Commonwealth Games association right and the Olympics and London Olympics association rights.  The Olympic Games is open to participation by athletes from across the world whereas participation in the Commonwealth Games is restricted to citizens or residents of Commonwealth countries.  These are current and former possessions of the United Kingdom with a number of important exceptions such as the USA and the Republic of Ireland plus the former Belgian territory of Rwanda and the former Portuguese territory of Mozambique.  Consequently, the commercial importance (and hence the incentive for ambush marketing) of the Commonwealth Games is significantly less than in the Olympics.  Secondly, the Olympic symbol is protected by the Nairobi Treaty whereas there is no similar international agreement for the protection of the Commonwealth Games symbol.  Thirdly, the International Olympic Committee has sufficient authority to compel host cities and national Olympic committees to accept terms like those contained in the draft agreement for the 2012 XXX Olympiad.

The Commonwealth Games Federation does have some intellectual property.   Paragraph 4 of Byelaw 18 to the Commonwealth Games Federation Constitution provides:

"The 'Commonwealth Games Intellectual Property' consists of the intellectual property rights in the term "COMMONWEALTH GAMES", the initials 'CGF', the Official Emblem ("The Bar"), the Official Flag, the Official Symbol or Symbols, event specific names, symbols and logos, intellectual property relating to the organisation, exploitation, broadcasting and/or reproduction of the Commonwealth Games by any means whatsoever and any other materials, products or works that a reasonable person would assume are related to or connected with the Commonwealth Games."

These rights are protected by trade mark registration and by the laws of passing off in the individual member states.

Returning to the Bill, clause 3 (2) sets out "examples  of an association between the Games and a person providing goods or services—
(a) a contractual relationship;
(b) a commercial relationship;
(c) a corporate or structural connection;
(d) the provision of financial or other assistance."

The "use" that is restricted to the Organising Committee by virtue of clause 3 (3) includes:

"(a) applying a representation to goods or documents;
(b) selling, offering, or exposing for sale goods that bear a representation;
(c) importing or exporting goods that bear a representation;
(d) providing or offering services by reference to a representation;
(e) promoting goods or services by reference to a representation."

Any infringement of those rights is actionable in the civil courts at the suit of the Organising Committee by virtue of clause 3 (4).  Tn England and Wales infringement proceedings could be brought in the Chancery Division including the Intellectual Property Enterprise Court and any County Court hearing centre with a Chancery District Registry (see CPR 63.13 and paragraph 16.1 (6) of Part 63 Practice Direction). Clause 4 of the Bill provides for the "authorization" or licensing of association rights.  Clause 5 and Sched 1 provides for exceptions.   Clause 8 requires the Organising Committee to publish guidance about the operation of Part 2 of the Bill.

As I practised primarily from Manchester at the time of the last Commonwealth Games in England in 2002 I have some experience of the intellectual property issues that can arise from these games. Since my chambers now have an annexe at 2 Snow Hill, I shall be pleased to chair and speak at a seminar on Birmingham Commonwealth Games association rights and other IP issues relating to the Games for local businesses and their professional advisors hould there be sufficient interest in the topic.  In that regard, I should be interested to hear from such businesses by phone, email, Linkedin, Facebook or Twitter.

Anyone wishing to discuss this article or any of the matters mentioned may call me on 020 7404 5252 or send me a message through my contact page.

Birmingham Tech Week

Jane Lambert

Birmingham Tech Week is taking place right now. The Tech Wek's website described it as a collaborative series of events across the city and city region between 7 and 13 Oct to highlight Birmingham’s tech scene and focus on a number of innovative topics. The events taking place this week are listed here.

The topics to be discussed include;

• artificial intelligence
• autonomous vehicles
• 5G (mobile communications technology)
• FinTech (financial services technology)
• health tech, 
• IOT (internet of things)
• VR (virtual reality), and
• women in technology. 

Speakers are from The Alan Turing Institute, Amazon, Barclays, BBC, Deliveroo, IBM Watson, National Express, NatWest, PWC, Salesforce and Uber.   Readers can listen to some of the presentations on YouTube,

My chambers have recently opened an annexe at 2 Snow Hill which hosts some of the leading law firms in Birmingham.  One of them held a reception earlier today which I attended with several of my London colleagues, our Chief Executive and one of our clerks.  One of the topics we discussed was Birmingham Tech Week as well as the tech sector in the West Midlands in general, its needs and how we could assist its businesses and investors.  I see a lot of opportunities there.

Anyone wishing to discuss this article or any of the topics mentioned in it is welcome to call me on 020 7404 5252 during office hours or send me a message through my contact page.

Small Claims IP Litigation in Birmingham

Author Highways Agency Licence CC BY 2.0 Source Wikipedia Birmingham

Jane Lambert

One of the most interesting announcements of the new Intellectual Property Enterprise Court Guide is the decision to appoint from October 2019 district judges to hear small intellectual property claims in Birmingham (see The New IPEC Guide 4 July 2019 NIPC News).

The cases that those district judges will be entitled to hear pursuant to CPR 63.27 will be claims for £10,000 or less for the infringement of intellectual property rights other than patents, registered and registered Community designs, semiconductor topographies and plant varieties. In Small IP Claims, I gave examples of cases that might be suitable for the small claims track and of others that would not.  The claimant must ask for the claim to be allocated to the small claims track in its particulars of claim and no objection should be raised by the defendant.   However, even if a case falls within the jurisdiction of the small claims track and the parties want it to stay there, the court may transfer it to the multitrack if it is likely to take more than a day to try or there is a difficult point of law or factual issue to decide.

Proceedings in the small claims track are governed by CPR Part 27 and the Part 27 Practice Direction as modified by CPR 63.27 and CPR 63.28 and paragraph 63.32 of the Part 63 Practice Direction.  Though successful claimants can obtain final injunctions and orders for delivery up of infringing materials as well as damages or accountable profits they cannot claim interim injunctions.  Liability and the amount of any damages or other pecuniary relief to be awarded are decided at the same time.  Directions are given automatically in accordance with Appendix B or C of the Part 27 Practice Direction after statements of case are exchanged and although the court has power under CPR 27.6 to hold preliminary hearings these are the exception rather than the rule. There is no provision for disclosure and the costs that may be recovered from an unsuccessful party are limited to court fees, £260 if an injunction is sought and a lawyer has been instructed, travelling expenses and loss of earnings up to £95 per witness and up to £750 in experts' fees.

The new IPEC guide indicates that those wishing to bring an IP case in the small claims track in Birmingham should use the electronic filing system.

Anyone wishing to discuss this article or small claims track IP litigation generally should call me on 020 7404 5252 or send me a message through my contact page.

"Confidence to Innovate: know your intellectual property" - Free Seminar in Birmingham, 14 March 2018

Jane Lambert

The Intellectual Property Office will hold a free seminar on intellectual property at the iCentrum in Birmingham between 08:30 and 12:00 on Wednesday 14 March 2018. The full name of the seminar is
Confidence to Innovate: know your intellectual property and you can register through Eventbrite.

According to the Eventbrite page, the seminar will show "how intellectual property underpins innovation and why strategic management of intellectual property assets is vital for business growth." The event is intended to inform business owners and their professional advisers.   

There will be speakers from the Department for International Trade which has an office in Birmingham, the law firm Browne Jacobson, patent agents Barker Brettell, Midlands Innovation which represents 8 local universities and the Intellectual Property Office itself.

The full address of the venue is

iCentrum
Innovation Birmingham Campus
Faraday Wharf Holt Street
Birmingham
B7 4BB

For further information call Emma Richards at the Intellectual Property Office on 0300 300 2000.

The Business and Property Courts in Birmingham

Birmingham City Centre

Author GavinWarrins
Reproduced with kind permission of the author
Source Wikipedia

Jane Lambert

For several years, the specialist judges of the Chancery and Queen's Bench Divisions in London, including those who sit in the Patents Court and Intellectual Property Enterprise Court ("IPEC") or hear other cases in the Intellectual Property List, have worked together in the Rolls Building. Since 2 Oct 2017, those judges together with the specialist judges in Birmingham and other major cities have been known collectively as "The Business and Property Courts". I wrote about the development in Launch of a Judicial Superhighway? 12 July 2017 IP Northwest, The Leeds Business and Property Courts 12 July 2017 IP Yorkshire and "Better than the M4 - The Judicial Superhighway" 2 Oct 2017 NIPC Severn.

According to Ed Pepperall QC, the national network of Business and Property Courts was a Birmingham idea.  He discussed its conception and development in The significance of the new Business and Property Courts – a view from the Bar.  His article is a contribution to a new introduction to the Business and Property Courts in Birmingham which was compiled by the Midlands Chancery and Commercial Bar Association and published by LexisNexis.

The introduction states that one of the advantages of the project will be the integration of the courts sitting in Birmingham with those in London:

"The B&PCs will be a single umbrella for business specialist courts across England and Wales. There will be a super-highway between the B&PCs at the Rolls Building and those in the regions to ensure that international businesses and domestic enterprises are equally supported in the resolution of their disputes."

It adds:

"Lord Justice Briggs’ reports have consistently recommended, and the Judicial Executive Board has accepted, that no case should be too big to be tried outside London. We should be able to provide an integrated Business & Property Courts structure across England & Wales. The aim is to achieve a critical mass of specialist judges sitting in each of the Business & Property regional centres so that all classes of case can be managed and tried in those regions. At the moment, many such cases migrate to the Rolls Building for a multitude of inadequate reasons. Once there, they are often tried by a section 9 circuit judge from the region whence the case originated. It should become easier to transfer regional cases back to the regions for management and trial.

Waiting times are considerably less in the regional centres than they are at the Rolls Building. In all the Business & Property Courts and Lists, a High Court judge can be provided to try an appropriate case outside London."

If specialist cases are tried regularly in Birmingham and the other major regional court centres more local practitioners will develop expertise in patents, registered and registered Community designs, semiconductor topographies and plant breeders' rights which are reserved by CPR 63.2 to the Patents Court and IPEC in London.  Although the Patents Court and IPEC Guides have always stated that the Assigned and Enterprise judges are ready and willing to sit outside London for the convenience of the parties and to save time and costs, a patents trial outside London does not happen very often. I can think of only one case, Hadley Industries Plc v Metal Sections Ltd and another [1998] EWHC Patents 284 where that happened and that was nearly 20 years ago. In that case, the claimant's solicitors were in Birmingham and the defendant's in Nottingham but the counsel (one of whom is now an assigned judge) came from London.

In addition to an overview and chapter by Mr Pepperall, the introduction contains profiles of the judges who sit regularly in the Birmingham Business and Property Courts and lists useful email addresses and phone numbers and useful practice notes such as "Where to start a claim" and other guidance.

Should anyone wish to discuss this article or the Business and Property Courts generally, he or she should call me on 020 7404 5252 during office hours or send me a message through my contact form.

SME2017 - 3 and 4 Oct

Jane Lambert

The Coventry and Warwick Local Enterprise Growth Hub's SME2017 opens at the National Exhibition Centre at 09:00 today and runs until 16:00 tomorrow. It is billed as "the Midlands biggest exhibition for SMEs", There is a massive exhibition and there are two days of seminars with talks on finance, funding, innovation, IT, marketing and outsourcing. Tickets are free and may be ordered through the event's website.

The Intellectual Property Office will be at the show and one of the speakers will be Gary Townley. He will speak in the Innovation Platform Theatre from 15:00 to 16:00 today.  You will find a summary of his talk by clicking the "Innovation Theatre" tab on the "Seminars" page of the SME2017 website. Gary will be followed on the platform by Mark Houghton of Patent Outsourcing Ltd. of Bakewell who will speak from 16:00 to 17:00. You will find a summary of Mark's talk immediately below Gary's.

Between them, Gary and Mark should give you a good introduction to intellectual property and how it can be used to protect your investment in branding, design, technology or creativity. There is, of course, a limit to what they can cover in two hours.  If you require further information locally, you can visit the Business and IP Centre at the Library of Birmingham where you will find more resources online and in print as well as talks and clinics with patent and trade mark attorneys.  If it is hard for you to get to Birmingham there are other Business and IP Centres in Exeter, Hull, Leeds, Liverpool, London, Manchester, Newcastle, Northampton, Norwich and Sheffield and Patent Information Units in the rest of the UK.

You will also find information about IP and technology law in the West Midlands in this blog.  This blog is connected to NIPC Law which contains in-depth articles on IP and technology law, NIPC Branding with articles on trade marks, domain names, geographical indications and passing off for entrepreneurs and their investors, NIPC Inventors Club with information on patenting, trade secrets and starting a new business for inventors and entrepreneurs and other regional blogs covering developments in the East of England, East Midlands, London, North West, Severn Estuary, South East and Yorkshire. There are also features on the Midlands Engine, Northern Powerhouse, the Brexit negotiations and all sorts of other special topics.

If you want to discuss this article or IP generally, call me on 020 7404 5252 during office hours or send me a message through my contact form.