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Thursday, 31 January 2013

Benelux: Porsche prevail over independent "specialist"

From the Marques Class 46 blog comes this unedifying tale of trade mark absolutism (I shall steer clear of the pejorative expression "bullying", because often these excessively protective cases are driven by considerations of shareholder value rather than the sort of vindictiveness that that word implies) courtesy of my friend Gino van Roeyen (Banning). The story is hardly novel: there have been plenty of cases of independent specialists overstepping the mark when referring to what they specialise in. Two important, related, questions arise: where is that mark, and what does the infamous proviso to Artice 6(1) of the trade marks directive ("honest use in industrial and commercial matters") mean in the independent aftermarket?

Please, read Gino's account of the case, because I do not propose to write it all again. I do not enjoy typing enough for that. Initially I found it encouraging: here, at last, was a court taking a sensible view of what the designation "specialist" might be taken to mean in a situation such as this. At first instance, the specialist, Mr van den Berg, had succeeded. Calling yourself a specialist with reference to someone else's trade mark does not imply a special connection with the owner of the trade mark. He seemed to have done enough to avoid confusion in the marketplace. But on appeal the trade mark owner won: the court, as in previous cases (different courts), held (if I may paraphrase) that calling yourself a Porsche specialist amounted to holding yourself out as an official dealer. As it was once explained to me: a manufacturer's official dealers are specialists, and they are independent. (On the other hand, I will always remember Trevor Finn at a Motor Law conference some years ago alluding to the fact that Wilberforce and he came from the same town, and likening the manufacturer-dealer relationship to slavery.)

Now, I think there are some important differences between different parts of the market. In the mass-market sector, it might be fair enough to say that holding yourself out as a Ford specialist might confuse customers. (OK, I know confusion is not the test here, but it is a reasonable way to look at the impact of the proviso.) Owners of such cars have a different sort of approach to all things to do with motoring than those of specialist cars. My point is that the owner of a Porsche motor car might reasonably be thought to be enough of an enthusiast to understand the nature of the trader with whom he or she proposed to do business. To a petrolhead, the expression "specialist" has a meaning quite distinct from "dealer" or "authorised repairer", and the courts should recognise that the relevant public is not a single body of people but several different groups.

Mr van den Berg was described as great Porsche lover. He might think otherwise now.

Thursday, 24 January 2013

Queen's Bench Division on over-revving

A BRM P160 Formula One car of 1971. In the Don...
A BRM P160 Formula One car of 1971. In the Donington Grand Prix Collection museum, Leics., UK. (Photo credit: Wikipedia)
Although it's really a case about evidence and human rights, Piper v Hales [2013] EWHC B1 (QB) is essential reading for anyone with an interest in motor cars, involving as it does what is to my mind the most sublime piece of machinery ever to take to the track. No, not a BRM P160, nor a car with BRM's wonderfully crazy H16 engine (the P83, or Lotus 43, which at least won a race with that power unit), or any of the Moskvitch Formula One cars. I refer to the Porsche 917, as campaigned for a wonderful but tragically short period in the early seventies by my two favourite drivers, who frequently drove them like oversized go-karts (see them here: I won't put the photo in because I don't know whose it is).
David Piper's Porsche 917 which he has owned s...
David Piper's Porsche 917 which he has owned since new. (Photo credit: Wikipedia)

In the case, Mr Hales had arranged the use of a 917 the property of David Piper with a view to writing an article comparing it to a Ferrari 512S (but don't the history books contain all the comparisons you could want?). It wasn't the 917 which Mr Piper has owned from new, but one assembled from original Porsche parts and therefore (rather uncharitably, I think) referred to as a replica. Read the judgment for the full story: the short version is that the rev limit was exceeded resulting in a blow-up which led to a bill for the not insignificant amount of €32,370 - although it does strike me as pretty good value. The question was why was the engine over-revved, the answer determining whether it was covered by insurance which extended to driver error (the judgment says "river error" but I think I can see what it means), which naturally raises questions about what weight is to be given to what evidence. Questions which of course pale into insignificance when the reader has been transported back to the greatest days of the World sportscar championship. So read the judgment of HHJ Simon Brown QC if you want to know how it turned out - or, indeed, if you are interested in the law ...

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Friday, 18 January 2013

Motor Law presents its 24th annual conference

This year's annual conference will take place on 27th February at the RAC Club. As always, we think we have assembled an interesting programme and a knowledgeable group of speakers, with a couple of slots still to be confirmed.

The morning will start with a session devoted to the block exemption. The new rules have been in place for the aftermarket now for a couple of years, long enough to be able to look back on how they are working, and this will be covered by Marjorie Holmes and Angela Gregson of global law firm Reed Smith's London office. Then Joseph Vogel, avocat, Selas Vogel & Vogel, Paris, a well-known observer of block exemption matters, will consider the prospects of the application of the new rules to the car market.

Moving away from the block exemption but still in the competition law field,  Alex Haffner of SNR Denton, Milton Keynes will provide a review of cartel investigations in the car parts market. The activities of competition authorities throughout the world have provided plenty of material for Motor Law in the past couple of years, and an overview of what is going on will be enlightening.

Never content to leave well alone, the government is proposing changes to copyright protection for industrial designs, about which David Musker, patent attorney, a partner in Jenkins, will speak in the manner that delegates so enjoyed a couple of years ago - and he will also bring us up to date with any other relevant topics in the field.

Stephen Dawson of Shoosmiths will cover recent developments in finance law, and finally there will be the regular consumer law update courtesy of Motor Law's old friend, solicitor Adrian Watts.

Want to come? How could you resist? Well, if that's not enough, the lunch will be excellent and the company will be unrivalled. You can download a booking form from the website of follow this link. The "early bird" rate for subscribers is £350 plus VAT, and the rate for non-subscribers £400 plus VAT.

Government supports Motor Codes

The Government last month expressed its support for Motor Codes in its response to the Motorists' Forum report on garage customer experience (see the DfT website here for a copy of the complete response). Unsurprisingly, the SMMT welcomes this endorsement of its efforts.

OFT issues principles to traders using Continuous Payment Authorities

On 12 December, the OFT issued a set of principles for businesses using continuous payment authorities (CPAs) amid concerns that customers are not always being made aware of what they are signing up to and may be misled about their rights to cancel. Here is a link to the full press release, according to which:
Once agreed by a customer, a CPA allows a business to take a series of payments using a customer's debit card or credit card without having to seek express authorisation for every payment. CPAs are often used to collect renewal payments for things like vehicle breakdown services, insurance policies, gym memberships, online dating, mobile and broadband services or magazine subscriptions.
CPAs can provide an efficient and convenient payment method for customers. It is important, however, that where they are used customers are fully aware of the commitment they are entering into and can cancel them without difficulty should they choose. The principles make clear to all businesses what they need to do to ensure that they fully meet their legal responsibilities when using CPAs, including that they:
  • are fully transparent about terms before a consumer signs up to a CPA arrangement
  • ensure the consumer has given informed consent to the use of a CPA, and do not use 'opt out' provisions or other means to automatically assume the consumer has given consent
  • provide adequate notice of any changes to the scope of the agreed authority, such as the amount or timing of payments
  • provide clear and prominent information on how to cancel a CPA.
The principles have been developed after a sweep of websites using CPAs checking for compliance with the Consumer Protection from Unfair Trading Regulations (CPRs) and other consumer protection laws. The sweep found signs that traders are not making it clear to customers that they are being signed up to a CPA, or about their rights to cancel.
CPAs are often confused with direct debits, but they do not offer the same guarantees. Customers can cancel a CPA with either the company taking the payment, or with the bank or card provider. Customers should tell the bank or card issuer that they have stopped permission for the payments. The bank or card provider has no right to insist that you agree this first with the company taking the payments, although it is good practice to also notify the company. Following the sweep, the OFT will contact 24 businesses to help ensure their websites comply with the principles. The OFT will continue to monitor the way CPAs are used, with businesses breaching CPRs and other consumer laws risking enforcement action.

Indian magistrate issues arrest warrants in porsche importer dispute

A novel way, perhaps, to deal with a dispute between manufacturer and importer. A  magistrate in Jaipur has issued bailable arrest warrants against nine Porsche executives, including chief executive officer and chairman Matthias Müller. Precision Cars, the marque's importer since 2003, alleges such offences as “extortion, cheating, dishonestly inducing delivery of property, criminal breach of trust and criminal conspiracy” arising from the appointment of Volkswagen Group Sales India as the sole Porsche importer in April 2012. Precision claim that the manufacturer failed to inform them, which they say left them no choice but to file a lawsuit. A criminal court seems like a strange place to take such a dispute, though.

Porsche (in this press release) describe the charges as "baseless", noting that the civil courts in Rajastan have already held against the ex-importer.

The New York Times reports that from January 2011 to March 2012, Precision Cars sold an average of 35 cars per month. During Porsche India’s first month of working with Volkswagen in India, in October 2012, the company sold 117 cars, followed by 51 cars in November.