Business Laws - Consumers rights, Credit and Intellectual Property notes
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siddikcisyahoocom (student)
Unit 26 Business Law
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Table of Contents
Introduction 3
Task 1 Consumers 3
.1A Application of the legal rules on implied terms relating to the sale of goods and supply of services 3
.1B Application of the legal rules on implied terms relating to the supply of service 3
.2 Application of the statutory provisions on the transfer of property and possession 3
.3 Evaluation of the statutory provisions on buyer’s and seller’s remedies 4
.4 Application of product liability statutory provisions 4
Task 2 Consumer Credit 5
2.1 Differentiation between a “D-C” and a “D-C-S” credit agreement 5
2.2 Application of the knowledge of the legal rules on consumer credit agreement 5
Task 3 Competitive Practices 6
3.1 Outline the main current UK Legislation on monopolies and anti-competitive practices 6
3.2 Explain the role of the competition and the Markets authority in dealing with monopolies and anti-competitive practices in the uk 7
3.3 Define what is meant by a “Dominant Position” within the common market of the EU 7
3.4 Consider how any EU exemption might apply to the proposed arrangement for the Belgium 7
Task 4 Intellectual Property 9
4.1 Identifying different form of intellectual property protected by this rights 9
Patents 9
Trademark 9
Copyright 9
Trade secret 9
4.2 Outline the principle applicable in the situation relating to the protection of invention through patent rights; and their infringement 10
4.3 Describe the principle applicable: 10
4.4. Compare and contrast of Trademark and Business name 10
Task 5 Agency 11
5.1A Differentiate between an exclusive and non-exclusive agent 11
5.1B Differentiate between a broker and an agent 11
5.2 Briefing Note: Rights and Duties of an Agent 12
Conclusion 12
List of References 13
Introduction
The unit emphasis on very common business law regarding sales of good. Agency relationship and most common terms used in this relationship is a common topic. Along with this an interesting topic intellectual property, their protection and their infringement also in the place. The most helpful for a learner is the application of knowledge in real life scenario provided.
Task 1 Consumers
.1A Application of the legal rules on implied terms relating to the sale of goods and supply of services
The customer has been claimed the washing-machine is bought two weeks earlier. The machine started making strange noises and pumping out smoke, and last time she used it the clothes loaded were completely ruined. Therefore from her dissatisfaction she has come to make a complaint.
The instance described here, that a customer purchased a washing machine. And it is only two weeks passed. In this case the reasonable time still exist. The machine is not of satisfactory Quality. The machine is faulty. In this circumstances the customer could claim for a replacement or a repair based upon the terms and condition signed during purchase.
.1B Application of the legal rules on implied terms relating to the supply of service
The buyers who are dissatisfied has the complaints regarding the dishwasher which was bought few days earlier and due to careless fitting of pipework by Bob , the dishwasher flooded the kitchen every time it is run. This is a clear negligence of work by bob regarding the installation.
Bob has been introduced in the scenario as he is an official service provider for installation. If this is the case the company should make up the installation without any extra charge through bob or any other such service provider.
.2 Application of the statutory provisions on the transfer of property and possession
The case here is a fridge sold to a party, later on when the party late to receive it for week the seller has sold it to another buyer. The fact here Edgware store sold it to Asia. Assuming it is a legally binding contract as we are not told here whether the sales took place electronically, orally or by any other means of communication. And it is not also mentioned here whether the price has been paid by Asia. If we assume all these are appropriate to be legally binding then Asia can claim the fridge. It is a clearly a breach of contract. Because it is already sold to one party. Therefore the seller is liable to deliver to the purchaser. Here Edgware could point out she has not taken the delivery on that week. However, this should be mentioned in the contract during the sales process. If that is not in the place Edgware will be liable to return the fridge to Asia.
.3 Evaluation of the statutory provisions on buyer’s and seller’s remedies
In England and Wales, the buyer of faulty goods had two options. If done quickly enough, the buyer could reject the goods, terminate the contract, and demand a refund. Alternatively, or if too much time had passed, the buyer could seek compensation for the seller’s breach of contract. These two remedies emerged from English case law and were included in the Sale of Goods Act 1893. In practice, consumers are mainly concerned about the problems caused when goods are not of satisfactory quality, not as described or not fit for their purpose. Typical examples are where electrical goods do not work, or shoes fall apart. However, we also consider, briefly, what remedies are available when the trader delivers the wrong quantity, or when goods are delivered late.
.4 Application of product liability statutory provisions
The case described here is a client has been suffered damage for the failure of a microwave woven. Ian Fuller-Carp can claim on the basis of the rules of product liability law. Product liability rules come from:statutory law (i.e., the Consumer Protection Act 1987); contract law; and tort law.
(1) Claims under the Consumer Protection Act 1987
If you've been harmed by a defective product, the Consumer Protection Act 1987 may allow you to sue the supplier in strict liability. This means that Ian won't need to show ...
This is a preview of the whole essay
.4 Application of product liability statutory provisions
The case described here is a client has been suffered damage for the failure of a microwave woven. Ian Fuller-Carp can claim on the basis of the rules of product liability law. Product liability rules come from:statutory law (i.e., the Consumer Protection Act 1987); contract law; and tort law.
(1) Claims under the Consumer Protection Act 1987
If you've been harmed by a defective product, the Consumer Protection Act 1987 may allow you to sue the supplier in strict liability. This means that Ian won't need to show negligence or breach of contract. The Barrister just need to prove that the product was defective and that defect caused him harm.
The defendant (White Warehouse) can also reduce or eliminate his liability if he can show that when he first supplied the product the state of scientific and technical knowledge was not such that a producer of the same type of product would be expected to have discovered the defect in his product. [Consumer Protection Act 1987]
(2) Contract and tort claims
Under the Act a claimant cannot recover the cost of replacing a defective product. But if the claimant is bringing an action based on a contract to supply the product in question, the claimant may well be able to recover the cost of replacing the defective product if the delivery of the defective product was, in effect, a breach by the defendant of a contractual obligation to deliver a product free of defects.
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Task 2 Consumer Credit
2.1 Differentiation between a “D-C” and a “D-C-S” credit agreement
Debtor-Creditor Agreement
Debtor-Creditor-Supplier Agreement
A debtor-creditor agreement is a regulated consumer credit agreement being-
(a) a restricted-use credit agreement which falls within section 11(1)(b) but is not made by the creditor under preexisting arrangements, or in contemplation of future arrangements, between himself and the supplier, or
A debtor-creditor-supplier agreement is a regulated consumer credit agreement being-
(a) a restricted-use credit agreement which falls within section 11(1) (a), or
A restricted-use credit agreement which falls within section 11(1)(c), or
A restricted-use credit agreement which falls within section 11(1) (b) and is made by the creditor under preexisting arrangements, or in contemplation of future arrangements, between himself and the supplier, or
An unrestricted-use credit agreement which is not made by the creditor under pre-existing arrangements between himself and a person (the " supplier ") other than the debtor in the knowledge that the credit is to be used to finance a transaction between the debtor and the supplier.
An unrestricted-use credit agreement which is made by the creditor under pre-existing arrangements between himself and a person (the " supplier ") other than the debtor in the knowledge that the credit is to be used to finance a transaction between the debtor and the supplier
2.2 Application of the knowledge of the legal rules on consumer credit agreement
If the customer decides to cancel the agreement, both the agent and you must take steps to restore the position to how it was before you entered into the agreement. Typically, you will refund any money the customer has paid, and the customer will return any goods you have provided.”
There are two cases her. Amy is dissatisfied for the service and she claim return of her money paid for the holiday tour. Legislation says “If the customer decides to cancel the agreement, both the agent and you must take steps to restore the position to how it was before you entered into the agreement. Typically, you will refund any money the customer has paid, and the customer will return any goods you have provided. [Consumer Credit Act 1974]
Therefore Amy reserves the right to terminate her contract with the card company on the ground of dissatisfied service. She just requires to make aware the company and pay any due remains.
Task 3 Competitive Practices
3.1 Outline the main current UK Legislation on monopolies and anti-competitive practices
Anti-competitive agreements can include price-fixing, limiting production to drive up prices, agreeing not to sell to a competitor’s customers. The EC Treaty prohibit agreements between businesses that prevent, restrict or distort competition or are intended to do so and which affect trade in the UK and/or EU.
Agreements likely to be prohibited include those which:
• fix the prices to be charged for goods or services
• limit production
• carve up markets
• discriminate, eg, between customers (eg, charge different prices or impose different terms where there is no difference in what is being supplied).
These agreements can be formal or informal and may include ‘shared understandings’, ‘concerted practices’ or ‘gentleman’s agreements’ where businesses cooperate or act together. Identical list of agreements to which the provisions apply, namely those which:
‘(a) directly or indirectly fix purchase or selling prices or any other trading conditions
(b) limit or control production, markets, technical development or investment
(c) share markets or sources of supply
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.’
One should also report businesses that abuse a dominant market position - e.g. by offering unfair prices to customers or suppliers, refusing to supply, or limiting production. Conduct may constitute an abuse if it consists of:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions
(b) limiting production, markets or technical development to the prejudice of consumers
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.
3.2 Explain the role of the competition and the Markets authority in dealing with monopolies and anti-competitive practices in the UK
The Role of Competition and Market Authority
. investigating mergers which could restrict competition
2. conducting market studies and investigations in markets where there may be competition and consumer problems
3. investigating where there may be breaches of UK or EU prohibitions against anti-competitive agreements and abuses of dominant positions
4. bringing criminal proceedings against individuals who commit the cartel offence
5. enforcing consumer protection legislation to tackle practices and market conditions that make it difficult for consumers to exercise choice
6. co-operating with sector regulators and encouraging them to use their competition powers
7. considering regulatory references and appeals
3.3 Define what is meant by a “Dominant Position” within the common market of the EU
There are two tests common to assessing whether Article 82 or the Chapter II prohibition applies:
• Whether an undertaking is dominant, and
• If it is, whether it is abusing that dominant position.
The first test raises two questions which are considered below: (i) the definition of the market in which the undertaking is alleged to be dominant (the relevant market); and (ii) whether it is dominant within that market.
The European Court has defined a dominant market position as:
'A position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers.’
3.4 Consider how any EU exemption might apply to the proposed arrangement for the Belgium
Competition law may not apply to some categories of agreement and conduct. Agreements or conduct may be excluded from investigation under the Act or Articles 81 or 82 of the EC Treaty because they are instead subject to examination under other laws. Agreements (but not conduct) may be exempt because they meet certain requirements set out i n legislation in respect of certain categories of agreement and are considered not to be anti-competitive. These exclusions and exemptions are explained in detail in the guidelines Agreements and concerted practices and Abuse of a dominant position.An agreement that does not fall within any of the excluded or exempt categories may still be lawful if it satisfies certain conditions.
In Belgium the cumulative market share would be only 5 % (3% from Readmayne and 2% from Canarie) therefor this shareholding will not be regarded as a dominant position in the market.
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Task 4 Intellectual Property
4.1 Identifying different form of intellectual property protected by this rights
Patents
A patent is defined as the grant of a property right to the inventor. A patent grant confers upon the owner "the right to exclude others from making, using, offering for sale, selling, or importing the invention." Examples of computer-related objects that may be protected by patents are computer hardware and physical devices in firmware.
A patent is generally valid for 20 years from the date of application. The owner of the patent may then grant a license to others for use of the invention or its design, often for a fee.
Trademark
A trademark is defined as "any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others." Computer-related objects that may be protected by trademarks include corporate brands and operating system logos.
Copyright
A copyright is a form of protection granted to the authors of "original works of authorship," both published and unpublished. A copyright protects a tangible form of expression rather than the idea or subject matter itself.
Copyright protection generally lasts for the lifetime of the author plus 70 years.
Trade secret
A trade secret is proprietary or business-related information that a company or individual uses and has exclusive rights to. To be considered a trade secret, the information must meet the following requirements:
Must be genuine and not obvious: Any unique method of accomplishing a task would constitute a trade secret, especially if it is backed up by copyrighted, patented, or copyrighted proprietary software or methods that give an organization a competitive advantage.
Must provide the owner a competitive or economic advantage and, therefore, have value to the owner: Google's indexing algorithms aren't universally known. Some secrets are protected.
Must be reasonably protected from disclosure: This doesn't mean that it must be kept absolutely and exclusively secret, but the owner must exercise due care in its protection.
Software source code or firmware code are examples of computer-related objects that may be protected as trade secrets.
4.2 Outline the principle applicable in the situation relating to the protection of invention through patent rights; and their infringement
Adam, a member of the unit have been carrying out R&D on the “Internet of things”, has invented a new system for Near Field Communication, which enabled a smart phone and many other mobile devices to interact with each other more easily. Adam has filed and been granted a patent in his own name.
This patent enables Adam to protect his invention for 20 years. He may sell this patent right to another party and could be economically beneficiary. Infringement by another party of this right may hav litigation in court. And as Adam has granted the patent he will be the winner in litigation.
4.3 Describe the principle applicable:
This is a clear breach of copyright protection by Oily fish. Production of a similar game Oily Fish, by purple phones by copying many different elements of the game is an infringement of copyright if they had protected their smartphone app oily fish.
In case of an infringement, the infringement could be settled by two ways. By law and by litigation. Rights provided for under copyright and related rights laws can be enforced by right holders through a variety of methods and fora, including civil action suits, administrative remedies and criminal prosecution. Injunctions, orders requiring destruction of infringing items, inspection orders, among others, are used to enforce these rights.
4.4. Compare and contrast of Trademark and Business name
A trademark (including a service mark) gives you the legal right to go to court to stop everybody else from using the same “word, phrase, symbol or design, or … combination of words, phrases, symbols or designs” to identify their businesses wherever you have that trademark registered. Registered trademark gives you the exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration. Registering a trademark guarantees exclusive use, establishes legally that your mark is not already being used, and provides government protection from any liability or infringement issues that may arise.
A business name, however, is something only the states worry about, and they worry about it usually because they want to be able to find (and to tax) the person or persons behind the curtain of the trade name.
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Task 5 Agency
5.1A Differentiate between an exclusive and non-exclusive agent
Exclusive Agent
* You retain your rights.
* You typically get 100% of the principal’s share of your performance royalty.
* The principal’s share of performance royalty is negotiable.
* They typically take a negotiated percentage of the synchronization fee.
Non-Exclusive Agent
* You retain your rights.
* You typically get royalties from the artist’s share of your performance royalty.
* They typically keep the publisher’s share of the performance royalty.
Furthermore, the big benefit of being non-exclusive is that you can literally get your music out there, to anyone. You can register with as many non-exclusive entities that you like, you can get 3rd party PR representation, and you can shop your music to agency producers and TV/Film supervisors yourself. This is definitely a great thing. It means you can literally put your song in multiple places and have multiple people getting your music out to lots of supervisors and agencies.
5.1B Differentiate between a broker and an agent
Broker is a person that is usually representing the customer and not the company. Brokers should have certifications and must be duly licensed to perform this profession. It is his role to lay down all the cards in the table, so to speak, so that customers will be better informed. Most brokers are not working for a certain company but are working on commission basis, which allows them to carry multiple services which will benefit potential customers.
Agent can be a person working as an insurance agent or a real estate agent. Usually, an agent is representing the insurance company he is working for. They process all the paperwork relating to insurance policies and claims and usually end their relationship with the client once the transaction is done. It is not the work of an agent to give you different options of which plan is better. Agents are usually working on administrative tasks and paper works unlike brokers who are at the forefront of selling and giving advice to clients.
5.2 Briefing Note: Rights and Duties of an Agent
. Agent has right to deduct the amount which is due to him by principal, from amount payable to principal.
2. In case where agent is personally liable, he has right to stop the goods in transit. The good may be moving towards customer or principal.
3. As per the terms of agency contract, agent has rights to claim remuneration.
4. Agent should follow the instructions given by the principal.
5. If agent comes across any complicated situation, he has to communicate that situation to principal and his advice is to be obtained.
Conclusion
The assignment required wider study in theory and case study to have a clear idea on such law issues. It was not quite easy to complete the assignment. However the topics covered here are most common in day to day business work. Definitely this learning will enable to apply in real life issues.
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List of References
. Book:
Agency Cost, Firm Size, and Exclusive Dealing; Sass, Tim R.; Gisser, Micha, 32 J.L. & Econ. 381 (1989) Available at:
http://heinonline.org/HOL/LandingPage?handle=hein.journals/jlecono32&div=22&id=&page=
[Accessed on 12 March, 2015]
. Report from a database
EU Competition Law, Rules Applicable to Antitrust Enforcement, Volume I: General Rules, 2013. European Union Competition Law [Online]
Available at: http://ec.europa.eu/competition/antitrust/legislation/handbook_vol_1_en.pdf [Accessed on 12 March, 2015]
. Report from a database
Koziol, Helmut. 2006 ‘RECOVERY FOR ECONOMIC LOSS IN THE EUROPEAN UNION’, Vol 48:871, [Online] Available at: http://www.arizonalawreview.org/pdf/48-4/48arizlrev871.pdf [Accessed on 12 March, 2015]
. Website:
UK Legislation, 2015. Legislation [Online] Available at: http://www.legislation.gov.uk/ [Accessed on 12 March, 2015]
. Report from a database
Interpretation of contract under English Law, Ahurst LLP, 9091709 July 2012. Contract Law [Online] Available at: https://www.ashurst.com/doc.aspx?id_Resource=4634 [Accessed on 12 March, 2015]
. Report from a database
The Statutory Charge Manual, Legal Aid Agency, April 2014. Statutory Charge [Online] Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/324163/legal-aid-stat-charge-manual.pdf [Accessed on 12 March, 2015]
. Report from a database
The Law Commission Consultation Paper, October 2008. Consumer Remedies for Faulty Goods [Online] Available at:
http://lawcommission.justice.gov.uk/docs/cp188_Consumer_Remedies_Faulty_Goods_Consultation.pdf [Accessed on 12 March, 2015]
. Report from a database
BENNION. F A R, 2014. Understanding the Consumer Credit Act 1974 [Online] Available at: http://www.francisbennion.com/pdfs/fb/1974/1974-001-understanding-consumer-credit.pdf [Accessed on 12 March, 2015]
. Report from a database
What is Intellectual Property, WIPO 2014. What is Intellectual Property [Online] Available at: http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf [Accessed on 12 March, 2015]
. Report from a database
Patent Infringement, Managing IP, 2011. Patent Infringement [Online] Available at: http://www.wanhuida.com/Portals/1/YRNewsAttachment/1073/Interpreting%20patent%20infringement.pdf [Accessed on 12 March, 2015]
. Report from a database
Knowledge_Insights-Anti-Competitive_Practices, CIPS Knowledge, July 2012. CIPS Knowledge [Online] Available at: https://www.cips.org/Documents/Knowledge/Procurement-Topics-and-Skills/3-Risk-Mitigation/Risk-Analysis-and-Management/Knowledge_Insights-Anti-Competitive_Practices.pdf [Accessed on 12 March, 2015]
. Website:
World Intellectual Property Organisation, 2015. World Intellectual Property Organisation [Online] Available at: http://www.wipo.int/ [Accessed on 12 March, 2015]
. Report from a database
Powell, John L. 2010 ‘PROFESSIONAL LIABILITY & CONSTRUCTION’ [Online] Available at: http://www.tecbar.org/downloads/20091201-scl-lecture-john-powell-qc.pdf [Accessed on 12 March, 2015]
. Report from a database
EU Competition Law, 2013. Volume I: General Rules Rules Applicable to Antitrust Enforcement [Online] Available at: http://ec.europa.eu/competition/antitrust/legislation/handbook_vol_1_en.pdf [Accessed on 12 March, 2015]
. Website:
CMA, 2015. Role of CMA [Online] Available at:
https://www.gov.uk/government/organisations/competition-and-markets-authority [Accessed on 12 March, 2015]
Pearson BTEC Level 5 HND Diploma in Business
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siddikcisyahoocom (student)
