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Wednesday, 28 January 2015

KoreaK Foreign parts makers in antitrust probe

According to Just Auto, the competition authorities in South Korea are investigating price-fixing in the automotive parts market involving German and Japanese manufacturers. Given that every competition authority in the world is investigating the same thing, or so it seems, it is a story that is noteworthy mainly for the nationalities of the companies being investigated. The fact that it adds to the overall mass of investigatory work being done in the sector is also significant, I suppose.

Audi readies Q1 SUV after Fiat rebuff over name

Automotive News reports that Audi has failed to persuade FIAT to let it use the designation Q2 for a new compact SUV, so it has had to go to Plan B and reluctantly call it Q1. The Q2 'name' (can it really be called a 'name'?) is held, the report says, by Alfa Romeo (which Audi has been trying to buy from FIAT). It is (or was) used to designate a self-locking front differential.

Why this relentless simplification of model titles? When you use such banal designations you're bound to run into problems more often than if you use a bit of imagination and think up a name for the car, or for the technical system. Hydrolastic, for example, rather than - what - H1 or something like that. And there have been plenty of examples of conflicting three-digit numbers, for example when Mazda and BMW used to use them.

Audi, however, do have a theme here. AN says:

Audi uses the Q badge for its SUV/crossovers, which include the Q3
compact, the Q5 midsize and the large Q7. Audi CEO Rupert Stadler said
earlier this month that the automaker is "working heavily" on a
range-topping Q8 to go on sale before 2020.
Wait until the Kuwait Petroleum Corporation hears about that last one!

CMA consults on unfair contract terms guidance - News stories - GOV.UK

The Competition and Markets Authority is consulting on unfair contract terms guidance according to this piece on the CMA website.  It - the guidance that is - is designed to help businesses understand what is fair and what is not, in dealings with consumers. It says that the guidance helps to explain the Consumer Rights Bill, which makes it seem somewhat premature - although it makes sense to have the guidance ready to publish as soon as the bill becomes an Act.

The consultation (122 pages, plus five related documents which thankfully are not nearly as long, even taken together) will close on 30 March 2015.

GM’s confirmed ignition deaths hit 50 as claims deadline nears

Automotive News reports that as the deadline for claiming for compensation arising out of the GM ignition affair in the US comes closer (31 January), 50 confirmed death claims have been associated with the defect. That's out of 338 filed, of which another 68 are still under review.

Commissioner calls for standardised road pricing in member states | EurActiv

EurActiv  reports that Commissioner Violeta Bulc has called for the standardisation of road pricing in the EU. It follows the proposed introduction in Germany of tolls for using the Autobahn system, which will affect foreign drivers more than German ones because of a compensating reduction in road taxes levied on the latter - a sleight of hand the legality of which is currently occupying the EU authorities.

From the archives: my favourite passing-off case, Rolls Royce v Dodd

In an area of law where the cases are, almost by definition, often highly amusing, Rolls-Royce Motor Cars v Dodd [1981] FSR 519 is in a class of its own. John Dodd, the proprietor of an automatic transmission repair business, built his own car - actually taking over a rolling chassis which someone else had started and building a body on it - powered by a second-world-war vintage Rolls-Royce Merlin engine. The first iteration used an engine from a Centurion tank, rather less romantic than had it come from a Spitfire, the most celebrated machine in which the Merlin was used: the second car (its predecessor having been destroyed in a fire) had an engine from a bomber (a Mosquito, apparently). It also had a very different body style. Both cars featured a Rolls-Royce radiator grille and Spirit of Ecstasy mascot, at least until the manufacturer (whose company secretary at the time happened also to be called John Dodd) took him to court where Walton J granted an injunction to prevent passing off (referring to the car as a Rolls-Royce) and infringements of the company's trade marks.

Following the case, Mr Dodd started referring to the car as The Beast. When he promised the judge that he would change the name, Walton J asked where was Beauty. Perhaps in the eye of the beholder?

Thanks to the Internet, I find that Mr Dodd, who moved to Spain after he had breached the injunction within a couple of days (Whitford J fined him £5,000), is still running his automatic transmission repair business. Better still, YouTube has several clips of The Beast in action, including this one from an old edition of Top Gear. The embedded one below includes Mr Dodd executing a doughnut in it, sadly filmed from inside the car so you have to rely on his daughter's commentary.

<iframe width="420" height="315" src="//" frameborder="0" allowfullscreen></iframe>

Sunday, 25 January 2015

Chrysler sued for royalties by music industry

Chrysler sued for royalties by music industry, Automotive News reports (a few weeks ago, now) - in the US, that is, not here,and it's not the first time that a car manufacturer has been sued though no cases appear to have reached court yet. The argument is that the hard disk in the in-car entertainment system is a recording device within the meaning of the Audio Home Recording Act of  1992, which means that royalties are due from the manufacturer for the music that it is assumed will be recorded onto it. Chrysler (with Ford and GM, sued earlier) think otherwise.

If a hard disk gives rise to a claim for royalties (as seems to be the case), it hardly matters whether it is in a car, a computer or a hi-fi component. It will be interesting, to say the least, to see how this case turns out. There should be no danger of it happening in the UK, though: there is no statutory right to royalties on recording media of any sort, and CBS Songs v Amstrad back in about 1986 relieved the manufacturer of any liability for copyright infringement just because they marketed a recording device.

Wednesday, 21 January 2015

Four former Chrysler dealers could reopen under U.S. appeals court ruling

Four former Chrysler dealers could reopen under U.S. appeals court ruling according to Automotive News. This comes as the result of a decision of the 6th Circuit Court of Appeals, which held earlier in January that the federal law which created the arbitration process in which the dealers won against the manufacturer prevailed over state laws that would on their face allow nearby competitors to challenge the reopenings.

Does the repair clause provide a defence against trade mark infringement?

A posting by Henning Hartwig on the Class 99 blog tells me that the Tribunale Ordinario di Torino applied on 11 November last year for a preliminary ruling from the Court of Justice (Case C-500/14 Ford Motor Company). The case concerned a wheel trim manufacturer whose products bore vehicle manufacturers' trade marks - without, naturally (otherwise it could hardly have troubled the courts), the trade mark owners' consent. The UKIPO gives details of the case.
Protection for spares under design laws, including the harmonised law under the EU's designs directive and the EU's own design regulation, is a tricky area. The Community Designs Regulation contains a so-called 'repair clause' (Article 110 (1) Regulation (EC) No 6/2002) which tries to prevent design protection from hindering efforts to make your car look the way it should, following an accident or other misfortune such as rust. Article 14 of the Designs Directive (Directive 98/71) allows the Member States to keep existing legal provisions for design protection for spare parts, permitting them to change the rules only in the direction of 'liberalisation' (the so-called 'freeze-plus' compromise, and I place inverted commas round the word 'liberalisation' on the basis that vehicle manufacturers would not use the word - they might think 'anarchy' more appropriate).  Eleven of the 28 Member States have liberalised their national spare parts markets in this way, including Italy where the present case comes from. (The UK had already gone as far as possible in the direction of liberalisation.) Last spring, the Commission’s proposed amendment to introduce a repair clause similar to that in Article 110 CDR into the Directive 98/71 was withdrawn, so there is no prospect of a repair clause being imposed at national level.
Design law, then, cannot generally be used to stop a wheel trim manufacturer making wheel trims to restore the appearance of the car. But if the wheel trim that needs to be replaced has the vehicle manufacturer's trade mark on it, does the repair clause trump trade mark law, or vice versa? And of course it's not only wheel trims. Accordingly the questions referred to the Court are:
(a) Is it compatible with [EU] law to interpret Article 14 of Directive 98/71 and Article 110 of Regulation (EC) No 6/2002 as conferring on producers of replacement parts and accessories the right to use trade marks registered by third parties in order to allow the end purchaser to restore the original appearance of a complex product and, therefore, also when the proprietor of the trademark applies the distinctive sign in question to a replacement part or accessory intended to be mounted on the complex product in such a way that it is externally visible and thus contributes to the external appearance of the complex product?

(b) Is the repair clause set out in Article 14 of Directive 98/71 and Article 110 of Regulation (EC) No 6/2002 to be interpreted as constituting a subjective right for third-party producers of replacement parts and accessories and, if so, does that subjective right include the right for such third parties to use the trademark registered by another party in respect of replacement parts and accessories, by way of derogation from the rules laid down in Regulation No 207/2009 and Directive (EC) 89/104 and, therefore, when the proprietor of the trademark also applies the distinctive sign in question to a replacement part or accessory intended to be mounted on the complex product in such a way that it is externally visible and thus contributes to the external appearance of the complex product?
 An interesting pair of questions. Were it not for a suspicion that wheel trims, being sold usually in sets of four, might actually be accessories rather than replacement parts, as often aftermarket wheel trims look quite different from the original ones (and in my experience often don't fit, but that's another matter), it might be a lot easier. Wheels have been held not to be parts of a complex product (in BMW v Round and Metal Ltd [2012] EWHC 2099 Arnold J said: 'In my judgment that means that Article 110 (1) should be interpreted as being restricted to component parts which are dependent on the appearance of the complex product', and Dr Hartwig also cites a couple of German cases: the Stuttgart Appeal Court decision of 11 September 2014 – Case No 2 U 46/14 and the Düsseldorf District Court decision of November 28, 2013 – Case No 14c O 304/12). Makers of spare parts or accessories are entitled to make use of trade marks identifying the product to which the spare part is designed to be applied , although how far that runs is far from clear and it certainly has to be ‘in accordance with honest practices in industrial and commercial matters’. It might be that the present case actually requires consideration of whether this trade mark exception applies, rather than the repair clause – in other words, this is a trade marks problem not a designs one. Commentators also ask whether the repair clause might be invoked in trade mark law, where the trade mark itself is an integral part of the appearance of the product – an intriguing possibility. The ‘honest practices’ rubric seems the right context in which to consider the need to use the trade mark for this purpose, so that there would be nothing dishonest about applying the trade mark if the original wheel trim carried it (and the design of the replacement wheel trim is identical to that of the original).

US: Another 108 claims over GM ignition switches

General Motors has received 108 claims for compensation for ignition switch defects in its cars in the past week, bringing the total to 2,818, according to the official administering the compensation program, according to Automotive News.

DVLA suffers High Court defeat for revoking elderly woman's licence based on 'age alone' - Telegraph

The Telegraph reports that the High Court has ruled that the DVLA was wrong to revoke a woman's licence based on age alone - although in fact there seems to be a bit more to it than that. Nevertheless, it does sound as if there was a presumption that age was a pretty good reason for revoking a licence. DVLA (or the magistrates to whom the driver appealed at first) also took the view that she lacked insight, believing that she was a better driver than she was 20 years ago: no doubt there is a stage in everyone's lives when they stop getting better at something, like driving, but for most people surely the more experience they have the better they will be at it. I am a much better driver now than 20 or 30 and certainly 40 years ago, although whether I will be better still in another 20 years time alone can tell. The case is  Hitchen, R (On the Application Of) v Oxford Magistrates Court [2015] EWHC 271 (Admin) (19 January 2015) 

Tuesday, 20 January 2015

CMA consults on draft motor insurance order

The Competition and Markets Authority has published a draft order setting out how changes resulting from its investigation into private motor insurance will be introduced.
The draft order provides detailed information on how these changes are to be introduced and monitored. The CMA is inviting comments on the draft until 6 February 2015 and will look to publish the final order in March. Later (27 February) the CMA specifically consulted on whether to extend the time for implementation of the remedy giving consumers better information on no-claims bonus protection from September 2015 to August 2016.
The draft order, explanatory note and all other information relating to the investigation can be found on the investigation’s case page.

Thursday, 8 January 2015

Shanghai starts "parallel import" pilot for foreign cars

Chinadaily  reports a scheme to allow parallel imports into Shanghai's free trade zone, which is apparently designed (and how can it fail to do so?) to force down the prices charged for imported cars. There has been plenty of controversy over the prices charged particularly by European manufacturers in China, and at the same time dealers have been demanding compensation from manufacturers as the market slowed down - an idea that some European dealers will find amusing, although most will probably find it extraordinary that such a claim might ever be entertained.

Opening the market to parallel imports is obviously the best way to help the hard-pressed dealers. It will be interesting to see how this pans out. Parallel imports were hardly welcomed by dealers in the UK during the 80s and 90s when they were at their height.