• Criminal Law

England and Wales Court of Appeal (Criminal Division) Decisions

Regina Vs. Christopher Tilley

The prosecution has applied for leave to appeal against a terminating ruling under Section 58 of the Criminal Justice Act 2003. The leave is granted. The defendant and Nicola Tilley face trial in the Crown Court at Cambridge. The indictment contains seven counts relating to fraudulent claims for social security benefits. Five of the counts are against Nicola Tilley and allege false representations to obtain benefit or failing to notify a change of circumstances that she knew would affect her entitlement to benefit. Counts two and four, which are the subject of this appeal are against the defendant and allege offences under Section 111A (1B), of the Social Security Administration Act 1992 as amended. The statement of offence in each case is "causing or allowing another to fail to give a prompt notification of a change of circumstances."

The actus reus of the offences alleged against the respondent in each of the two offences is causing or (as the charge now stands) allowing Nicola Tilley to fail to give a prompt notification to the authorities of a change of circumstances that he knew that would effect her entitlement. The mens rea is doing so dishonestly. The actus reus is therefore allowing an act of omission by a third party. Such an actus reus is not readily to be found in the criminal law. In deciding what must be proved to establish "allowing" on the part of the respondent the wording of the subsection is important. Dishonestly causing or allowing indicates that there are two ways of committing the offence, but that in either case the respondent must have acted dishonestly. On any view "allowing" must mean something less than "causing".

England and Wales Court of Appeal (Civil Division) Decisions

Whirlpool Corporation & Anor Vs. Kenwood Ltd 

The Claimants produce and sell kitchen equipment, including a stand mixer called the KitchenAid Artisan. This item has been made and sold in the United States since the 1930's, with very little change in the design. It has been introduced to the European market, including the UK, over the past 15 years or so. The Kitchen Aid Artisan is sold for £300 or more. In 2007 the Defendant, Kenwood, started selling a rival product of its own, called the kMix, which is also a stand mixer, and also sells for £300 or more. By these proceedings the Claimants seek to prevent sales of the kMix, unless it is adapted so as to be differentiated clearly from the KitchenAid Artisan. They relied at trial on trade mark infringement, on two different bases, and on passing-off. The claim came to trial before Mr Geoffrey Hobbs Q.C., sitting as a Deputy Judge of the High Court, in May 2008. By his judgment handed down on 4 August 2008, [2008] EWHC 1930 (Ch), he dismissed all three claims. The appeal is against the dismissal of one of the trade mark infringement claims.

On the evidence and on the findings as regards that evidence, Whirlpool is unable to show that Kenwood has in fact drawn, or is likely to draw, any commercial advantage from the perceived similarity. None of Mrs Watson, the survey witnesses, or the demonstrators enables Whirlpool to show clearly that Kenwood had obtained any such advantage, or were likely to do so. Relevant average consumers would be aware both of the KitchenAid Artisan and of the new entrant to the market. The two are similar in certain respects, but above all because both are stand mixers designed to a high standard of style, so as to be attractive products on the kitchen work surface, rather than functional items to be hidden away when not in use. Accordingly, looking at the question of unfair advantage generally, it seems that it was right to reject the case made on that footing for two reasons: there was no advantage to Kenwood, and if, to the contrary, there were, it was not an unfair advantage. It follows that the alternative case under article 9(1)(c) based on unfair advantage is not made out, any more than is the case based on detriment to the distinctive character of the CTM. Whirpool's appeal fails. The case is dismissed.

• Intellectual Property Rights

England and Wales High Court (Patents Court) Decisions 

Novartis AG & Anor Vs. Johnson & Johnson Medical Ltd (t/a Johnson & Johnson Vision Care) & Anor

This is a patent infringement action concerning extended wear contact lenses, that is to say lenses which may be left in the eye overnight or even for several days. The first and second claimants are respectively the proprietors and exclusive licensees of European Patent UK No 0,819,258 ("the Patent") and they contend that the defendants have infringed the Patent by selling certain contact lenses called Acuvue Oasys ("Oasys") in the United Kingdom. The defendants deny infringement and counterclaim for revocation of the Patent contending that it lacks novelty, is obvious and is insufficient.

It was held that the patent is invalid for insufficiency. The attacks of lack of novelty and obviousness have failed. The claimants have established that the Oasys lens falls in the scope of claims 1 and 24, but not claims 8 or 11.