Frequently Asked Questions

Much will depend on how the JV has been set up and what mechanisms are available to the parties. A few examples of cancelling/terminating the arrangement can be:

• the venture has completed as contemplated;
• exercising “exit” by way of sale;
• agreed termination of the venture by the parties;
• consent to replace/remove a party;
• potential breach that is incapable of resolution by the parties;
• where some deadlock arises that is incapable of resolution;
• winding up/administration.

Simply put it is a contractual agreement like any other, which in this case has as its main objective a specific strategic alliance between 2 or more independent legal parties, and can be described as a JV agreement, collaboration agreement, co-operation agreement, etc. However, the agreement will maintain the independence of each party and will seek to avoid a partnership of the parties. It will set out amongst other things, the nature, scope, and aims of the joint enterprise, the contributions of each party to the enterprise, financing, IP, losses/liabilities, along with the rights and obligations of the parties.

There will be a number of minimum terms within an agreement. Nonetheless the structure and content of the agreement will depend on the nature and scope of the enterprise. Therefore you will need to consider whether the arrangement focuses on technology collaborations, research and development, developing new products, or some other strategic arrangement. The following is a non-exhaustive list of issues that each party will need to consider for inclusion/relevance for each JV agreement:

• set out the main aims of the enterprise/what are the parties wishing to achieve;
• what is the anticipated timescale and milestones of the overall project;
• tax, territory, and jurisdictional matters to consider;
• exclude partnership/agency arrangement/ability for parties to bind one another;
• revenue streams/generation of fees/allocation of profits for each party;
• set out liability/warranties/indemnities;
• confidentiality/identify background and foreground IP/rights of the parties/any licensing arrangements/restrictive covenants;
• define roles and reporting/duties and obligations/costs arising and as relating to each party;
• use of any sub-contractors;
• ongoing commitments of each party including any funding arrangements;
• operational arrangements/processes;
• use and/or inclusion of other relevant documents/industry requirements;
• use of employees by either party for the other/TUPE considerations;
• use of data and personal data/data protection and processing;
• dispute resolution scheme/mediation/escalation procedures;
• regulatory consents/approvals, competition matters;  
• post termination obligations.

Data protection law requires a relevant organisation to be able to demonstrate that its data processing activities comply with data protection requirements. A key element of the regulation is the concept of “accountability”, and therefore meeting the accountability standards means doing more than just establishing data protection policies and procedures. Accountability requires a relevant organisation to be able to demonstrate how it consistently complies with data protection law by way of:

• suitable internal policies and processes;
• effective implementation of those policies and processes to be part of that organisation’s day-to-day activities;
• effective internal compliance procedures;
• suitable and effective controls.

Documentation used to demonstrate compliance includes (non-exhaustive):

(a) Policies and procedures describing how and when an organisation provides privacy notices to data subjects when collecting personal data directly from data subjects or from third parties.

(b) Copies of data privacy notices provided to data subjects when data is collected directly from data subjects or from third parties, which satisfy the various notification requirements established under data protection law.

(c) Policies and procedures on using personal data for secondary purposes different to those purposes originally notified to the data subject.

(d) Policies and procedures on data subject rights, such as the right to object to processing.

A relevant organisation uses a privacy policy to provide information about its data processing activities. Information to be provided must be: (i) concise; (ii) transparent; (iii) understandable; (iv) easily accessible; and (v) in clear and plain language. It is usual for an organisation to do so by presenting its policy on its website. The policy will typically help to ensure fair and transparent processing by complying with the following requirements:

Very simply the very registration of a company name, domain name, social media account can help get the ball rolling. But ultimately a trade mark used on the very product that you intend to sell (or even a service that you are promoting) will usually be understood as a trade mark and could develop protection for your business. A useful step will be to use the superscript ‘TM’ alongside the brand name/image as this will indicate that you are using it as a trade mark, eg: Coca Cola™.

Granted there is more to it than that – but using a trade mark alongside your goods or services to promote the sale of those goods or services will amount to trade mark use. But you need to be aware of the pitfalls and consider registration when using a trade mark.

Applying to register a trade mark is a relatively straight-forward process and can be undertaken directly by the business or trade mark owner – you do not need to use a lawyer! Furthermore, the various trade mark offices are usually very helpful, and whilst they are unable to provide advice, they often provide guidance throughout the application process.

The point of course is that trade mark registration is not automatic and not always granted. You are essentially asking permission for a particular trade mark office to allow you to register your particular trade mark. The trade mark office must check, amongst other things, that the actual trade mark itself is suitable for registration and the application satisfies the rules associated with trade mark registration.

Just bear in mind that registration of your trade mark in one country does not entitle you to registered protection in another. As such registration is ‘territorial’ in nature, and should you have sales occurring in other countries, or you have an overseas sales strategy then you will need to consider extending your registration to those other relevant countries.

Once your trade mark is registered you are then entitled to use the superscript ‘R’ alongside of it, eg: Apple®.

There are different ways to challenge a trade mark and much depends on whether it is an unregistered or registered trade mark.

Unregistered trade marks™:- 

Such marks have not been registered before a trade mark office. However, under English law such unregistered marks are protected by way of the common law known as ‘Passing Off’. This is a particularly complex area of law, but you may be entitled to prevent the use by someone of their unregistered mark if it unfairly competes with your own unregistered mark.

Registered trade marks®:-

There are a number of ways in which a trade mark that is recorded before a trade mark office can be ‘cancelled’:

• Opposition/opposing a trade mark application can be undertaken by anyone within a particular window of time during the application process. A person/company may wish to oppose an application (ie prevent it from becoming registered) because it may be seen as unfairly competing with another mark;
• Cancelling/revoking a registered trade may be requested because the registration may not be in use anymore, and therefore should not remain registered, or it could be considered that the registration itself should not have been allowed in the first place (an invalid registration).

Such agreements are often used as a pre-cursor to a commercial agreement between parties. It can also be used between founders of a business and potential new investors. If your business intends to share sensitive business information/material that could be used by the recipient to improve its own business and/or damage your own business/adversely affect your sales, then using NDAs before revealing that information should always be used.

Different NDAs ought to be used for different types of arrangements, on account that a one-size fits all approach will not usually be acceptable by certain types of recipients. So, for example between founders and investors particular clauses will be included within the NDA, which would allow a degree of flexibility for the investor when receiving and sharing the data. This will be very different between two business entities where one is providing a solution to another where the sharing of data is unlikely to be permitted and further restrictions imposed upon the receiving party.

Bribery is the act of offering, paying or receiving a bribe:

(i) directly via a company director/company secretary, an employee or by a company subsidiary; or

(ii) indirectly through some intermediary that you may use, or any third-party (whether an individual or some other company) that acts on behalf of you or your business.

A bribe does not need to be cash/money transfer, and can take the form of gift cards, other types of gifts, entertainment and hospitality, or something else that is of value/advantage to the recipient.

Bribing another person: when directly or indirectly offering, promising, or providing a financial advantage to another for the purpose of encouraging improper performance that should be performed impartially or in good faith.

Being bribed: when someone agrees to receive, or accept a financial (or some other) advantage to do something that ought to be performed impartially or in good faith.

Bribery of foreign public officials: in the event someone attempts to influence an official in their capacity as a foreign public official (by way of offering, promising or giving bribes), irrespective of whether there is any improper performance of the official’s function.

Failure of a business to prevent bribery: where an employee (or someone connected with your business) bribes another person, with the intent to obtain or retain business, or to achieve some business advantage.

The Bribery Act 2010 introduces a new corporate offence of failure to prevent bribery, and has application beyond the UK enabling prosecution irrespective of where in the world the offence is committed. You should also bear in mind that many of your overseas markets will have their own anti-bribery laws. You will be subject to the Act where:

(i) your organisation is incorporated in the UK;

(ii) individuals are citizens of the UK (this includes any British overseas territory);

(iii) individuals ordinarily resident within the UK; and

(iV) any company or individual of any nationality who commits an offence under the Act which takes place within the UK.

There are a variety of ways in which a company (or individual) could infringe the rights of another. Much depends on the type and nature of infringement. Some more common examples are:

Copyright: This is a general term and can range from written text that appears on your website, social media, company documentation, and marketing material. Copyright can also include software and databases, art, music, sculptures, films, recordings and broadcasts.

Have you developed the copyright material yourself? Have you undertaken due diligence to check the copyright material does not exist already elsewhere? Where did the copyright material come from? Have you used someone else to produce it? Did you use an employee, freelancer, or third party company?

Designs (unregistered and registered): There are different rights associated with unregistered and registered designs, and these can range from the look and feel of a product, and certain features of a product.

Have you developed the design yourself? Have you undertaken due diligence to check the design does not exist already elsewhere? Where did the design come from? Have you used someone else to produce it? Did you use an employee, freelancer, or third party company?

Patents: Many inventions, improvements, innovations and new technology can benefit from patent protection via a national (and where appropriate) international system of registration.

Have you developed the technology yourself? Are you the inventor? Have you undertaken due diligence to check the technology (or invention) does not exist already elsewhere? How did you develop the technology or invention? Have you used someone else to help you develop it? Did you use an employee, freelancer, or third party company?

Trade marks (unregistered): Such marks have not been registered before a trade mark office. However, under English law such unregistered marks are protected by way of the common law known as ‘Passing Off’. You will risk infringement should you use another’s unregistered trade mark to try and fool customers into believing they are purchasing products of this other company.

Trade marks (registered): Registered trade marks additionally benefit from statutory protection and usually provide an improved way to assist owners to prevent someone else using an identical or even similar trade mark. 

Have you copied someone else’s trade mark? Is your trade mark similar to someone else’s trade mark? Have you undertaken due diligence to check whether someone else is using the trade mark you are using? How did you create the trade mark? Have you used someone else to help you develop or design it? Did you use an employee, freelancer, or third party company?

Much will depend on:

(i) what you believe is being infringed and how;

(ii) who by;

(iii) what rights you have;

(iv) how is it affecting you or your business;

(v) what evidence do you have and will rely on?

You need to be careful when alleging rights against someone else. If you try to allege rights that you do not have or are not entitled to, then you could find yourself subject to a ‘Groundless Threats’ action. This is when you threaten false or incorrect rights against someone.

Having said that, where you genuinely believe infringement is taking place you ought to consider acting decisively to ensure you benefit from your full range of legal rights. Not to do so can limit your options and entitlement, and moreover risks continuing damage to your company, brand, and reputation.