Protected Party's Claim for Damages due to Infringement

A claim can be made for the damages from a faulty party. Remedies include being entitled to the amount of loss occurred due to the act of infringement, as well as demanding special damages considering injury.

BUSINESS LAW

TABLE OF CONTENTS
Introduction......................................................................................................................................3
Task 1...............................................................................................................................................3
1.1 Legal rules regarding implied terms related to sales of goods and supply of services..........3
1.2 Analysis of statutory provisions related to the transfer of property and possession..............4
1.3 Evaluation of statutory provisions regarding remedies of buyers and sellers in sales of
goods contracts.............................................................................................................................4
1.4 Applicability of statutory provisions linked to the product liability for faulty goods...........5
Task 2...............................................................................................................................................5
2.1 Description of types of credit agreement...............................................................................5
2.2 Analysis of rules related to the termination rights and default notices..................................6
2.3 Analysis of general features of agency and description of different types of agent..............6
2.4 Evaluation of rights and duties of an agent............................................................................7
Task 4...............................................................................................................................................7
4.1 Identification of different forms of intellectual property.......................................................7
4.2 Principles related to the patent protection along with provisions of infringement................8
4.3 Principles related to the copyright protection along with provisions of infringement..........8
4.4 Compare and contrast between trademarks and business names...........................................8
Conclusion.......................................................................................................................................9
References......................................................................................................................................10

INTRODUCTION
Business law is developed by the British parliament to regulate commercial transactions
and to promote fairness in the business activities. Through these provisions, standard guidelines
are introduced, which are required to be followed by all the business entities operating in the UK.
Present report will include a description of various Acts covered in business law of the UK.
Sections of these Acts will be linked to given scenarios in order to provide justified
recommendations.
TASK 1
1.1 Legal rules regarding implied terms related to the sales of goods and supply of services
Legal provisions related to the implied term of sales of goods and supply of services are
covered in Section 12-15 of the Sales of Goods Act, 1979. These terms are assumed to be present
in the agreements of the parties. Description of these sections is enumerated as below: -
1. Title- Section 12 of the Act deals with the provisions of good title allotted by the seller.
According to this provision, the seller of the good should be entitled to the transfer of
property (Atiyah, Adams and MacQueen, 2005). For completion of this norm, either they
should have ownership or permission for selling. In the given case situation, Miss Bianca
is a store manager, thus she is entitled to the sale of goods.
2. Description while presentation- This aspect is described in Section 13 of the Sales of
Goods Act, 1979. In accordance with this provision, provided goods should be similar to
the description given by the seller at the time of sale (Beynon and Driffield, 2005). Miss
Bianca is obliged to provide a television set as per the description given by her in the
store.
3. Quality- This provision is covered in Section 14 of the Act. According to this Section, the
seller is obliged to provide satisfactory product and services to the customers by which
their needs can be fulfilled. Henceforth, Miss Bianca is liable to deliver durable product
to Adam, through which his purpose of purchase can be satisfied.
4. Sale by Sample- This provision is applicable on sale transaction which is accomplished
on the basis of the sample. According to the Section 15 of the Act, Miss Bianca should
deliver a television set similar to the sample shown in the store.
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1.2 Analysis of statutory provisions related to the transfer of property and possession
In accordance with the Sales of Goods Act, the products can be bifurcated into two
categories, i.e. specific goods and unascertained goods. In the given case situation, television is a
unascertained goods because sale agreement was done on the basis of the sample. For the
transfer of property, following five rules are required to be satisfied-
 Proposed goods for transfer should not be restricted by any legislatory provision.
 Seller should be in a position for the transfer of good. In this aspect, presence of
ownership is not mandatory (Elliot and Quinn, 2009). Good title of the seller will also be
considered to be valid.
 It is a general provision, that all rights related to a product or service will be transferred
along with the ownership. However, restriction can be imposed in expressing manner on
transfer of additional rights (Gillies, 2004).
 Provision of transfer should be in interest of the parties to the contract.
 Terms of the transfer of property should be justified. Further, none of the parties is
entitled to impose restrictions of the general rights of another party.
Section 18 sets out five rules for ascertaining the intention of parties for the assessment of
validity of transfer of property by one party to another. These rules are applicable in case of both
specific and unascertained goods. In accordance with this rule, in situation where there is a
contract of sale of unascertained or future goods by description, then goods of that description
must be in the deliverable state and it should be unconditionally appropriated to the contract. In
addition to this, the property in goods passes to the buyer either by the seller or by assent of the
buyer. Further, the assent may either be expressed or implied or may be given before or after the
appropriation is made. By considering this section, transfer of goods is not valid because these
are not similar to the description. Further, in the present case situation, an exclusion clause
inserted by the store is not valid because it is contradictory to the rights provided by Consumer
Protection Act. Thus, it will not be considered to be fair and Adam is entitled to make a claim of
damages in a situation of non-satisfactory performance of the store.
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1.3 Evaluation of statutory provisions regarding remedies of buyers and sellers in sales of goods
contracts
Right of buyer:
Buyers are entitled to apply for following remedies in situation where seller had not
satisfied their duties: Claim for damages: The buyer is in a position to make a claim for damages if the seller
had not fulfilled the contractual terms in an appropriate manner. Special performance: They can demand for special performance if loss cannot be
compensated by the claim of damages (Nystén-Haarala, Lee and Lehto, 2010). The buyer
can also demand addition damages along with the damages for loss. In the given
situation, provided television set was not appropriate. Due to this aspect, Adam can either
claim for the damages or replacement of television set. Suit for interest: Buyer is also entitled to demand additional losses that occurred to them
due to non-satisfactory performance by seller. These damages are provided to
compensate the injury in a justifiable manner.
Remedies of seller:
Following remedies are available with the seller: Claim for consideration: The seller is entitled to make claims for the price of provided
products. Right to forfeit or retain: They can retain goods with a justified reason. For example, if
contractual terms are not satisfied by the buyer, then seller is in position to retain the
goods that are in transit.
 Exclusion clause: They are also eligible to insert an exclusion clause in order to reduce
their liability. However, such terms should be inserted in a proper manner and it should
be according to the legal provisions (Pitkethly, 2001).
1.4 Applicability of statutory provisions linked to the product liability for faulty goods
In accordance with the provisions of product liability, customers are eligible to make
claims, damages, if the seller had provided them a faulty product (Rush and Ottley, 2006). In the
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given case situation, Adam is required to satisfy following conditions for the claim of defective
television set: -
1. Provided product was not of satisfactory quality due to defect.
2. The loss has occurred to him due to defect of the product.
3. The defect is occurred due to negligence of the defendant and they had no contribution in
this act.
Obligations of Miss Bianca as per following laws: -
Negligence law
Provisions of negligence law states that individuals are required to take standard care of
their actions in order to reduce the risk of injury to another innocent party. In order to make
successful claim of negligence, claimant is required to satisfy the basic principles i.e. duty of
care, breach of duty, causation and foreseeable. Miss Bianca has a duty to provide proper
television in accordance with the requirements of Adam. However, the television set provided by
her was defective which represents the act of breach of duty (Adams, 2010). Thus, she is liable to
pay damages to Adam for her negligence action.
Contract law
In accordance with the contract law, parties are required to fulfill the terms of contract to
discharge their obligation by performance. In situation where contractual terms are not satisfied
through the performance of contracting party then aggrieved party can make the claim of
damages. Provided television set by Adam was not in accordance with the sample, thus,
contractual terms are not satisfied (Beatty, 2012). Further, condition of the contract is not
satisfied due to which she is liable to provide damages for non-satisfactory performance.
Consumer protection Act
According to this legislation, the seller should provide satisfactory products to customers
that are free from material defects. Provisions of Consumer protection Act were not satisfied
with the agreement of Adam and Miss Bianca, thus she is liable to provide damages.
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TASK 2
2.1 Description of types of credit agreement
Different types of credit agreement that can be used by Claire for the purchase of a car- Hire purchase- In hire purchase agreement she will be required to pay the installments in
regular time period. With the payment of last installment, she will become the owner of
the car. Credit sales-In this agreement, she is purchasing a car on credit from the car
manufacturing company (Bergkamp, 2001). In this agreement conditions will vary as per
the terms of contract. With the signing of an agreement she will be the owner of the car. Bank loan- Clair can arrange a bank loan from financial or banking institution as she had
good credibility in the market. Arranged funds will be paid to the car company and she
will attain the ownership. For this agreement, she will be obliged for payment of interest
and principal amount.
 Overdraft and credit card- This is short term credit agreement. In these agreements,
Claire had two to three months for the payment of the due amount to the bank. Further,
interest charges will be higher in comparison to bank loan (Emerson, 2009).
In accordance with the above description, Clair is recommended to take a bank loan from
financial or banking institution as she has good credibility in the market. After her employment
she can request for change in terms and conditions of the contract.
2.2 Analysis of rules related to the termination rights and default notices
Rules regarding termination rights and default notices are covered in Section 77, 87 and
88 of the Consumer Credit Act, 1974. In accordance with this section she is entitled to demand
copies of credit agreements in which entire contractual terms are stated. In a situation where she
is not able to pay the due amount then the creditor can terminate the contract. However, they are
required to serve notice 14 days before such act. For justified reason this period can be enhanced
by 5 days.
In the present case situation, due to her unemployment she is not able to pay installment
then the bank can use their right of termination contract. For this purpose, they are required to
serve notice of default (Kelly and et.al., 2013). Meanwhile, Claire can arrange funds for payment
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of due amount or can request for change in contract terms. After completion of notice period
bank can forfeit the security for recovery of the loan amount.
2.3 Analysis of general features of agency and description of different types of agent
The agency is a relationship between two or more persons in which one person is entitled
to act on the behalf of another person. General features of agency are enumerated below-
 Legal intention to act on behalf of the principal
 Relationship between the parties is supported by agency agreement
 Consideration for agency agreement is not mandatory.
Description of different types of agents is as follows- Estate agent- These individuals sell and purchase properties on the behalf of their
principals. For their work they charge selling commission from their clients (Lee, 2001). Factors- They collect money from debtors of different entrepreneurs. In addition to this,
they provide advance funds for business till the recovery of an amount.
 Banking institution- Banks operate as an agent for their customers. They provide
financial services in against of particular charges.
Other agents are auctioneers, directors and stock brokers. They work for different
individuals in accordance with their requirements.
2.4 Evaluation of rights and duties of an agent
Rights of Claire as an estate agent
Claire is entitled to demand remuneration for her work. She can deduct her due amount
from the amount payable to the client. She is in a position to retain the property of her principal
for justified reasons (Marsh and Soulsby, 2002). She can make decisions on behalf of principal
in order to increase profitability and reduce possibility of loss.
Duties of Claire as an estate agent
Along with the availability of rights she is required to fulfill her duties in an appropriate
manner. It is her duty to arrange meetings for her principals regarding selling or purchasing of
property. She is obliged to disclose material facts to the customers. She should not make a profit
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on the name of the principal (Lee, 2001). Further, she is required to manage information of her
clients in a proper manner. She should not disclose this information for unjust benefits.
TASK 3
3.1 Monopolies and anti-competitive practice legislation in the UK
In accordance with the legislative provisions of UK, an organization has monopoly power
if they have market share of more than 25%. Example of firm with monopoly power in UK is
Tesco with 30% market share and Google with 90% of search engine traffic. Generally,
monopoly is not supported by government because firm with this power can make misuse of
their position. Further, they are able to control economic factors and operations of other entity by
selling their products at inappropriate prices. Along with this, commercial entities will not make
improvement in their products or services because customers do not have option for the
substitute of their products and services. Due to the above described negative aspect, anti-
competitive practices were developed by parliament of UK. Main objective of these legislations
was to protect the interest of small and medium businesses.
Acts covered in anti-competitive practices Monopolies & Restrictive Practices (inquiry & Control) Act 1948- In accordance with
the provision of this Act, restriction in imposed on commercial transactions which create
situation of monopoly in UK market. Monopolies & Mergers Act 1965- According to this Act, business transactions such as
merger and monopoly will be blocked which can make significant increase in market
share of the firms. However, there are certain exceptions in this Act by which merger and
acquisitions are accepted by regulatory authorities even there is increase in market share.
 Enterprise Act 2002- Provisions of this Act is related to the assessment of business
transaction in order to ensure that objective of businesses is not to create monopoly in the
market. Anti-competitive practices are promoted by this Act in following manner-
◦ Assessment of merger and acquisitions by making reduction in influence and interest
of political parties.
◦ Disqualification of direct whose actions are contradictory to anti-competitive
practices.
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◦ Enhancement in rights and interest of consumer groups.
 Competition Act 1998- This Act was developed to control actions of dominant companies
in UK market in order to impose restriction on their unfair practices. Provisions of this
Act increase rights and duties of regulatory authority for checking and analyzing
commercial strategies. Further, they had developed standard guidelines to promote
competition in market which is required to be followed by all the firms.
3.2 Role of Competition Commission
Competition Commission is regulatory authority for managing and promoting anti-
competitive practices in commercial environment of UK. They are responsible to assure that no
firm is making misuse of their dominant position and there are not any unfair practices by them.
Office of Fair Trading (OFT) provides them issues which are analyzed by them in order to reach
valid conclusion on business practices.
Amendments in legal provisions
In accordance with the recent changes in British legislatory provisions, previsous
provisions of competition law are abolished. Provisions of Financial Conduct Authority (FCA)
and Market Authority (CMA) had replaced that law. With the new provisions, Competition
Commission will be able to resolve cross-border issues in a standard way. In addition to this,
they are in position to block commercial transaction which is against the interest of public.
3.3 Description of dominant position in EU common market
Dominant position can be defined as a situation in which an individual have right to
control other by using their substantial control power. In an economy, domination position is
attained by firm when they have capture significant share in market. Generally, organization
makes unfair use of this position in order to make increase in their profitability. By these
practices, market environment is adversely affected. It is because, there is not fair competition in
market between rivalry firm.
In EU common market, dominant position is not assessed solely on basis of market share.
For this aspect other qualitative factors such as influence of firm on market, production
capability and composition of board of directors. In accordance with the definition provided by
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UK legislation two main elements are considered to assess dominant position in EU Common
market. These are enumerated below-
 Capability to restrict competition in market
 Capacity to operate independently
According to the Chapter II/ Article 101 and 102 prohibition of Competition Act,
restriction is imposed on business practices to prevent unfair operations in market. For this
aspect guidelines are provided in this article. If act of company will be contradictory to these
guidelines then management will be obliged to pay penalty (up to 10% of total sales). In addition
to this, guilty party will be disqualified or terminated from company.
3.4 Application of EU exemptions regarding anti-competitive practices
EU exemptions are developed to provide permission to corporate entities for anti-
competitive practices in situation where they qualify certain conditions. These situations are as
follows-
 Agreement is covered under chapter 1 of Article 101. Provision of this chapter is applied
if agreement is not against to the interest of public.
 Companies having low market share or do not significant influence on market.
 Agreement can be individually exempted if they qualify conditions described in Article
101.
 Merger or acquisition of two companies will be accepted if they are expected to make
reduction in their total production. In addition to this, there should be benefit to
customers from such venture.
TASK 4
4.1 Identification of different forms of intellectual property
Intellectual property law is developed by parliament of UK to provide protection to the
creativity and hard work of individuals. For this purpose, they had introduced different forms of
intellectual property. List of different forms of intellectual property is as follows-
1. Trademark- It provides protection from the infringement of business symbol to the
commercial organizations. An individual can get protection only in situations where there
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trademark has an appropriate graphical presentation. Example of trademark is logo of
apple. No individual or business organization is in position to infringe the symbol else
they will be liable to pay severe damages.
2. Copyright- Protection through this intellectual property is provided for creative art works
of individuals (Pitkethly, 2001).
3. Patent- This form of intellectual property is used to protect new meaningful inventions of
the individual.
4. Design- Unique design can also be protected through provisions of intellectual law.
However, protection will be provided only if design can create value addition for
business. Example of design comprises decorative or floral patterns or graphic symbols
developed by an individual or business. Design rights complement the protection
provided by trademark.
4.2 Principles related to the patent protection along with the provisions of infringement
Patent:
It can be defined as a government authority or license conferring title or authority for the
standard time period. In provides sole right to the users to prevent others from using, making or
selling their invention. Example of patent is protection provided to the production formula of
Pepsi.
Copyright, Designs and Patents Act 1988
Provisions of this Act protection to the intellectual property is covered in context of
copyright, design and patent. These provisions create restriction in act of infringement in order to
reduce the risk of loss.
Requirements for registering a patent according to copyright design and patent act 1988-
Protection through patent can be availed by an individual only if it is eligible for
commercial application. Information regarding intellectual property should not be disclosed to
other parties. Procedure of patent application is time consuming and renewal is necessary after
the expiry of protection period (Lee, 2001).
Impact of infringement
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Infringement of patent is considered as a criminal offense. For this action, faulty party
will be required to pay penalty charges. Protected individual can make a claim for the damages
from faulty party.
Remedies for the infringement
Protected party is entitled to avail the amount of loss occurred due to act of infringement.
In addition to this, they can also demand for special damages by considering their injury.
4.3 Principles related to the copyright protection along with the provisions of infringement
Copyright
It is an exclusive and assignable right provided to the individual for their original work to
publish, perform, film or record literary, print artistic or musical material. Example of copyright
is protection of music work of artists from the act of piracy. Protection provided through
provisions of copyright is valid up to 70 years (UK, EU & US Copyright Law, 2014).
Requirements for registering a copyright according to copyright design and patent act 1988
Business entities and individuals are entitled to apply for the copyright work formed by
them is original and exhibits a degree of skill and judgment.
Impact of infringement
For protection of innovative and artistic work, provisions of copyright can be used by an
individual. This protection is provided only in situations where work of an individual is original
and it consists of degree of labor and skills (Gillies, 2004). Infringement of copyright has a
significant impact on the economy. Due to increasing infringement, there is a reduction in
economy profits.
Remedies available for the act of infringement
For the act of infringement, following claim can be made by an individual-
1. Profit earned by the infringer.
2. Right to impose restriction on the work done by infringement.
3. Claim of damages for loss occurred due to act of infringement.
4.4 Compare and contrast between trademarks and business names
Trademarks and business names, both are used to provide protection to the commercial
entities from the act of infringement. The trademark provides protection to the particular symbol
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of business while protection availed through business names is applicable for the entire
organization. It is because; business name is used for the identification of organizations while the
trademark is used for identification of products (Protecting a company's name, 2014). By
making use of this protection, business organizations are in the position to make a unique and
separate image for their business which makes them different from their competitors.
Despite of these similarities, there are certain differences between trademark and business
name. With the intellectual property of trademark, owner can sue other businesses who are using
similar or resembling symbol to confuse the customers. For this, provided protection is only to
the mark of business. For this act, protection is also provided in Company’s Act along with the
Intellectual Property Act. In contrary to this, protection through intellectual property is covered
on entire business. Further, direct claim for the damages due to infringement cannot be made. It
is because; on the case of infringement of business name, all requirements are noted and in some
situations, warning letter is issued to prevent such kind of acts.
CONCLUSION
From the present project report, conclusion can be drawn that objectives of business law
are to promote fairness in society. Due to this aspect, they had introduced standard guidelines
which are mandatory to be followed by businesses. Sellers are required to consider various Acts
developed for customer protection. To provide protection to intangible assets of individual and
business, provisions of intellectual property have been introduced. By the provisions of this Act,
restriction is imposed on an act of infringement.
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REFERENCES
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Elliot, C. and Quinn, F., 2009. Tort Law. LongmanGill, J. 2005. Business Law for the
Entrepreneur. Arima Publishing.
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<http://www.legislation.gov.uk/ukpga/1979/54>. [Accessed on 10th July 2015].
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