Property law

Defenses to trademarks infringement

A registered trade mark will not be infringed: (Section 11 of the 1994 Act ) the use by a person of his own name or address; the use of indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of services, or other characteristics of goods or services; or the use of the trade mark where it is necessary to indicate the intended purpose of a product or service (in particular, as accessories or spare parts).

Co-ownership regulation

Binary structure (two distinct constituent regimes): 1. Common ownership 2. Joint Ownership

Kinds of things - divide

Corporeal Incorporeal Moveable Heritable

Corporeal/Incorporeal

Corporeal thing can, literally, be grasped. Incorporeal thing has no body. Personal and real rights have no physical presence = incorporeal Similarly, can own subordinate real right (Bank holds a standard security, tenant in a lease). Cannot Own 'ownership'

Communio est mater rixarum

Co-ownership is the mother of all disputes

Act of mind, Animus

Mental state. -Intention to possess. -Intent to exercise control. -Intent to hold for your own benefit. -Often inherently linked to act of the body (difficult to evidence thought).

Right to no interference

The right to use property free from interference by neighbours Owner may use her property for her own profit and pleasure. Right subject to many qualifications such as the duty to obtain permission from planning authority before erecting a structure on land. For present purposes, the restriction on the use of property imposed by the common law concept of nuisance is the most important.

Corporeal Moveables: Common law criminal - rules out acquisition

The vitium reale ('real defect') of theft which in Scots law rules out the acquisition of a real right by a subsequent party - Morrison v Robertson

Real rights

Right in a thing (e.g. a book)

Real securities - extinction

discharge renunciation (don't need security anymore) restriction (sec. over a group of assets agreed by creditor to limit to smaller, sell off rest) confusion (creditor/debtor are the same person) enforcement (end of enforcement = extinguished) destruction of security subjects ( none there so nothing to attach to)

Principal real right - ownership (TITLES)/co-ownership right

primary real right - others are subordinate. Owner can use/enjoy/dispose their property subject to law/agreement OWNERSHIP IS UNITITULAR = only one title up for recognition BUT right can be shared as long as they share the single title. Co-ownership is not subordinate real right - it is a share in a main real right (same principles the land and moveables)

Heritable property maxim - important for registration

prior tempore potior iure (first in time, first in law) - register first, better claim

Subjectivity

Formerly, subjective elements did matter: consider trade fixtures in questions between the landlord and the tenant. This changed in 1876. The current effects of accession are illustrated by the case of Brand's Trustees v Brand's Trustees (1876)

Accession of moveables to land - Functional Subordination

Is the attachment of the article for the improvement of the land - or a subject that had acceded to the land - or for the better enjoyment of the article itself? Storage heaters: Fife Assessor v Hodgson (accede) Pictures and tapestries? Cochrane v Stevenson (oil paintings, 2 hung up on hooks, 3rd covering unfinished wall - 3rd acceded) Leigh v Taylor (tapestries in dining room, behind wooden paneling Better enjoyment of tapestries) Summer house in Christie v Smith's Executrix filled a gap in a wall (at the farm and croft of Bethelnie, Meldrum); this made it easier to enjoy the farm

Securities - definition

"'right in security'... denotes any right which a creditor may hold for ensuring the payment or satisfaction of his debt, distinct from, and in addition to, his right of action and execution against the debtor under the latter's personal obligation." - Gloag and Irvine Security does NOT replace debt, alongside debt and is parasitic to debt (needs it to exist).

Rankine - Rankine, The Law of Leases in Scotland (3rd ed), p.1

"A lease or tack is a contract of location (letting to hire) by definition which one person grants and another accepts certain uses, current or definitive, or the entire control, of lands or other heritages for a period or periods, definite or indefinite, or even in perpetuity, in consideration of the delivery by the grantee of money or commodities or both, periodically or in lump or in both of these ways. The granter is known as the lessor, land- lord, or over-lessee, or, if he hold immediately under the landlord, the principal lessee. The grantee is known as the lessee, tenant, tacksman, sublessee, or subtenant. The periodical payment is rent, royalty, or lordship: the lump sum is grassum or foregift. The contract is in its essence purely personal; in certain circumstances it gives rise to what is substantially a real right." Grassum = paid preminium

Incorporeal Moveable

Anything incorporeal that is not heritable e.g. intellectual property Debt

Clarification on binary structure of co-ownership in Scotland?

Banff Magistrates v Ruthin Castle ltd (def/classes of pro indivisio ownership settled by Lord Cooper) 36,68 'Elastic' title: owner for as long as trustee/club member. No separate share to transfer or burden. No right to division and sale. Rules of management provided by deed of trust/club constitution)

Protection of possession

Division of possessors: as of right; or without right. The latter gives one right, namely the right not to be unlawfully dispossessed (even if you are a thief or a squatter). Spuilzie (term refers to both the dispossession and the action available as a result to get possession back) or, in the case of land, ejection). The proper channels must be used.

Positive prescription def

Doesn't apply to moveable property, but recent discussions - the Prescription and Title to Moveable Property (Scotland) Bill (consultation closed 23 Sept), Aim property over 20 years in posession by good faith deposited/lent = owner if no contact 50 years - museum

Accession as a matter of fact

Accession operates mechanically, with no regard for the subjective intentions of the parties ... Shetland Islands Council v BP Petroleum Ltd 1990 (Oil refinery, quantification of payment in the situation of a licence agreement; defenders wished to discount value of buildings added to the land, on the basis of an alleged contractual agreement - even if excluded by contract still FORMED PART OF LAND = A)

Speeding up jigsaw completion - registration 2012

All dispositions of property not yet registered in the Land Register (not just transfers for value). -Sasine Register closes (s 48). -Disposition needs registration for ownership (s 50). Voluntary registration. -All voluntary applications must be accepted, provided that they otherwise comply with the requirements for registration. Keeper has no discretion (s 27). Registration of security transactions. -Sasine Register closes to such deeds (s 48(2)-(4)). Keeper-induced registration - no need for application or consent of the owner (s 29).

Policy drive - who owns Soctland

From May 2011-May 2012, Land Mass Coverage increased from 21.18% to 23.33% (Renfrewshire operational in 1981). Slow progress towards completing the Registration of Title jigsaw. (Plus, Sasine jigsaw not even completed, despite introduction in 1617.)

Rule of Unanimity (or majority? case and silence of pro indivisio case)

George Joesph Bell - specified pro indivisio ownership the consent of all the owners is requisite in the management, alteration or disposal of subject (golden rule) Unanimity or majority? Court followed rule of unanimity (rather than Bell possibility) Clydesdale bank plc v Davidson - But all cannot lease (or engage in another juristic act) to one of their own number Courts accepted silence pro indivisio e.g. Shaw v Black (as connotation consent)

IP dealings - securities options

How to take security over IP Although IP is intangible, taking security over IP rights uses similar concepts as taking security over other forms of property. Security Options 1- take a mortgage over the relevant IP/license ; or 2- take a fixed or floating charge over the relevant IP or licence

Dealings with IP - practical considerations

In order to ensure the validity of any dealing with IP rights: -Identifying any possible IP right in product/service deal with (1 or more) -Identify the initial threshold (and legal protections) -Identifying who owns the rights (owner) -Power conferred (to right owner+ identified) -The term of the right/ duration -Territory (effect of the IP rights) -Limits

IP dealings - securities legal element

Section 25(2)(c) TMA granting of security (fixed or floating) must be registered Section 31 PA special arrangements for patents in Scotland, not section 30 PA S31(3) PA any patent or application may be secured S31(6) PA grant in writing, RW(S)Act 1995 S33(3)(b) PA effect of security Taking Security over Intellectual Property: A Practical Overview --Due diligence and post-transaction formalities are equally important in the process of taking security over IP.

Prescription and Limitation (Scotland) Act 1973 (PL(S)A 1973) Modern law relating to prescription

In terms of positive prescription the Act provides -comprehensively for land and rights in land; -partially for moveable property, by only dealing in negative prescription. There are proposals that might change this situation

Extra commercium

Inalienable common good land. Portobello Park Action Group Association v The City of Edinburgh Council (Local authority's decision to appropriate part of its (inalienable) common good land at Portobello Park in Edinburgh to build a new school was successfully challenged by a group of local residents)

Commixtion and confusion - effects on ownership

No common ownership if the elements are still separable Common ownership if the mixture cannot be separated into its constituent elements or if the mixture is by consent Where the mixture is without consent - share ownership with respect to quantity or value of contributions Where the mixing results in a new thing - specificatio

Defective acquisition - when defective?

No transmission of 'right' deriving from void title because there is nothing to transmit (Morrison - delivery of cows by rogue to good faith purchaser ineffective). Transmission possible where transferor's subsistent title is merely voidable (MacLeod; delivery of car by fraudster to good faith purchaser effective); In the case of a voidable title a 3rd party in good faith (unaware of defect) will get a good title (MacLeod) leaving the defrauded seller unable to recover the property and with only a claim for compensation;

Right to exclusive possession

Owner can retain and regain possession. Can protect possession by way of interdict and (to a limited extent) self help. (An intruder in your house can be asked then made to leave) Own from heavens to centre of the Earth, so Civil Aviation Act 1982 s 76 allows for over-flight. Campbell v McCutcheon

Nuisance

Owner's right to use property balanced against his neighbours' rights to enjoy their property in peace and generally free from interference. Two maxims for neighbour law namely: -the owner of the soil is owner up to the heavens and down to the centre of the earth -use your own property in such a way as not to injure others

Joint Ownership aka joint property def + elements

Owners have no separate estate but only one estate vested in them pro indivisio. Cannot be divided - cannot be disposed/burdened by own act and passed on death to remaining joint owner. Deals with Trusts/ property owned by unincorporated associations.

Possession - fact or right?

Ownership is a legal relationship. Possession is largely a factual relationship, dependent on factual criteria being satisfied. BUT possession does give the right not to be dispossessed, therefore a little simplistic to call it a bare fact. Possession as a matter of fact can often be ascertained by looking. No problem with sharing possession (husband and wife/civil partners).

Securities as Accessory

There must be an underlying obligation for there to be a security; put another way, there must be something for the security to "secure". See Rankin v Arnot (1680) Mor 572. So, if the underlying contract of loan is void, what happens to the security? See Nisbet's Creditors v Robertson (1791) Mor 9554. (heritable bond granted for price of smuggled goods by marchant between scot and Holland - on bankruptcy of the debtor, trustee credito brought REDUCTION of the SECURITY since it was pactum illictum (illegal ACT)) But note that the underlying obligation and the security must be distinguished

Accession - what is it? Types?

When two pieces of corporeal property have joined together in such a way that one (the accessory) is considered to have become subsumed in the other (the principal). Reid, Property para.570 Types of accession: ◦ moveables to moveables (gear box to car) ◦ moveables to land (summer house to land - main focus) ◦ land to land (torrential rain move land next to another)

Accession of moveables to moveables

Which is principal, which accessory? Stair, Institutions 2.1.39 - what is the design of the artifact? Valuable gem in a ring? Valuable gem set in gold? Failing such considerations - consider the value of the principal and the accessory. Ownership goes to principal Note SLC Consultative Memorandum no.28 (1976). Common ownership with power to the court to make equitable adjustments of the parties' rights?

Nuisance - proportionality

Unlikely to be decisive, but reasonableness of pursuer may be questioned if non-invasive route to same goal. Only marginal benefit to small vegetable garden in the South African case of Gien v Gien, not sufficient to outweigh harm.

Accession of moveables to land - fittings vs fixtures conditions

◦ physical attachment, ◦ functional subordination, and ◦ permanency or quasi- permanency.

RB - s8(3) interest

(a) in the circumstances of any case, failure to comply with the real burden is resulting in, or will result in, material detriment to the value or enjoyment of the person's ownership of, or right in, the benefited property; or (b) the real burden being an affirmative burden created as an obligation to defray, or contribute towards, some cost, that person seeks (and has grounds to seek) payment of, or as respects, that cost." B is easy (get money bound to pay), A 'material detriment' CRUCIAL) Barker v Lewis 2007: B&B breached(?) a real burden prohibiting trading, neighbours sought interdict - NO interest, no material detriment. Kettlewell v Turning Point Scotland 2011: assisted accommodation, neighbours challenged that use as in breach of a burden that each house in the cul-de-sac was only to be used as a "private dwellinghouse for occupation by one family only and for no other purpose whatsoever" - WON, valued by surveyors, tangible bottom line hit

Nuisance case law divides

divides nuisance into (a) physical damage and (b) interference with enjoyment and use. Thus an owner is not allowed to exercise ownership to interfere with comfort and convenience or quality of life of his neighbours. Open-ended list of conduct, such interference with the 'senses' of his neighbour can be caused by e.g. smells or noise

Two scenarios of act with legal effect

1. Affects pro indivisio owners have or affects whole property 2. Individual share - can carry out acts that don't effect everything BUT co-owners cannot create servitude over whole property or lease.

Heritable securities - enforcement of residential properties

A court action will normally be required. "Pre-Action Requirements" must have been fulfilled (including e.g. attempts to reach an agreement on future payments). 1970 act start, 2001 apply to court for protection - 2010 act default position MUST be residential debtor Even then, enforcement only allowed if "it is reasonable in the circumstances of the case to do so" having regard to certain specified factors (e.g. nature of default and even ability to secure alternative accommodation) s 24(5)(b). Bank of Scotland Plc v Gallacher (sherriff did not take into account certain factors so delayed enforcement at most)

Other forms of original acquisition - Prescription (derv. with pos)

Acquisition by prescription is a form of original acquisition, but in Scots law the primary role of positive prescription is observed in the context of derivative acquisition. In derivative acquisition the rule is nemo dat quod non habet - a person cannot give that which they do not have to give. The operation of prescription can have the effect of turning what might be a defective title into a title that is indefeasible, without any taint; i.e. original acquisition.

Transfer of possession (Relevance to derivative acquisition at common law.)

Actual delivery (of natural possession). Constructive delivery. (e.g. warehouse holder you now hold for A rather than B, intimation of change must be made for delivery) (Or even Hirer buys hired property from owner = full possession - Brevi manu) Transfer of a key. (Longa manu.)

Derivative acquisition moveables - forms of delivery

Actual, symbolic and constructive; no numerus clausus (closed list) of forms but there must be a transfer of possession or power (i.e. control must pass from transferor to transferee); Symbolic; delivery of keys of car; is this actual delivery? if wrong key is delivered? Constructive; some act or event recognised by the law as constituting delivery in the circumstances, e.g. commercially important intimation to keeper of warehouse; brevi manu (tranferee already holds the thing, e.g. on loan), longa manu (subject matter set aside for collection by transferee).

Right of support

Adjacent and subjacent proprietors must not withdraw support of land. Certainly applies when land has never been developed (farmland). Some writers argue duty does not apply where excessive building on the surface, unless building contemplated when subjacent mineral rights were split off e.g.Coal Industry Act 1994 - Coal Authority owns coal and can grant licences to work it, must make good/compensate for any subsidence. Building to building: -flatted properties by Tenements (Scotland) Act 2004; and -mutual gables have a common interest for each half.

Justification of patent protection

An exclusionary private property right is given in return for public dissemination of the details of the invention Natural right Incentive: encourage innovation beacuse it represents the best means to secure adequate returns for intellectual endeavour Patents encourage races between different teams working on the same problem. It encourages them to work harder and often produces a variety of solutions to the same problem. Human right

Owner be expected to tolerate?

An infringement of the occupier's enjoyment of the 'natural rights' incidental to his possession of the land, and the scope of these rights is fixed by law. As such, some things unprotected by nuisance, in that there is no 'natural right' to -the enjoyment of an uninterrupted view or prospect; -privacy in the sense of freedom from being overlooked or inspected by neighbours or others outside the pursuer's land.

Principal real right - ownership (Dominium)

An owner can use, enjoy and abuse (consume) his or her property, subject to law or paction. As long as the asset remains (e.g. perishable materials may degrade), owner is in a strong position indeed. Restrictions = later

Prescription , policy - is it fair? Positive prescription allows the factual condition of possession to mature into the abstract condition of ownership after a certain period of time and subject to certain prerequisite conditions being met.

A means by which a split between de facto and de jure situations do not last forever.

Effects of Accession

Accessory becomes part of the principal. Conversion: where accessory moveable and principal heritable, the accessory becomes heritable. NB Land is ALWAYS the principal + Extinction of existing title to the accessory. The law is UNITARY; essentially it applies irrespective of what are parties are involved. But note two points: -The potential importance of a related contract (e.g. B attaches an engine to his car, but also adds a spare wheel and adds new tyres; B sells the car to C) - J L Cohen Motors v Alberts (court wheels don't accede) -Constructive fixtures - Reid para.576 - a moveable item which is so completely designed for the benefit of another article, itself heritable, that has no utility in isolation, is considered constructively heritable - house keys, moveable parts of a heritable machine

Negative prescription def

right in a thing in prescription and limitations (Scotland) Act 1973 extinguishes after 20 years if haven't chased it

Title conditions - servitudes (law) + what are they?

-Common law (relevant), -Statute (increasing in relevance) ---**Title Conditions (Scotland) Act 2003 A burden on one piece of land (known as the "servient" or "burdened" tenement) in favour of another piece of land (known as the "dominant" or "benefited" tenement). Example: Servitude of Access (right to cross over another piece of land horse/car/foot) ----Two (or more properties) The dominant/servient situation might be reversed, if (for example) there was a well on the westmost property. Note also real burdens and servitudes regularly co-exist.

Scots law will generally allow proprietial rights to be held in any corporeal thing - BUT certain objects are:

-Actually incapable of ownership (running water, living human being, dead bodies) -Practically inalienable by their owner (property owned in certain types of trusts (Scottish national trust) which although owned cannot be alienated without contravening the terms of trust deed)

Watt v Jamieson - plus quam tolerabile

Any type of use which...subjects adjoining proprietors to substantial annoyance, or causes material damage to their property, is prima facie not a "reasonable" use.'

Corporeal moveable

Anything corporeal which isn't heritable e.g. book, pen, car, cat, buttery, exam paper

Copyright: Authorship and ownership

Author/ owner and first owner ---Who is the author? S 9(1) CDPA 1988: With literary, dramatic, musical and artistic works which are not computer-generated the author is the person who ****creates the work. ---In films: the producer and principal director are in joint authorship S 10(1A) CDPA 1988 ---In sound recordings: the producer SS 9(2)(aa) CDPA 1988. ---Published editions: the publisher Joint authorship: --more than one person collaborates in the execution of a work (ie in formulating the expression) and the contributions are indistinguishable in the final work --The Contribution Must Not Be Distinct Common ownership --Ownership is common, not joint: ie there is one copyright, each party owning a share of the whole which passes to his estate on death; each may share in management, sell the share Collective works --Works produced by collaboration where the contributions of the collaborators are separate from each other. Beckingham v Hodgens [2003] Violinist has joint authorship in a song (requires intention)

Plus quam tolerabile*

Balancing act - give and take/live and let live. The pursuer must show that the invasion or interference with his rights is plus quam tolerabile, more than he should be expected to tolerate

Leases - contrasting with feudal + essentials to lease

Contrast leasing with feudal tenure - the lease as a wholly non-feudal institution: the lease returns a profit on lands (rent) without disposing of the property in the lands (by feuing) - Note the advantages for both the landlord and the tenant. Feudal duties - fixed for all time Essentials of a lease: Parties Heritable property Rent A term of enjoyment i.e. Parties, Property, Payment, Period - the four Ps. Contrast with the three Ps of a contract for sale. Which is missing? - period (time limited element missing) for contract

Overview - the transfer of Ownership in Heritable Property

Conveyancing', a specialist subject which will only be touched on here; 3 stage process: conclusion of missives; delivery of disposition; registration; Note the 'mind the gap' problem in period between a buyer's acquiring a personal right and it becoming a real right. Remember how this is dealt with by the Land Registration etc. (Scotland) Act 2012

IP examples

Copyright: writings: novel: Da Vinci code Dan Brown (not the book) Patents: Invention of a new drug for cancer (not the drug) Trade mark: the word Coca cola (not the fizzy drink), Apple, Google, etc.

Co-ownership history (sources) and the problems

Early writers didn't like the concept in Roman or Scots law: Thomas Craig 1605 - ringfenced co-ownership to specific cases, like heirs portioners, society, ships etc). Sources of law: Largely common law (some statute relevant like Matrimonial homes (family protection) (Scotland) Act) Institutional writers - George Joseph Bell 'Principle of the law of Scotland' - tried to get unitary treatment of Scotland + rules of unanimity)

Common interest def

Exists where two or more subjects are separately owned but are united by a community of interest arising from their proximity e.g. Boundary interest

Copyright: Primary Economic rights or restricted acts

CDPA 1988, s 16(1). --copying (reproduction right) --issuing copies of the work to the public (first sale or distribution right) --renting or lending the work to the public (rental/lending right) --performing, showing or playing the work in public (public performance right) --communicating the work to the public (public communication right) --making an adaptation of the work (adaptation right)

Nuisance - social utility

Certain acts (such as burning weeds, emptying cess-pools, making noises during repairs, and other instances which would be nuisances if done wantonly or maliciously) necessary for the common, ordinary use and occupation of land may be done, if conveniently done, without subjecting those who do them to an action. Bamford v Turnley

Coming to the nuisance

Certainly not decisive, but might be relevant. Webster v Lord Advocate (interdict against edinburgh tattoo on top of high street, construct in different way) Moving to nuisance not a complete defence unless pursuer acquiesced (i.e. impliedly consented to tolerate) in nuisance or the principle of volenti non fit iniuria can be applied. Defender not entitled to create novel or more extensive interference

Property law concept

Concerned with things (res) and with the rights (jus, jura). Relates to finite sources (e.g. land) Property - determines what obligations you can enter or are imposed

Title conditions - servitudes - example, farmer + development?

Farmer might sell land to a developer BUT retain servitudes for access and drainage. What happens if you forget to reserve a right (in documentation)? In some (high threshold) circumstances the law can ***imply a reservation. What if you buy a property and forget to get an express servitude? Similar but slightly different rules exist for an ***implied grant. May seek to ensure tenements (i.e. flats) or building plots have sufficient services to make for a good and marketable title. ---Tenements (Scotland) Act 2004

May appear to be moveable may nevertheless be considered heritable

For example, windows, doors and fittings waiting to be fitted into a house that was in process of construction when the owner died may be considered to be heritable by destination. Certain animate creatures can be heritable - specifically, mussels and oysters which attach themselves to the land. Dung heap heritable/moveable? First mov then heritable when spread

Original acquisition - two options

From someone else. ◦ Derivative acquisition. ◦ Successor's title is derived from the previous owner. By operation of law. ◦ Original acquisition. ◦ Ownership is based on a new title.

Copyright - Legal framework: The European Dimension

Harmonisation efforts since 1991 The overall goal in the EU harmonisation efforts is to enable copyright protected goods (e.g. books, music, films, software etc.) and services (e.g. services offering access to these goods) to move freely within the internal market. The EU's regulatory framework for copyright and neighbouring rights is a set of ten directives, addressed to the EU Member States. (EU copyright directives) Brexit? Change laws unlikely

Expansion of IP rights (development in 3 dimensions)

IP influenced by the social, industrial and technological developments. The development of IP rights takes three dimensions: 1.Extending the protection to include new subject matter (example: copyright was extended to include the emerging subject matter such as photographs and computer programs). 2. Creation of new rights (example: the database right, the plants breeders' rights, and semi-conductor topography) 3.The extension of protection term.

Dealings with IP - overall

IP rights are commercially exploitable Several IP rights in one product (a movie, a tablet, etc.) IP owner can exploit and **control his right IP rights are national but products are marketed globally

Regulation of IP law

IP rights are regulated by national, regional and international laws. National Law: IP laws remain creatures of national territorial effect only. Example EU Dimension: The EU influence on IP laws takes three forms: 1.Harmonisation of laws: 2.Establishments of EU community rights 3.Application of EU competition law to IP The Brexit twist ? Since lots of national legislation based on EU directives, so change or happen to EU rights International IP laws:

Ownership of patents

Inventor and successor in title (section 7 PA) Inventor always has right to be mentioned on patent (section 13 PA) Employer if in course of employment (section 39(1) PA) A patent belongs to the inventor, unless he has given the rights to someone else. Normally, if the inventor is an employee and he makes the invention in the course of his work, the rights belong to the employer. The owner of the patent may license it, allowing others to use his invention. Alternatively, he can sell it to someone else.

Act of mind - intent?

Intent to control notwithstanding no knowledge the collection was there! Akin to a delivery in a secure mailbox/letterbox. Intention - matter of degree: Manifest intention" to control everything in an area - railway station waiting room ->railway station ticket office/cash-room. Public area -> domestic house ->bank vault.

Posssession/Detention

Intention to hold for one's own benefit. Distinction between possession and detention depends on whether the person exercising physical control does so with at least the intention to hold the thing for her own use (animus sibi habendi) or merely with the intention of holding the thing solely on behalf of another (animus non sibi sed alteri tenendi).

Second requirement for patent protection: Inventive step

Inventive step is defined in section 3 of the Patents Act 1977 'An invention shall be taken to involve an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms part of the state of the art A misnomer! It is not inventive for someone to take the next logical, obvious step in the develop of any given field of technology, rather what is required is a leap forward in ways that would not be obvious to others working in the field. It is an objective test. The classic approach to this question was laid down in: _ Windsurfer International Inc v Tabur Marine (GB) Ltd [1985] RPC 59 (CA)

Dealings with IP - what can the IP owner do with IP

Exploit and control (without license/permission) --Object to other people's activities --More positively: use it to develop a product --pass it (or some of it) to someone else to do all this --permanently for a one off payment --allow others use it in return for regular payments while you own it --use it to raise money NB could try all these without IP - but others might copy you, other businesses would be less reluctant to deal with you, and banks unlikely to give you any money

Leases - 5th Lease + time limited arrangments

Possession must be taken in order for a 'personal' contract to become a 'real' lease - this arises out of "has takyn or sal tak landis in tym to cum" in the 1449 Act. The fifth P turns a contractual lease into a real right. Time limited arrangements - one essentially missing makes it a LISCENCE (lesser right). Purely personal right in property e.g. allow to stay in flat while away aka NOT charging rent Hence Liscence is NEVER REAL e.g. Krispy creme Union = licence Apple store in Union = lease

Capacity to possess?

Possession requires a will to possess (animus possidendi) which is not required for ownership. As such, unclear if a person of unsound mind is able to possess a thing, but acquisition of ownership of a thing is not problematic (if possession is not a requisite for that means of ownership acquisition - e.g. registration).

Other roles of possession (and case)

Possessors accorded a right to compensation for improvements effected by them, with possession forming basis for an action based on enrichment. Bona fide possessor entitled to fruits Possession, perhaps custody, an element of various statutory crimes. Cryans v Nixon (theft - appearance of stolen property in accused's shed did not reverse criminal burden of proof, Crown must prove)

Heritable securities: extinction of SS

Redemption (bring security to end early by redeeming) Payment of the sum due Deed of discharge: CFR(S)A 1970 s.17 and Sch.4, Form F - must inform reg. Restriction (of area secured - usually for a fee) also possible.

Intellectual Property ~ (IP) - what is it? Copyright/Patents/Trademarks

Rights relating to the productions of the human mind. IP is incorporeal moveable property IP is intangible: (often) linked to, but different from, tangible property IP confers right to control what others do - in a tangible form "IP" is an umbrella term, focus is on different types of rights

Heritable securities: creditor remedies - on exercise of power of sale Remember: Can have MORE than one security and can change ranking by ranking agreement (is paid for moving)

Sale is by the enforcing creditor, who acts as a trustee Must think about + obtain Best price - s 25. Distribution - s 27. -Expenses of sale. -Higher-ranked securities. -Selling creditor's secured claim (and anything pari passu). -Lower-ranked securities. -Anything left goes to debtor. (at this stage, the old debtor becomes a creditor!) Equally ranking securities possible, if registered on same day - pari passu Can have situation where all satisfied + pay expenses - NOT always = negative equity e.g. house worth £100,000, but loan security £110,000 = secured creditor gets everything and debtor NOTHING

Property within Scots Private law

Scotland Act 1998 S 126(4) provides: "References in [the Scotland Act 1998] to Scots private law are to the following areas of the civil law of Scotland— "...(d) the law of property (including heritable and moveable property, trusts and succession)..."

Real rights recognized by Scots law

Scots law = uncodified, no statutory list of real rights So finite number of real rights (Numerus Clausus - closed list) No equalivant of freedom of contract in property

LR - LR policy group

Lord Sewel's LRPG highlighted a key role for community ownership. ---Found legislative form in Parts 2 and 3 of the Land Reform (Scotland) Act 2003. Community rights, of varying strengths. Part 2 "First refusal" for a targeted piece of rural land can be obtained. Part 3 "Absolute" right to buy for certain croft holdings, common grazings and eligible additional land. Crofting, despite common parlance, does not mean smallholding in the north east. [Part 1 - Access rights]

Voluntary securities: Pledge - loss of possession? + enforcement

Loss of possession by the creditor? Steven, Pledge and Lien paras 8.20-8.28. - GENERALLY also lose SECURITY Enforcement -Apply to sheriff for authority to sell Licensed pawnbrokers - special rules. Consumer Credit Act 1974 s.116(1)-(3), 121(1), 120(1)(a). Statutory power to sell after six months; forfeiture if the debt does not exceed £75.

Moveable property - abandoned/lost property

Lost - property the ownership of which is temporarily uncertain. Abandoned - property once owned, but the right of ownership has been given up by the owner. General rule for abandoned - quod nullius est fit domini regis - Mackenzie v Maclean (Damaged cans of beer in a skip; abandoned? Theft to sell them on? Sheriff S Scott Robinson's opinion - owned by Queen)

A non domino continued

MORE publicity than simply getting a deed registered. The applicant MUST satisfy the Keeper that the following person has been notified of the application— the proprietor, if there is no proprietor (or none can be identified), any person who appears to be able to take steps to complete title as proprietor, or if there is no proprietor and no such person (or, in either case, none can be identified), the Crown.

Real securities - does the debtor need to be the person granting the security?

No (Gretton & Steven para 20.19) - it is competent to grant security for another person's debt e.g. Co-owned homes Smith v Bank of Scotland - in situation where spouse saying to the other no worry just sign - bank has extra duty to get spouse INDEPENDENT legal advice - not proper advice then security can be REDUCIBLE)

Copyright exceptions list

No infringement: --Public domain --Copyright exception --Other limitations

Statutory rights of access - where exception Probability - alright on core paths and existing rights of way

No statutory access rights for buildings, gardens, growing crops. Gloag v Perth and Kinross Council 2007 (About individual large garden of small castle) Combe, "No place like home: access rights over 'gardens'"

TM: absolute grounds for refusal

Non-distinctive, descriptive and customary marks s.3(1) TMA 1994 / Art.3(1) TM Directive / Art.7(1) CMTR: Marks shall not be registered which (a) do not satisfy the requirements of s.1(1) TMA [Art.2 TM Directive / Art.4 CTMR], (b) are devoid of any distinctive character, (c) are descriptive of the goods/services, (d) consist exclusively of signs or indications which have become customary in the current language or in the bona fide and established practices of the trade. excluded from registration unless they have become distinctive through use Also, a mark will not be registered if it is: • contrary to public policy or to accepted principles of morality, or • of such a nature as to deceive the public (for instance as to the nature, quality or geographical origin of the goods or service).

Title conditions - servitude - negative rights?

Old right to prevent (for example) building in a manner to obstruct light. ---These are now reclassified as real burdens.

Occupatio - appropriation What if A pursues an animal closely and B intervenes? (A is owner) Conflicting authority; Stair 2.1.33; Bell, Principles § 1290. Stair says that B is owner, but he may justly be compelled to restore the thing to A. Bell says A is owner.

On appropriation, the possessor acquires ownership Appropriation - requisite animus -Physical act case law about harpooning whales, Aberdeen Arctic Co v Sutter 1862 (first harpooner in whale = owner)

1979 Act - indemnity, historical note not current law

One particular historic issue was where the Keeper had excluded indemnity for a registered title. Indemnity was like a form of state insurance. This meant that the Keeper would not guarantee a title (or part of a title). Statute provided that rectification could only proceed without the consent of the proprietor in possession where indemnity was excluded. RELATEDLY, in that circumstance, prescription DID run and after TEN YEARS that registered proprietor could not face rectification. Amended significantly with 2012 Act

Agreement lacking, Common area for ordinary use only, not excessive benefit (cases)

Ordinary Carmichael v Simpson (8 own flat tenement, garden and stairs. On ground floor, frail lady - needed bath chair to push around town, left on stairwell - NOT ORDINARY USE so not allowed) No excessive benefit Bailey's executors v Upper Crathes fishery ltd (right to take fish by inheritance co-owned - deal bailey some days, fishery others. Fishery started to sell passes - bailey said excess = court agreed)

LR - Community right to register

Part 2 of the 2003 Act: allows communities to acquire a right of pre-emption in land (reg. rural GONE) To do this a community must incorporate as, three options... --That entity, with compliant constitutional documents, must then register an interest in the Register of Community Interests in Land. --Once this is done, the landowner must not sell the land without first offering it to the community. Sustainable development test

Enforce the patents

Patent Owner can deter competitors from using invention. I once the patent has been granted, it helps to refer to it in the product literature if the invention is being used by someone without owner's consent (infringement) the patentee can obtain an injunction to stop them and claim damages (compensation). This can be done at the High Court, the Patents County Court or the UK Intellectual Property Office.

Copyright def + rationale Copyright key principles: Subject matter Rights conferred Legal requirements No formalities Ownership/authorship Term Exceptions

Portects original works including literary/artistic/dramatic/music/film. Also protects computer programs and databases. Grants exclusive right to the copyright owner to prevent other people using work without permission + automatic right, do not need registration or formalities. Created upon creation of work, generally lasts for author's life + 70 years after death. Rationale? Economic interests: copyright has economic function: incentive and reward. Moral interests: recognising creativity as an aspect of individual personality. The reflections of the theories: ---The Anglo-American Approach (focus on the ec rights of copyright owner) ---The Continental Approach (moral rights of owner

Positive prescription - def Acquisitive prescription - creates rights

Positive prescription allows the acquisition of a thing belonging to another on the basis of a continuous period of possession subject to certain conditions being met; it is a form of original acquisition

Requirements of s1 of PL(S)A positive

Possessed continuously for 10 years, openly, peaceably and without judicial interruption (possession of predecessors counts provided there is continuity); That possession must be founded on a registered (or recorded) deed which is (1) ex facie valid; (2) is not a forgery Registered or recorded deed plus prescriptive possession makes a person an unchallengeable owner. Aberdeen College v. Youngson [2005] CSOH13 - where it was held that disposition to self not ex facie valid. Writ must not be "self-destructive".

Specificatio

A nova species is essential. Who owns the new item? ◦ owner of the ingredients? ◦ the craftsman? Justinian - Ownership to the maker if the new thing is irreducible to its former state (Institute 2.1.25) ◦ Stair, Institutions 2.1.41; Erskine, Institute 2.1.16 ◦ Bell, Principles s.1298 Is it (practically) irreversible to its constituent parts? (Gretton & Steven para 8.22).

LR(S)A 2012 (land reg) - heritable registration change

Allows advanced notice, keeper told person concluding to get disposition - gives amount of time to register, e.g. 30 days and stops others in mean time

LR - when the landowner is a barrier to SD?

The vast majority of land in Scotland is owned by the private sector. Landowners are instrumental in promoting sustainable local development and supporting communities. However, in some instances the scale or pattern of land ownership, and the decisions of landowners, can be a barrier to sustainable development in an area. ---Land Reform Consultation 2014 Part 5 2016 Act - renew 5 years after reg, still not enforced

Patent - first requirement Novelty

Section 2(1) of the 1977 Act: 'an invention shall be taken to be new if it does not form part of the state of the art'. The state of the art is the public domain for patent purposes. The novelty test is given by General Tire and Rubber Co v Firestone Tyre and Rubber Co [1972] RPC 457 In order to be novel: the invention must be new If an invention already exists in the state of the art then we say that a subsequent patent application or invention is anticipated. The relevance here is to the date of publication. The alleged anticipatory material must be interpreted by national reader skilled in the relevant art at the relevant date (could be a team) whose skills used interpreting and carrying out instructions, at priority date

s3 PL(S)A 1973

Similar rules for positive servitudes and public rights of way. Differences to s.1: Twenty years, rather than ten. Right can sometimes be created with no need for a deed.

Occupatio: Limitations in Scots Law (2) Moveable Property

Suppose that property has once been owned, and it is not a wild animal capable of recovering its state of natural freedom. If this happens, when the right of ownership is extinguished - by abandonment or negative prescription - quod nullius est fit domini regis applies (E II 1 12) Ownership vests in the Crown; it is not open to the first occupier. The same rule applies to treasure trove

Heritable securities: Not all about the residentialdebtor

Swift Advances Plc v Martin [2015] PARs: -not about preventing court action where, after appropriate communications, it is clear the debtor cannot comply with obligations in full. -designed to ensure a genuine exploration of an arrangement. 2010 Act: -was not designed to limit contractual entitlement to recover the full debt, or prevent steps to maximise recovery. -was designed to protect against unreasonable conduct by a creditor.

The less significant role of prescription under Land Registration Act

The Land Register was a register of ownership. Before the roll-out of the Land Register (under the Land Registration (Scotland) Act 1979) prescription had to be considered in every single case. The 1979 Act changed things, the 2012 Act tweaks the 1979 Act. NOW the Land Register is not always a guarantee of ownership. Possession of land without registered title, in the general sense - no matter how long and of what quality - can NEVER lead to ownership.

Heritable securities: Standard security def + statute

The duty to perform an obligation may be secured against a particular piece of heritable (immoveable) property. Debtor may grant the creditor a subordinate real right in heritable property that he owns: a standard security. Governed by - Conveyancing and Feudal Reform (Scotland) Act 1970

Derivative acquisition - mental

The owner's control over disposal means that she/he must intend to transfer property in any process of derivative acquisition; this intention must, normally, be manifested in an active way, only exceptionally can an intention to pass ownership be inferred from the circumstances;

Comparing the DCFR (draft common framework reference)

Try to synthesis law to apply across Europe - not really important/quick

Similar trade marks with a reputation

Under section 5(3) of the 1994 Act a sign would not be registered if it was identical or similar to an earlier trade mark and was to be registered in respect of goods or services which are not similar to those for which the earlier trade mark was registered, if the earlier trade mark had a reputation in the UK, and the use of the later mark would take unfair advantage of, or be detrimental to the distinctive character or repute of, the earlier mark.

Securities: Floating charges - creation

By whom? Companies, Limited Liability Partnerships. Creation? Signature of the debtor and delivery of the deed to the creditor. NOT a real security at this stage. Registration? Register in the Companies Register within 21 days. - BUUUUUTTT not yet, still in anticipation (Register of Floating Charges?

Heritable securities - creation req of SS

It must be in writing: RoW(S)A 1995 s.1(2)(b) It must be registered: Conveyancing and Feudal Reform (Scotland) Act 1970 (CFR(S)A 1970) s.11(1) It must be in a specified form (Form A or Form B): CFR(S)A 1970 ss.9(2) and Sch.2. A - used in residential conveyancing + personal obligation to pay back explicit in writing B - obligation hidden away - not record loan contract - to retain confidentiality for parties

Natural and legal owner

Natural - a person Legal - University of Aberdeen over a building

Necessary repairs - can do without consent with Co-ownership (case)

Rafique v Amin (tenement of street, part of tenenment common in title deed = want to adapt stairs for steal beams to support stairs NOT necessary but necessary fire escape) Dean v Wolfson

Act of transfer - different results

Valid title; everything is OK and this is the intended outcome; Void 'title' = no title at all. NB 'title' = the legal basis on which a person has rights to property; Voidable title, 'subsistent' title; good while it stands but open to challenge; Position of subsequent (i.e. third) party in terms of general principles; A-B-C scenario; variables: B's title void or voidable, C in good faith or in bad faith.

Devolved Private law

Scotland Act 1998 s29(1) sub 2

TM infringement

Without the proprietor's consent, use of a sign in the course of trade which is: -identical to a registered TM on identical goods - s.10(1) TMA -identical to a registered TM on similar goods and likelihood of confusion - s.10(2)(a) TMA -similar to a registered TM on identical or similar goods and likelihood of confusion - s.10(2)(b) TMA -identical or similar to a registered TM (on any goods) and the use takes unfair advantage or is detrimental to the distinctive character or repute of the earlier mark - s.10(3) TMA

Possession animo solo (by intent alone)

Would cease if a squatter moved in to your flat while you are on holiday. Animo solo possession continues until: someone else takes possession; or intent changes.

Third requirement patent protection: Industrial applicability

maintain the industrial or technical nature of inventions. The relevant section of the Patents Act 1977, as amended, is section 4(1),. . an invention shall be taken to be capable of industrial application if it can be made or used in any kind of industry, including agriculture.' Something can be held to lack industrial applicability if its essential nature is aesthetic, artistic or intellectual.

Sale affected in co-ownership

by auction and private bargain (ASPC)

Offside goals - overview

Defect of knowledge of prior sale; 'offside goals' metaphor (see generally, Reid, Property paras 695-700); Rodger (Builders) Ltd v Fawdry 1950 SC 483 Alex Brewster & Sons v Caughey 2002 GWD 10-318

IP dealings - Criminal enforcement of IP

In the UK, Criminal sanctions exist in the field of copyright, performer's rights, trade marks and registered designs. s 92 TMA 1994, and s 107 CDPA 1988 make it a criminal offence to make and deal with items that infringe UK and community registered trade marks and UK copyright. The more serious copyright and trade mark offences carry a maximum ten year prison term on indictment and/or an unlimited fine. (Possibility of confiscation) Section 107 and 296ZB of the CDPA 1988 (circumvention of technological measures) fine and imprisonment

Statutory rights of access

Right of responsible access in Scotland, i.e. to be on and to cross land in Scotland without a landowner's prior consent. "Land" includes inland waters, underground terrain and airspace, thus potholing and gliding can be within the access regime. "Everyone" has rights (s 1), but only if they are exercised responsibly (s 2). Subject to certain exceptions based on the characteristics of the land in question (s 6) or the conduct undertaken by the access taker (s 9).

Losing property - case

Glasgow City Council v Jaconelli

Lease - personal

"At common law a lease is a personal contract, and, as such, is governed by the general law of Contract." (Paton and Cameron, p85) A 'personal' lease is no less a lease than a lease that has been made a real right. And if a personal lease were to fall within a statutory regime conferring security of tenure, the statutory security might well replicate some of the real rights, for example, in respect of enforceability against singular successors and third parties including the creditor of the landlord, and in other respects exceed them, as in the ability to remain in possession after the expiry of the contractual tenancy. -----The effect of this is that the statutory security can trump the real right "In terms of section 41 of the [Housing (Scotland) Act 2001], 'tenancy' means an agreement under which a house is made available for human habitation, and 'lease' and related expressions are to be construed accordingly" aka rent is licence ---Adiran Stalker 'Evictions in Scotland, p92)

Original acquisition in Scots law- occupatio def

"Occupation or occupancy is the appropriating to one's self things which have no owner, by apprehending them, or seizing their possession." Erskine

Title conditions - real burdens past

"Private planning" regime - when feudal superior developed out things like golden square in Aberdeen. Didn't need public planning - enforceable by superior. "Bisset" bungalows -Aberdeen builder, standard plan bungalow which has same things. Feudal useful as private planning system

Leases - Per Rankine's "what is substantially a real right"

"Scots law does not recognise a right which lies between a real right and a personal right... There is no such thing as a 'quasi-real right'" (Nova Scotia Ltd v Henderson) PLUS In Burnett's Trustee v Grainger, Lord Rodger, quoting Lord Hope, quoting Barry Nicholas: "Drawing on Roman law, Scots law distinguishes between real rights, rights in rem, and personal rights, rights in personam. In Sharp v Thomson 1995 SC 455, 461G - 475E Lord President Hope went into the Scottish authorities in detail. Since his analysis has not been challenged, I can deal quite briefly with the point. The distinction between the two kinds of rights has never been explained more clearly or concisely than in B Nicholas, An Introduction to Roman Law(1962), p 100: ***'Any claim is either in rem or in personam, and there is an unbridgeable division between them. An action in rem asserts a relationship between a person and a thing, an action in personam a relationship between persons...'"

Lord Justice Clerk Ross in Hamilton v McIntosh Donald - Nine tests (I) Land reg

(1) For the operation of the positive prescription, there must be a habile (i.e. sufficient so as to achieve) title followed by prescriptive possession. (2) Prescriptive possession must be for a continuous period, openly, peaceably and without judicial interruption. (3) Possession may be natural or civil or any combination thereof. (4) Whether particular acts constitute possession for the purposes of prescription depends upon the nature of the subjects claimed. (5) The possession must be unequivocally referable to an assertion of ownership of the land. In Houstoun v. Barr 1911 S.C. 134 at p. 143 Lord Dundas said: "The possession, to avail the defender, must have been not only continuous, but clearly and unequivocally referable to his title of ownership." (6) It is of the essence of prescription that the possession has taken place over a continuous period. "The possession must be continuous in the sense that it must extend over the whole prescriptive period" (reference is made to an early edition of Gordon, Scottish Land Law, para. 12-44) "Of course, there may be interruptions during the prescriptive period, and yet it may still be possible to conclude that the possession has extended over the whole prescriptive period." (7) Tantum praescriptum quantum possessum, the measure of prescription is amount of possession Note this might apply two ways: a new right equates to the possession taken, but where you have a right already smaller acts may suffice (8) Each case must depend upon its own circumstances. (9) The onus is on the party alleging prescriptive possession.

Prescription and Limitation (Scotland) Act 1973 3 Positive servitudes and public rights of way.

(1)(a)the servitude has been possessed for a continuous period of twenty years openly, peaceably and without any judicial interruption, (2)If a positive servitude over land has been possessed for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the servitude as so possessed shall be exempt from challenge. (3)If a public right of way over land has been possessed by the public for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the right of way as so possessed shall be exempt from challenge.

Copyright: Moral rights

-Moral rights protect certain non-economic interests of the author. -Moral rights are personal, non-transferable and -Moral rights are concerned with protecting the personality and reputation of authors. --Duration: They last for the same length of time as the economic rights in UK while they are permanent in continental systems such as in France and Germany. In the UK: 1.Paternity (attribution): the right to be identified as author of a literary, dramatic, musical or artistic work, or as director of a copyright film CDPA 1988, s 77 2.Integrity: the right of such authors and directors to prevent derogatory treatment of their work (CDPA 1988, s 80) 3.CDPA 1988, s 84 adds another moral right: prevention of false attributions 4.CDPA 1988, s 85: the right of privacy in certain photographs and films 5.Artist's resale right (introduced in the UK by regulations implementing the EU Directive on artist's resale right).

Legal requirements for copyright protection (and case)

-Protected work: listed within protected list -Copyright protects expressions rather than ideas -Fixation -*****Originality (No copyright in ideas) Designer Guild Limited v. Russell Williams (Textiles) Limited [2000] (originality is work NOT copied from another and person has put time into work (labour)

Key entitlements of owner

-Right to exclusive possession -Right and obligation to support -Right to use property with freedom from interference by neighbours

Effects of accession - compensation

. Accession by owner of the principal? Owner of accessory entitled to repayment of its value. Good faith no defence. Stair, Institutions 2.1.38-39 2. Accession by owner of the accessory? No compensation unless the owner of the accessory acted in the reasonable but mistaken belief he had more than a transient right to the principal. Good faith required: Bell, Principles s.538. Also, if a tenant builds a house on the land of his landlord? No compensation. ◦ Shilliday v Smith 3. Accession by a third party? Third party liable, and possibly also the owner of the principal for enrichment. Reid para.577.

Effect of severance with fruits - accession

1. By liferenter - always entitled to fruits - Reid para.596 2. By tenant - Erskine, Institute 2.6.22 - yearly fruits - not minerals or woods, except by express clause in the lease 3. By bona fide possessor - Reid para.171 - keep all fruits to which the possessor's imagined title, if good, would have given right.

Commixtion and confusion

1. Commixtion - the mixture of solids belonging to two or more individuals 2. Confusion - the mixture or fusion of liquids 3. Not accession - mixing, not joining. 4. Not specification - no new species. Stair, Institutions 2.1.36-37; Erskine, Institute 2.1.17; Reid para.564

3 remedies of disputes relating to co-ownership

1. Judicial regulation (court regulation) 2. Judicial factor (to manage the thing, appointed by court - judicial factor of person appointed will pay themselves income - you get rest) 3. An order for division/ the division and sale of property of the thing Price v Watson - court doesn't really intervene anymore, others used more

Accession - 3 criteria Reid para 571 E II 2 2

1. Physical attachment (Erskine's "fixed or united"); wall-panelling vs a picture on a nail 2. Functional subordination (Erskine's "for its [the principal's]... use"); security entry system 3. Permanency/ Quasi-permanency (Erskine's "for its perpetual use"); buildings vs marquees

Possession can have three implications in Scots law

1. Possession as a fact (their possess a bag) 2. The right to possess (the owner's right to the bag) 3. Rights generated by virtue of possession (a tenant in a residential lease taking entry)

Why CTM is preferred to national TMs?

1. Procedural simplification: Applying for a CTM greatly simplifies the procedure for trade mark owners. Only one application need be made in one language one set of fees paid resulting in a CTM, effective throughout the Community. having a single CTM makes it much easier for trade mark owners to manage their portfolio of registered trade marks. 2. Single market benefits

Title Conditions - essentials of servitudes

1. There must be two plots of land in separate ownership. No-one can have a servitude over her own land. 2. The "burdened property" and the "benefited property" are usually neighbouring properties. If they are not, the tenements do require to be sufficiently close so that the owner of the dominant tenement has an interest to enforce the servitude. ***This is the requirement of vicinitas. 3. Servitudes impose no positive duty on the servient proprietor. The obligations they impose are in patiendo (allowing) and not in faciendo (owner of a serving estate can do only that which may be required for the maintenance of the servitude) ----For example, where a servitude or access is taken over a road, the owner of the road is not obliged to repair or maintain the road (but she may be obliged to allow access for repairs).

Fruits that accede

1. Young of animals while in utero, before birth 2. Natural products of animals or plants until separation 3. Trees and plants on taking root and drawing nourishment. 4. Plants and roots on a boundary? - trunk of tree on boundary = common property Hetherington v Galt (1905) NOTE the exception - industrial growing crops that require annual seed and labour - Stair, Institutions 2.1.2 and 2.1.34; Boskabelle Ltd v Laird 2006 (may be removed by person who planted them).

LR - conversion tenant to owner + community ownership

1976 2003 2016 (sort of - agriculture stronger right, in breach of court order tenant acquire right) Council housing (not anymore) (NB - impact on the ground of such a change is likely to be inversely proportional to the rights formerly held qua tenant. BUT access to credit/increased pride in asset might open up further opportunities.) ------ In Scotland: --Non-statutory schemes (particularly in the 90s - isle of eigg landlaw stifling development, community acquire to fix) --Transfer of Crofting Estates (Scotland) Act 1997. (allowed transfer to crofting community)

Formal validity/writing - when a deed is valid + additional requirements of probativity Queen transcribes, everyone else subscribes

A dealing with heritage (e.g. a disposition) requires to be subscribed by the granter only on the last page to be valid (1995 Act, s.2(1) and 7(1)). An annexation does not need to be signed if it does not relate to land provided it is properly referenced in the document (1995 Act, s.8(1)). If, however, it relates to land the annex requires to be signed on every page if it is a plan or on the last page if it is an inventory or appendix. (1995 Act, s.8(2)). -------- Additional requirements in relation to a deed are either: -the deed is signed by one witness to the granter's subscription on the last page (1995 Act, s.3(1)); or -application is made to the court for a decree or certificate to the effect that the subscription of the granter is self proving (1995 Act, s.4). Does a document need to be self proving? Basically YES -Good practice; and -necessary before it will be accepted to a public register (which is relevant for dispositions and standard securities).

RB - Negative restraints

A developer may (for example) insert a restriction declaring that a house cannot be used for industrial or business purposes.

RB - positive obligations

A developer may wish to impose positive obligations, perhaps in relation to payment for mutual repairs. ---The burdened owner is required to do something. In this respect the content of real burdens differs from servitudes: obligation in real burdens may be in faciendo (do something)

Patent example abstract

A patent abstract includes: a title of the invention, general description (the important technical features of the invention), drawings, and claims. More details: Application number Publication date Applicant/ inventor Priority date

RB - enforcement + title to enforce/interest to enforce

A person wishing to enforce a real burden must have (a) a title to enforce and (b) an interest to enforce: s.8(1) restating the common law. Why was this not really an issue with feudalism? Feudal superior always had interest in what he had a feud A. The proprietor for the time being of the dominant tenement (the benefited property) has a title to enforce a real burden. B. A party wishing to enforce a real burden must show that he has an interest to enforce it at the time he wishes to enforce. S.8(3) TC(S)A 2003

Nuisance - pursuer contributing to situation?

A pursuer should not interfere with protections prior to raising action of nuisance. Collins v Hamilton (disruption of flood protections, person on river riparian owner complained about upstream - made position worse by flood management)

Real securities - general points (right type, example, when made real)

A security is a subordinate real right (e.g. Stair 1.13.11, pledge). It enables the creditor, who holds the right, to somehow dispose of the encumbered asset if the debtor fails to honour the underlying obligation. So Erskine grants the Bank of Scotland a standard security over his tenement in Edinburgh. Who holds which real rights in the tenement? Erskine sells and conveys his tenement to Bell. Neither the security nor the obligation have been discharged. Advise the bank - still sue Erskine for debt depending on arrangement - E not pay, Bank security of tenement still there and if Bell not happy he had chance to check How is a security made real? (Note the importance of the publicity principle) Heritable property - standard securities - registration in the Land Register (or - until April - the Register of Sasines). Floating charges - registration in the Companies Register. (There is also a scheme for a Register of Floating Charges in the Bankruptcy and Diligence (Scotland) Act 2007 - never implemented.) Corporeal moveables - usually delivery of possession. Restricted vs unrestricted real securities - unrestricted - Security for all sums due and to become due

Trademarks - def + functions

A trademark is a symbol or a sign (word, or words or image) legally registered to represent a company or product. -and which can distinguish your goods and services from those of your competitors. WIPO definition: A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Functions of TM: -To distinguish one seller's goods/services from another's -Indicator of origin :To show all goods/services with that mark come from one producer -To guarantee quality of the goods/services -To advertise the goods/services -A trade mark can also be seen as an investment.

Offside goals - Alex Brewster Suspensive condition - sell parcel of land to be fixed price subject to apply + getting planning permission by other party

Agnes McKelvie (M) sold development land to Frank Caughey (C) subject to a suspensive condition regarding planning permission; Later C contracted with Alex Brewster & Sons (B) subject to the suspensive condition and conditions concerning payment by B direct to M and profit-sharing with him (C) if they (B) sold on; Almost 2 years later appeared that B was not going to proceed and C assigned his rights to a company Chelmwood Estates (CE) he established with a 3rd party director and himself (C) as agent. On 6 April 2002 CE settled with M and the disposition was registered on 10 April; Also on 6 April B had told CE that they were ready to proceed; It was an issue whether CE knew about B's interest before its contract with M or only before registration; CE argued that its contract with M could be open to challenge as an 'offside goal' only on the basis of its knowing of B's interest at the time of the contract and that knowledge obtained after contract but before registration was too late; Lord Eassie found that CE KNEW of B's interest at the time of its contract with M but he also held, in an obiter dictum, that, in any event, knowledge acquired after contract but before registration gives an 'offside goal'; This decision is controversial; it is seem by many as an unjustifiable extension of 'offside goals' but, arguably, it is consistent with the abstract system because the act of transfer can be affected by bad faith.

Incorporeal heritable

All rights connected to corporeal heritable property. Any other permanent rights that are somehow distinct from corporeal heritable property, such as: titles of honour; and rights with a tract of future time (tractus futuri temporis), such as annuities and pensions.

Accession of land to land - Alluvion + req

Alluvion - Where dry land increases, either by imperceptible additions of soil washed towards it by the water, or by the gradual retreat of the water, new land accedes to the old; II. Where the area of land underwater increases, the newly submerged land accedes to the ground already underwater. Stair 2.1.35. Requirements: I. The addition must not be merely temporary; II. The addition must be gradual or imperceptible Reid, Property para.592; Stair, Institutions 2.1.35. Contrast avulsion (alluvion generally a natural process) III. Man-made alluvion - avulsion? Smart v Dundee Magistrates (1796) 3 Pat 606 (law is unclear). Reid - land made alluvion = alluvion, para 118 Gretton saus avulsion IV. New islands in rivers? Owner(s) of the alveus acquire - Rankine, Land Ownership (4th ed., 1909) p.114-115

Nuisance - sensitivity, objective test

As a general rule, law disregards ultra-sensitivity to harm of persons or property. Regarding persons: Heath v Brighton Corpn (electric church). What about sensitive use of neighbouring property? Armistead v Bowerman (scientific operation at bottom of river, must take chance of agricultural work may be up high)

Copyright: First ownership

Asia Pacific Publishing Pte Ltd v Pioneers & Leaders (Publishers) Only human author or author(s) could be author of a copyright work, Works produced in employment? --Where a literary, dramatic, musical or artistic work is made in the course of the author's employment by another person, the ***employer is entitled to the copyright in the work unless otherwise agreed. s 11(2) CDPA 1988. (made in the course of the author's employment) Commissioned works: no express provisions on commissions as such, and so ***general principles will apply. If the parties agree that the commissioner is to have the copyright in the commissioned work, the agreement will have to take the form of an assignation by the author, which the 1988 Act requires to be in writing.

Nuisance - Utility to general public

Ben Nevis Distillery (Fort William) Ltd v North British Aluminium Co Ltd Activities which indirectly advance public welfare through trade, industry and commerce not necessarily protected. Upstream aluminium production affected a downstream distillery. Interdict granted despite factory producing 72% of the aluminium in the country, the cost of replacing the aluminium and the employment implications of closing the factory.

Key case law development in transfer of heritable property - 2 Key cases arising from the 'mind the gap' situation;

Both cases involved Aberdeen law firms acting for the purchasers of houses in Aberdeen. In each case, the disposition (the legal 'deed of transfer' made by the disponor in favour of the disponee) was delivered but not registered; Sharp v Thompson (the Sharps bought a flat from an Aberdeen development company which was subject to a floating charge security; the Sharps paid the price and got possession of the flat; the disposition was delivered but not registered before the floating charge 'crystalised' on the liquidation of the disponor company; this was a 'mind the gap' scenario and the Sharps stood to lose the flat and the price they had paid; they would have only an unsecured claim for repayment of the price which meant that they would be likely to recover only a proportion of the price paid; C o S - held to that effect H O L - reversed C O S, Lord Jauncey and Lord Clyde - interp leg Companie's act - acquired beneficial right in property ENGLISH LAW - was seen as perplexing and wrong by Scottish property lawyers because it meant that property passed in advance of registration in the floating charge situation. Burnett's Trustee v Grainger (personal insolvency of the disponer (Ms Burnett). In that case the disponee's (purchaser, the Rev Harvey Grainger) solicitor had delayed in recording his title and the disponer (seller) became insolvent and a trustee was appointed to administer her estate for the benefit of her creditors. The trustee recorded a notice of title which confirmed that the property sold to the Graingers vested in the trustee of Ms Burnett's insolvent estate. The disponee then recorded his title but it was too late prior tempore potior iure (first in time, first in law) the trustee in bankruptcy was held to have a better title; H O L - upheld C O S, back to red = owner, did not OVERRULE BUT RINGFENCED sharp so that it applies only in a floating charge situation)

Defective acquisition - general overview

Both heritable and moveable property; For a thing owned by A to be acquired by B, B must first get the right to become owner of the thing (contract stage) and then A must transfer his right to B (conveyance stage); In the context of a controlling distinction between real and personal rights, getting from A's real right of ownership to B's necessarily involves these two defining stages: (i) A (having the real right of ownership) conceding a personal right to B; (ii) A's real right transferred in recognition of B's entitlement claim against A; A technique point: in working out a transmission of property issue focus on the act of transfer

Regulatory framework of registered TM - the international framework

Both the World Intellectual Property Organisation (WIPO) and the World Trade Organisation(WTO) administer international treaties pertaining to trade marks. Paris Convention for the Protection of Industrial Property 1883 (Paris Convention) National treatment a system of priority: nationals who have registered their marks in their own contracting states have a period during which they may file an application in other contracting states, and gain priority for that filing over and above other pending applications from unconnected third parties. The Paris Convention does not provide for a central mechanism for filing trade marks. Nor does it give protection extending beyond the territory in which it is registered. International instruments: The Madrid Agreement and Protocol: provides for a simplified mechanism for filing trade mark applications The Trade Mark Law Treaty 1994 The scope of this Treaty is much more limited that the other treaties discussed above. The purpose of the TLT is to harmonise certain formalities in relation to the form and content of an application for registration and standardise the term of protection at 10-year renewable intervals. Singapore Treaty on the Law of Trademarks Nice International Agreement on the International Classification of Goods and Services for the registration of TM Agreement on Trade-Related Aspects of Intellectual Property Rights including Trade in Counterfeited Goods (TRIPS)

Joint property

Bound co-ownership (no divisible title - single individual title in single undivided thing) New member? Accresses to others, one leave no conveyance is needed of outgoing part of share

Neighbor law

Boundaries. Encroachments (i.e. permanently or quasi-permanently invading another person's land). Support. Nuisance (smells/sounds too) Aemulatio vicini (spiteful acts) Use of a neighbour's property for: i) drainage; and ii) access for repairs.

Servitude - landlocked land The right of access created by express grant in 1945 was a servitude. It had negatively prescribed (P&L(S)A 1973 s.3 and Sch.8). Did this mean that the defender could be interdicted from interfering with Farm B?

Bowers v Kennedy (1940s: Property A was landlocked within Farm B, but accessible via a right of access. 1970: The right of access was no longer used. 1972: Farm B was purchased by Bowers. 1974: access road was blocked off by a fence. 1996 - Kennedy purchased Property A. He sought recognition for his right of access, and to demolish the fence. Bowers raised an action for interdict to prevent this) Where a landlocked property is conveyed, an implied right of access is conveyed with it. This is because such a right is an incident of ***ownership. It is not just a servitude right. It survives the prescription of an implied grant of servitude (per Lord Rodger para.17, following Bankton). Implied right of access - pertinent of ownership

Moveable property - Civic Government (Scotland) Act 1982 Pt. VI, ss67-69

CG(S) A 1982 No rule of finders keepers: s.73, s.67. The finder's role. 2. The Chief Constable's role: s.68 - care and custody, reasonable steps to ascertain identity of owner, after two months sell the property or offer it to the finder or dispose of it as he thinks fit. 3. After disposal - if the thing was handed over for value, the original owner has no remedy. But if it was simply handed over to the finder - he has one year to recover it (s.71). Special rules for live animals - s.74. 4. Prescription and Limitation (Scotland) Act 1973 s.8(1)-(2) and Sch.3 - negative prescription as applicable to the real right of ownership (moveables).

P dealings - the legal framework - copyright

CPDA 1988 -"Copyright is transmissible by assignment, by testamentary disposition or by operation of law as personal or moveable property" section 90(1) -assignment and (exclusive) licensing, future copyright (section 90-2) Assignment and licences: -assignment and (exclusive) licensing, future copyright (section 90-2) -joint works (section 88) WRITING REQUIREMENT

Protection of detention (case)

Canning v Glasgow Caledonian University and Another (communist papers collection - fell out,split - who owned? - librarian who looked after it had claim, lost/abandoned property when can't find owner)

Litigation and crime - liability in registration

Civil liability. -S 111 puts beyond doubt that liability exists when a solicitor or other legal adviser does not exercise reasonable care. Criminal liability, which s 112 attaches to: -a person making an application for registration, or -a person who, in connection with such an application, acts as solicitor or other legal adviser to the applicant. Offence to make "a materially false or misleading statement in relation to an application for registration knowing that, or being reckless as to whether, the statement is false or misleading". Also criminal if you intentionally fail to disclose material information in relation to an application or you are reckless as to whether all material information is disclosed. Statutory defence available

Natural and civil possession (co-exist?)

Civil possession - Possession through the corpus of another. Requisite intention (animus) but no control. Natural possession - both corpus and animus. Natural and civil can co-exist (A tenant has natural possession, owner has civil)

Pro indivisio (IMPORTANT - A AND B)

Class of ownership latin name: *Not possible A and B on separate titles or in respect separate interests to own the same property at the same time. No one is obliged to stay in community with people

Commercial lease

Commercial Lease Almost creatures of pure contract Very limited statutory intervention, except for shops ] and for some provisions in re irritancy Tenancy of Shops (Scotland) Act 1964 (ask sheriff to continue lease) -Edinburgh Woollen Mill v Singh Consideration of "FRI" (full repairing and insurance) lease to include: -Landlord's Title -The Parties -Description of Subjects -Monetary Obligation of Tenant -Rent Review -Tenants repairing obligation -Insurance -Alienation -Irritancy

Derivative acquisition of moveables - models

Common law; SOGA (1893, now 1979); DCFR - not law, only advisory; Note that the common law (requiring an act of delivery) applies to the contracts of exchange and gift; The common law may also apply in the case of a failed contract of sale on the basis of an effective act of transfer (abstract approach) - sale/gift misunderstanding; no contract but an agreed position that property should pass; Cases - Chief Constable of strathclyde v sharp Morrison v Robertson Macleod v Kerr

Examples of IP disputes

Company A makes a new fizzy drink called COKEY - Trademark dispute Author B writes a book about a girl wizard at a boarding school called Tanya Grotter (really did) - copyright dispute Company C makes a wind turbine which is just the same as the patented invention, without the consent of the patent owner - patent dispute

Right of support - Compugraphics

Compugraphics International Ltd. v Nikolic (2011) -Projected pipe over neighbouring land, supported by stanchions positioned on that land. -Servitude of projection and support recognised, could not take away supports

Summing up 3 stages

Concluded missives give rise to a personal right as between the buyer and the seller. Each can sue the other in the event of default - the seller can sue for payment; the buyer can sue for delivery of the disposition and for entry. The general law of contract pertains. A real right in the subjects is ONLY brought into existence at stage III of the process. Stage III involves Registration (formerly, for the Sasine Register, 'recording'). It is stage III that sees the creation of a real right. Consider the significance of the transferee's right remaining personal until registration - risk posses to purchaser on conclusion of contract - get INSURANCE

Lease - circles

Consider three way interaction of the bare contractual common law lease -the real rights lease -lease under a statutory regime conferring security of tenure Mostly overlap -- e.g. tenant of Langstane housing associations will have a contractual lease which will qualify as real right by virtue of the Leases Act 1449 (KNOW THIS) and the tenancy will be a Scottish Secure Tenancy under the Housing (S) Act 2001

IP dealings - Scope and licence restrictions

Considerations when seeking a license --*Exclusive (no other person can use license except licensee but excludes licensor from exploiting) , *non-exclusive ( grants to the licensee the right to use the intellectual property, but means that the licensor remains free to exploit the same intellectual property and to allow any number of other licensees to also exploit the same intellectual property) or *sole license (licence is exclusive, except that the licensor also reserves full rights to exploit the intellectual property itself. The licensor does not have the right to grant any other sub-licences) *co-exclusive (more than one licencee to a particular group ) --can sub-license? Sublicensing: is the grant by a licensee of certain licensed rights to a third party. --can be lots of licences eg book to be online, to be made into a cartoon, to different people for different countries Need writing (registered rights and copyright exclusive licence) S31(6) PA grant in writing, RW(S)Act 1995 (Requirements of Writing (Scotland) Act 1995) Payment systems: (fee or royalty)

Lease - some general common law concepts (practically irrelevant for commercial leases)

Constitution Should be in writing unless for not more than a year - for a year or less a verbal lease is valid. (Requirement of Writing (Scotland) Act 1995 s.1). Tenant's rights to possession against his landlord: The landlord's primary obligation is to give his/ her tenant possession of the subject let. You should be aware of a number of particular aspects of the obligation to give possession: -Tacit relocation -Assignation -Sub-letting (as per assig.) -Death of tenant -Break clauses -Resumption by the landlord (right to resume possesion by landlord after death of tenant) -renunciation by the tenant (basis of a material breach on the part of the landlord) -Irritancy

Heritable securities: after all that, creditor remedies

Creditor's remedies on default (SC10): Power of Sale (SC10(2)) - note the rules in s.25 and s.27 governing this power (creditor markets property and sells but not owner) Power to enter into possession (SC10(3-6)) - and lease (but court permission needed for more than seven years (s.20(3)) Power to seek decree of foreclosure (SC10(7)) - very rare (take steps to become owner)

Derivative Acquisition; Moveables; Common Law

Delivery requirement Why insist? ? A definite stage 2 which transfers the real right; signifies intention to transfer; the 'publicity principle' - a policy consideration; Roman law influence; accommodation of commercial interests; well developed position of Scots common law by late-19thc.; The delivery requirement of Scottish common law fits with the common law presumption that the possessor of moveable is its owner; Presumption protects the possessor of a moveable by requiring that a party claiming it show (i) ownership and (ii) that the thing was not parted with in circumstances consistent with transfer (See Reid The Law of Property in Scotland, para 150

Spuilzie - use?

Despite its simplicity, spuilzie is virtually unused in modern practice. Where an owner has lost possession he or she can bring an action to establish the right to possess, based on ownership, and be reinstated.

Derivative acquistion moveables general principles - distinguish owner scenarios

Distinguish non-owner transferor cases (Hilary watches, s21 (1) SOGA - can't get good title) Cases which the owner does not intend to transfer (delivery intending to sale receives as gift - do get good title)

Common theme of IP rights

Diverse rights under one umbrella? What is in common They are all products of the human mind Intangible: separate from the physical object they embody. Confer PROPERTY right akin to property in tangible products. (exclusive rights such as in copyright or monopoly right such as in patents) Social, economic and commercial importance. They are all politicised: they have opponents and proponents (right holders v users) Protection of information

Formal validity/writing - writing documents (statute) ROW(S)A

Documents of constitution: what is needed for property related transactions? Starting point of the Requirements of Writing (Scotland) Act 1995, s 1: writing is not required for a "contract, unilateral obligation or trust". This is subject to some important exceptions: s 1(2)(a)(i) (missives stage); and s 1(2)(b) (creation, transfer, variation or extinction of an interest in land).

Common ownership aka common property def + elements

Each co=proprietor has a single title of ownership (own undivided share) but each have a single/distinct claim to their share. May dispose of burden by their own separate act. On death, their share will pass under will or transit to their heirs. Encompass all ownership other than trusts/ property owned by unincorporated associations (joint)

Copyright: other exceptions - educational/helping disabled people

Educational exceptions (education and teaching) --the copying of works in any medium as long as the use is solely to illustrate a point, it is not done for commercial purposes, it is accompanied by a sufficient acknowledgement, and the use is fair dealing. This means minor uses, such as displaying a few lines of poetry on an interactive whiteboard, are permitted, but uses which would undermine sales of teaching materials are not. Helping disabled people (a physical or mental impairment which prevents the person from accessing copyright protected materials). 1. Disabled or someone acting on behalf, to make a copy of a lawfully obtained copyright work if made in a format that helps access the material. 2. Educational establishments and charity organisations to make accessible format-copies of protected works on behalf of disabled people

Leases - Common law lease

Elements for a (common law) lease - Parties, Period, Property, Price. Elements for a 1449 Act lease - Parties, Definite Ish, (if for more than a year) Writing, Property, Price, Possession. Parties - The bilateral nature of the lease (can't be same person), per HoL in Clydesdale Bank plc v Davidson, inferred from Rankine's definition (above). The lessor and lessee must have legal capacity. The general rules in re contract apply. Property - Must be heritable. Fishing leases only personal and not subject to tacit relocation unless registerable (i.e. over 20 years). Ditto shooting. Mineral leases not leases at all but outright sale of minerals with licence to extract. Exclusivity of possession (as in, the exclusion of the landlord) is the hallmark of the lease and where there is no exclusive possession, what you have must be less than a lease. Corporeal heritable property must be clearly identified. Andert Ltd v J & J Johnston 1987 SLT 268 EXCLUSIVE POSSESSION IS VITAL - unless a lease of shooting rights/fishing rights/mineral rights

Does the appropriation have to be lawful? Can a poacher acquire ownership by occupatio?

Erskine institute 2.1.10 - poacher = owner of that they have taken Possible forfeiture by statute

Act of mind - container cases (Indicative of intention to exercise control) NOT SCOTS AUTHORITY FOR 'FINDERS KEEPERS

English case of Parker v British Airways Board. P found jewellery in a BA airport lounge and handed it in. Under English law, whoever had possession benefited with potent rights against anyone other than the owner (who had clearly lost the bracelet). BA argued it had possession of lounge and everything in it. Held - P had possession. No intent of BA to exercise necessary control over the lounge and all things in it. (Modern security checks could affect whether this would still be the case.) Scots case of Harris v Abbey National Owner of house where H had been living defaulted on loan, A enforced standard security and took possession of house. In a cupboard in the house, a record collection. Could A possess it? Held: A had taken possession of everything and had intent to control what went on in house.

Passing off def

Even if the trade mark is not registered, the trader may still be able to take action against someone who uses the mark on his or her goods or services without the trader's permission, using the common law of passing off. The action of passing off concerns the means by which one trader may prevent another from misleading customers by representing (or 'passing off ') goods or services as emanating from the former party. "Nobody has any right to represent his goods as the goods of somebody else." Reddaway v. Banham, [1896] A.C. 199, 204 Common law protection in the UK (no legislation) Unfair Competition: Paris Convention art 10 bis, TRIPS art 39 (1) Case law Key: unregistered right Similar to, but not same as, trade mark

Copyright exceptions: Fair dealings v fair use (US general, not specific)

Fair dealing in the UK (exclusive copyright list not infringed): --Research for a non-commercial purpose accompanied by a sufficient acknowledgement, unless such acknowledgement is impossible for reasons of practicality or otherwise CDPA 1988, s 29(1) --Private study CDPA 1988, s 29(1) --Criticism or review, whether of the work whose copyright is said to be infringed or of some other work or of a performance of a work, which is accompanied by a sufficient acknowledgement CDPA 1988, s 30(1) --Reporting current events CDPA 1988, s 30(2) and (3) Recent copyright exceptions in the UK 2014 --Digital Opportunity: A review of Intellectual Property and Growth: An independent report by Ian Hargreaves. --10 recommendations accepted and adopted by the government 1.Fair dealing: Caricature, parody or Pastiche 2.Fair dealing: Quotation

Occupatio: Limitations in Scots Law (1) Heritable Property

Feudalism 1. All land was ultimately owned by the king. Men performed services for their superior - the king - and in turn their superior granted them some of their lands "in feu". The grantees were "vassals". 2. Ownership split into two - the dominium utile (of the vassal) and the dominium directum (of the superior). Occupatio in heritable property? 1. Erskine, Institute 2.1.11 - Quod nullius est fit domini regis - ownerless property belongs to the lord king 2. Post-2004 and feudal abolition, occupatio still has no role in relation to land

Leases - requirement of writing and price

For leases of more than a year. Up to a year, writing is not required (oral fine), but the effect of tacit relocation is that a lease for 6 months in the PRS may arise without need for writing and any such lease could not be a SAT, yet that lease may endure over 40 years for example -distinction between duration and actually staying in property Price - a definite rent is looked for - rent cannot be elusory or nominal (P & C p109) ---'Rent is normally a sum of money either specified or capable of being ascertained, or it may be a certain amount of grain, minerals or other fungibles, ---or it may take the form of services to be rendered by the tenant to the landlord, for example to shoe horses or mend ploughs.' ---In re statutory regimes, some may specify rent limits in order for the regime to apply - R(S)A1984, H(S)A1988, whilst others may not - H(S)A1987 &c, Agricultural Holdings Legislation. Rent - Erskine 2 6 20,24. Stair 2 9 20. Bankton, rent must not be elusory 2 9 6. Hume 13 SS 56 1949 p.59.

TM: effects of registration

For the period of registration, the TM owner has the exclusive right to use his/her mark for the goods and/or services for which it is registered and with regard to the territory it is registered. Use requirements: -A registered trade mark must be put to genuine use: revocation may occur if it has not been put to genuine use within five years of registration Revocation can also occur where the use of a mark is liable to mislead the public as to the nature, quality or geographical origin of the goods and services for which it is registered.

Heritable property - scottish history + acts

Formerly, in Scotland, land could not be bequeathed in a will, and the rules of primogeniture and male preference in succession meant that land and related property went to the oldest male son. Primogeniture and male preference in succession to heritage were to remain the rule in intestate succession until the Succession (Scotland) Act 1964 (c 41) reformed the law. Heritage could not be disponed by means of testamentary writings until the Titles to Lands Consolidation (Scotland) Act 1886 (c 101). 'Heritage' as a term, is therefore now redundant, and some modern writers (see e.g. Gordon's Land Law, 3rd ed) prefer to use 'immoveables' instead.

Avulsion, Erskin 11 1 14

Gradual process land accedes to land, consequences of accessory (title extinguishes), violent + sudden, doesn't change property status even if changed down the river Reid - continues to be property of original order - can come and reclaim property, if they have machines to dig/take it back

Offside goals - apply to? + Lord Kinloch definition

Heritable AND moveables Mov - impact of SOGA defuse offside Reid para 695 cite Lord Kinloch Morrison v Someville "whenever one individual bound to sell to one party and another in knowledge of that obligation take second right - SR ineffectual + reducible with first purchaser of second right Second disponee accomplice of fraud and transaction reducible against both alike"

Securities: Floating charges overview history statute -creature of equity law - security over assets without necessarily possession or register of land - businesses like since can run without need of possession

History: Carse v Coppen 1951 SC 233 at 239 ntroduced in 1961 by statute, "Receivers" introduced by statute in 1972. Companies Act 1985 ss.462-466, 486-487, Insolvency Act 1986 ss.50-71. Enterprise Act 2002 s.250 - receivers can no longer be appointed in new floating charges.

LR - where part 2 is ineffective

Holmehill (Dunblane, community stop hotel development, not allowed that) Now allowed: New part 3A is to be inserted into the Land Reform (Scotland) Act 2003 by Community Empowerment (Scotland) Act 2015, s. 74. ----Communities to be given the right to acquire land if (in opinion of Scottish ministers): a. it is wholly or mainly abandoned or neglected, or b. the use or management of the land is such that it results in or causes harm, directly or indirectly, to the environmental wellbeing of a relevant community". Also a right to request assets from certain public bodies and ask to participate in local services.

Involuntary securities: Hypothec def + limits

Hypothec - gives the landlord a security over corporeal moveables in the leased premises Bankruptcy and Diligence (Scotland) Act 2007 s.208(3) - abolished all hypothecs except for those in commercial leases. Can (now!) only cover goods that belong to the tenant: BD(S)A 2007 s.208(4)

Specificatio - case law

I. International Banking Corporation v Ferguson Shaw & Sons 1910 - lard from oil; good faith required. Compensation New species II. McDonald v Provan (of Scotland Street) - front part of vehicle 1 (stolen) welded to rear of vehicle 2 and sold to McDonald as a new car. Whole car sold and then seized from McDonald by the police. The role of good faith. No new species III. New species vs new thing? See also Kinloch Damph v Nordvik Salmon Farms Ltd (smolts to salmon)

Accession of moveables to land - Permanency (or quasi-permanency); four factors

I. Is the degree of attachment greater than is strictly necessary to enjoy the article and secure it to the heritable property? Leigh v Taylor II. Mutual special adaptation - adaptation of the accessory to fit the principal or vice versa? Wall cupboards designed for a specific kitchen vs ordinary cupboards. Howie's Trs v McLay - lace looms rested on own weight and were tied to the roof, but the building had been adapted thereto. Accession occurred. III. Item usually left behind by previous occupier? Howie's Trs. IV. Installation and removal time: TSB Scotland plc v James Mills (Montrose) Ltd (in receivership) 1991 (bankruptcy - it acceded to land receiver can get, not then court away - montrose put down car crushing machine, long time to move/install)

IP dealings - EU competition law and IP rights

IPRs are not immune from competition law intervention. Articles 34, 36 TFEU - restriction on trade between member states prohibited Article 34 Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States. Article 35 Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States. Article 101: prohibits agreements and concerted practices that "have as their object or effect the prevention, restriction or distortion of competition" in the EU (or EEA). Article 101(2) TFEU renders void agreements that infringe article 101(1). Article 102 TFEU, which prohibits "any abuse" by a firm "of a dominant position" in the EU (or EEA). (rare by Microsoft Information protocol)

Subordinate real right vs Ownership

If ownership is infinite (subject to asset remaining extant), subordinate real rights are finite. E.g. repayment of a 25 year "mortgage", mortality ends a proper liferent. That being so, they are still intended to be stubborn and nigh on perpetual. Gretton and Steven compare them to "superglue". Subordinate are real = they continue to affect a property when the owner transfers to another. e.g. Granny with a liferent can stay, notwithstanding a new owner. Stubborn real rights are preferable to fickle personal rights, with regard to an insolvency situation.

Heritable securities: Standard security - effect of a SS

If the debtor defaults, the creditor's subordinate real right will allow him to deal with the heritable property in various ways. (Therefore note the problems with language like "I got a mortgage from a bank".)

Patent rights - about them

If the invention is not excluded from protection and if it meets the patentability requirements, upon patenting it the patentee will enjoy the rights associated to the patent is a right to exclude everyone from the market, even the so-called innocent infringer, for a period up to a maximum of 20 years (A patent will be granted initially for four years but can be extended annually for a maximum of twenty years.). It is a form of personal property in much the same way as any other thing you own. it can be sold, assigned, licensed, mortgaged or otherwise transferred to other parties. A patent is an asset over which securities can be granted and so against which capital can be raised. Limits: Compulsory licensing: a common criterion is that a compulsory licence cannot be sought until three years after the grant of the patent to give the patentee a fair chance to exploit the invention himself Crown use: when any government department or someone authorised by a government department (in writing) considers that it is in the services of the Crown to use and exploit an invention

Prescription and moveables 4 - right of former owner problem Reid vs Miller + scots law commission

If the right of a former possessor to demand the return of a corporeal moveable prescribes after 20 years, does the current possessor (whose title may be defective) become the owner, or is the property unowned, in which case quod nullius est fit domini Regis (what is unowned belongs to the Crown) applies? Reid - goes to crown on defective title prescribed 20 years, quod applies Miller - Bona fide rely on presumption possession = ownership The Scottish Law Commission has decided sort this. See: DISCUSSION PAPER ON PRESCRIPTION AND TITLE TO MOVEABLE PROPERTY (DISCUSSION PAPER NO 144) and REPORT ON PRESCRIPTION AND TITLE TO MOVEABLE PROPERTY (REPORT NO 228), which included a Draft Bill. No bill on the subject in Holyrood...yet. Scottish Government recently consulted on proposals, namely: when somebody possesses an object for 20 years they would gain full ownership provided they acted in good faith; AND bodies receiving lent or deposited property, such as museums or art galleries, would gain ownership after 50 years if the owner or the owner's successors cannot be contacted.

Heritable/moveable

Immoveble property - called heritable because for historical reasons tied to succession. Property that does not move. Moveable is everything else

Leases - C19th view of judge, Lord Balgaray

In Inglis v Paul (1829) -274 To say that a lease is a real right, is a most egregious mistake in point of law. No doubt it is effectual against singular successors, and it descends to heirs; but this arises from other extrinsic and adventitious circumstances, totally distinct from the true legal nature of the right." Discussed by Lord Brain Gill 'Two Questions in the law of leases' 274 DIFFERENT NOW

2 land registers in Scotland - Sasine and Land register problems

In both the old and the new systems there is a 'mind the gap' problem; the rule prior tempore potior jure, (first in time, first in law) applies in principle; so if there is competition for the property the first party to register has priority If you have received a disposition but have not registered your title, you are vulnerable to someone swooping in and registering title ahead of you. For example, the seller may be a fraudster, and may have sold the land a second time. Double sales - 'off-side goals' - will be mentioned later A trustee in bankruptcy or company receiver may seek to register title where the buyer has not yet done so. A buyer is vulnerable during that period - hence the phrase, 'the race to the register' - a race the purchaser doesn't want to come second in.

Leases - developments

In terms of both social rented housing and private renting since the creation of the Scottish Parliament. These include Landlord Registration and the statutory licensing of houses in multiple occupation (HMOs), as well as provisions in respect of disrepair, the protection of deposits, the establishment of a Private Rented Housing Panel &c. In respect of HMO licensing, attention is drawn to the following case: David Christie Thomson and Eileen Diana Ross MacAdie or Thomson v Aberdeen City Council (Mormon, to exclude for landlord for students of RGU)

Quasi - possession

Incorporeal property - cannot be physically held. Legal fiction of quasi-possession. e.g.A bank sending annual statements "possesses" (or at least asserts its right of) security. An access taker "possesses" a servitude.

IP - key for each right

Initial threshold for right (legal requirement for protection) Power conferred/remedies available (confer author exclusive right with remedies) Term (right specific term of protection under law) Territory (IP national, where registered) Limits (and exceptions - allow user to use without permission or license)

Sources of property law

Institutional writers Common law International instruments/EU may be relevant (e.g. Article 1, Protocol 1 provides everyone should generally be allowed peaceful enjoyment of property without deprivation/controls. Or even others into play like Art 6 or Art 8)

Servitude - 3 - not to increase unwarrantably the burden = explanation

Is there a deed? This may reveal the original extent of the burden. If not, three rules apply (Gretton and Steven paras12.36-12.39). These are: 1. A change in the type of use of the benefited property does not necessarily imply an increase in the burden on the burdened property. See Carstairs v Spence 1924 SC 380. 2. In passage servitudes (e.g. Access/aqueduct) a change in the thing passing may unwarrantably increase the burden. See Kerr v Brown 1939 SC 140. 3.Increased use may represent an increase on the burden, but not necessarily.

Subordinate real rights (def + types)

Jura in re aliena (rights in someone else's property). Ownership ranks above subordinate real rights in property hierarchy. Types: -Right in security (mortgage over a house to a lender) -Lease of land (not hire of moveable items) -Proper liferent (stay in property for life - but not hire of moveables) -Servitudes (like right to access to property) -Real burdens of a negative nature (like title conditions)

Presumption of ownership

Just a presumption - owner may asset their right in a number of ways

Corporeal heritable

Land/things that form part of land naturally/by accession (like building) Natural parts of land (minerals, coal, metals, soil, stones) Acceded property would include houses/tenements

Lease - no rent subject to statutory security of tenure?

Lands Tribunal accept person occupying under lease with no rent passing may be subject to statutory security of tenure including right to purchase under the 'right to buy' provisions Tenure Rights etc (S) Act 1980 and H(S)A 1987 + 2001 ---Andrew v North Lanarkshire Council Can strip common law lease very far and still qualify under a statutory regime

Nuisance - Practicability of remedial measures

Less harmful means and practicability of preventing harm may be relevant. Contrast Wilson v Gibb (a fried fish shop conducted in a clean, tidy and respectable manner - no liability for smell) with - Ireland v Smith (1895) (insanitary hen house near a neighbour's house - liability for smell). Not decisive. Even where defender has proved reasonable care, still liable if in the circumstances the invasion is more than reasonably tolerable

IP dealings - two main categories

Like any other property: sales, transfers, leases and other dealings two essential categories: 1. Assignments of IP An assignment (assignation in Scotland) is a transfer of the ownership of a right for one person or company to another. Assignments may be made for consideration (i.e. as part of an exchange) or by way of a deed. 2. licences of IP A licence is a grant of a right to do some things which would, but for the licence, be an infringement of the intellectual property rights. Licences can be very narrow, or they can be so broad that they have the same practical effect as an assignment.

What if something can't be divided?

Like stairs Clydesdale Bank plc v Davidson) The right to division is necessary counterpoint to rule of unanimity - upper crathes fishery case

Title conditions - servitudes - common law

Limited class of servitudes. ---That has been relaxed by s 76 TC(S)A 2003, provided a servitude created by express grant is not "repugnant with ownership" (Monocrieff v Jamieson or Stair 2.7.14) Recognized servitudes, - 1. Rights of Way - vehicular and pedestrian 2. Car Parking - Moncrieff v Jamieson (2007) 3. Service Servitudes to Buildings (e.g. aqueduct/watergang and aquehaustus) 4. A right of support (Oneris ferendi (e.g. building on top of another building), and tigni immitendi (inserting beams) ) 5. Projection/overhang - Compugraphics (2009) 6. Eavesdrop (water flow off building) 7. Rights to obtain fuel (peat or turf) from the burdened tenement 8. Rights to obtain building materials from the burdened tenement Rights of pasturage 9. A right to bleach linen on the burdened tenement

Nuisance - locality Agricultural sounds may not be acceptable in an urban area (and vice versa).

Maguire v Charles M'Neil Ltd (Glasgow - industrial area, operation of forge - going to have to put up with this) An interference with comfortable enjoyment of a dwellinghouse in a residential area is more serious than if the dwelling were in an industrial area

Role of prescription of heritable property

Major role of prescription in prior system of recording in Register of sasines system ('register of deeds'); Less significant role of prescription in present system of under Land Registration (Scotland) Act 1979 ('register of title'); A more significant role of prescription will be restored by the Land Registration (Scotland) Act 2012, to come into force on 8th December 2014

Trademark - particular class + classification

Marks have to be registered in a particular class of the trade mark register in connection with specified goods and services for which the mark is, or will be used. The trade mark register contains 45 classes altogether covering a diverse range of goods and services. example, Class 1 encompasses inter alia chemicals used in industry, science and photography. Class 18 encompasses leather and imitations of leather, and goods made of these materials including umbrellas and parasols. Class 38 encompasses telecommunications. The classification is based on the Nice Agreement. Nice: International classification of goods and services

Servitude - civiliter

NOT about existence of the right. --Right must be exercised reasonably with minimum possible burden on burdened (Rankine) Cf. Soriani v Cluckie 2001 GWD 28-1138.

Regulatory framework of registered TM National, regional

National law: UK trade marks: UK Trade Marks Act 1994 The 1994 Act governs those trade marks registered in the UK Register with the UK-IPO in Newport, Gwent. And it was introduced as a result of the EC Council Directive of 21 December 1988 to approximate the laws of the Member States relating to Trade Marks. EU law: since 1994 it has been open to traders to register a Community Trade Mark (CTM), normally effective throughout the territory of member states of the EU. Two instruments: -Community Trade Mark Regulation: Creates of supra national community trade marks. -Trade Marks Directive: provides a Framework for protection of trade marks in the member states. EUIPO is the European Union Intellectual Property Office responsible for managing the EU trade mark. Replaced the Office for Harmonisation in the Internal Market OHIM

IP dealings - buying IP rights

Need other person happy to get rid of it...(transfer of ownership) Defining the value of intellectual property (IP) assets is critical to any profitable IP sale. Need writing. Important to be able to track ownership over the years so can sue: eg Naxos Rights International [2012] CSOH 158. (infringement + challenging IP ownership, claimant not owner since the assingment in contract in future tense hence not able to pass - NO SPECIFIC FORM to transfer ownership as seen by court - still effective, defendant unsuccessful) Can include future improvements to patent Buchanan v Alba Diagnostics [2004 UKHL 5 (the Right to Improve a Patent Innovation) Registered rights --should record transfer, impact on rights against others --can sell them without underlying business --IP is different from product/service. What is the contract about? Buying products as well as IP or IP right only? --They are their own property...can leave you even your name - Emanuel v Continental Shelf [2006] ETMR 56 (when reg TM as such in her name - transfer ALL property even name) --Compare assigning goodwill key element of passing off for unregistered trade marks IRC v Muller [1901] AC 217 (important case on passing off)

Further reg requirements

Negative lists: Absolute grounds for refusal, s.3 TMA 1994 (Art.3 TM Directive 2008/95) Relative grounds for refusal, s.5 TMA 1994 (Art.4 TM Directive 2008/95) The absolute grounds for refusal look to the mark itself. By contrast, the term 'relative' means that account will be taken of other marks that are already registered.

Negative prescription - def Extinctive prescription - destroys rights

Negative prescription allows the barring of a right (personal or real) through failure to assert it within a stipulated period; negative prescription and limitation have major implications for obligations (i.e. personal rights; e.g. contractual or delictual claims); in the law of property we are concerned only with the limitation of real rights, as in a claim to recover a thing;

Negative prescription overview + merae facultatis

Negative prescription bars exercise of a right; we are concerned only with how that affects real rights, as in a claim to recover a thing; In terms of s.8 of the Prescription and Limitation (Scotland) Act 1973 the right to recover property may be lost if it is not exercised or enforced for 20 years; BUT Schedule III to the Act limits the scope of s.8 by declaring certain rights imprescriptible; The most important classes of imprescriptible right are: (1) the real right of ownership in land; (2) any right exercisable as a res merae facultatis; (3) the owner's right to recover stolen property from a thief or 'person privy to the stealing'.

Prescription and moveables 3 - negative

Negative prescription extinguishes right of a non-possessor. For example, Anne owns a rare copy of Craig's Jus Feudal, which is stolen from her by Barry, who sells it to Claire, who sells it to David. The right to recover stolen property from a thief or accomplice is imprescriptible, but a bona fide third-party acquirer - David - will benefit from the presumption arising out of possession, and after 20 years of non-possession, Anne loses any claim to ownership.

Moveable property - treasure trove

Not as such abandoned: But the owner cannot be found, and so quod nullius est fit domini regis. See Stair, Institutions 2.1.5. 3.Loosely precious items found concealed in the ground or in buildings Cleghorn & Bryce v Baird (1696) (on the role of antiquity) Coins - competition between possessor and executors of previous possessor. 4. The basis of the right: feudal or prerogative? Lord Advocate v University of Aberdeen and Budge 1963 (treasure owned by crown - royal prerogative, problem arose since treasure found in Orkney/Shetland feudal don't apply) 5. Disposal of treasure trove: the Q&LTR

LR - SD

Not defined in Act, but community need to have plans economic/social/environmental goods or not allow it by Scottish Ministers. (2016 act - landowners have to look at statement, will see)

RB - Content + consitution (traditional)

Not every obligation can be made "real". Two rules as to content can be noted. 1. Praedial - relating to land (s.3(1) and (2) - of Title conditions (Scotland) Act 2003); and 2. Utilitas (s.3(3) TC(S)A 2003, i.e. the burden must be for the benefit of land, not mere benefit of an individual. Real burdens cannot arise by use alone, nor can they arise by implication surrounding a conveyance. ---Traditionally, real burdens required to be created in: 1. a conveyance of the servient tenement; or 2. a deed of declaration of conditions (normally simply called a "deed of conditions") executed by a landowner, which forms part of the title of the burdened land. Historic: A number of (sometimes overlapping) rules. Gretton & Steven identify seven (such as "related properties in a common scheme").

Scots law on titles

ONLY ONE RIGHT OF OWNERSHIP. There can be only one. (Or, in the case of co-owners, one class of proprietor.) Owning a thing necessarily precludes anyone else from ownership of that thing.

P dealings - the legal framework - patents

Patents Act 1977 -"Any patent or application for a patent, and any right in or under any patent or any such application, is incorporeal moveable property" section 31(2) (SCOTLAND) --Any patent or application for a patent is personal property and any patent or any such application, or any --right in it, may be assigned or mortgaged.(section 30) --assign, mortgage, licence, sub-licence, co-ownership, rights against others (section 31-7) [compulsory licensing (section 48 et seq) --3 years from grant --demand not being met on reasonable terms and will not grant licence on reasonable terms]

Title conditions/servitudes/real burdens - bind successors? def?

People can agree to do (or not to do) certain things on their land, or allow other people to use that land. They could make a contract, but that would not bind successors. Can they also agree what should happen with later owners of the land? Yes!! (TC - CATCH ALL TERM for real burdens + servitudes) Real burdens - obligation affecting land Servitudes - right to use

Offside goal - difficulty and differing explanations Contrast situation of trustee on insolvency; see Lord Rodger in Burnett's Tr v Grainger - not a bad faith situation + involuntary - can't have offside

Perceived as personal right trumping real right; See Scott Wortley 'Double Sales and the Offside Trap' 2002 Juridical Review 291, Some say result can only be explained outside property law - a delict? - but this is unacceptable; Best explanation, 2nd purchaser's bad faith (see obiter of Lord Rodger in Burnett's Tr (2004 SC (HL)19 para 67) as disponee/transferee makes acquisition defective and open to reduction (i.e. being set aside) as a voidable title; Wortley (312-3) refers to this as the 'abstract system' approach

Act of body, Corpus

Physical act -Possess by wearing, keeping item on person, storing securely - no need to horde everything to possess at all times or to touch all that you possess Amount of control varies according to type of thing (portable moveable---bulky moveable---land). Extensive measure of control for moveables that can be handled, like a watch, a book or a jacket. For moveables that cannot be handled easily, like a stack of wood, literal physical handling is impractical, so taking security steps sufficient.

Leases - period, tacit, ish, max, acts

Period - Tacit relocation (silent re-letting - where the lease come to at an end, say in a year, if no notice of terminating then tacit relocation continues lease for 1 year) does not apply in re certain classes of leases (like council tendency leasing) (McAllister 10.20) plus it does not extend to licences (Paton & Cameron) The Ish - The expiry of termination date. The day on which you are expected to leave. A lease gives rise to a temporary right, therefore there must be a duration - if none is stated but possession is taken then the lease will be inferred to be for a period of one year --Gray v University of Edinburgh (Uni won) Maximum length of a lease - 175 years, by virtue of Abolition of Feudal Tenure etc (Scotland) Act 2000 s.67. Why? The lease as a non-feudal institution. Land Tenure Reform (Scotland) Act 1974 s.8 maximum period of residential leases = 20 years, but Housing (Scotland) Act 2010 Part 13 - Social Landlords: Long Leases and Heritable Securities: ---s.154. Sections 138 and 139 amend the "20 year rules" as they apply to social landlords and other 'connected bodies' and rural housing bodies Recent Statute - Long Leases (Scotland) Act 2012 (McAllister, p.196). Also, Land Registration etc (Scotland) Act 2012 in re long leases. Also, Private Housing (Tenancies)(Scotland) Act 2016.

Possession - compensation

Person knowingly in wrongful possession liable to compensate rightful possessor. Two levels of compensation: 1. ordinary profits (actual income); and 2. violent profits (penal damages - highest possible profit property could yield as opposed to actual).

Distinction between real and personal Things (not one stronger than other - real = apple, sue = £1 million. Real not always the stronger)

Personal - enforce against specific person/people. Real - enforce against "the world". Things are more reliable than people. Things often endure for longer than people. A personal right is only as good as the person you are suing. Unbridgeable difference - no quasi real right

RB - remedies

Personal action against the burdened proprietor for: --payment; --specific implement (not common) --interdict; or --damages. (Removal of offending buildings is a possibility) Remember variation/discharge (part 9, power on the lands tribunal relating to TC - application by serviet grant order varying/discharge a land obligation), and personal real burdens (e.g. conservation burden) - NOT on the exam

Classifications of Securities

Personal securities vs real securities *Personal security is called "caution" (pronounced "cay-shon"): guarantor = cautioner. *Real securities are securities over assets (e.g. pledge). Our focus is on real securities. For the distinction, see Gloag and Irvine p.3; Digest 50.16.188.1. 3 e.g. pawbrokers, go to borrow £100 and take pledge over item Voluntary vs involuntary securities *Voluntary securities - require the consent of the debtor in the underlying obligation for creation (rarely 3rd parties) *Involuntary securities - do NOT require the consent of the debtor in the underlying obligation for creation. e.g. go to garage after works done, they ask money but you say too much - right to keep it until payed Financial securities

Servitude - exercise for the prescriptive period (both 20) + nature of servitudes

Prescription and Limitation (Scotland) Act 1973 (P&L(S)A 1973) s.3(1) - prescription on the basis of a deed P&L(S)A 1973 s.3(2) - prescription on the basis of possession (continuous, open, peaceable and without judicial interruption) of 20 years. --- Servitudes *might* not be publicly registered. Therefore only a relatively fixed list is recognised at common law (Bell, Principles s.979). This protects purchasers. But see also Moncrieff and TC(S)A 2003 ss.75-76.

Other roles of possession (2)

Presumption of Ownership (rebuttable rule, usually characterized as a rule of evidence that possessor of a moveable = owner) e.g. Chief Constable of Strathclyde v Sharp (fancy car, owned by one later another. Person who had it tried to claim - court couldn't show action in losing force, so he lost)

Copyright infringment

Primary copyright infringement: S16(1) of CDPA 1988 --Carrying out one of the restricted acts without a permission or licence from the copyright owner Infringement by authorisation: S16(2) of CDPA 1988 --Authorising others to carry out one or more of the restricted acts is copyright (Amstrad case) Secondary copyright infringement. --Dealing with infringing copies. the infringer should know or have reason to believe that he was dealing in infringing copies. SS 22-26 CDPA 1988. Circumvention of technical protection measures: (Section 296 get round technical protection measures)

Servitudes - implied grant

Principle - when the benefited and burdened properties were divided, a servitude was implied (Gretton and Steven para.12.24) This arises ONLY where the benefited property is conveyed. e.g A conveys part of his property to B. In the circumstances, it may be the case that A implies the grant of a servitude over part of his remaining property. Implication happens only where this is necessary for the reasonable enjoyment of the benefited property. e.g. Cochrane v Ewart (1861) ---ASA International v Kashmiri Properties (Ireland) Ltd [2016]

Patent law def + description

Protects and regulates new, industrially applicable inventions. Inventions: technical solutions to technical problems. The functionality of things. Patents can protect products and/or processes - new ways of doing things. e.g penicillin. Strong protection and high requirements Registration/ complexity and cost Disclosure/ breach of confidence

Leases - statutory security of tenure: residential tenancies

Private Sector (so far) -Assured/Short Assured Tenancies -Housing (Scotland) Act 1988 (before which, the Rent (Scotland) Acts, consolidated in 1984) -Landlord's repairing obligation - Housing (Scotland) Act 2006 -Security of Tenure -Grounds for Repossession - mandatory/discretionary -Rent review -Succession -Protection from eviction/harassment Note developments in re HMO licensing/landlord registration. Private Sector (soon come) --Private Housing (Tenancies)(Scotland) Act 2016 - to kill off most common law Public Sector -Scottish Secure Tenancy (SST)/Short Scottish Secure Tenancy (SSST) -Housing (Scotland) Act 2001 -Exclusions -Security of Tenure -Grounds for Repossession - conduct/management -Succession -Repairs and improvements -The right to buy -Repairs

IP dealings - enforcement and remedies - civil actions

Procedures of enforcement have their origins in international, regional and national law. --Enforcement procedures can be civil or/and criminal. Remedies in private civil actions • an injunction (order to stop) • an award of costs (order to pay) • damages or an account of profits (order to pay) • delivery up/destruction of infringing items and items used to make them (order to erase, deliver up or dispose infringing items ) • tracing orders

LR - Public interest

Protocol 1, Art 1 ECHR - public interest. Scottish Ministers measure - disagree, take to court ~ Pairc litigation.

When is a thing possessed?

Property is possessed if it is held by a person for their own use, two elements: 1. Physical control (physical) 2. Intention to use (mental)

Commerce require Certainty to function - real rights

Protection of third parties can lead to injustice between individuals. Tough luck. Property law is about everyone and needs to look at the bigger picture. Tales of two innocents, perhaps where a rogue has sold something twice then disappeared, leaving two parties arguing over who owns what. Whoever has a real right tends to be in the better position. Commerce requires this certainty.

Trademarks requirements 2: Must be capable of being presented graphically + 3 req the mark must be capable of distinguishing goods or services of one undertaking from those of another.

Ralf Sieckmann v. Deutsches Patent- und Markenamt [2002], Case C-273/00, paras. 46 and 55. ECJ: Sieckmann seven criteria: it must be clear, precise, self-contained, equally accessible, intelligible, durable and objective. The ECJ held that a trade mark could consist of a sign which itself may not be capable of being perceived visually (for example, a smell) provided that it could be represented graphically such as through the use of images, lines or characters. This test applies to olfactory, sound and colour trade marks Eden SARL v. OHIM, Case T-305/04 Third requirement: the mark must be capable of distinguishing goods or services of one undertaking from those of another.

Rent - definitions, writers differences

Rankine defines 'rent' thus: "In law, as distinguished from political economy, rent is the return in money, produce or other moveables, due by a tenant for the possession and use of the subjects of a lease." Paton and Cameron define 'rent' thus: "Rent is normally a sum of money either ***specified or capable of being ascertained, or it may be a certain amount of grain, minerals or other fungibles, or it may take the form of services to be rendered by the tenant to the landlord, for example to shoe horses or mend ploughs." Aka something the tenant gives to landlord for possession of property. ------------------------- Overlooked defs, other direction from landlord: Hunter, landlord and tenant, adopted Bell: The definition of rent varies according to the different subjects for which it is payable. In a lease of lands it is ****the portion of the produce or its value which remains with the landlord after all the outgoings of cultivation are defrayed, including the profits of the capital employed... Bell's Commentaries, 7th ed i,68 Same - Rent is that portion of the produce of lands, or its value, which remains for the landlord... Rent under this concept as a right is retained by landlord - Thomas Craig of Riccartoun - as long as something given as vaguely recognizable as rent, means can give rise to lease.

Leases - definition

Rankine, The Law of Leases in Scotland (3rd ed), p.1 IMPORTANT - used in clyesdale v Davidson McAllister, Scottish Law of Leases (4th ed), p.3 Paton & Cameron, Landlord & Tenant, p.5 Definition - A lease is a grant of land by one person (the lessor or landlord) to another person (the lessee or tenant) for a specified period of time in return for the payment of a rent. (Contract - purely personal in certain circumstances it gives rise to what is substantially a real right)

Real securities - ranking + enforcement

Ranking - prior tempore potior iure (first in time, stronger by right) Enforcement - secure creditor can sell off asset or subjects are forfeited - more the former.

Heritable and moveable - fundamental divisions

Real and Personal Heritable and Moveable Corporeal and Incorporeal Heritable equates to land Heritable derives from 'that which goes to the heir.'

Real/Personal - example

Real right - right in a thing. Personal right - right enforceable v. a person. Merchandise purchase - buyer acquires real right. What about a condition against re-sale unless as part of a multipack? Attempt by vendor (or indeed supplier) to impose an obligation on buyer. Examples? Onward transmission of item, with or without a similar condition, still competent to transfer ownership.

Distinction between real and personal rights

Real rights are against the world Personal rights only against another person Burnett's trustee v Grainger - Lord Roger/Hope unbridgeable divide between them Disponer, disponee, tranferor, transferee

Real rights require publicity

Real rights are for the information of 3rd parties. Publicity can be effected in a number of ways, perhaps registration in a land register or by the very simple act of possession.

Res mera facultatis David Johnston, Prescription and Limitation (2012). (Johnston is a QC, part of Axiom Advocates.) Johnston describes a res merae facultatis as a property right which cannot be lost by negative prescription either (1) because it is a right whose exercise implies no claim on anyone else or against their rights or (2) because it is a (normal) incident of ownership which can be lost only as a consequence of the fortification in some other person of a right inconsistent with it. Case law? Smith v Stewart

Refers to wide category of property rights which do not involve any form of claim against another. These may be exercised or not at the discretion of the holder. Contrast an owner's right to build which is not lost even if it is not exercised for more than 20 years with a servitude of access which is lost if the holder does not exercise it for the same period.

Land reform - two catgories

Reform for all landowners Reform to change the owner (tenant right to buy, community right to buy)

Register of sasines

Register of Sasines - for deeds, since 1617 Objectives -Publicity Security Accessibility The Register of Sasines system is a register of deeds. Not a guarantee of title The older of the two Scottish land registers is the General Register of Sasines, which was established in 1617 by means of the Registration Act 1617. It did not register title. Deeds were recorded in the Sasine Register. This is the correct technical term.

TM:Relative grounds for refusal of registration

Registration shall be refused if the mark is... identical to another mark on identical goods - s.5(1) TMA / Art.4(1)(a) TM Directive identical to another mark on similar goods and likelihood of confusion - s.5(2)(a) TMA / Art.4(1)(b) TM Directive similar to another mark on identical or similar goods and likelihood of confusion - s.5(2)(b) TMA / Art.4(1)(b) TM Directive identical or similar to another mark (on any goods) and the use takes unfair advantage or is detrimental to the distinctive character or repute of the earlier mark - s.5(3) TMA / Art.4(3) TM Directive

Offside goal test

Reid: order for rule to operate appears that all following must be shown: 1. That there was an antecedent contract or other obligation affecting granter 2. That the grant was in breach of term explicit/implied of that obligation 3. Either that grantee knew of the antecedent obligation prior to the completion of his own right or that the grant was not for value

Leases - rent, cases

Rent - Where there is agreement on all else and there is an intention to levy rent but no rent is agreed yet possession has been taken then the courts infer a rent based upon the actual value for the subjects pre Glen v Roy (1882) 10 R 239. Rent - Grassums won't suffice Mann v Houston 1957 SLT 89. A lease gives rise to a temporary right, therefore there must be a duration - if none is stated but possession is taken then the lease will be inferred to be for a period of one year per Gray v University of Edinburgh. Alexander Andrew and Carole Andrew v North Lanarkshire Council 4 May 2011 Lands Tr - example of a case in which a person paying no rent was nevertheless deemed to be a Scottish Secure Tenant under the Housing (Scotland) Act 2001 and accordingly enjoyed the right Lord President Cooper in Millar v McRobbie 1949 SC 1: "It has been well settled for centuries that possession under a lease is the equivalent of sasine in relation to feudal property. Without possession the tenant is merely the personal creditor of the lessor. By entering into possession the lessee publishes to the world in general, and to singular successors in particular, the fact of his lease, and since the practice of taking sasine on a tack fell into disuse in the 15th century, no substitute has been recognised by our law for possession except registration of long leases under the Act of 1857." Statutes - REMEMBER 1449 ACT

Statutory rights of access - how exception Unreasonable interference of the rights (broadly defined) of others is not responsible access "Rights" includes: pertinents of landownership; access rights; and any other rights.

Responsible access only. Excluded conduct includes: s9 -breaching an interdict; and -poaching, fishing,shooting Damaging (and managing) the land? Tuley v The Highland Council 2007 (horse riders banned path but path for others, what number of horses responsible? Land management)

Security - equivalents?

Retention of title. -person selling prop not get title till you pay, or clause beyond the item in the transaction -or pay all debts outside single item - all sum retention title clause Armour v Thyssen Edelstahlwerke AG [1991] (all sum case - not sure about in court, looked at SOGA s62(4) - not apply to case of securities. that don't need retention no publicity? No H O L - look at SOGA, s17 when parties to intend to pass, when sum is all payed hence had NOT PASSED) Cf s 62(4) Sale of Goods Act 1979. Incorporeals? (IP covered later)

LR - reform to change owner, why?

Retention/revitalisation of communities. Enterprise. Social justice. Breaking a monopoly. The environment Also equity arguments (number of rural landowners) and use of property (some not of much use/public interest lacking, others DO matter like farming)

Heritable securities - enforcement of SS since 2010

Revised procedures used by the creditor to exercise remedies: Due to Royal Bank of Scotland v Wilson 2010 SLT 1227, calling-up notices (RBS had sought to have debtors summarily ejected from their home, under section 5 of the Heritable Securities (Scotland) Act 1894, on the grounds that the debtors were in "default" of a condition in the security.) New argument at UKSC on s.19 CFR(S)A 1970, which was couched in mandatory terms. "Where a creditor ... intends to require discharge of the debt ... failing that ... to exercise any power conferred by the security to sell any subjects ... he SHALL serve a calling-up notice." AND Special rules in relation to residential properties - ss.23A, 24-24E... Due to the Home Owner and Debtor Protection (Scotland) Act 2010, in relation to residential properties the creditor must ALSO use a s.24 warrant

Personal rights

Right enforceable against a person (e.g. a right to obtain payment enforceable against an identified person/ class o people)

Involuntary securities: Lien def + types + enforcement

Right to retain property until certain obligations have been discharged; for example, a car mechanic holds on to a car until the repair bill is paid Special lien (retention for one obligation like car problem above) vs general lien (retention for several obligations - solicitors/brokers/bankers hold docs till obligation done) Requirements - possession; but see Goudie v Mulholland 2000 SC 61. If the creditor is induced to give up possession by improper means. Types of property? Corporeal moveables (e.g. Sale of Goods Act 1979 ss.39 and 41, for "unpaid seller"). Land? Perhaps, but "unknown in current practice" (see Gretton & Steven para 20.60). Binning v Brotherstones (1676) Mor 13401. Bona fide possessor entitled to lien for improvements against the owner pursuing an action of removing. Note Onyvax Ltd v Endpoint Research (UK) Ltd 2008 GWD 1-3, to do with documents containing the results of the trial of a new cancer drug. Enforcement? Sometimes sale, with the consent of the court

Offside goals - Rodger

Rodger (Builders) Owner Fawdry sold mansion and land to Rodger (Builders) on 9 July 1947 with settlement agreed for 11 November (reciprocal contractual obligations); 3rd party Bell, aware of sale, indicated his interest to Fawdry's lawyer; Rodger (Builders) having failed to perform as agreed, on 28 November Fawdry entered new contract with Bell, both parties being aware that Rodger was present and wanting to see Fawdry; Rodger had a cheque for the price; Fawdry intimated rescission, Rodger rejected; Disposition delivered to Bell in exchange for price on 22 December, Sasine registration on 23 December; Rodger sought to reduce conveyance to Bell on the basis of bad faith; Court of Session held that Rodger was entitled to reduction of conveyance to Bell and conveyance in its (Rodger's) favour. - purchaser is regarded as bad faith and goes to registration house at own peril - Bell knew prior contract and chose to risk that Rodger be right - was so lost out.

Accession of moveables to land Other factors: the role of intention? When accession happens, what can the former owner of the accessory do?

Role: I. See Scottish Discount Co Ltd v Blin 1985 SC 216 II. The deemed will of the hire purchaser not to effect accession? Obiter. The affect of accepting Blin on the law since Brand's Trs. NOT REPEATED, NOT SUB view Happens: I. Potentially compensation (see above) II. Right of lawful severance - trade fixtures (Brand's Trs) - potentially available against successors in title to the landlord - Reid para.586; near end of tenancy, tenant can remove them = yours agricultural fixtures (Agricultural Holdings (Scotland) Act 1991 s.18) like slurry tank; domestic and ornamental fixtures? Reid para.586. - like kitchen, owned landlord

General rule of consent in Co-ownership (trifles - case)

Rule - consent of all is required BUT the law does not bother itself with trifles e.g. Barkley v Scott (name plate on fence = court said no point)

Legal requirements for protection of patents

S 1(1) of the Patents Act 1977: A patent may be granted only for an invention in respect of which the following conditions are satisfied, that is to say - (a) the invention is new; (b) it involves an inventive step; (c) it is capable of industrial application; (d) the grant of a patent for it is not excluded by subsections (2) and (3) below . . .' Two steps The invention should NOT be excluded by an exception The invention should meet the patentability criteria: NEW, involves inventive step and capable of industrial application.

Exclusions from patentability

S1(2) of the Patents Act 1977 Article 52(2) of the EPC 2000: (Things which are considered NO inventions) The following in particular shall not be regarded as inventions within the meaning of paragraph 1: (a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; (d) presentations of information. patents shall not be granted in respect of: (a) inventions the commercial exploitation of which would be contrary to 'ordre public' or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States; (b) plant or animal varieties or essentially biological processes for the production of plants or animals; this provision shall not apply to microbiological processes or the products thereof; (c) methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body; this provision shall not apply to products, in particular substances or compositions, for use in any of these methods.'

Offside goals - SOGA

SOGA regulates the process of transfer of ownership of moveables wheres heritage the importance of the land register is paramount Granter-grantee sale of goods then heritable property passes as per SOGA ss17-18 - where no alternative intervention is manifest property passes to the grantee and subsequent disposal onto another would be subject to NEMO DAT rendering the OFFSIDE IRRELEVANT

Copyright and the Internet: the liability of ISPs

Safe harbour in EU: (mere conduits) --The Directive on electronic commerce in the EU also sets out an exemption from liability for intermediaries where ***they play a wholly passive role as mere conduits of information from third parties***. It limits service providers' liability for other activities such as the storage of information provided by recipients of the service and at their request (hosting), so long as: 1. The provider does not know of the illegal activity, 2.Is unaware of facts and circumstances from which illegal activity is apparent, 3.And acts expeditiously to remove or disable access upon learning or becoming aware of the activity.

Basic patent procedure

Sections 14-18 of the patent Act 1977 File the application to the UK IPO: the obtaining of its priority date. Disclosure File claims: identify the characters of the product or service to distinguish particular features of this invention from others already part of the state of the art Preliminary examination publication of the patent Substantive examination is a systematic consideration of the application by a skilled patent examiner to determine if it meets the requirements for patentability (£70 for request within 6 months of publication) Grant or refusal of patent and "B" publication section 18 of the patent Act 1977. In total, it costs around £200 official fees to apply for a UK patent (in addition attorney fees)

IP dealings - enforcement: legal provisions

Sections 14-6 Trade marks Act 1994 Section 61-2 Patent Act Sections 96-97 A and 99-100 of the CDPA IP enforcement directive (article 13) TRIPS articles 41-48 (Enforcement of Intellectual Property Rights) Article 41 (TRIPS) 1. Members shall ensure that enforcement procedures...are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied...to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse. 2. Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.

Other voluntary securities

Ship/Aircraft mortgages. IP: Trademarks + Patents. Incorporeals? Retention of title? Armour case. Trusts? Hire purchase?

Trademarks requirement 1: a sign e.g.Dyson Ltd v Registrar of Trade Marks indicates that not every sign will pass this hurdle. Dyson sought to register the shape of its vacuum cleaners in class 9 of the Nice Agreement refused because its grant would give the applicant an unfair competitive advantage over competitors.

Simple word marks: Tesco, Rolls Royce'. Graphics: The Edinburgh law school. Personal name: 'Marilyn Munroe'. The shape of the packaging of goods: Coca Cola. Shape of goods: BMW mini. Sounds have been registered: 'The mark consists of the sound of a dog barking' smells: 'The mark comprises the strong smell of bitter beer applied to flights for darts'

Prescription - - vigilantibus et non dormientubus jura subveniunt

Snooze you lose "The law assists those who are watchful of their rights, and not those who are careless of them. Thus prescription cancels rights which are not enforced over prescribed periods." Glossary of Scottish Legal Terms and Latin Maxims (Butterworths, 1992)

Access Code p2 of Land Reform (Scotland) Act 2003 - introduce rights of access to land under certain circumstances

Soft law (guidelines rather than rules

Unbridgeable divide between personal/real?

Some (statutory) rights are personal but are enforceable against others. e.g. occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. 'Offside goals' rule, relevant to double grants, can allow an owner's right to be defeated in very limited situations.

History of IP rights

Some forms of IP emerged since 18th century (patents) No use of the term IP till mid 19th century Middle Ages :Trade secrets (Confidentiality) (example: Greek chefs were granted year-long monopolies for creating particular cooking delights). Privileges and monopoly over printing. The Statute of Anne (1710) in the UK: the first statute of modern copyright. (used to be printer not authors themselves)

Involuntary securities: Lien special/general

Special lien A real right; arises through mutuality of obligations Consider the example of a contract for the sale of goods, and the seller's right to retain the goods General lien Secures a general balance for all sums owed by a client to a solicitor, commercial agent, banker or broker, in those capacities. See generally Gretton and Steven paras. 20.57-20.64

Prescription - stair vs erskine

Stair, Institutions (II,xii,9) - Prescription is a positive institution, founded upon utility rather than equity. Erskine, Institute (at III,vii,1) immediately identifies the dual nature of prescription:

Heritable securities - SS standard conditions

Standard Conditions - Conveyancing and Feudal Reform (Scotland) Act 1970 Sch.3. SC 1-6 - conditions relative to the maintenance of the security subjects SC 7-11 - conditions relative to the enforcement of the security SC12 (allocation of expenses) These conditions apply unless varied by the parties (ss.11(2)-(3)); note conditions about the creditor's powers of sale and foreclosure cannot be varied; note also the rules about redemption (s.18(1A))

Classification of IP laws (3)

Statutory laws (statutory legislation) -Copyright law: the Copyright, Designs and Patents Act 1988 as amended. -Patents: Patent Act 1977 is the main patent law in the UK. -Trade marks: Trade marks Act 1994 Designs: Registered designs Act 1949 2. Common law protection: Passing Off and Breach of confidence. 3. Sui generis rights: (a Latin term meaning "a special kind). the Database right (Database Directive) and Semi-conductor topography Design right Regulations.

Exclusive possession - exceptions

Statutory rights of access under Part 1 of the Land Reform (Scotland) Act 2003. Public rights of way that connect one public place to another.

Servitude - exercise (3 rules)

Subject to contrary provision, all servitudes governed by three implied rules: 1. The servitude can be used only for the dominant tenement: Irvine Knitters Ltd v North Ayrshire Co-operative Society Ltd 1978 SC 109. "Irvine Knitters rule" ---Limits the use of praedial servitude rights. ---It does so by linking exercise of the particular servitude to the purposes of the relevant dominant tenement (otherwise known as "the benefited property"). ---All other exercise is regarded as in excess of the proper use of the servitude and can be interdicted at the instance of the servient proprietor (otherwise known as "the burdened proprietor"). ---11. The Use of Praedial Servitudes to Benefit Land outside the Dominant Tenement Professor Roderick R M Paisley 2. The servitude must be exercised civiliter, which means that it must be exercised only in such manner as is least burdensome to the servient tenement. 3. The servitude must be exercised in such manner as will not increase the burden on the servient tenement beyond that which was originally anticipated.

Voluntary Securities: Pledge def + requirements

Subordinate real right in security over corporeal moveable property, to guarantee an underlying obligation. No requirement for writing (but some rules in Consumer Credit Act 1974 for licenced pawnbrokers Delivery - essential for constitution (Bell s1364), either actual or constructive Pattison's Tr v Liston (1893) - goods in a house; a key thereto is handed over to the transferee = constructive delivery Orr v Tullis (1870) insufficient to infer a transfer of possession by placing labels on printing machinery.

Subordinate real rights - together

Subordinate real rights are compatible with each other. e.g. House purchase may involve a right of security to the lender, a servitude, a liferent etc.

Patents - international dimension

Substantive: TRIPS first international measure to harmonise substantive patent provisions. Article 27(1) TRIPS provides: 'Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.' Practical: (process of patenting) -The Patent Cooperation Treaty (1970, as amended) -Patent Law Treaty (2000) - This treaty harmonises patent procedures and formalities for filing, obtaining and maintaining patent protection. -Substantive Patent Law Treaty (2000-present)

Leases - view now?

The 'lease as a real right' position is now well-embedded - taken as trite law Universal successor - person gets all possessions e.g. spouse Singular successor - who I sell who becomes successor - not burden, 1949 protects against singular successor

Copyright - originality (and test)

The 1988 Act: literary, dramatic, musical and artistic works must all be original.S1 CDPA 1988 No express requirement of originality in relation to films, sound recordings, broadcasts, and typographical arrangements of published editions. However there is another test of originality applied to these works (not copied from another work) Originality is not novelty or creativity. Test: Effort, skill and labour: ---The expenditure of independent effort, skill and labour by the author is often seen as the essence of originality in the field of copyright. However, it is not sufficient to establish originality! It is not enough to expend skill, effort and labour in copying. Interlego AG v Tyco Industries Inc [1988]

Formal validity/writing - validity/presumption of validity (act)

The 1995 Act seeks to set out two things:- -the minimum requirements of formalities of execution to make a document such as a disposition "valid"; and -additional requirements as regards signing by a witness to give the granter's subscription "self-proving", aka "probativity". When the granter's subscription is "self proving" it is presumed to be valid, so court can rely.

Copyright - Legal framework: the International dimension

The Berne Convention 1883: the basis for international copyright relations and domestic copyright law (focus owner) The Rome Convention 1886: on the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. (neighboring/relating rights focus) TRIPS Agreement of 1994. The WIPO Copyright Treaty (WCT) 1996 (The WCT was primarily concerned to respond to the problems created by the rise of the Internet) The WIPO performances and phonograms treaty 1996 (computers)

Copyright subject matter

The Berne Convention requires protection for literary and artistic works, to include every production in the literary, scientific and artistic domain, including films. two approaches: ---The open approach: The French copyright. (protection of all, not specific) ---The closed list Approach: the UK copyright: exclusive list (protected list) Sections 1-8 CDPA 1988: • Original literary, dramatic, musical and artistic works (literary work including computer programs, databases and compilations other than databases); • Films; • Sound recordings; • Broadcasts; • The typographical arrangement of published editions of literary, dramatic or musical works.

Patents - the European dimension

The European Patent Convention (EPC, 1973, as amended) The EPC harmonised the substantive law on patentability and exclusions it provides a single point of entry for the patent applicant to lodge only one application Brand New Unitary patent and unified litigation system: inventors will have the choice of protecting invention in up to 25 EU countries with a single unitary patent. This will streamline the system and save on translation costs. Also inventors will be able to challenge and defend unitary patents in a single court action through the Unified Patent Court. Challenges and uncertainty in the UK - Brexit

QLTR

The Queen's and Lord Treasurer's Remembrancer The Crown's representative in Scotland who deals with ownerless property. ◦ Bona vacantia (abandoned property). ◦ Treasure trove. ◦ Ultimus Haeres (Succession & Trusts). Audrey Canning v Glasgow Caledonian University and Democratic Left Scotland (librarian best claim if Crown not interested)

Copyright: Other exceptions - temporary reproduction

The UK law adopted the copyright exception for temporary reproduction as provided by article 5 of the Infosoc directive to allow 'browsing' on the Internet and 'caching' In PRCA v The Newspaper Licensing Agency Limited [2013] UKSC 18, Five conditions: 1.the reproduction must be temporary, transient or incidental, 2.an integral and essential part of a technological process, 3.the sole purpose of the reproduction must be to enable a transmission in a network between third parties by an intermediary, 4.or a lawful use of protected work; and 5.the reproduction must have no independent economic significance

Copyright: Digital Economy Act 2010 (DEA)

The UK's anti-piracy tackling, aims to cut Internet piracy by adopting a "three-strikes" style graduated response system of warning letters and punishment for repeat offenders (e.g. suspension of your broadband service), Criticized for suspending the human right to freedom of expression and for breaching privacy. Too expensive to apply. The measures, such as letters to suspected illegal downloaders and potential disconnection, will not be enforced. The draft code to create the Code was never passed into law or pursued after that date, and was "shelved" by 2014. Supposed to be in practice in 2014.

Derivative acquisition moveables - SOGA 1893 - 1979 s17

The great law reform 'project' of the 19th c. The railway sleepers on the (hypothetical scenario) 1855 Aberdeen → Halifax train at Edinburgh Station: (if railway planks from aberdeen sold to Halifax but H goes insolvent, who owns them? Eng law - contract causes transfer, then H. Scot law - delivery with intention to pass, then A. UK leg 1893 basic principles of derivative acquisition maintained in 1979 updated statute; radical from a Scots law point of view because it drops the delivery requirement in sale (by far the most common basis of derivative acquisition); s.17(1) 'Where there is a contract for the sale of goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred (2) 'for the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case'.

Accession of moveables to land - physical attachement

The greater the attachment the better. Very heavy items? ◦ Christie v Smith's Executrix 1949 wooden summer-house (two tonnes - DID accede) recent case of Baroness Miranda Van Leyden v Colin Gilchrist (Chalets built on land, lent to company sublets land to build chalet 35 years lease - Baroness owns)

Moveables become heritable through accession - distinction important, why?

The heritable/moveable distinction may be relevant in the context of succession because the estate of a deceased person is broken down into the two categories in order to work out important statutory rights in respect of the distribution of the estate. The distinction is also relevant in the context of the transfer of heritable property; in principle various moveable things may be heritable by destination; note the concept of 'accessory things'; e.g. the ash box which 'belongs to' a fireplace - a disponor of the property can't take it away with him!

Patent legal framework

The international dimension: (substantive and practical) The Paris Convention of 1883 Main principles The principle of national treatment: each signatory state will afford the same rights to foreigners of other signatory states as to its own nationals (Article 2). An applicant enjoys a 12-month right of priority from the date of first filing of a patent in a signatory country (Article 4). This means that no subsequent filing of related applications in other countries within this period will be invalidated by the earlier filing, nor will any publication or use of the invention affect patentability. National patents remain independent of each other (Article 4bis). The focus is on the inventor who has the right to be named as such in the patent (Article 4ter ).

Occupatio scope

The old Roman rule - quod nullius est, fit occupantis (Justinian 2.1.12; Erskine 2.1.9) - limited in Scotland. Examples in Scots law ◦ pearls enclosed in shells; ◦ pebbles cast on the shore; ◦ wild beasts, fowls, fish. Exception in wild animals - royal fish. Never domesticated animals - Erskine, Institute 2.1.9. (unknown things in the state of nature)

Intellectual property laws

The law that protects IP: Law that regulates the creation, use and exploitation of mental labour. Copyright law: protects original works (the expression of ideas not ideas ) automatic protection. (right to restrict use and exploit works for specific duration - no need for registration) Patent Law: protects inventions legal requirement: novelty. (strong monopoly power) - not every invention Trade Marks Law: (registered trade marks) protects registered trade marks which distinguish the goods and services of one enterprise from those of another. Passing off: common law protection for unregistered trade marks. It protects the reputation and goodwill of traders in respect of their product get-up name or trading style. Design Law: the law which protects the way commercially produced articles looks or and functions

Trademark law

The law which protects and regulates trade marks The law of TM attempts to balance several interests: of the trader, of competing traders, and of the consumer. A related issue that establishes registered trade mark law is that of 'use'. A trade mark registration can be kept on the register indefinitely A trade mark has to be used in order to maintain the registration. The obligation of use has been adopted in almost all jurisdictions.

Leases - a real right, act?

The leases Act 1449 -Interest of people working on ground, only take land from landlord rent/payment, landlord sell land - what happens? -Tenant keeps tenancy, get new owner but SAME t/c's as lease Gretton & Steven 19.10 "Although a lease can be a real right, i.e. a subordinate real right, it is unlike other subordinate real rights ... [which] straddles rather awkwardly the law of real rights and the law of contract". Rankine, p1 + 132 "The contract is in its essence purely personal; in certain circumstances it gives rise to what is substantially a real right." (p.1) ... "Leases - originally and in their nature merely personal contracts - were in certain cases ***converted into real rights by the operation of the old Act 1449 c.17 as liberally construed by the Court" (p.132).

Lease - fine distinctions

The license, which is a species of contract respecting the possession of heritage, which through the lack of some essential element fails to amount to a lease, and gives rise to a personal right. The lease, which is a species of contract respecting the possession of heritage giving rise to a personal right. The lease, which is a species of contract respecting the possession of heritage, which, by satisfying various tests arising out of the Leases Act 1449 or some other statutory provision (e.g. the Registration of Leases (Scotland) Act 1857), is constituted as a real right in land. The Lease, or whatever, that is subject to special statutory rights such as security of tenure, by virtue of inclusion in a particular statutory regime.

Heritable property - Registration requirement

The longstanding rule is that a person only becomes the owner of heritable property when their acquisition is entered into a statutory register. NOT REGISTER SOUVENIR PLOTS OF LAND Land Registration Act 1617 - Sasine set up See now Abolition of Feudal Tenure etc.. (Scotland) Act 2000 s.4 The provisions in section 4 simply restate the law of Scotland as known and understood from the introduction of the Sasine Register some 400 years ago. Note that s.3 of the Land Registration (Scotland) Act 1979 provides for acquisition on registration. See now the Land Registration (Scotland) Act 2012, now coming into force In order for a person to become the owner of a piece of land, something more than bare contract is required. What is required is registration. Registration is the equivalent of delivery, and, in respect of land in Scotland, the maxim traditionibus non nudis pactis domina rerum transferentur still holds true (ownership is transferred by delivery not agreement). In order to begin to assert a claim to be the owner of a piece of land a person must be able to found upon a registered title in respect of that land.

Land Registration (Scotland) Act 1979 - register of title

The modern register has been in the process of rolling out over Scotland on an area by area basis since 1981. It is now (since 2003) operational for the whole of Scotland, but not all land is in the Land Register yet. The Land Registration etc. (Scotland) Act 2012 sped up the phasing out of the Sasine Register, and brings about changes to the land register system. Commenced 8 December 2014.

Copyright - Legal framework: national

The national frame: Current legislation: The Copyright, Designs and Patents Act 1988 as amended. (CDPA) Long history since 1710: Statute of Anne (focus now on owner) Copyright Act 1911, and Copyright Act 1956 (impact of the Berne convention and advent of new subject matter: sound recordings then films and broadcasts, and also to the typographical arrangements of published editions of works)

Prescription and moveables 2 - possessor benefit + presumption

The possessors of corporeal moveables benefit from mobilius possession praesumit titulum - presumption that the possessor is the owner. Presumption is effectively irrebuttable following possession of twenty years

Transfer of ownership of heritable property - 3 stage process

The sale and purchase of heritable property in Scots law is a three stage process. Missives Disposition Registration Missives is the contractual stage of the process and it gets its name from the exchange of letters (missives) of offer and counter offer between the buyer and the seller. Conclusion of the missives entitles the seller to the price and the buyer to a disposition and entry on an agreed date. The missives stage gives rise to a personal right only. Remember, by the way, that 'qualified acceptance' = a refusal and a counter-offer. The disposition is a formal transfer document in which the seller seeks to convey to the buyer ownership of the subject, and spells out the various terms and conditions and qualifications that the ownership is subject to. The form of the disposition is a matter for the subject of conveyancing. Delivery of the disposition by seller to buyer does not make the buyer the owner. Ownership remains with the seller until the third stage in the process is completed. Thus, the buyer's right at the disposition stage remains personal

Occupatio - consequences of appropriaton

The taker becomes owner All who try to appropriate the thing taken are thieves (Erskine 2.1.10); unless The wild animal recovers its natural state of freedom (Stair 2.1.33; Erskine 2.1.10). BUT please note: I. Some animals have animus revertendi - for example bees. II. See also Valentine v Kennedy (1985) (group of men prosecuted for theft of fish who escaped from someone's land - Rainbow trout - treated as marked, non indig species incapable of breeding here

Passing off elements + extras

There are three major elements to be established in a passing off action: (1) Goodwill (2) Misrepresentation (3) Damage • This must all occur in a business context Jif Lemon 'The classic trinity' of passing off: per Lord Oliver in Reckitt & Colman Products Ltd. V. Borden Inc. (the 'Jif Lemon' case), [1990] 1 W.L.R. 491, 509 Territory, power, term, limits - similar to trade marks Not need a registration Quicker, cheaper BUT Harder to show have goodwill and need misrepresentation (no identical/identical) Flexible - applied to solve new problems -domain name cybersquatting --One in a Million 1999 1 WLR 903 -false endorsement/celebrity merchandising --Irvine v Talksport [2002] FSR 943 - use of image of celebrity to advertise radio show without consent

Title conditions - servitudes - creation in a deed

There are two methods whereby a servitude can be created expressly : **express grant and express reservation. New deeds making express grants must: --Be in writing: see RoW(S)A 1995 s.1(2)(b) --Identify the burdened and benefited properties --Be registered against both the burdened and the benefited properties (since 28/11/2004 - see TC(S)A 2003 s.75(1)).

Trespass - rights of access

There can be trespass but with a small t damages may not be payable for harmless trespass, any property damage could leave access taker liable (in civil and criminal law terms). Encroachment (by things) also a delict (e.g. overhanging branches). Brown v Lee Construction Ltd

Securities - debt specifics and debtor/creditor relationship - def 2 + PURPOSE

There is a debt. The creditor has a personal right in contract to recover the debt. However, the creditor may be concerned that the debtor may become insolvent and unable to pay back the loan. So he may ask the debtor to create an additional right in security in his favour. This will allow him to recover the sum due if the debtor defaults. Purpose: Justinian, Institutes, 3.14.4: "A security is given for the benefit of both parties: of the debtor in that he may borrow money more readily, and of the creditor that his loan is safer."

Prescription and moveables - law unclear

There is, it seems, currently no positive prescription of corporeal moveables in Scotland. Most corporeal moveables are of limited value and limited lifetime, and may deteriorate quickly. BUT Some corporeal moveables may be of considerable enduring value, e.g. a painting by Picasso. If someone possesses a Picasso for many years but on a questionable title, should there eventually come a time when that title becomes unchallengeable? In most other countries the question has a clear and affirmative answer. Gretton & Steven say (Property, Trusts and Succession, para 2.34): "As for positive prescription [of corporeal moveables], the law is again unclear." "Perhaps it does not apply at all to corporeal moveables, or perhaps there is a 40-year common law rule whereby ownership is acquired after 40 years." Professor Carey Miller (Corporeal Moveables in Scotland 2nd ed. ch.7), but he acknowledges that the case law is inconclusive. Recent research by Dr Andrew Simpson has tended to make that case law even more inconclusive by arguing persuasively that an early key case - Parishioners of Aberscherder v Parish of Gemrie (1633) (concerned a case of a bell loaned between churches, retained for a long time) - was more likely to have been decided on the basis of negative prescription

A non domino/prescription (s 43) 2012

This new regime applies where it appears to the Keeper that the disposition is not valid (or, as regards part of the land to which the application relates, is not valid) for the reason only that the person who granted it had no title to do so. In such a case, the applicant must satisfy the Keeper that the land to which the application relates (or as the case may be the part in question) has been possessed openly, peaceably and without judicial interruption— -by the disponer or the applicant for a continuous period of 1 year immediately preceding the date of application, or -first by the disponer and then by the applicant for periods which together constitute such a period.

Heritable securities - enforcement of SS

Three stages of enforcement: 1. Debtor's default; 2. Procedures used by the creditor to enforce the security and unlock the remedies; 3. Creditor's remedies Note the former law concerning enforcement and the recent reforms thereto in ****Royal Bank of Scotland v Wilson (2010) SLT 1227 (Calling up notice usually picked to do by Bank, but now told should have) ***Home Owner and Debtor Protection (Scotland) Act 2010. Default - SC9(1): 1. Where a calling-up notice in respect of the security has been served and has not been complied with; 2. Where there has been a failure to comply with any other requirement arising out of the security; 3. Where the proprietor of the security subjects has become insolvent TRADITIONAL (i.e. superseded) procedures used by the creditor to exercise remedies: 1. Calling-up notice (ss.19-20); OR 2. [Notice of default] (ss.21-23A); OR 3. s.24 Warrant (ss.24-24E)

New RB - post 28/11/2004

To create a real burden it is important to use words which are 1.***clear, unambiguous and precise ---Case - Aberdeen Varieties Ltd. v James F. Donald (Aberdeen Cinemas), now relaxed by s.5 TC(S)A 2003) Do you need to use special words? YESSS S.4(2)(a) of the TC(S)A 2003 2. Dual registration Both properties must be adequately described, with registration against both those properties.

Nuisance - evaluation of defender's conduct

To determine if invasion in the use and enjoyment of land is more than reasonably tolerable, a court will evaluate. A non-exhaustive list of factors may include: -the suitability of the conduct to the character of the locality; -social utility of the activity. -the practicability of remedial measures

IP dealings - the legal framework - tradmarks

Trade marks Act 1994 Nature of registered trade mark: -"a registered trade mark is personal property (in Scotland, incorporeal moveable property)" (section 22) -Assignment, mortgage, co-ownership (sections 23-5) -More than one person can share the ownership of TM (Co-ownership of registered trade mark) . Licensing (sections 28-31) -No legal requirement of registration of the assignment of TM to be effective BUT it is a policy to encourage registration of assignment. (in order to avoid the consequences of non registration when conflicts arise) WRITING REQUIREMENT

Jurisdiction of Trademark protection

Trade marks find their justification in the consumer society. The basic function of a trade mark is to indicate the origin of particular goods or services and thus to reward the manufacturer who consistently produces goods of a particular quality using that mark. This stands in contrast with the justifications for the development of patents and copyright each of which seeks to encourage creativity and/or innovation and to reward the creator. The monopoly given to trade marks is different as well. Trade marks can give a monopoly for an unlimited period of time.

Derivative acquisition moveables general principles - title status

Transmission possible where transferor's subsequent is merely voidable (MacLeod - delivery of car by fraudster to good faith possessor) In case of voidable title, 3rd party in good faith will get good title, leaving defrauded seller unable to recover property and only claim compensation

International IP laws

Two treaties are considered the foundations for the international IP law: 1. Paris Convention for the protection of industrial property 1883 2. Berne Convention for the Protection of literary and artistic works 1886. Both shape national law - draw principles... two important principles: 1.The National Treatment (law different but equal national treatment to all) 2.Minimum standard of protection to be offered by national laws (to be offered by national laws The conventions are administered by the WIPO and the related disputes are dealt with by the International court of justice.

Patents - the national dimension

UK patent law The Patents Act 1977 remains the primary piece of legislation in the field- implemented the Paris convention. The Patents Act 2004 embodies the most far-reaching reform to UK patent law; the Act introduced the reforms of the EPC 2000 in the UK law. Copyright, Designs and Patents Act 1988 [Patents related sections]: Sections 274 to 281 and 285 to 295 of Parts 5 and 6 of the Copyright, Designs and Patents Act 1988 ("the CDPA") relate to Patent Agents, Patent County Courts etc.

Title conditions - servitude - creation

Various methods by which a servitude can be constituted. (Compare real burdens, which can only arise now by a (dual registered) grant or reservation in a deed. METHODS --Creation in a deed (which now requires registration against BOTH dominant and servient tenement (2003 Act, s.75(3)(b) and 77(1)); --Implied grant and reservation; --Exercise for the prescriptive period (twenty years); --Creation by statute; and --Acquiescence.

Derivative acquisition - general matters, applicable to all forms of property + who can dispose nemo dat quod non habet - no one can give what he does not have

We are concerned with property in the sense of what is open to disposal, derivative acquisition being the process of disposal or transmission of property Derivative acquisition is driven by the right of disposal which is a core aspect of the right of ownership; arguably the key aspect - see Lord Dunedin in Grant v Heriot's Trust Disposal can only be by one who has the right or has the right-holder's authority to transfer property in the thing concerned (for example, an agent acting within his or her authority);

Formal validity/writing - electronic documents

What about electronic documents? -Some issues with principal letters and faxes - McIntosh v Alam 1998 SLT (Sh Ct) 19 - fax, not allowed at time now is But now see Legal Writings (Counterparts and Delivery) (Scotland) Act 2015 And see also Part 10 of the Land Registration etc. (Scotland) Act 2012 - eleases "traditional documents" and "electronic documents". Special considerations for leases

Theories of Justification of IP protection

What are the diverse interests of IP rights? -Moral interests: natural right, justice. -Social interests: incentive to create. Morality of protection. -Economic interests: effects on market economic balance. Theories of Justification of IP protection: -The philosophical theory: the reward theory and natural rights theory. -The economic theories: market efficiency and free riding -The stakeholder analysis based theory: balance the competing interests.

Securities: floating charges - enforcement (when security becomes real?)

When does the security become real? Debtor defaults; and There follows attachment or "crystallisation" - when administrator [or possibly a receiver] appointed, or when the company goes into liquidation. Attachment - the creditor has a limited real right in the security subjects.

Co-Ownership def

Where Ownership of the estate is held in individual shares between two or more co-proprietors

S. 86 - Acquisition from disponer without valid title LR(S)A 2012 Relevant to s 43 or to the "one year" bona fide transferee.

Where a person ("A"), who is not the proprietor of a registered plot of land but: (a) is entered in the proprietorship section of the title sheet as proprietor, and (b)is in possession of the land purports to dispone the land... the disponee ("B") acquires ownership of the land provided that the conditions in subsection (3) are met. Subsection (3): conditions— -the land has been in the possession, openly, peaceably and without judicial interruption— (i)of A for a continuous period of at least 1 year, or (ii)of A and then of B for periods which together constitute such a period, -at no time during that period did the Keeper become aware that the register was inaccurate as a result of A (or B) not being the proprietor, -B is in good faith, -the disposition would have conferred ownership on B had A been proprietor when the land was disponed, [And other technical provisions]

Title conditions - real burdens - when

Where a proprietor conveys land she will often want to impose real conditions to protect various interests, for example: --Positive Obligations (to do something) --Negative Restraints (to refrain from doing something)

Formal validity/writing - Section 4 - Legal Writings (Counterparts and Delivery) (Scotland) Act 2015

Where there is a requirement for delivery of a traditional document (whether or not a document executed in counterpart)...the requirement may be satisfied by delivery by electronic means of: -a copy of the document, or -a part of such a copy. 'electronic means' means: an attachment to an email; a fax; a memory stick etc.

Nuisance - mitigation by pursuer?

Wilson v Gibb (steps to be taken, can't expect owner to change too much but steps to mitigate)

What can you have property rights in?

a corporeal or incorporeal object... ...external to the human body... ...which is an independent legal entity... ...that can be subjected to human control (or is susceptible to private ownership) and... ...is valuable or useful to mankind.

Statutory rights of access - what rights

a right to enter, stay and leave land when access is taken for: i) recreational, ii) educational or iii) certain other activities; and a right to cross land (i.e. enter land and exit, without dallying). Statute quickly clarifies "where" and "how" those rights can/must be used.

IP dealings - IP and Human rights

a strong link/conflict between the two IP Owners own human rights in their property. The Universal Declaration of Human Rights (UDHR) Article 17(2) OF the EU charter (Charter of fundamental rights of the European Union) Lisbon Treaty UK Human Rights Act 1998 freedom of expression, right to life cf right to property and right to intellectual property Ashdown v Telegraph [20012] Ch 149 - Court of Appeal Section 171(3) CDPA free expression can prevail over copyright Anheuser Busch v Portugal (Budweiser) [2007] ETMR 24 - ECtHR IP is relevant property SABAM v Netlog [2012] CMLR 18 - ECJ Human rights can be a base for challenging the power of IP owner. --Freedom of expression, rights of information and education: can challenge copyright --Public health and medicines (to gain access to medicines in the developing world in particular): challenges to patents and copyright. Essentially, patents mean that medicines are more expensive, and in the developing world that means they will be unaffordable and unattainable for many people. TRIPS protection on Patents in particular was controversial when it comes to human rights. --The Doha Declaration of 2001 supports the right of WTO member states to grant compulsory licences on public health grounds.

Co -ownership - Right in entirety of thing (case)

e.g. A and B own all 12 bottles, not 6/6 split - no upper limit on number. Grant v Heriot's trust (a metaphysical right in every minutest atom of which the property is composed - Juristic acts affecting the whole property (e.g. Sale, rights in security, leases, servitudes) require the participation of all the co-owners)

Servitudes - by express reservation example

e.g. Craig sells Chalmers land. Craig wants to keep a servitude right to lead pipes through the land he has sold. He can do this by expressly reserving a servitude in the conveyance to Chalmers. ---Gretton and Steven para.12.23. Note that there must still be writing and registration against the burdened and benefitted properties.

Land Registration etc. (Scotland) Act 2012

enable electronic conveyancing and registration of electronic documents in the land register; allow electronic documents to be used for certain contracts, unilateral obligations and trusts that must (at present) be constituted by writing; provide about the formal validity of electronic documents and for their registration; provide for the closure of the Register of Sasines in due course; Policy - completion of the Land Register of Scotland. Broadens away from transfers of property for value only. Act introduces additional "triggers" that will cause first registration.

RB - extinction examples

express discharge by the benefited proprietor; loss of interest to enforce (for real burdens); negative prescription; confusio... (but actually, this is suspension for real burdens); compulsory purchase; variation and discharge by the Lands Tribunal.

Scots private law features

obligations (contract/delict) persons (family) actions (court procedure/remedies) property (everything else)

Ownership brings entitlements/restrictions

right to use, transfer, dispose or use in an non-legal sense R - by common law/statute law by law of obligations

Registered trade marks

s. 1(1) Trade Marks Act 1994: "In this Act a "trade mark" means any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings. A trade mark may, in particular, consist of words (including personal names), designs, letters, numerals or the shape of goods or their packaging." The conventional trade marks (e.g. those consisting of letters, numerals, words, logos, pictures, symbols, or combinations of one or more of these elements), and Non-conventional trademarks may therefore be visible signs (e.g. colors, shapes, moving images, holograms, positions), or non-visible signs (e.g. sounds, scents, tastes, textures). therefore includes marks based on appearance, shape, sound, smell, taste and texture. Registration requirements: There are thus three criteria: -the mark must be a sign; -the mark must be capable of being represented graphically; -the mark must be capable of distinguishing goods or services of one undertaking from those of another. "a 'sign' is anything which can convey information" Philips Electronics BV v. Remington Consumer Products, [1998] R.P.C. 283

Derivative acquisition moveables: SOGA default position s2 - defines meaning of price, sale and agreement to sell

s.18 provides 5 'rules for ascertaining intention' which apply ' unless a different intention appears'; E.g. rule 1 'where there is an unconditional contract for the sale of specific goods in a deliverable state' property passes when the contract is made regardless of postponement of time of payment or delivery... s.21(1) 'Subject to this Act, where goods are sold by a person who is not their owner, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the sellers' authority to sell'; Act is consistent with Scots law is that its concept of ownership is a unitary one; there is no scope for the passing of a lesser form of property right under the Act;

Derivative acquisition - a two stage process (analyzed causal or abstract) Casual eng - legal act of transfer refers back to contract

stage 1 - contract, stage 2 - conveyance Delivery Abstract analysis explained: transfer is a separate and independent legal act. This is the position in Scots Law Contract/delivery good then passed property - don't resolve in property but in unjustified enrichment

Patent Registration

various routes to patent registration, either via national (UK-IPO), European (EPO), or international (PCT) avenues. The result is, however, always the same - patents are granted with territorial effect only in the countries for which protection was sought, and this can be a very costly process if multiple filing is contemplated. Rational assessment before applying. Taking into account several factors: -Actual and potential markets -The costs of patenting against possible returns (Using a patent attorney a UK patent can be obtained from around £1500 to £6000.) -a judgment on whether it is worth seeking protection in a country where imitation is unlikely, -A sense of future behaviour of competitors -Time is very important factor: not too late and not too early