Greenberg Traurig

Written by Luke Dixon

The Supreme Court of the United Kingdom rules on protection of Stormtrooper headgear and justiciability of U.S. copyright in English courts

The UK Supreme Court (which has replaced the House of Lords as the highest judicial body) has upheld the lower courts’ decisions in a dispute involving copyright in the helmets of the “Stormtrooper” characters from the Star Wars film series but widened the scope of non-UK copyright infringement actions.

In Lucasfilm Limited and others v Ainsworth and another, the court held that the helmets were not entitled to copyright protection under English law because they were utilitarian and were not sculptures that could qualify for protection as artistic works.
Continue Reading Lucasfilm Wins Right to Sue in UK for Infringement of U.S. Copyright

Written by Simon Harms and Stephen C. Tupper

In-house lawyers need to imagine this. The company’s preventative competition law compliance programme has failed to prevent a serious infringement. Former co-conspirators have beaten you in the race to obtain immunity by using leniency applications. Years of disruptive and intrusive investigations by competition law enforcement authorities have culminated in the imposition of a heavy financial penalty. Management in this position needs to decide whether it is time to move on or whether the company should prolong the pain by appealing the regulator’s decision.

Not that long ago, competition authorities such as the European Commission (the “Commission”) and the UK’s Office of Fair Trading (the “OFT”) would – often after years of painstaking investigations – impose fines which were low relative to the size of the companies (and the profits made from the anti-competitive conduct). As a result, most fined companies did not bother appealing. That has changed, to the point that it is now unusual for a company subject to a finding of anticompetitive conduct not to take its chances in court.
Continue Reading UK/EU Competition: courts reduce antitrust fines

Written by Andrew Briggs and Lisa Navarro

As the foreword to the Ministry of Justice’s (“MoJ”) recently released guidance on the Bribery Act 2010 (the “Act”) reminds us, one of the Government’s aims in pushing forward with this legislation is to create “a level playing field” with regards to the eradication of bribery. The Government recognised that by taking a more stringent approach to certain issues, such as facilitation payments, than other regimes (e.g. the US’ Foreign Corrupt Practices Act, or “FCPA”), it ran the risk of placing UK companies at a competitive disadvantage when operating in foreign countries. To minimise those risks, it became important to ensure that the Act had as broad a jurisdictional scope as possible. In the run up to the publication of the MoJ’s guidance, however, there was some heavyweight lobbying in favour of restricting, or at least clarifying, the jurisdictional provisions. This Alert considers, therefore, to what degree do foreign companies need to pay heed to the Act.
Continue Reading Bribery Act 2010: Jurisdictional scope

Written by Stephen C. Tupper

In March 2011, the European Commission published its first annual report, to the European Council, on trade and investment barriers in third world countries. This is the latest round in a long-standing campaign on the part of the Commission to find a way to eradicate trading obstacles faced by EU exporters in a number of key international markets that are not replicated when non-EU exporters seek access to the EU market. Evidencing signs of frustration over the lack of progress to date, the Commission states: “A key message of the new EU trade strategy is that in parallel to the negotiating agenda, our renewed trade policy must take a more assertive approach, not least to ensure that European companies are not deprived of legitimate market access opportunities and that our rights are properly enforced to ensure a level-playing field.” What this “more assertive” approach is going to mean in practice is the key question.
Continue Reading Public Procurement: Commission to seek equal treatment in the world’s procurement markets

Written by Andrew Briggs and Lisa Navarro

The UK’s Bribery Act 2010 (the “Act”) will come into force on 1 July 2011. The accompanying guidance from the Ministry of Justice (“MoJ”), Serious Fraud Office (“SFO”) and Director of Public Prosecutions (“DPP”) was published on 29 March 2011. Many companies’ minds will, therefore, now focus on its implications for day-to-day business. In order to prepare suitable guidelines for employees, and to establish a consistent policy for compliance, it is inevitable that much discussion has focused on what can truly be considered unacceptable conduct under the Act. Perhaps unsurprisingly, the area causing the most consternation, and creating the most column inches, is the issue of corporate hospitality or, more precisely, at what point does a beer become a bribe? Some reassurances as to what is acceptable, and what might attract enforcement action, have been included in the MoJ’s final guidance. As this alert will show, however, the MoJ’s comments simply confirm the position as it has always been based on the wording of the Act itself.
Continue Reading Bribery Act 2010: Corporate hospitality – or when is a beer a bribe?

Written by Simon Harms

On 14 December 2010, the European Commission(the “Commission“) adopted a new suite of rules governing co-operation between actual or potential competitors, consisting of (i) guidelines on the applicability of EU competition law to horizontal co-operation agreements (the “Guidelines”) and (ii) two new block exemption regulations covering: (1) specialisation and joint production agreements; and (2) research and development agreements (the “R&D BER”).

The Guidelines and block exemption regulations replace existing rules which had been in place for a decade and cover a large number of different types of horizontal co-operation agreements. In an effort to break down the myriad new rules to manageable proportions and in a user-friendly style, GTM has prepared a series of alerts which have examined the rules by types of agreement. This, the final alert in the series, focuses on research and development agreements.1  
Continue Reading EU competition: focus on R&D agreements

Written by Simon Harms

On 14 December 2010, the European Commission (the “Commission”) adopted a new suite of rules governing co-operation between actual or potential competitors, consisting of (i) guidelines on the applicability of EU competition law to horizontal co-operation agreements (the “Guidelines”) and (ii) two new block exemption regulations covering: (1) R&D agreements; and (2) specialisation and joint production agreements.

The Guidelines and block exemption regulations replaced existing rules which had been in place for a decade and cover a large variety of different types of horizontal co-operation agreements. In an effort to break down the myriad new rules to manageable proportions and in a user-friendly style, GTM has prepared a series of alerts which, in turn, examine the implications for the  various categories of agreement. This alert focuses on standardisation agreements.1  
Continue Reading EU competition: industry standards and antitrust compliance

Written by Stephen C. Tupper

On May 13, 2009, the European Commission (the “Commission”) published a summary of a decision1 confirming its view that Intel Corporation was guilty of serious anti-competitive conduct during a period from 2002-2007 in an important microprocessor market and, consequently, the Commission imposed a massive €1.06 billion fine on Intel. (A non-confidential version of the decision was published on September 21, 2009).

The Commission’s decision is the culmination of nine years of work and two separate, but related, investigations. It is a notable event for two reasons: (i) the eye-catching size of the fine, the largest ever imposed by the Commission on a single company for an antitrust violation; and (ii) because it is the result of a major Commission Article 82 investigation, the rarely used — at least when compared to its Article 81 anti-cartel counterpart — abuse of dominant position, or anti-monopoly, provision in the EC Treaty. It also constitutes a continuation of the Commission’s unofficial policy of reserving the use of Article 82 for “big fish” in “high profile” markets.
Continue Reading The European Commission’s Intel Decision

Written by Stephen C. Tupper | Lisa Navarro

On 10 September 2009 the Office of Fair Trading (OFT) and the Serious Fraud Office (SFO) dawn-raided the offices of Sports Direct. The dawn raid is the first public step by the OFT in its investigation into alleged anti-competitive agreements between Sports Direct and JJB Sports.

Whilst no details have been released formally as to the nature of the alleged anticompetitive conduct, it is likely to be linked to agreements between the two companies for JJB to stock Sports Direct’s own-brand products (e.g., Slazenger, Everlast, Dunlop, etc.) and, specifically, the arrangements regarding onward pricing.

The OFT’s investigation, which commenced in January of 2009, was triggered by JJB whistleblowing to the OFT. As a result, JJB has been granted immunity under the OFT’s leniency policy from any fines under the Competition Act 1998 and from criminal prosecution of responsible directors under the Enterprise Act 2002. Sports Direct, however, is subject to the risk of both. In addition, the decision by the OFT to involve the SFO raises the prospect of additional criminal liability to which both companies remain exposed.
Continue Reading Whistleblowing and Dawn Raids — Sportswear Giants at it Again