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Wednesday, 27 July 2016

USA: BMW sues California garage for trade mark infringement

World Intellectual Property Review reports here that BMW North America has sued a garage in California over the unauthorised use of the roundel and "Mini-wings" logos.  Perhaps the surprising thing is that it was even worth reporting - although perhaps in the states it truly is a novelty. The manufacturer is seeking trial by jury and triple damages, which are certainly novelties to us on this side of the Atlantic, as well as attorneys' fees, a concept with which we are more familiar than American lawyers.

The same report mentions a case from a couple of weeks ago (7 July) in which a husband-and-wife team from Northern Ireland were jailed after admitting selling counterfeit BMW merchandise worth millions, or a million, depending on how you read the report. The parts - tyre valve caps, stickers and cufflinks are mentioned - were imported from Asia, and it took a combined investigation by BMW and the UK Intellectual Property Office (although I fail to see how it's their job - the police should surely have been dealing with it) to close it down. No mention of the trade mark owner making a civil claim, but perhaps with the defendants in prison it felt that it would be a waste of time. The fact that the male defendant was (is?) a churchwarden defies comment. As does the fact that they were sold on eBay, which could hardly be less secret.


Friday, 22 July 2016

Finance and leasing companies reunited with £9m of seized vehicles - Car Dealer Magazine

HPI's "CrushWatch" scheme has reportedly saved finance and leasing companies over £9 million in May alone, by identifying uninsured vehicles before it is too late and they are auctioned off or scrapped. Last year £65 million worth of cars were reunited with their legal owners this way.

Car Dealer Magazine

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Lawgistics: Consumer advice services giving false expectations to car buyers - Car Dealer Magazine

Car Dealer Magazine has an interview with Nina Bowkis of Lawgistics about consumer disputes over cars. She says that many consumers are consulting Citizen's Advice, where they receive "assistend information" rather than real advice - and if the consumer reports that the car has a fault, the chances are that they will be informed of their right to reject even if there is no proof that the fault exists.

Dealers are also being advised to agree to mediation, when it is not a requirement unless their trade association enforces it. Lawgistics say that ombudsmen are telling dealers that they have to accept mediation when this might not be the case at all. (The proliferation of ombudsman services is not an unalloyed good thing - ed.) Ms Bowkis says she personally prefers to go to court, where the judge will consider the case on its merits and with a close eye on the law - whereas a mediator might feel more sympathy for the consumer. Under the Consumer Rights Act, fewer cases are going to court, and many are being settled by what actually amounts to informal mediation - agreement between the dealer and the consumer - before they go too far, which is as it should be.

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BMW ad banned because 'no-dazzle claim' was misleading - Car Dealer Magazine

Car Dealer Magazine tells us that an advert for BMW's high-beam assist technology has been held by the ASA to be misleading. The ASA's decision is here.

A radio ad for the BMW 1 Series car with high-beam assist technology, heard on 11 February 2016, stated "Oncoming traffic is never dazzled and you can keep your hands on the wheel and your eyes on the road". The complainant challenged whether the claim "Oncoming traffic is never dazzled" was misleading and could be substantiated. The Authority took the view that it would be taken by consumers as an absolute claim, and ordered that it not be used again in its present form.

The ad breached BCAP Code rules 3.1 (Misleading advertising), 3.9 (Substantiation), 3.12 (Exaggeration) and 20.5 (Motoring).

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New qualification to make MOT industry more professional

Fleet News reports that, from September, MoT testers and managers will have to gain a new qualification, based on three hours' training a year backed up with a test that the tester has to pass. There's more information from last year, when the reforms were first mooted, on the DVSA's "Matters of Testing" blog, here, and a more recent posting about the new regime here.

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USA: GM modifies dealer performance criteria

I reported in May on the Beck case, in which a New York court upheld a claim brought by a GM dealer who felt that the criteria used by the manufacturer to assess dealers' performance were unfair (see here). Now GM have modified their criteria, and Automotive News has the story for which you'll need a subscription ... GM alters dealer ratings after court setback - Automotive News.

Germany to require 'black box' in autonomous cars | Reuters

According to Reuters, Germany is planning to require that cars with an autopilot function be fitted with a black box to help establish where fault lies in accidents. In light of the fatal crash of a Tesla Model S in Florida while in Autopilot mode, this is hardly surprising, although it is slightly surprising that a proposal should have emerged quite so quickly.

The proposed law will not require "drivers" (if that expression is still relevant) to pay attention or concentrate on steering, but they have to remain in the driver's seat so they can intervene in an emergency. For that purpose, presumably, they have to remain alert even if the law does not require it.

The blackbox will record when the autopilot function is engaged, when the driver drove and when the system asked the driver to take over. It is still only a draft from the transport ministry, and will be considered by other ministries in the German government over the summer.

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Nishikawa agrees to plead guilty, pay $130 million fine for price-fixing: U.S. | Reuters

Nishikawa agrees to plead guilty, pay $130 million fine for price-fixing: U.S. Reuters reports that the company conspired (with whom, we aren't told) to fix the prices and to rig bids relating to body sealing products supplied to Honda, Toyota and Subaru.

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Customer takes legal action against dealer who sold him a 'broken car' - Car Dealer Magazine

Customer takes legal action against dealer who sold him a 'broken car' reports Car Dealer Magazine, although that's not really the story (and if it was, it would hardly be newsworthy). What is interesting is that the customer, a student, is "crowdfunding" his legal action (alternatively, according to the literal meaning of the article, he is crowdfunding the repairs to his car, but that seems rather unlikely).

His website makes interesting reading. I wonder what sort of dealer he bought from (presumably not a franchised one) and what dispute resolution procedures he might have access to.

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Councils warn of ‘clocking' surge

Fleet News reports that clocking is becoming even more rife than it was, and that councils are calling on the government to retain proposed EU rules after we leave the EU - and even to bring in domestic laws early.

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California rejects Volkswagen's recall plan for 3.0-liter diesel cars | Reuters

California rejects Volkswagen's recall plan for 3.0-liter diesel cars | Reuters:

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U.S. DoJ investigating Fiat Chrysler: Bloomberg | Reuters

Reuters reports (18 July) that the Department of Justice in the USA is investigating Fiat Chrysler under securities laws. The report admits that it isn't entirely clear what is being investigated, but suggests that it might have started with a lawsuit brought in January by two dealerships in the Chicago area which accused the company of inflating sales - pressuring dealers to declare vehicles as sold one month, and undo the transactions the next, claims which the manufacturer dismissed as "without merit".

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Germany denies investigating Tesla over software updates | Reuters

The German transport ministry has said that it is "clarifying technical issues" relating to an update to Tesla's driving assistance software which had not been properly notified to it. According to a report in Der Spiegel (which I can't find on its website, although there appears to be a mention of the matter here), there were "indications" that new software features had been uploaded to cars without having been approved by the authorities, and that the ministry was "investigating". It says it isn't, but the word "investigating" is open to different interpretations.

Tesla revealed that all its whole-vehicle type approvals in Europe have been issued by the RDW assembly and PDI facility in Tilburg, the Netherlands. This should mean that it does not need national approvals in individual Member States, so precisely what the KBA in Germany is "investigating" is a bit of a mystery.

The recent fatal accident in Florida involving a Tesla car running driving assistance software does, of course, give this story added significance.

Reuters, 8 July.

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Dieselgate: Latest developments

A selection of recent news items from Reuters about the VW diesel scandal:

UK should consider prosecuting VW over emissions scandal - MPs: the Transport Select Committee reckons the government hasn't been quick enough deciding whether the manufacturer broke the law (but isn't that supposed to be the job of the courts?). Here's a link to the committee's Third Report of this session, on the VW scandal and type approval.

Volkswagen fix for Audi Q5 does not cut emissions, EU consumer group says: BEUC says it doesn't do the job.

Spanish court says Volkswagen parent company liable to answer any emissions fraud charges: it can't fob off responsibility to its local distributor.

German prosecutors say won't be lenient with VW: just because they have been hammered in the States doesn't mean that they won't be hammered by the German authorities too.

And from Automotive News:

VW Group emissions-rigging claims reach back further: additional material on the three US states' actions.

EU steps up pressure on VW for bigger consumer payouts: basically, they should get as much as American consumers did.

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EU competition law: Record penalties for truck cartel

As predicted (see my posting on 30 May, repeating what I had seen in the FT) the Commission imposed a record € 2 926 499 000 (£2.4 billion) fine on truck makers Daimler, DAF, Volvo/Renault and Iveco for taking part in a cartel relating to prices and to emissions-reducing technology. See Automotive News here and the Commission's press release here.

Daimler makes provision for €1 billion fine The sum comprises 600 million euros to cover the trucks fine and 400 million euros to cover unidentified legal costs. MAN, as I reported earlier, enjoyed immunity as the "whistleblower". Other manufacturers secured smaller discounts, but not apparently DAF.

China Hyundai dealers seek up to $135 million compensation, say automaker reduced supply | Reuters

Reuters reports (20 July) that Hyundai dealers in China are suing the manufacturer which has cut exports apparently in favour of locally-manufactured models. The dealers (of which there are only about 40 in China) can apply to become dealers for the Chinese-made products too, but so far none has succeeded in gaining admission to the network.

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Three U.S. states sue VW, say executives covered up diesel cheating | Reuters

Three U.S. states sue VW, say executives covered up diesel cheating, reports Reuters (19 July). The states involved are New York, Massachusetts, and Maryland, which have filed nearly-identical lawsuits in state courts alleging breaches of environmental laws. They identify individual employees involved in the alleged unlawful conduct. The states allege that at least eight employees in the manufacturer's engineering department removed incriminating data in August 2015, after being advised by a senior attorney of an impending order not to destroy documents.

On 7 July, it was reported that the manufacturer had reached a settlement with California officials.

See also

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VW to pay $86M in civil penalties to California over emissions violations

VW to pay $86M in civil penalties to California over emissions violations, reports Automotive News (7 July). This is in addition to some $15 billion it will be paying after reaching a settlement with officials in the USA the previous week. The civil penalties, announced by California's Attorney General Kamala Harris, resolve claims under California's unfair competition law and federal laws. $76 million is to be paid to the Attorney General's office to defray the costs of the investigation and litigation.

VW had already said that it would pay $603 million to settle litigation with most of the 50 states, the District of Columbia and Puerto Rico, and it is also buying back or fixing about half a million diesel cars as well as setting up funds to compensate for environmental damage and damage to consumers.

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Monday, 18 July 2016

U.S.: FCA sales reporting investigated by authorities

The allegations that came out in the case brought by two Napleton dealerships, that Fiat Chrysler was engaged in racketeering and fraud by encouraging dealers to make false reports about sales, are now being examined by the FBI and SEC. Investigators visited FCA staff at their homes on 11 July, according to Automotive News.

The manufacturer had enjoyed 75 months of increased sales. No doubt there are plenty of innicecnt explanations for that.

Friday, 15 July 2016

EU directive on trade secrets becomes law (but will we ever have to implement it?)

The European Commission proposed a directive to harmonise protection of trade secrets throughout the European Union in 2014. The directive (2016/943) was unanimously adopted by the Council and three weeks later published in the Official Journal on 15 June 2016, and came into force on 5 July. Between publication and entry into force, of course, the UK's referendum on EU membership reduced the importance of the directive to this country.
Being a directive, the new law has to be implemented by the Member States. In the general confusion about how the UK will effect its exit, no one knows whether the directive will be implemented. Member States have two years in which to do is that, and two years is also the interval after giving notice under article 50 of the treaty when the UK will leave. However long passes before the UK gives notice, will determine how long the UK will be required to comply with the directive. That could be only a few months.
As with other areas of intellectual property law, however, it does seem quite likely that the UK will continue to ensure that its laws are aligned with those of the European Union. Depending on the future relationship with the EU, the UK might be obliged to comply with the directive anyway. In any event, it is hard to imagine that Parliament could possibly find time to replace more than a tiny part of our EU-derived law. The trade secrets directive is likely to remain important. However, the detailed shape of the Directive is likely to emerge only once the Court of Justice is seised of some cases in which it can give its interpretation of the law – and its rulings will cease, at some point, to apply to the UK.
Article 2 defines a trade secret as information that
  • Is secret in the sense that it is not generally known among or readily accessible to persons within the circles that normally deal with this kind of information;
  • Has commercial value because it is secret; and
  • Has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
While the first and third of these requirements are at least similar to English law, the requirement for commercial value narrows the scope of the definition – which is hardly surprising, as the Directive is seeking to define a narrower class of information than the broad class of confidential information which our law protects.
The acquisition of a trade secret is unlawful when it is carried out by unauthorised access to materials, or any other conduct which is considered contrary to “honest commercial practices”. Where the trade secret is acquired from a third party and the person who acquired it knew or should have known that the third party was acting unlawfully, that acquisition will also be considered unlawful. Using or disclosing a trade secret will be considered unlawful when it is in breach of a confidentiality agreement or some other duty not to disclose the trade secret or to limit its use. (Article 4.)
Remedies are dealt with in Article 11. They include the usual remedies in intellectual property cases – damages, interim and final injunctions, destruction of unlawful goods. There are no criminal offences, but Member States remain free to introduce their own.
The Directive has been criticised as “a threat to public interest and democracy” because of the perceived threat it poses to whistle-blowers and the press. The Panama Papers scandal in 2016 highlighted these concerns. The Directive does provide some protection for whistle-blowers and the press, so the question is whether the exceptions are sufficient. They are set out in Article 5 and cover disclosure of a trade secret for:
  • exercising the right to freedom of expression and information as set out in the [European] Charter [for Fundamental rights], including the respect for freedom and pluralism of the media;
  • revealing misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest.
Recital 20 says that “the measures, procedures and remedies provided for in this Directive should not restrict whistle-blowing activity. Therefore, the protection of trade secrets should not extend to cases in which disclosure of a trade secret serves the public interest insofar as directly relevant misconduct, wrongdoing or illegal activity is revealed.” Nevertheless, critics argue that the burden for showing that disclosure is in the public interest will fall on the whistle-blower or journalist, and there have been calls for a further directive to give more extensive protection to them.
English law on breach of confidence, non-statutory as it is, gives narrower exceptions to protect whistle-blowers and the like. The changes demanded by the Directive would not be great, but some extension of the public interest rule (covering, remember, only trade secrets) might well be needed.

VW failure to compensate UK owners 'deeply unfair' - BBC News

VW failure to compensate UK owners 'deeply unfair' - BBC News:

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