The Law Society is to help law firms run internship and secondment programmes that were threatened by new immigration rules by launching a scheme for migrant lawyers under Tier 5 (T5) of the points-based system (PBS). As the overarching body for the scheme, the Society will authorise eligible firms to issue certificates of sponsorship to prospective short-term migrants. The firm will be responsible for the day-to-day management of the migrants, including all reporting and record-keeping obligations required by the PBS. The Society said: ‘For the legal sector, sharing knowledge, experience and best practice with lawyers from around the world through work experience, secondment and internship programmes is essential to business development. In the current economic climate, the ability to remain competitive in the global market for legal services has never been more important.’ A pilot of the scheme has been conducted with Clifford Chance and Dechert. Stuart Popham, worldwide senior partner of Clifford Chance, said: ‘We welcome the new Law Society scheme. We believe it will play a vital role in enabling international law firms to continue to recruit the best talent in the global market.’ Some 40 leading national and international law firms have already indicated their interest in joining the scheme. Des Hudson, Society chief executive, said: ‘The success of England’s world-leading law firms depends on the relationships they build with lawyers from many jurisdictions. This scheme supports the international networking which is essential to the competitiveness of these global businesses.’
A third of all prosecution advocates are ‘lacklustre’ or ‘less than competent’ according to a review carried out by the Crown Prosecution Service Inspectorate published today. The inspectors found advocates, both in-house and external counsel, were fully competent in two thirds of cases, but a quarter were lacklustre and 8% were less than competent or poor. Of the 376 advocacy assessments made, none came out as outstanding. In the Crown court, the review found differences in quality between Crown advocates and external counsel. Overall, external counsel performed better than CPS advocates in trial hearings and across all individual aspects of trial advocacy, apart from the closing speech. In-house advocates performed better in non-contested hearings, such as plea and case management and sentence hearings. The standard of CPS and external advocates in the magistrates’ court was generally ‘sound’ in relation to non-trial hearings. But in trial advocacy only half the Crown prosecutors assessed were fully competent, in comparison to two-thirds of external solicitors and barristers. Chief inspector Stephen Wooler said significant progress had been made by the CPS in improving the quantity of court work undertaken by in-house advocates, but quality had suffered in places. He recommended that the CPS improve the instructions given to both internal and external advocates and ensure papers are provided in time. The review found tensions were easing between the CPS and the bar and some members of the judiciary over the greater use of in-house advocates, and a ‘more collaborative and less combative’ approach was beginning to emerge. Director of public prosecutions Keir Starmer said: ‘The CPS has come a long way in a very short period of time and advocacy is now at a turning point. ‘I agree with the chief inspector that the quality of our advocacy, whether provided by in-house advocates or external counsel, must now be a primary focus.’ He added: ‘The inspectorate recognises the very real progress the CPS has made over the past four years in implementing our strategy to routinely conduct our own high quality advocacy in all courts and across the full range of cases. ‘I intend to continue to develop and deploy suitably qualified in-house advocates to conduct all types of prosecution.’
Sally Perkins, Solicitor, Buckingham Shamil Purohit ( letters, 7 January) defends referral fees – which are in my view indefensible. Whether they compromise our integrity and duty to our clients is a matter for debate. But surely what cannot be defended is how parts of the profession then beguile their clients into reimbursing such fees.
More than half of consumers expect ‘good law firms’ to offer their services online, research has suggested. A survey of 2,266 people carried out by YouGov and commissioned by Epoq Legal found that 56% of consumers said they expected good firms to offer services online. Nearly half of those polled (47%) said they would be more likely to choose a law firm that offered online access to legal services, while 43% said they would change firms if an alternative firm offered a reduced fee in return for the consumer providing initial details about their matter online. The research showed little differences in attitudes between age groups, with only the over-55s being less interested in online service delivery. Slightly more men than women said they were more likely to choose a firm which offered online services; 50% of men compared to 45% of women. Grahame Cohen, chief executive officer of Epoq Legal, said: ‘Our research has shown that more and more consumers are expecting legal services to be delivered online. ‘As the internet has become an ever increasingly popular way for both consumers and businesses to access and buy a range of goods and services, the legal profession is finding it too needs to address client demand for convenient and affordable services.’ In 2009 Epoq Legal launched DirectLaw to provide law firms with an online service capability.
With just over a week until the World Cup kicks off, it seems football fever is already taking a vice-like hold over the legal profession. Fancying themselves as solicitor-versions of Wayne Rooney and Steven Gerrard et al (in football terms only, we stress), lawyers at Manchester firm Ralli have made an amusing video to show their support for charity Soccer Aid (which raises money for UNICEF to help children around the world) and to demonstrate their backing for England’s bid to host the 2018 tournament. In the film, which can be seen on YouTube, members of staff demonstrate their considerable ‘keepy uppy’ skills, but are of course still wearing suits and ties, as all solicitors must. With a little skilful editing, the ball is passed around each department, giving a novel tour of the office. The first to show off his skills is senior partner and head of the regulatory and criminal department Stephen Fox (pictured, top right). He deftly chips the ball to his associate Stuart Page (centre), who heads it to partner and head of business litigation, David Potts (left). It’s a mixed team, with the ladies, including head receptionist Jane Probert and trainee Zara Niemand, showing some impressive footwork, before the ball ends up at the feet of managing partner and head of personal injury Martin Coyne. All very impressive. However, we note that the firm, with its two-minute video, has a long way to go before it sets a new keepy uppy world record, which stands at 24 hours and was set by one Dan Magness of Milton Keynes. Mind you, he probably wasn’t wearing a suit.
Leading international human rights lawyer Geoffrey Robertson QC will be the keynote speaker at a lecture in memory of Indonesia’s foremost human rights activist Munir Said Thalib. Rafendi Djamin, Indonesia’s representative on the ASEAN Inter-governmental Commission on Human Rights, and Munir’s widow, Suciwati, will also be speaking at the lecture at The College of Law in London on 9 November. The event will examine what can be done to ensure accountability and improve the protection of those most at risk when human rights defenders are murdered with impunity and the state fails to bring the perpetrators to justice. Pre-registration for the event, which will begin at 6.45pm, is not required. Email the organisers to guarantee a place.
I agree with the comments of Messrs Cohen and Emmerson regarding the Legal Services Board and the Equality Act. The Legal Services Board is straying into politics and its analysis is wrong. The major barrier to becoming a lawyer is financial deprivation rather than sex or ethnicity. If your father is a doctor you will not face much in the way of obstacles to qualifying, as long as you are capable of passing the exams, regardless of your ethnicity, gender or sexual orientation. If you have been brought up by a single parent in social housing then you have much greater hurdles to overcome to become a lawyer, regardless of racial origin and so on. The financial cost of a degree and the LPC will be unattainable to many. That situation has not changed much in the last 20 or more years. When the fundamental problem is a lack of resources, it is irresponsible to waste huge sums of the profession’s money collecting irrelevant data. Michael Adie, Adie O’Reilly, Lincoln
The Law Society has voiced concern about the Criminal Bar Association’s intention to approach the judiciary with its fears about the controversial Quality Assurance Scheme for Advocates (QASA). A Law Society spokesman said: ‘It is surprising that the bar should seek to involve the senior judiciary in this question, since it would obviously be wrong for the judiciary to be perceived to be supporting one particular sector of the profession over others.’ He said there were ‘significant design flaws’ in the QASA scheme and the Society also has reservations about it. But he added: ‘A major advantage of [the scheme] will be that an advocate will be paid for the job rather than because of their title. We would strongly urge the Legal Services Commission to resist the special pleading of a small, wealthy section of the bar.’ The Law Society’s comments follow an email last week sent by CBA chair Max Hill QC, in which he told criminal barristers about LSC plans to link Crown court advocates’ payments to the competence levels attained under QASA, and end higher payments made to silks. Hill’s email followed a meeting with the LSC, at which he said the proposals had been mentioned for the first time. He said QASA was never intended to affect remuneration or replace silks, and that he planned to take up those matters with the judiciary. However, the chair of the Solicitors Association of Higher Court Advocates, Jo Cooper, who attended the same LSC meeting, said there was ‘nothing new’ in the proposals and that the LSC had informed lawyers about its plans to link pay rates to case level in 2009. Cooper also criticised the CAB for seeking to involve the judiciary in what he said was a regulatory matter.
First Council Directive (EEC) 89/104 (to approximate the laws of the member states relating to trademarks), article 5(1)(a); Council Regulation (EC) 40/94 (on the Community trademark), article 9(1)(c). Article 5 of First Council Directive (EEC) 89/104 (to approximate the laws of the member states relating to trademarks), so far as material, provides: ‘1. The registered trademark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade: (a) any sign which is identical with the trademark in relation to goods or services which are identical with those for which the trademark is registered. ‘2. Any member state may also provide that the proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade any sign which is identical with, or similar to, the trademark in relation to goods or services which are not similar to those for which the trademark is registered, where the latter has a reputation in the member state and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trademark.’ Article 9 of Council Regulation (EC) 40/94 (on the Community trademark), so far as material, provides: ‘1. A Community trademark shall confer on the proprietor exclusive rights therein. The proprietor shall be entitled to prevent all third parties not having his consent from using in the course of trade: … (c) any sign which is identical with or similar to the Community trade mark in relation to goods or services which are not similar to those for which the Community trademark is registered, where the latter has a reputation in the Community and where use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the Community trademark.’ The first claimant company was incorporated in the US. It operated a worldwide flower delivery network. The second claimant was a licensee of the first claimant. The claimants’ network was made up of florists with whom customers might place orders in person or by telephone. The first claimant also had websites that enabled orders to be placed via the internet, those orders being fulfilled by the network member closest to the place where the flowers were to be delivered. The address of the main website was its name then .com, which redirected to country-specific websites such as its name then .co.uk. INTERFLORA was a national trademark in the United Kingdom and also a Community trademark. It was common ground that, so far as the flower delivery service was concerned, those marks had a substantial reputation both in the UK and in the other member states of the European Union. The first defendant company was one of the main retailers in the UK. It retailed a range of goods and supplied services through its network of shops and via its website. One of those services was the sale and delivery of flowers, which was in competition with that of the first claimant. It was common ground that the first defendant was not part of the claimants’ network. The parties both advertised through a third-party search engine, G. When an internet user performed a search on the basis of one or more words on G’s search engine, that search engine would display the sites which appeared best to correspond to those words, in decreasing order of relevance. Those were referred to as the ‘natural’ results of the search. In addition, G’s paid referencing service – ‘AdWords’ – enabled any economic operator, by means of the selection of one or more keywords, to obtain the placing, in the event of a correspondence between one or more of those words and that/those entered as a request in the search engine by an internet user, of an advertising link to its website. That advertising link appeared under the heading ‘sponsored links’, which was displayed either on the right-hand side of the screen, to the right of the natural results, or on the upper part of the screen, above the natural results. That advertising link was accompanied by a short commercial message. Together, that link and that message constituted the advertisement displayed under the above mentioned heading. A fee for the referencing service was payable by the advertiser for each click on the advertising link. The advertiser could at any time improve its ranking in the display by fixing a higher ‘maximum price per click’ or by trying to improve the quality of its advertisement. Using the ‘AdWords’ referencing service, the first defendant selected as keywords the word ‘Interflora’, as well as variants made up of that word with minor errors and expressions containing the word ‘Interflora’. Consequently, when internet users entered the word ‘Interflora’ or one of those variants or expressions as a search term in G’s search engine, one of the first defendant’s advertisements would appear under the heading ‘sponsored links’. Following discovery of those facts, the claimants brought proceedings for trademark infringement before the High Court, which decided to stay the proceedings and referred ten questions to the Court of Justice of the European Communities (ECJ) for a preliminary ruling. Following a request for clarification from the ECJ, the referring court, by decision of 29 April 2010 (see  All ER (D) 216 (Apr), withdrew its fifth to ten questions, maintaining solely four questions. By questions 1, 2, and 3(a), the referring court asked, in essence, whether, on a proper construction of article 5(1)(a) of Council Directive (EEC) 89/104 (to approximate the laws of the member states relating to trademarks) (the directive) and Council Regulation (EC) 40/94 (on the Community trademark) (the regulation) the proprietor of a trademark was entitled to prevent a competitor from displaying – on the basis of a keyword which was identical to that trademark and which had been selected in an internet referencing service by the competitor without the proprietor’s consent – an advertisement for goods or services identical to those for which that mark was registered. By question 4, the referring court sought to ascertain whether, in those circumstances, it was relevant (i) that the advertisement concerned was liable to lead some members of the relevant public to believe, incorrectly, that the advertiser was a member of the trademark proprietor’s commercial network; and (ii) that the provider of the internet referencing service did not permit trademark proprietors to prevent signs identical to their trade marks being selected as keywords. By point (b) of question 3, read in conjunction with questions 1 and 2, the referring court asked, in essence, whether article 5(2) of the Directive and article 9(1)(c) of the regulation should be interpreted as meaning that the proprietor of a trademark with a reputation was entitled to prevent a competitor from basing its advertising on a keyword corresponding to that trademark which the competitor had, without the proprietor’s consent, selected in an internet referencing service. The claimants submitted that, in accordance with an already established body of caselaw, article 5 1(a) of the directive and article 9 of the regulation protected the trademark proprietor against any adverse effect on any of the functions of the mark. According to the first defendant, however, such an interpretation did not follow unambiguously from the case-law and risked creating an imbalance as between the interest in protecting intellectual property and the interest in free competition. The European Commission, for its part, submitted that paragraph 1(a) protected the trademark proprietor solely against acts affecting the mark’s function of providing an indication of origin. In its submission, the trademark’s other functions could, at most, play a role in the interpretation of article 5(2) of the directive and article 9(1)(c) of the regulation, which concerned the rights conferred by trademarks with a reputation. The court ruled: It followed from the wording of article 5(1) of the directive and the tenth recital in the preamble thereto that the laws of the member states had been harmonised inasmuch as the exclusive right conferred by a trademark afforded the proprietor of the mark ‘absolute’ protection against the use by third parties of signs which were identical with that mark in relation to identical goods or services, whilst, where there was not identity on two counts, only the existence of a likelihood of confusion enabled the proprietor to rely successfully on its exclusive right. Although the European Union legislature described as ‘absolute’ the protection against the unauthorised use of signs identical with a trademark in relation to goods or services identical with those for which the mark was registered, the Court had put that description into perspective by stating that, as extensive as it might be, the protection conferred by article 5(1)(a) of the directive was intended solely to enable the trademark proprietor to protect its specific interests as proprietor of the mark, namely, to ensure that the trademark could fulfil its functions. Admittedly, a trademark was always supposed to fulfil its function of indicating origin, whereas it performed its other functions only in so far as its proprietor used it to that end, in particular for the purposes of advertising or investment. However, that difference between the essential function of the trademark and its other functions could in no way justify – when a trademark fulfilled one or more of those other functions – excluding from the scope of article 5(1)(a) of the directive and article 9(1)(a) of the regulation, acts adversely affecting those functions. Likewise, there were no grounds for holding that only trademarks with a reputation were capable of having functions other than that of indicating origin. In those circumstances, it would be for the referring court to consider whether the condition of an adverse effect on one of the functions of the trade mark was met (see , , ,  of the judgment). In the instant case, the answer to questions 1, 2, 3(a) and (4) was therefore that the use made of the claimants’ trademarks adversely affected the trademark’s function of indicating origin where the advertising displayed on the basis of that keyword did not enable reasonably well-informed and reasonably observant internet users, or enabled them only with difficulty, to ascertain whether the goods or services concerned by the advertisement originate from the proprietor of the trademark or an undertaking economically linked to that proprietor or, on the contrary, originated from a third party. However, it did not adversely affect, in the context of an internet referencing service having the characteristics of the service at issue in the main proceedings, the trademark’s advertising function, although it adversely affected the trademark’s investment function if it substantially interfered with the proprietor’s use of its trademark to acquire or preserve a reputation capable of attracting consumers and retaining their loyalty (see  of the judgment). (2) Article 5(2) of the Directive and article 9(1)(c) of the regulation should be interpreted as meaning that the proprietor of a trademark with a reputation was entitled to prevent a competitor from advertising on the basis of a keyword corresponding to that trademark, which the competitor had, without the proprietor’s consent, selected in an internet referencing service, where the competitor thereby took unfair advantage of the distinctive character or repute of the trademark (free-riding) or where the advertising was detrimental to that distinctive character (dilution) or to that repute (tarnishment). Advertising on the basis of such a keyword was detrimental to the distinctive character of a trademark with a reputation (dilution) if, for example, it contributed to turning that trademark into a generic term. By contrast, the proprietor of a trademark with a reputation was not entitled to prevent, inter alia, advertisements displayed by competitors on the basis of keywords corresponding to that trademark, which put forward – without offering a mere imitation of the goods or services of the proprietor of that trademark, without causing dilution or tarnishment and without, moreover, adversely affecting the functions of the trademark with a reputation – an alternative to the goods or services of the proprietor of that mark (see - of the judgment). Infringement – Advertisement – Reference to Court of Justice of European Communities Arsenal Football Club plc v Reed: C-206/01  All ER (D) 169 (Nov) applied; L’Oreal SA v Bellure NV: C-487/07  All ER (D) 225 (Jun) applied; Google France SARL v Louis Vuitton Malletier SA; same v Viaticum SA; same v Centre National de Recherche en Relations Humaines (CNRRH) SARL: C-236/08, C-237/08 and C-238/08  All ER (D) 23 (Apr) applied; O2 Holdings Ltd v Hutchison 3G UK Ltd: C-533/06  All ER (D) 155 (Jun) considered. Interflora Inc and another v Marks and Spencer plc and another: Court of First Instance of the European Communities (First Chamber) (Judges Tizzano (President), Kasel, Ilesic (Rapporteur), Levits and Safjan): 22 September 2011
A history of phone hacking and the current Leveson enquiry into the culture, practice and ethics of the press through the activities of lawyers alone is intriguing. I am a Leveson addict, and a long-time watcher of lawyers, and so it is a natural combination. I undertook an analysis some time ago during the Chilcot enquiry about lawyers’ participation in the Iraq war. So here are five Leveson groupings, on a sliding scale from heroes to ‘interesting contributions’. I hope that this combines the best of the tabloids – a choice of five to slip down with your breakfast – with avoidance of the worst tabloid excesses of bullying and name-calling. No phone hacking has been involved in collecting the data for this article. It is good that – as with Chilcot and Elizabeth Wilmshurst – we can begin with heroes. Every profession needs them, and Mark Lewis of Taylor Hampton and Charlotte Harris of Mishcon de Reya have fulfilled the role. They have pursued the cases single-mindedly, despite obstacles and surveillance, including as to whether they were having an affair and passing on information to each other. They have seen their clients’ principal allegations proved true. Mark Lewis also had to defend his name by successfully suing the then chair of the Press Complaints Commission for defamation. They are good examples. The judge himself, Lord Leveson, and the barristers representing the various recognised groupings have been performing in public for weeks. It has been an instructive performance of the English legal system and its adversarial system – taken for granted by us as normal. It has so far exhibited the best of the system: calmness, thoroughness, fairness, the ability for each side to have its say on equal terms, and forensic examination of the issues. Richard Thomas, the former Information Commissioner, did not give evidence as a lawyer, but he is – or at any rate was – a lawyer, formerly working at Clifford Chance, among other places. His was a cruel fate, since decisions made in the light of many pressing claims were held up to the spotlight and examined in minute detail. Not many of us would survive such examination without taint. The Office of the Information Commissioner deserves great credit for Operation Motorman and two reports into the trade of information. But Richard Thomas faced relentless examination about why he had not pursued the press or individual journalists more closely on the basis of those reports, and why he had misunderstood the nature of the Press Complaints Commission. He says that Gordon Brown told him he had the most difficult job in the country – and he may feel, after Leveson, that his public trials came a little closer to those of Gordon Brown. Next there is Alastair Brett, the former legal manager for The Times, who made an appearance in relation to activity undertaken by Patrick Foster, then a Times journalist, who was trying to unearth the identity of a blogger called Night Jack. For an account of what happened, I rely entirely on the witness statement of James Harding, editor of the Times, with the relevant extracts being as follows: ‘It appears that Mr Foster first told Martin Barrow, the then home news editor to whom Mr Foster reported, that he had been able to access Night Jack’s email account and had thereby been able to identify Night Jack as Mr Horton. Mr Foster also informed Alastair Brett, the then legal manager for The Times and The Sunday Times. The decision to take the matter to court was Mr Brett’s, I was not informed of the instruction of counsel, any communications with Mr Horton’s lawyers, or the decision as to what material to put before the court. Mr Brett was a very experienced legal manager. I was deeply frustrated that he had not consulted with me on the decision to take legal action, but, in any event, I would have left the conduct of the litigation, including what material was put before the court, to him. It is my understanding that Mr Brett told Mr Foster that if he wanted to publish a story about Night Jack’s identity, he would have to identify him through legal means. ‘Following this Mr Foster appears to have sought to do that. I understand that Mr Brett told Linklaters on 2 February 2012 that he decided not to inform leading counsel for The Times Antony White QC, or the court about the issue because he took the view that this information provided to him by Mr Foster was confidential and privileged, that it would incriminate Mr Foster, and that in any event Mr Foster had been able to identify Mr Horton through legitimate means. At the time, I did not know that Mr Brett had taken this decision. I understand that Mr Brett has told Linklaters that he did not believe at the time, and still does not believe, that the decision he took resulted in the court being misled.’ It is reported meanwhile that Mr Brett, who is said to have a ‘completely clear conscience’, is frustrated by what Leveson has heard and wants to appear at the enquiry to put his side of the story. Finally, we come to Tom Crone, the News of the World’s former legal manager, and Julian Pike of Farrars, both of whom were involved in surveillance of the lawyers involved on the other side of the case they were fighting. Both were acting for the Murdoch empire in the case of the huge payment to Professional Footballers’ Association chief executive Gordon Taylor. We heard from Leveson evidence that they were aware at the time that leading counsel Michael Silverleaf had told News International in a written opinion that there was ‘a culture of illegal information access’ at News Group Newspapers. I would not like to have been in the shoes of any of them. The tabloids would give a hypocritical, high-moral-ground and abusive conclusion to this tale. I do not, because we all know that life is varied and complicated, and contains many possibilities. Yet I am glad that the tabloids’ own behaviour and atrocious stories are now coming under the microscope. Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs