Competition Law and its Effect on the use of Patent Rights

Which? has launched a £480 million complaint in the UK against 4G chip maker Qualcomm alleging that it has abused its dominant position in the marketplace by inflating prices for licenses of the patents that it holds. Which? alleges that these prices were then passed on to the consumer in the form of higher handset prices.

A patentee grants a patent license to a third party so that the third party can practice the invention without the risk of being sued. Licenses are often granted in exchange for a fee – or in exchange to license technology from the third party – so called “cross-licensing”. In this case Which? alleges that the terms of the licenses were inflated to Qualcomm’s benefit as a result of its dominant position in the marketplace.

The Federal Trade Commission in the United States brought a similar action in the United states in 2017 – but this was ultimately dismissed. However, in Europe Qualcomm was found to have broken competition law for deals it made with Apple, and for its 3G licensing deals. It received significant fines at the time.

What does this tell us about IP? Regardless of the eventual outcome of this particular case, it shows us that patent rights and competition law can be in contrast to one another. Patent rights grant monopolies – the right to exclude others from a market, whilst competition law attempts to stop dominant companies from abusing that position of dominance. Therefore, once a company is large enough that it has a dominant market share it must consider competition law when utilising its patent portfolio.

For technology companies that have a licensing based business model a successful patent strategy could mean that they become dominant in a burgeoning technology market very quickly. It’s therefore necessary to continually assess the market share you have in a particular marketplace and how that may affect your trading practices. As ever it is always best to seek professional representation if you are concerned about such matters.

Banco Barristers featured in The 2021 Edition of Best Lawyers

The recently published 2021 edition of Best Lawyers recognised the expertise and experience of 19 Banco Chambers’ barristers. Banco Chambers’ depth of expertise across a range of areas was highlighted with our barristers featured across 10 diverse practice areas including litigation, international arbitration, class actions, and insolvency. The barristers featured are:

  • Farid Assaf SC – ADR, insolvency, and international arbitration
  • Nick Bender – Litigation
  • Tom Blackburn SC – Litigation
  • Tim Breakspear – ADR, construction and infrastructure, and international arbitration
  • Peter Brereton SC – ADR and litigation
  • Sandy Dawson SC – Bet the company litigation
  • Kristen Deards SC – Tax
  • Robert Dick SC – ADR and litigation
  • Ruth Higgins SC – ADR and bet the company Litigation
  • Richard McHugh SC – ADR and litigation
  • Cameron Moore SC – ADR and litigation
  • Robert Newlinds SC – Insolvency and litigation
  • Jonathon Redwood SC – Class actions and international arbitration
  • Declan Roche – Competition law
  • Tim Senior – Defamation
  • Christopher Withers SC – Insolvency and litigation
  • Vanessa Whittaker SC – Insolvency and litigation
  • Tiffany Wong SC – Litigation
  • Robert Yezerski  – Competition law

 

Chongqing office set to further boost KWM’s presence in China

On 18 March 2021, King & Wood Mallesons Chongqing office officially opened. It is the second office set up by KWM in Southwest China, following Chengdu office, bringing the total of KWM China offices to 14. Located in Liangjiang New Area, Chongqing office obtained the approval for its establishment from Chongqing Municipal Bureau of Justice at the end of October 2020.

Chongqing, a municipality directly under the central government in Southwest China, is the largest industrial and commercial city in the southwestern of the country, an important modern national manufacturing base and a comprehensive transportation hub in the region. In recent years, the construction of the Chengdu and Chongqing Economic Circle has continued, and has been included into the 14th Five-Year Plan. The demand for high-end foreign-related legal services in the region is on the rise. KWM always pays close attention to the development of the economy and legal service market there, and has established its physical presence in Chengdu as early as in 1998. Based on the high reputation and extensive client base already established in Sichuan and Chongqing, the two offices will work together to serve a greater area, assisting more enterprises and institutions in keeping up with the global market trend and seeking cooperation worldwide. They will become the backbones of KWM in the region and even the west part at large.

By taking into consideration of the demands of clients and the market, Chongqing office will in the beginning contribute to the firm’s practice in capital market, corporate, dispute resolution, restructuring & insolvency, and to international cooperation relating to the Belt and Road Initiative, providing clients in the manufacturing, modern agriculture, technology, real estate and infrastructure, cultural tourism and other industries with professional and first-class legal services. The Chongqing team is made up of partners, counsels and associates who have been deeply delved in the regional market for many years. With a wealth of experience, strength and in-depth understanding of various sectors, the team is able to leverage the KWM platform and resources to assist clients in achieving better development locally.

Liu Rong, Finance & Securities

Liu Rong specializes in corporate, securities, and civil and commercial matters. He has more than 20 years of experience in the legal service market in Sichuan and Chongqing, and joined Chengdu office in 1999. Mr. Liu has advised many large and medium-sized SOEs, private enterprises, high-tech companies on their reorganization, restructuring, and merger and acquisition. He has also advised Chinese enterprises on their IPOs and listings on stock markets both in the Mainland and Hong Kong S.A.R. He has served as the counsel for many large SOEs, private high-tech companies and some large foreign-funded enterprises.

Liu Zhizhi
, Corporate

Liu Zhizhi focuses her practice on international construction projects and construction related investment, international trade in technology and goods, and civil and commercial dispute resolution. Ms. Liu knows the business processes of international construction projects and construction related investment, and international trade in technology and goods. She has a deep understanding of FIDIC contract conditions, standard goods procurement and engineering construction contract conditions of the World Bank and the Asian Development Bank, and other widely accepted international construction and engineering contract versions. She has substantial experience in drafting, review and negotiation of international construction contracts and imports and exports of major equipment contracts. She has advised clients on projects in Europe, Southeast Asia, the Middle East and Africa in such areas as railway, locomotive, minerals, power and other energy and infrastructure sectors.

Wang Xin, Dispute Resolution

Wang Xin focuses on M&A financing, real estate, disposal of non-performing assets, etc. Having been deeply engaged in the southwest legal market for many years, Mr. Wang has accumulated a wealth of experience in advising on real estate development, investment in and financing of real estate projects, financial assets M&A, corporate, M&A and restructuring, liquidation and disposal of financial claims and debts, dispute settlement involving atypical and defective warranties, dispute resolution & litigation, among others. He joined KWM at the end of 2020. Thanks to his deep understanding of the legal market environment of Chongqing, he earns a good reputation and rich client resources locally.

Li Baoshan
, Dispute Resolution

Li Baoshan specializes in civil and commercial litigation, arbitration and enforcement, corporate debt crisis resolution, etc. He has gained profound social connections and practice experience in his more than 20 years of dispute resolution experience. His understanding of the judgment thinking and the workflow of courts and arbitration institutions enabled him to provide reasonable and pragmatic solutions for clients. Prior to joining KWM, Mr. Li had been working as a judge entertaining hundreds of civil and commercial cases in the court system for nearly 15 years. After joining KWM, Mr. Li has provided legal services for a number of large SOEs, well-known listed companies and private companies. He is well trusted by his clients.

“We are delighted to announce that Chongqing office is open for business.” said Zhang Yi, Chairman of KWM China Management Committee, “We wouldn’t make it happen without the strong support from leaders at all levels in the Chongqing municipality and Liangjiang New Area and our clients. I would like to extend my sincere gratitude to you all. The establishment of Chongqing Office is an important step in our response to a series of national strategies underscored by the central government, such as further construction of Chengdu-Chongqing Economic Circle, the new western land-sea corridor and inland international financial centers. Chongqing office will continue KWM’s high-quality service and client-centric philosophy. With KWM’s strong legal service network and platforms spanning major cities like Beijing, Shanghai, Shenzhen and Guangzhou and even the whole world, Chongqing office will further contribute to the development of existing and new clients in the Southwestern region by taking root in the local market of Chongqing and fully tapping KWM’s global resources, which will help propel the regional development momentum and comprehensive competitiveness.”

Andersen Egypt signs acquisition deals worth one billion Egyptian pounds

Andersen Egypt’s is proud to announce that it has played a vital role in the expansion of several companies across the Middle East and Africa operating in a number of sectors, most notably tourism, hotels, real estate and pharmaceutical.  The firm’s role has been to provide an array of legal and advisory services for projects with a total value exceeding 1 billion EGP.
Andersen Egypt is one of a handful of companies licensed by the Egyptian Financial Regulatory Authority to provide financial advisory services, in addition to its comprehensive legal and tax service offerings.
This department is headed by Mohamed A. Abdelhaleem Senior Partner and Transaction Advisory Services Leader. Mohamed brings more than 20 years of experience in corporate finance and valuations with his expertise ranging from advising SMEs to large, global multinationals and family groups, as well as various private equity

To find out more, please click on the links below:

https://eg.andersen.com/services/advisory-services/

https://www.alnasher-elmasry.com/2021/03/blog-post_3064.html

Get to know Grant Thornton

Grant Thornton is one of the world’s leading organisations of independent assurance, tax and advisory firms. These firms help dynamic organisations unlock their potential for growth by providing meaningful, forward looking advice. Proactive teams, led by approachable partners in these firms, use insights, experience and instinct to understand complex issues for privately owned, publicly listed and public sector clients and help them to find solutions. More than 53,000 Grant Thornton people, in over 130 countries, are focused on making a difference to clients, colleagues and the communities in which we live and work.

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Irwin Mitchell Boosts Employment Team With Partner Hire

Law Firm Continues To Invest In Its Services For Senior Executives And Employees

National law firm Irwin Mitchell has boosted its London Employment and Professional Discipline team with the appointment of partner Danielle Parsons from Slater & Gordon.

Danielle is a leading lawyer representing senior executives and professionals in high value discrimination, whistleblowing and high court claims. She also advises on bonus disputes, severance packages and restrictive covenants.

Her clients come from a wide range of sectors including individuals working in financial services, healthcare and medical sectors, and creative industries, including TV and print media. She also acts for senior solicitors and barristers.

Shah Qureshi, Head of the Employment and Professional Discipline team in London at Irwin Mitchell, said:

Expert Opinion

“The past year has been a difficult time for many senior employees with the Covid pandemic creating a great deal of uncertainty. The need for expert employment law advice has never been greater.

“We are delighted that Danielle has joined us and her arrival is a welcome boost for the team. She is well-respected and will bring a high level of expertise for our clients. The number of enquiries we receive from senior professionals suffering discrimination and whistleblowers being victimised has grown exponentially since the start of the pandemic and Danielle’s arrival continues our plans to grow the team and meet that need.”
Shah Qureshi – Partner

Commenting on her arrival, Danielle said: “Irwin Mitchell’s national Employment team is one of the largest in the UK with one of the strongest reputations. I am delighted to join the firm’s London team which specialises in advising senior executives and professionals. I am looking forward to building on this and supporting the team’s continued growth.”

Fergal Dowling, partner and National Head of the Employment team, added: “Our team in London is one of the UK’s leading teams advising senior executives and professionals. Employment services have been in high demand amongst our existing clients and we have been appointed by some very high profile businesses and individuals during 2020. Our new business pipeline looks very strong and we are anticipating further growth over the next 12 months.

“Our success is based on us being one of the most innovative and best resourced employment teams in the UK. It is our vision to offer practical solutions for our clients as their needs and demands change and this has certainly been evident over the last year.

“Danielle joining our senior team is an important development for us in 2021 and I’m confident that her appointment will help us stay one step ahead.”

IP STARS 2021 RANKINGS

Gorodissky & Partners (Ukraine) once again was ranked among the best firms providing services in the field of trademark protection and enforcement according to the IP STARS 2021 rankings.

IP STARS is the world’s leading specialized intellectual property resource, conducting annual surveys since 1994 and covering more than 70 jurisdictions.

The results of the survey can be looked at under following the link:

Managing Intellectual Property

Jeantet Advised Telecom Invest a Management Trust with Natixis

Paris, 12th April 2021 – Jeantet AARPI advised Telecom Invest in the establishment of a management trust with Natixis CIB, fiduciary.

This unprecedented structuring will enable the trust set up by Télécom Invest and managed by Natixis CIB to acquire receivables in respect of leases on land used for telecommunications infrastructures and rights to manage them, without transferring real property rights.

Telecom Invest, a subsidiary of US-based APWireless (Radius Group), is a leading investor in telecom infrastructure underlyings around the world.

On this operation Jeantet’s team was composed of Catherine Saint Geniest (Partner, Real Estate), Jean-François Adelle (Partner, Finance), Jean-Guillaume Follorou (Partner, Tax), Gabriel di Chiara (Counsel, Tax), Thibault Mercier (Associate, Finance), of Laure Asdrubal and Chloé Abgrall (Associates, Real Estate).

Jeantet has significant experience in the fields of real estate management, investment and trusts and advises numerous French and international clients on their real estate and financial engineering transactions.

Natixis CIB was advised by Fidal and Bentam (Guillaume Ansaloni, Partner).

About Jeantet

Committed to ethics and human values, Jeantet is one of the leading independent French business law firms that delivers customized services with added value.

Our lawyers are fully aware of the economic, technological, sectoral, and legal changes our clients face and are able to anticipate, take action and propose solutions that are reliable, pragmatic and tailored to their clients’ challenges.

Well-established in its market thanks to solid foundations, Jeantet combines its excellence in legal expertise, in both advice and litigation, along with its entrepreneurial culture, to contribute to the success of its clients’ projects.

Jeantet, with a presence in Paris but also in Budapest, Casablanca, Geneva, Kiev, and Moscow, has more than 120 lawyers, including 30 partners.

IP Introduces Fast Track Trademark Registration and Renewal

On 23 February 2021, the Department of Intellectual Property issued a Notification introducing a fast track examination process for trademark registration and renewal. This notification is issued with the aim of expediting trademark registrations and the renewal process, thus enhancing and facilitating trademark protection for both the private sector and general public; enabling them to build a conductive business operation.

For the fast track trademark registration, an application for trademark registration will be examined within six months from the filing date, although the publication period and grant of the registration certificate may not be completed in said six-month period. The trademark application eligible for the fast track process must comply with the following conditions:

  • The lists of goods/services must not exceed 30 items.
  • The specifications of goods/services must all conform to the recommended acceptable specifications of the Department of Intellectual Property.

For the fast track trademark renewal, each application will be examined within 45 minutes from the time of submission. The renewal application eligible for fast track renewal must meet the following conditions:

  • The lists of goods/services under the trademark registration must not exceed 30 items.
  • There must be no amendments to the specifications of goods/services under the trademark registration.
  • The renewal application must be submitted at the Department of Intellectual Property, Ministry of Commerce, by the trademark owner or appointed agent. In the latter case, the power of attorney must state that the appointed agent has the authority to receive a certificate of registration.
  • The applicant or appointed agent must request at the time of submission that he/she would like the Trademark Registrar to urgently examine the renewal application and issue the certificate of trademark registration renewal.
  • The official renewal fees must be fully paid. In the event that the renewal application is defective but possible to be corrected within the date of submission of the renewal application, the Registrar shall order the amendment and accordingly grant permission for trademark registration renewal on the date of submission of the renewal application. However, if the application cannot be resolved by the date of submission of the renewal application, the Registrar shall examine the renewal application within the period specified in the public manual (normal process), according to the Licensing Facilitation Act B.E. 2558 (2015).

Please note that this Notification applies to all types of marks, i.e. trademark, service mark, certification mark, and collective mark.

New Dutch legislative proposal on transfer pricing mismatches

A new Dutch legislative proposal has been published for public consultation in order to prevent tax avoidance due to mismatches that relate to transfer pricing. At the same time two other proposals have been filed with respect to Atad2 application and qualification of foreign entities, which will not be covered in this news flash.

The legislative proposal includes a new Corporate Income Tax law article, which targets mismatches that exist because of commercial to tax differences that lead to a lower taxable income without a pick-up in the other jurisdiction. The main reason being that a different system is being applied in the other jurisdiction.
In the Netherlands, the arm’s length principle implies that associated enterprises within a group have to comply with the arm’s length principle for corporate income tax purposes. Commercially, transactions are not always aligned with the arm’s length principle which may lead to commercial to tax differences as a consequence. If other countries involved apply the arm’s length principle differently or not at all, the risk of mismatches arises.

Mismatches may result in double non taxation.
Examples are interest rates, a “step-up” for assets or additional income reported on transactions, which are adjustments to align with the arm’s length principle. This may lead to either an informal capital contribution or a deemed dividend from the perspective of the Dutch company. If such adjustments lead to a lower taxable income in the Netherlands, but not to an equally higher taxable income, pick-up, in the other country(ies) involved, the new article will apply.

According to the newly proposed art. 8ba VPB, the deductibility of for example interest rate adjustments will partly be rejected for negative tax to commercial differences, if the taxpayer is not able to proof that a corresponding upward adjustment is made at the end of the foreign entity. Also downward income adjustments or a “step up” for assets with corresponding depreciation, will only lead to a lower taxable income, if the transactions are declared accordingly in the other jurisdiction. It may also impact back-to-back financials transactions.
It is intended that this new article will come into effect on 1 January 2022.