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Saturday, 31 December 2016

The Motor Vehicles (Compulsory Insurance) Regulations 2016 (SI No. 2016/1193)

The Motor Vehicles (Compulsory Insurance) Regulations 2016 came into effect on 31 December 2016. They increase the minimum mandatory insurance cover for motor insurance policies in Great Britain relating to property to £1.2 million for any one accident, replacing the previous minimum which stood at £1 million. The minimum derives from the Motor Insurance Directive (Directive 2009/103/EC of the Euiropean Parliament and of the Council of 16th September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability). Article 9(1) sets the minimum, and Article 9(2) provides for it to be index-linked and adjusted every five years, hence the present regulations.

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Monday, 19 December 2016

Car dealer ordered to pay £1,500 after duping 'naive' customer - Car Dealer Magazine

Car Dealer Magazine reports that a dealer from Reading who sold a Ford Ka without telling the buyer that it had been previously damaged was given a 12-month conditional discharge as well as being ordered to pay £500 compensation and £1,000 costs (which seems to attach  more importance to legal fees than to the damage done to the consumer, but perhaps we should not be surprised at that).

At first, the magistrates were not convinced that the offender, an individual, should be treated as a trader  for the purposes of the Consumer Protection from Unfair Trading Regulations 2008 - notwithstanding that he had sold 19 cars in the two years leading up to the offence (in 2011). On appeal, Deputy District Judge Khan said that there was 'compelling evidence' that he was a car trader because of the regularity of the deals. In addition, his account with Auto Trader had a trade discount and he used a trade name in advertisements and on the receipt (which incidentally also bore the legend 'sold as seen', which wouldn't get him very far - indeed, could possibly even have got him prosecuted for another offence if it was seen as an attempt to exclude statutory warranties).

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Friday, 11 November 2016

Derby Trading Standards criticises defunct Caralot

Motor Trader reports that Derby City Trading Standards has obtained an enforcement order under the Enterprise Act requiring used car supermarket Caralot to refrain from misleasing consumers about the quality of their cars. However, the news coincided with the announcement that the company had gone into liquidation.

The Council said it had investigated 77 complaints against Caralot in three years.  “The business “failed to accept its responsibilities in resolving complaints, publishing misleading statements and omitting vital accurate information about their vehicles,” the Council said. There was also evidence of aggressive sales practices and e-signing finance documents on behalf of customers without their knowledge.

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Wednesday, 19 October 2016

CMA update on Volkswagen - Publications - GOV.UK

The CMA has announced that it is not going to be taking action under its consumer protection powers over the Dieselgate affair. You might be excused for thinking that this tells us more about the limits to its powers than anything else: but as the statement makes clear, much of the relevant law has changed since.

You can read the whole (one side of A4) statement via the link above, but the interesting bit is this:

A number of considerations have been taken into account in reaching this
conclusion, including the fact that the Consumer Rights Act 2015, which gives the
CMA new powers enabling it to secure compensation for consumers, only came into
effect on 1 October 2015, which is after the affected vehicles were sold, and that VW
has committed to fixing the affected vehicles. This means that in this case, the
CMA’s civil enforcement powers have limited application to the alleged wrongdoing
that took place.
 Regarding a criminal investigation, an important consideration was that the alleged
misconduct at the root of this issue appears to have taken place outside the UK,
notably in Germany, and is the subject of a criminal investigation by the German
authorities. In view of this, the CMA has had regard to the general presumption that
a prosecution should take place in the jurisdiction where the majority of the more
serious criminality occurred. 

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Friday, 14 October 2016

Rogue dealer

Car Dealer Magazine reports that a dealer admitted seven offences under the Unfair Trading Regulations and was sentenced to four months in prison - but the sentence was suspended for two years. The individual, Peter Coulton, ran a company called Lloyds Motor Centre Limited in Warrington, but the business had become insolvent and had been voluntarily wound up. The dealer's conviction therefore was little help to the customers who had complained of being left with defective cars: there was no money with which they could be compensated for the £9,000 which they had reportedly lost.

The case illustrates the sort of activities that can lead to prosecution. One customer had told him that the car had to be safe because it was for her 18 year old daughter, but when examined by a mechanic it turned to to have several serious faults. She was told by the dealer to take the matter up with the warranty company, which would have been little help anyway, but there was in fact no warranty anyway.

Car Dealer Magazine also reports another customer whose car broke down a week after being bought, and one the MoT on which had expired the day before being sold.

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Thursday, 13 October 2016

US: California jury clears FCA of price discrimination between dealers

Law360 reports that a jury in a federal court in California has found that Chrysler (as was) did not violate federal antitrust laws by offering better incentives to some dealers. The case, in which it claimed $1.7 million, had been brought by a dealer in San Jose, and some three years of litigation was disposed of by the jury in just a day.

The remarkable thing about this, to my mind, isn't so much the outcome as the fact that a dealer would even bring a claim in the first place. It's not something you see very often in Europe. Also interesting to note that it was a federal antitrust law case, not a claim under the often very protective laws governing dealer-manufacturer relations at state level.

Monday, 10 October 2016

Trading standards under pressure: was Liverpool right to impose cuts?

Local Government Lawyer reports a legal challenge initiated by a former trading standards officer, supported by the CTSI, against Liverpool City Council which had cut its trading standards department from 19 to four people.

CTSI say it is the second time that Liverpool have faced pressure to reduce the trading standards function. Local Government Lawyer reports that contempt of court proceedings were being brought in Manchester, and the question before the court concerned the adequacy of the Liverpool review. According to CTSI, the Council agreed to carry out a second review so, without admitting wrongdoing, it seems to have dealt with the contempt action.

The argument is based on the extensive range of statutory duties imposed on local authorities, and whether Liverpool's TSD was equipped to discharge them.

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Coventry dealer gives undertakings to trade fairly

Car Dealer Magazine reports how a dealer from Coventry gave undertakings to Trading Standards (for himself and his companies) that he will trade fairly in future. The undertakings could be seen on his website, where he agreed to publish them to satisfy the authorities who had received many complaints about the businesses: but it seems that the business has now stopped trading.

The undertakings say that the dealer and the companies will not:
  • deny consumers their statutory rights under the Consumer Rights Act 2015;
  • sell vehicles in an unroadworthy condition;
  • falsely describe vehicles as having full service histories when they do not;
  • make false statements as to the specification of a motor vehicle; and 
  • fail to respond in a timely fashion to telephone calls, emails or other correspondence from consumers regarding faulty vehicles.
A breaach of the undertakings would amount to a contempt of court, and could result in imprisonment.
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Monday, 3 October 2016

VW's $1.2billion settlement with US dealers - Car Dealer Magazine

Car Dealer Magazine reports that VW has finalised a settlement, agreed in principle on 25 August, with 652 US dealers over claims arising from the emissions scandal involving TDI vehicles, and other matters. The setlement must now be approved by Judge Charles R. Breyer in the US District Court for the Northern District of California, who is presiding over the federal multi-district litigation.

Dealers are set to receive an average of $1.8 million over 18 months and in addition to the cash payments will also get additional benefits to resolved alleged past, current and future claims of losses in the value of the franchise.

The manufacturer stresses that the agreement is not intended to affect any of its obligations outside the US. It maintains that obligations relating to diesel cars in other jurisdictions are different.

Wednesday, 21 September 2016

US: Land Rover sues to protect Defender trade mark

I'm sure I could have devised a very clever punning title about protecting "Defender" but I don't fell bright enough just now. The news (from the Law 360 website) is that JLR are suing Bombardier Recreational Products, Inc., in a federal court in Michigan. The Canadian company is making an SUV under its Can-Am brand (isn't that someone else's trade mark? Perhaps from too long ago, and for services rather different from Bombardier's goods) with the model name Defender.

Bombardier's defence appears to turn on abandonment by JLR, which is rather surprising given that they only stopped making their own Defender vehicles earlier this year - and reports from elsewhere indicate that they have in mind to replace it sometime. In the UK (and under EU trade mark law too) the trade mark would remain enforceable until it had not been used for five years, but US trade mark law differs from ours in an important respect (although the two only diverged with the Trade Marks Act 1994 and the Directive on which it is based). Under US trade mark law, what matters is not so much what is on the register as what is being used in commerce, so the arbitrary five-year non-use rule doesn't do it in the States. Whether the trade mark has been abandoned or not is a matter of fact (and, I suppose, law), so if JLR have truly abandoned it they are stuck. But it seems inconceivable that they really have.

Monday, 12 September 2016

Law Commission report on Bills of Sale published

The Law Commission has published its report on bills of sale - of particular interest to the motor trade because of the vexed matter of log book loans.

Thursday, 8 September 2016

Commissioner prompts Member States to pursue VW

The EU's Justice Commissioner, Vera Jourova, is pressing national authorities to investigate whether VW breached consumer protection laws - specifically, those based on the  Directive on Unfair Commercial Practices which prohibits misleading advertising, and the  Directive on certain aspects of the sale of consumer goods and associated guarantees - by stressing the green credentials of cars involved in the Dieselgate scandal.

As well as gathering information on action that Member States are taking themselves, the Commissioner wishes to make individual consumers and consumer groups aware of their rights over the claims. A 2013 Report by the Commission (see the Commission's web page on the Directive here) revealed that the Directive was not being enforced as rigorously as it might be by Member States, and the Commission announced its intention of pushing enforcement - the VW affair provides a superb opportunity to advance that agenda.

Italy has already fined VW €5 million over false advertising claims. Action under the Directive could result in more litigation in all 28 Member States of the EU. So far, VW has not compensated European consumers while it has compensated consumers in the USA. It argues (see this report from Automotive News) that by fixing the problem it will have done all it needs to do and there would be nothing left for which to compensate owners. The company also argues that it has not breached the directives (or, more accurately, national laws based on them). The sales directive requires that goods conform to contract - that they are fit for their purpose, which doesn't look like an easy claim to make in this case, that they comply with description (probably a better bet for a claimant) and perform as they should (again, a better bet than unfitness). VW's statement that they are not in breach sounds, well, bullish. As for the unfair commercial practices directive, it prohibits such practices and goes on:

2. A commercial practice shall be unfair if:
(a) it is contrary to the requirements of professional diligence, and
(b) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.
I wouldn't like to have to argue that claims about VW diesel emissions were not unfair within that definition. But stranger things have happened, and it is unrealistic to think that any manufacturer would admit breaches at this stage. It will only be when cases in Member States' courts start to come up that we will find out whether a breach has really taken place.

See the EU Observer website, this from Automotive News and this article in the Financial Times for more details.

Wednesday, 7 September 2016

Proposals for reform of tax treatment of termination payments

The government has published a revised proposal, along with draft legislation, to reform the tax treatment of termination payments. This follows a consultation which opened in July last year.
The proposal will not restrict the present tax exemption to termination payments made in a reduundancy situation, as had been suggested. The tax-free threshold will be maintained at the current level (£30,000) and most of the current reliefs will also stay.
Termination payments above the threshold, which will be liable to income tax as at present, will also be liable to employer's National Insurance Contributions.
The draft legislation will retain the distinction between contractual and non-contractual payments, but any payment that the employee would have received had they worked their contractual notice period will be subject to income tax and NICs. All payments in lieu of notice will also be subject to income tax and NICs, regardless of how the settlement agreement characterises the payments.
Reliefs which apply to income tax on payments over £30,000 will be retained, with some modifications.
The result of the changes in the law will be a clash between the legislation and what the contract of employment might say. Employers will, in effect, have to consider what the employee would have been entitled to under the contract had they worked their full contractual notice period - but without regard to the terminationitself, or to any provisions restricting entitlement in the event of a termination.
Interested parties can comment until 5 October: the consultation document is here. The changes will come into operation in April 2018.

Monday, 5 September 2016

Spain: €6 million fine for Nissan price-fixing

Spain's competition authority, la Comisión Nacional de los Mercados y la Competencia (CNMC), has fined Nissan's local distributor, a number of its dealers and two consultancy firms €6.03 million after an investigation into the exchange of commercially sensitive information leading to agreements over discounts and conditions of supply. The consultancy firms monitored the cartel-members' compliance and reviewed the dealers' monthly sales figures.

According to the story on the Law 360 website, the distributor will pay €1.9 million and two of the dealers over €1 million each. I had hoped to provide a link to material on the CNMC's website ( but I am unable to find anything relevant - I can order a coffee in Spanish but drilling down into the competition authority's website is another matter altogether. I will ask a friend for help.

Saturday, 3 September 2016

Repair clause referred to Court of Justice

Motor Law's great friend David Musker reports on the Class 99 blog that a court in Milan has referred to the Court of Justice (how nice to see the institution being identified by the correct name!) for an interpretation of the repair clause (Article 110 of the EU designs regulation, No 6/2002). The questions asked - of which there are two - are (as is so often the case, partly I suspect as a result of their having been translated into English) pretty incomprehensible. Why do these questions so often have to ask if something is "precluded"? In BMW v Round and Metal, to which the article refers, Arnold J, in a judgment that epitomises the adjective "Arnoldian", rejected the proposition that the defendant's alloy wheels fell within the scope of the repair clause: they were sold not as straight replacements but as alternatives, with different dimensions - and tellingly they were usually supplied in sets of four. What a misfortune to damage all the wheels of your car at once! Although it reminds me of a client who found her Boxster (this was probably 20 years ago) completely devoid of wheels one morning ...

An interesting point in the reference is that it appears to try to establish a connection between the "complex product" (the car) and the replacement part by reference to the fact that the wheels are approved under UNECE Regulation No 124 for use on that particular model of car. I'm looking forward to seeing what the court makes of that. I'm also trying to find some more enticing prospects to look forward to.

Thursday, 1 September 2016

Vehicle Sales Code introduced

 Motor Codes has launched a new code of practice, the Vehicle Sales Code. Their press release goes on:
The Code has been added in response to the growing number of enquiries received from car buyers since the arrival of the Consumer Rights Act and Alternative Dispute Resolution (ADR) legislation last October. The Citizens Advice Bureau also reported that, as a category, used cars have represented the second largest volume of complaints from consumers since 2014.
Awarded stage one approval by the Chartered Trading Standards Institute (CTSI), the Vehicle Sales Code provides guidelines on the sale of both new and used cars, as well as the supply of finance and warranties. Consumers can now be protected from the initial purchase of a vehicle, through to servicing and repair, subject to the Codes that a trader is signed up to. Any independent garages or franchise dealers who adhere to the Vehicle Sales Code are voluntarily agreeing to operate to the highest standards during the sale of new and used vehicles and when offering associated products and services. By meeting these guidelines, they are able to display the widely-recognised CTSI-approved Code and Motor Codes logos on their premises and website, thereby giving customers added peace of mind.
The Vehicle Sales Code covers nine different areas. These include the transparent wording of adverts and pricing, clear and transparent invoicing, and the sale of a used car which is supported by a vehicle provenance check to ensure that it has not been stolen, written-off and is free of any outstanding finance payments. It also highlights that retailers should provide test drives, avoid high-pressure selling techniques, supply accurate advice on warranty and finance products, and deliver a vehicle with a full handover, complete with all historic documentation, the entire service history and a valid MOT certificate.
Furthermore, subscribers pledge to resolve any problems quickly and cost effectively should a dispute arise in relation to the sales process. As a last resort, retailers are able to refer a customer to Motor Codes, a CTSI-certified ADR provider, for adjudication prior to the awarding of a final decision.
Bill Fennell, Managing Director of Motor Codes, said: "Following the recent introduction of Consumer Rights and ADR legislation, and the large number of enquiries seen by the Citizens Advice Bureau regarding used cars, it became apparent that there was an inherent need for a Vehicle Sales Code that offered consumers protection when buying a second-hand, or just as importantly, a new car. This gap has been filled, and the Code gives motorists the important reassurance that they are dealing with a trusted and reputable trader. They equally have a body to turn to in the unlikely event that they have a complaint that cannot be resolved directly with the seller."

Environmental Audit Committee critical of government action over emissions

VW faces tougher UK scrutiny as lawmakers call for action, reports Automotive News. The committee's comments can be found here. Because it's part of a much bigger document, here are the relevant paragraphs:

The Committee found that VW is only just beginning to recall cars in the UK. It also heard that the Serious Fraud Office and Competition and Markets Authority have still to determine whether they will take legal action against VW. The Secretary of State for Transport has yet to decide whether there are grounds for legal action— almost a year after the scandal first broke.
Mary Creagh MP said:
"There's been a worrying inertia from Ministers in tackling the VW scandal and they should decide whether to take legal action. They should ask the Vehicle Certification Agency to carry out tests to see whether, without the cheat devices, VW Group cars in the UK would have failed emissions tests."

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Thursday, 25 August 2016

VW Franchise Dealers Reach Proposed Settlement with Volkswagen Following Diesel Emissions Scandal | Hagens Berman | National Class Action Litigation Firm based in Seattle, WA

Hagens Berman announced on their website that a settlement has been reached between dealers and VW relating to the emissions crisis. The agreement creates a settlement fund and provides additional benefits to all US VW dealers. The funds are to be paid out within 18 months. The precise formula for the payout is still being refined, and more details will be announced over the coming weeks. Factors which will determine the amount of each dealer's payout include the size of the dealership and the size of the market it serves.

VW has agreed under the settlement to repurchase used diesel cars in dealers' stock which cannot be fixed. The terms of the repurchase will be the same as those that apply to repurchases from consumers and independent dealers - no group will receive special treatment.

The proposed settlement has to be approved by U.S. District Court judge Charles Breyer. It will go before him for preliminary approval in the middle of September, and if approved notice will then be sent to dealers.

The settlement does not resolve claims against Robert Bosch GmbH and its U.S. subsidiary.

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Monday, 22 August 2016

Texas: judge rejects GM ignition-switch claim

From Reuters comes the news that a judge in Texas has thrown out the second of 20 test cases involving the ignition-switch problem that, pre-Dieselgate, was probably the biggest product liability story in the automotive world, closely followed I suppose by the Takata airbags saga. It seems that the plaintiff in the rejected claim hadn't done much to show a chain of causation: the fault with the ignition switch was known, but there was nothing to show that it had pitched her car into the central barrier. Res ipsa loquitur? Apparently not.

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VW plaintiffs' lawyers to seek up to $332.5 million in fees, costs from emissions settlement

VW plaintiffs' lawyers are to seek up to $332.5 million in fees and costs from any forthcoming emissions settlement, according to Automotive News (11 August). That's in addition to the $10bn settlement figure. Unsurprisingly there is as yet no agreement between the plaintiffs and the manufacturer, papers only just having been filed with the court in California. VW has agreed to pay reasonable fees and costs - but that leaves a lot of room for argument.

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Sunday, 21 August 2016

Used Vauxhall Zafira B sales 'may have been illegal if repairs not carried out'

Car Dealer Magazine reports that used Vauxhall Zafiras appear to have been sold without repairs having been carried out. The model is currently undergoing its second recall, the magazine reports. The problem was revealed on the radio consumer programme, You and Yours, and Car Dealer asserts that it may be illegal to sell the car without attending to the repairs. The DVSA states in official guidance that dealers have to check for outstanding recalls and attend to repairs before selling the car, whether to a consumer or in the trade. It doesn't cite chapter and verse, but it is clear that a car that had not been fixed could be unroadworthy as well as being not of satisfactory quality. Criminal and civil laws could be engaged.

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Korea Widens Emission Test Probe to All Foreign Car Brands - Bloomberg

Having fined VW, the South Korean authorities have widened their investigations into fabricated emissions and noise-reduction test results to cover all imported marques - which account for some 15 per cent of its market.

Bloomberg has the story.

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VW Diesel Scandal Threatens to Ensnare German Supplier Bosch - Bloomberg

Lawyers in the US acting for VW owners allege that Bosch played an active part in a "decades-long conspiracy" involving defeating emissions controls. The software which accomplished this was provided by Bosch. The company is already a defendant in litigation which is in progress in San Francisco. This piece is based on a report by Bloomberg. There is also a report on the Reuters website.

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Who's responsible when an autonomous car crashes?

Tesla owner in Autopilot crash won't sue, but car insurer might, reports Automotive News. The car drove into a barrier on a stretch of road in rural Texas which the owner had often let the car navigate before. He suffered nothing more than a bloody nose, thank goodness, but has the distinction of being one of the first people to cause the question of liablity to be posed.

Tesla market their Autopilot function as an "assist feature", saying that drivers need to keep their hands on the wheel and be prepared to take over control - although one might criticise the choice of trade name, which might give a rather different impression. In fact, today (22 August) The Guardian reports that Tesla has changed the name under which it markets the stuff in China, from something that loosely translates as "self-driving" to something like "driver assist". This follows an accident in China where the non-driver said he'd relied on Tesla calling the system “zidong jiashi” (自动驾驶, I think), which can be translated as "self-driving" but which can also be translated as "autopilot", which (being the word they use in English) is presumably what they intended. It certainly demonstrates the problems that translations can create, and there are commentators on the Internet saying that the Chinese crash was the result of a bad translation. Apparently Tesla's Chinese website uses the English word Autopilot but now also has the words "zidong fuzhu jiashi" (Autopilot 自动辅助驾驶) which translates as "automatic assist driving", or "automatic auxiliary drive (according to Yandex Translate) - I guess the 辅助 ("fuzhu") makes all the difference.

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VW gains approval for more emissions fixes

According to Reuters, VW has received approval from the KBA to modify 140,000 2-litre cars to overcome the problems with the emissions control systems. That makes about 5.2 million cars in Europe (out of 11 million worldwide) for which fixes have been agreed, apparently leaving some 2.3 million in Europe to deal with.

KBA, Germany's vehicle testing authority, determines how the matter is treated throughout the EU. Should something like this happen again in a few years time, it will be fun to watch how the UK manages to go it alone.

California lawmaker to withdraw zero emissions vehicle bill

Automotive News reports that California Assemblywoman Autumn Burke is withdrawing a bill she had introduced earlier in the month, which would have required car-makers to ensure that 15 per cent of their new car sales comprised zero-emission vehicles by 2025. It sounds like an ambitious goal, and with the car industry, the oil industry, and unions all against it, there wasn't much chance of it getting very far. Ms Burke will meet stakeholders to discuss producing a more acceptable bill next session, but in any case state legislation will ensure that there are 1.5 millionZEVs on the roads of California by 2015 - or at least that's what the law requires.

Ms Burke earlier ( explained that without her bill the state would not come close to its existing target. The big problem with the California approach is said to be the fact that it is based on credits, which manufacturers of traditional cars can buy from ZEV manufacturers - which you might recall accounted for much of Tesla's profitability in the past.

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Harley-Davidson fined $12 million for defeat device

Now motorbikes too. Harley-Davidson has agreed to pay a $12 million civil fine and to stop selling illegal after-market devices that cause its motorcycles to emit too much pollution, the U.S. Justice Department said. The DoJ's statement is here.

Thursday, 18 August 2016

Consumer protection enforcement guidance: CMA58 - Publications - GOV.UK

Consumer protection enforcement guidance: CMA58 - Publications - GOV.UK:

"This guidance sets out how the Competition and Markets Authority (CMA) uses its consumer protection powers to address market-wide consumer problems. It also explains how it enforces consumer protection law and uses its investigatory enforcement powers.

"The guidance replaces ‘Consumer protection – guidance on the CMA’s approach to use of its consumer powers (CMA7)’ and the Office of Fair Trading’s enforcement of consumer protection legislation guidance (OFT512)."

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Friday, 12 August 2016

'Millions' of Volkswagen cars can be unlocked via hack - BBC News

Researchers have demonstrated that seemingly most cars made by the VW group since 1995 are vulnerable to hackers cloning keys using data that can be harvested with a simple radio device. Although it appears that it is possible to get into the affected cars, at least they cannot be driven away.

BBC News:

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Tuesday, 9 August 2016

German court short-cuts VW investor claims

The Landgericht (regional court) in Braunschweig (or Brunswick, as we know it) is using a class-action style approach to deal with the claims of numerous VW investors relating to misrepresentations of capital markets data, according to its press release (in German). It will select one case as a model for some 170 other similar claims, most of them from private investors. The largest case, filed by lawyer Andreas Tilp, includes the claims of 277 institutional investors and is worth €3.26 billion.

The selected representative plaintiff will be named in the final quarter of the year. Model proceedings of this sort - the closest the German system has to US class actions - can resolve generic or common issues, but unlike American cases cannot deal with individual claims. The priocedure was introduced in 2005 following a case involving Deutsche Telekom which was the subject of thousands of claims over prospectus fraud.

Thursday, 4 August 2016

Claimant wins credit hire argument over 'super car'

Litigation Futures reports on a case in which the claimant succeeded in his claim for the credit hire of a top-of-the-range Mercedes while his McLaren was in the bodyshop having been scratched by a passing tractor. In a rather extreme application of the rule that the defendant has to take the claimant as it finds him, the judge was not swayed by the argument that he had several other cars at his disposal including a couple of Aston Martins (and was the point made that he could only drive one car at a time?).

As well as the credit hire cost, the claimant also recovered damages for the two months that it took before the Mercedes was provided. So how long did it take to deal with the scratches?

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‘Black box’ recorder used in liability trial defence | News | Law Society Gazette

Data from a ‘black box’ recorder have successfully been used in a defence at a collision liability trial at Wandsworth County Court.
In the course of the trial, which concerned a collision involving an Insure the Box customer, deputy district judge MacKenzie heard differing accounts from both parties. Data from the black box installed in the defendant’s car provided the evidence to challenge the claimant’s evidence.

The judge found that the telematics evidence was ‘overwhelming’.

Law Society Gazette

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Drivers benefit as CMA motor insurance order goes live - Press releases - GOV.UK

Drivers benefit as CMA motor insurance order goes live - Press releases - GOV.UK:

The final requirements of the Competition and Markets Authority’s (CMA)Private Motor Insurance Order came into effect today (1 August 2016). The measures are intended to boost competition and reduce premiums for drivers.
The order, which applies to all providers of private motor insurance (brokers and insurers):
  • gives better information on the costs and benefits of no-claims bonus protection (this comes into effect today)
  • bans agreements between price comparison websites and insurers which stop insurers from making their products available more cheaply on other online platforms (this came into effect in April 2015)
Alasdair Smith, Chairman of the Private Motor Insurance Investigation Group, said:
There are more than 25 million privately registered cars in the UK and these changes will benefit them by introducing more competition into the market and reducing premiums as well as providing better information for motorists.
Measures within the order have been phased in since it was made in March 2015 and we are generally satisfied with the co-operation of the insurance industry.
All private motor insurers (including brokers) are required to submit compliance reports to the CMA on 1 August, and then annually from 1 February next year. The CMA will be monitoring compliance to ensure that consumers benefit fully from the order’s provisions.

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Tuesday, 2 August 2016

RHA to represent the haulage industry in cartel claim

The Road Haulage Association (see its Press release) will represent its members by seeking compensation from the truck manufacturers who were recently penalised for their involvement in a price-fixing cartel, as Motor Law has reported previously. Although leniency was shown to the whistle-blower in the European Commission's investigation, that does not mean that they will be immune to claims for damages from those who have suffered from the effects of the cartel.

There are also likely to be claims in other EU Member States, and we will try to keep readers informed of developments.

Competition authorities have been keen for some time to encourage claims for damages, to drive home the message that cartels and other forms of prohibited conduct have victims. Under section 47A of the Competition Act 1998, a person who has suffered loss or damage because of a relevant infringement of EU or UK competition rules may claim damages and an injunction in proceedings before the Competition Appeal Tribunal or the courts of any part of the UK.

The government has produced guidance on the matter,  Quick guide to private litigation in competition cases.

Monday, 1 August 2016

Ferrari collector "not qualified" to buy a LaFerrari Spider

Fort Lauderdale, Florida, is in my experience an oddly unsettling place. The display of ostentatious wealth and conspicuous consumption can be very uncomfortable. For the avoidance of doubt I refer neither to the Pillars Hotel nor to its owner. Perhaps when the International Boat Show is in town it is particularly pronounced. It's an odd place to find the largest flea market in the world, which doubles as a 14-screen drive in "theater" or, as we might say, cinema. A combined flea market and flea-pit? I don't suppose the latter description fits very well.

Oh, and it also houses a car collection. The founder of the Fort Lauderdale Swap Shop is Preston Henn, a sometime Ferrari racing driver and an avid collector of the marque. When Ferrari announced the launch of the LaFerrari Spider, he wanted one to go with the fixed-head example he already owned. He asked his dealer to order one, and when the dealer couldn't because the importer denied the request Mr Henn sent a cheque direct to Sergio Marchionne (which was returned to him). So he sued.

Mr Henn's claim (which can be found at is for defamation. The refusal to supply him has harmed his reputation in "the universe of Ferrari aficionados" (there, I told you Fort Lauderdale could feel unsettling - it's in a different universe!). Why Ferrari considered that he lacked some qualification to own a LaFerrari Spider does not seem to have been made public (perhaps because he already had a LaFerrari?).

A better demonstration of the Streisand Effect is hard to imagine.

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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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Thursday, 23 June 2016

No more new Saab cars

Well, we haven't seen any for quite a long time anyway. The press is full of the story that National Electric Vehicle Sweden (NEVS), the Chinese-backed company which took over the bankrupt carmaker's assets, has lost the right to use the Saab name - which, I believe, always belonged to the aircraft manufacturer, which only hived off car-making into a separate company in 1989, just in time for GM to take it over and - well, the rest is history. Reminiscent of VW buying a car-making business based in Crewe and discovering that the name was only licensed to it by an aero-engine manufacturer. It's sad to see a well-known marque like that disappear, though it could be worse - it could be continued on a completely unsuitable range of cars, like MG.

Wednesday, 22 June 2016

Jaguar Land Rover copycat lawsuit proceeds despite patent cancellation | Reuters

Reuters reports that JLR's action in China against the manufacturer of the Landwind vehicle which bears a striking similarity to the Range Rover Evoque is proceeding despite the cancellation of patents owned by both parties. We would call them registered designs, and (in China like here) they must be novel when the application to register them is made. The Chinese authorities revoked the design patent in April on the grounds that it had lost novelty because it had been made available to the public before the application was filed (in the EU, the applicant would enjoy a 12-month period of grace).

Jiangling, the producers of the Landwind, also had one or more design patents and they too have been revoked - on the grounds that they were too similar to JLR's (so they, too, would suffer from prior disclosure and consequent lack of novelty).

However, the legal action that we are really interested in is for copyright infringement and unfair competition, and is unaffected by the revocation of the design patents.

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Friday, 17 June 2016

Carmaker's trade mark used by non-authorised repairer

It's rather hard to see why a case in which an non-authorised repairer, sued by the manufacturer for trade mark infringement, would even incur the expense of going to court. Nevertheless in Bayerische Motoren Werke AG v Technosport London Ltd and Anor [2016] EWHC 797 (IPEC) (13 April 2016) that is exactly what happened, and the defendant won on one count of trade mark infringement. But it lost on another two, and on passing off, so had a bad day overall.

BMW alleged infringements of their BMW trade mark, the roundel device and the "M" device which denotes certain high-performance models in their range. Perhaps I should write "extra-high performance".

The first two are Community or now EU trade marks, and the third an International designating the EU, so the legislation which was engaged in the case was Council Regulation (EC) No. 207/2009. In each case the claimant invoked art.9(1)(a) (double identity) and (b) (likelihood of confusion) and in the case of the "M" device art.9(1)(c) (unfair advantage) as well, and all three infringements had associated passing off claims. That seems pretty comprehensive.
The uses of the trade marks were all the things that one expects of an unauthorised repairer. There was the use of the description "BMW Specialist" on the fascia on the garage premises, which it was accepted was not liable to affect any of the functions of the trade mark (Case C-63/97, Deenik): it was an accurate message about the services offered by the defendant, and was not even pleaded. The roundel also appeared on the fascia, which was another matter: and it was on a van, business cards and a banner inside the premises. The "M" logo appeared on the website.

The novel allegations of infringement concerned the fact that Mr Agyeton, the proprietor of the defendant, wore a shirt with the initials "BMW" on it and he or the defendant operated a Twitter account with the handle @TechnosportBMW. That claim did not succeed, but the others did. The fact that the roundel featured on the packaging of parts which were supplied (through the authorised dealer network) to the defendant, as the law requires them to be, made the claim a little more complicated. In addition, promotional items bearing the roundel were provided to dealers as part of the manufacturer's efforts to encourage the sale of genuine parts, and would be passed on to non-authorised dealers, who would pass them on to customers, which further complicated the matter. In the end, however, the judge was satisfied that the average consumer would not understand the roundel on the packaging to indicate that the garage was an authorised repairer. But where the roundel was displayed on or in the premises, the average consumer would assume that this indicated a connection between the garage and BMW, or (if that was not the case) at least it would cause consumers to wonder about the connection.

The use of the roundel also amounted to taking unfair advantage of the reputation of the trade mark (art.9(1)(c)), although that won't have added anything to the remedies (and, being an IPEC case, the amount of damages available was limited anyway).

The use of the "M" device would also have those effects, so that too amounted to an infringement. But the use of the BMW signs conveyed no suggestion that the defendant was an authorised repairer, partly because the evidence provided didn't get BMW far enough, so this line of attack is hardly foreclosed by this judgment.  There is an interesting argument that, because BMW dealers commonly include "BMW" in their business names, the addition of the defendant's name could actually made it seem more like a representation that there was a connection: the judge thought that too subtle for the average consumer, but it should definitely not be discounted in future. A manufacturer might well find a way to make that approach work in their favour.

Where, you might wonder, do the art.12 defences feature in this case? The answer is that the defendant accepted that art.12 added nothing to the defence to the infringement claim, namely that "the defendant's use of the signs was not liable to affect the functions of the Trade Marks.  This was because the signs as used by TLL would in each case have conveyed to the average consumer that TLL was a specialist in the repair and maintenance of BMW vehicles, using genuine BMW spare parts." I expected to see detailed consideration of the "honest practices in industrial and commercial matters" proviso, as in Volvo v Heritage, but the judge wasn't asked to get into that.

Regarding the passing-off claims, these stood or fell with the trade mark claims, and the judge explained the connection between the two which strikes me as an interesting point:
 Had I found that the message conveyed by TLL’s use of its roundel and the M logo signs in each case did no more than render the average consumer unable to determine whether there was an economic link between TLL and BMW, as opposed to causing the average consumer to take the view that there was such a link, on that evidence I would have concluded that there had been no passing off by TLL, see Reed Executive plc v Reed Business Information Ltd [2004] RPC 40, at [111] and Phones 4U Ltd v Ltd [2007] RPC 5, at [16].
"Unable to determine" and "caused to wonder" amount to the same thing (so it appears from this judgment), so the test for passing off is somewhat stricter than that for trade mark infringement.

Monday, 13 June 2016

NHTSA warns Tesla over non-disclosure clauses

From the US, two reports from Automotive News last week on the same topic: first, NHTSA warned Tesla about using non-disclosure agreements to keep secret information about out-of-warranty repairs. The agency had learned last month that information about safety-related problems might be being suppressed this way, and announced that it was unacceptable. Then the next day it reported that Tesla was to clarify how customers may disclose problemsrevising a nondisclosure clause in its customer repair agreements in response to NHTSA's concerns.

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Thursday, 9 June 2016

Carwow takes legal action against BMW to lift dealer ban - Car Dealer Magazine

Car Dealer Magazine and Automotive Management report that Carwow, whose establishment we reported back in July last year, are taking legal advice over BMW's efforts to stop their dealers using the web-based service. They have also reported the manufacturer to the CMA.

Coincidentally, the CMA has also warned against online sales bans involving golf clubs, reported here by Pinsent Mason's Out-Law service. That seems to be in line with the case law. And just a few days ago we reported that a ban on German retailers selling Coty products using online platforms such as eBay and Amazon had been referred to the Court of Justice.

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Defining the connected car

We're talking more and more about the connected car these days, but what does the expression mean? Automotive News interviewed Helen Edwards of Intel, who said that you couldn't define it. And when you look at this Intel presentation from a few years ago, it's hardly a matter for surprise!
The Virginia Automobile Dealers Association has called on state regulators to investigate and sanction Tesla Motors Inc. for what it calls “serious, systemic, and habitual violations” of state laws at its existing locations. This includes offering illegal test drives at a shopping-mall gallery. Tesla, unsurprisingly, is not taking it lying down. There is more on Autoblog here.

This comes on top of a lawsuit earlier this year by which the VADA sought to prevent Tesla from opening a second outlet, which it argues the manufacturer cannot do until next year. And last August teh state took issue with Tesla's referral scheme, arguing that it meant that unlicensed individuals were making money from trading in new cars.

Car Wars: The Car of the Future—Legal Aspects in a Connected World

White & Case LLP have published an interesting piece on legal aspects of the connected car, previously published in a special edition of the German newspaper Handelsblatt but here helpfully translated into English. It seems to have a strong German slant but it's definitely worth reading.

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Toyota mulls legal action against Brexit group for logo use

Toyota are not amused by the use of their logo on Leave campaign materials. The manufacturer is reported to be considering taking legal action. The offending leaflets (which also refer to five other carmakers) don't state in so many words that Toyota support Brexit (which they clearly don't), but does say that the companies have all said that they wouldn't pull out of the UK if the UK pulled out of the EU. It sounds as if the action would be for trade mark infringement - and given that Toyota probably haven't registered trade marks for political campaigns, they would have to argue that the use is detrimental to the reputation of their trade mark, which sounds about right.


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German prosecutors investigate VW over deleted data | Reuters

Reuters report that prosecutors in Germany are investigating the deletion of data relevant to investigations into the emissions scandal by VW employees. Some of the data were allegedly transferred onto data sticks, which have since been handed back in (to whom, the report does not make clear).

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VW receives approval for fixes on a further 1.1 million diesel cars

Reuters via Automotive News report that in addition to the 800,000 that the KBA gave approval for last week, VW has approval to fix another 1.1 million diesel cars and CVs, including Audi models, Tiguan and Caddy models with the 2.0-litre TDI EA 189 engine.

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Slovenia: Competition Protection Agency adopts commitments for Hyundai Auto Trade

The Slovenian competition authority has accepted undertakings from the local Hyundai concessionaire, which are intended to ensure that warranty terms are no longer used to keep repair and maintenance work within the authorised network, according to a report from law firm Shoenherr. The case was brought under domestic competition legislation (Article 6 of the Prevention of Restriction of Competition Act) but the principles contained in the block exemption were applied.

Vehicle tax collected fell £200m after paper discs axed - BBC News

BBC News reports that vehicle excise duty collection has fallen by £200 million since the abolition of the paper tax disc, which was not the idea. No doubt it will all come right in due course, but for the time being the change doesn't look like a great success: and that's without even thinking about all the controversy there has been about losing paid-up tax when a vehicle is transferred, or even just when the registered keeper changes - and we are always told that the registered keeper is not necessarily the owner ... 

Wednesday, 8 June 2016

Fiat engines comply with emissions rules, Italian minister says

From Automotive News Europe: 

Fiat Chrysler diesel engines have been tested and they comply with emissions regulations, Italy's Transport Minister Graziano Delrio said, after German media reported that irregularities had been found.

Tuesday, 7 June 2016

Germany wants stricter EU rules for car emissions

Automotive News reports that Germany, of all countries, wants emissions rules tightened up. It's carbon dioxide that's the problem (CO2, as everyone who hasn't worked out how to use subscript, or understood the need to do so, refers to it), not NOx: last month a committee of the German legislature revealed that some 30 car models were emitting suspiciously large volumes of the gas. The proposal is designed to help defeat or deter the use of cheat technology, and to require vehicle manufacturers to disclose what technology they are using to protect engines in harsh driving conditions. It's the fact that GM have admitted that the emissions controls on Zafiras shut off at a certain speed and air pressure, to avoid damaging the engine that seems to have prompted this latest idea: GM say that they are doing nothing illegal there, but whether it should be legal is another matter.

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Monday, 6 June 2016

VW receives approval for fixes on more than 800,000 cars | Reuters

Reuters  reports that VW has been given approval by regulators for fixes on more than 800,000 cars out of the 8.5 million in Europe that require attention. This means that recalls can begin in earnest - so far only about 50,000 cars have been dealt with.

The KBA has approved fixes for Passat, CC and Eos models with 2.0 litre TDI EA 189 engines, the manufacturer announced on Friday. It also said that software updates on the affected 1.2-litre, 1.6-litre and 2.0-litre vehicles, as well as hardware fixes for about a third of the affected cars, would be completed by the end of the year.

Reuters say that the KBA had been worried that the proposed fix would increase consumption for the Passat, but it now seems satisfied that fuel consumption will not increase. Performance and noise levels will also be unchanged. Modifications for other 2.0 litre models should now be approved in the  near future, but recalls of 1.2 litre cars are being delayed.

Competition in Motor Racing: A New Formula One Antitrust Case? by Oliver Budzinski :: SSRN

Competition in Motor Racing: A New Formula One Antitrust Case? by Oliver Budzinski  is an interesting piece of reading. It's been around for a couple of years but I only recently found it. The abstract says:   
The European Commission appears to be considering to open a new antitrust case against the owners of the FIA Formula One World Championship (F1), which by some accounts represents the second biggest sports business in the world. Specifically, two interrelated concerns are raised: (i) a violation of a former settlement between F1 organizers and the EC’s competition division by re-mixing regulatory authority and commercial rights through the Fédération Internationale l’Automobile (FIA) and (ii) an unfair treatment of smaller teams by excluding them from regulatory decision procedures and by a grossly uneven distribution of revenues among teams. These two concerns, however, do not only point to a violation of the former settlement, they also reveal a major flaw in the 2001 agreement. Instead of restoring competition, the power may just have been leveraged from the FIA to the commercial rights holder.

U.S.: Chevy dealer fined $40,000 for selling recalled new vehicles without repairs

In the United States, Federal law makes it an offence for a dealer to sell a car that is subject to an open recall without making sure that whatever caused the recall in the first place has been fixed. A recent case involving a Chevrolet dealer in Phoenix is the subject of a settlement agreement  under which the dealer agreed to pay NHTSA $40,000.

You can read more on the Automotive News website here.

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China: JLR sue Landwind over Evoque look-alike

According to Reuters, Jaguar Land Rover has become the first western car maker to sue a Chinese rival, Jiangling Motor, in China for copying its design. Although copying is rife, the difficulty of enforcing intellectual property rights in China has usually deterred manufacturers from taking such a step - Honda took action to protect the CR-V design from copying by a little-known Chinese company, and were in court for 12 years before winning far smaller damages than they had sought.

The JLR suit is based (it seems) on copyright and unfair competition law. Jianling's Landwind X7 - the latest version of which was announced last November - bears a striking resemblance to the Evoque. It has softer, more rounded angles on the front, but cheap kits enable the owner to modify the look to make it more like an Evoque, which costs three times as much.

In the UK, JLR have applied to register the appearance of the Evoque as a trade mark. The application is still under examination, but there are many precedents for vehicle shapes being registered as trade marks - though how effective they are has not yet been shown in litigation.