Alternative investment market


The Alternative Investment Market (AIM) has been a great success in allowing more than 1,300 businesses the benefits of a public quotation with a flexible regulatory approach. The London Stock Exchange has been keen to protect this flexibility and, as a result, the status of AIM will change. AIM ceased to operate as a regulated market from 12 October 2004 and instead will become an 'exchange regulated market'.


This means AIM will still be regulated by the Financial Services Authority under the Financial Services and Markets Act 2000, but it will be outside the remit of some parts of the financial services action plan - for example, the prospectus directive and the transparency directive.


These will bring in provisions for regulated markets that are more onerous than those currently applied.



Trade mark



Société des Produits Nestlé SA v Mars UK Ltd, CA, 26 July 2004



Nestlé lost its appeal to amend its application for a trade mark under sections 13 or 39 (1) of the Trade Marks Act 1994. The Court of Appeal confirmed the approach in Swizzels Matlow Ltd's Application [1999] RPC 879, and Robert McBride Ltd's Trademark Application [2003] RPC 19.


The issue was whether Nestlé should be allowed to register a mark that differed from the sign presented visually and as described in its initial application.


Nestlé had applied to register the three dimensional shape of a polo mint without the word 'polo' on it. This was challenged on the basis that, as there was no restriction in respect of its size or colour, it was not sufficiently distinctive and, therefore, was unregistrable. Nestlé had argued that this would restrict the goods covered by the application.


However, the Court of Appeal held that this was a valid requirement and it ensured that the mark itself was restricted to the goods covered by the registration.



Your round: under lease, publican obliged to purchase beerDelay - violation of article 6.1



Eastaway v UK (Application No 74976/01) ECHR, 20 July 2004



This case arose from proceedings following the Blackspur group of companies going into receivership. The application to the European Court of Human Rights (ECHR) bears many similarities to Davies v UK (The Times, 1 August 2002).



It was held that the length of delay in proceedings against Mr Eastaway was a violation of article 6.1 of the European Convention on Human Rights. As in Davies, the ECHR was mindful that the length of proceedings had to be assessed in the light of the circumstances of the case. There must be regard to the complexity of the case and the conduct of the parties to the dispute and of the relevant authorities.



Damages - breach of competition law



Crehan v Inntrepreneur Pub Co CPC [2004] EWCA Civ 637



For the first time, the UK courts have awarded damages for a breach of competition law. The Competition Act 1998 was expected to encourage litigants to take cases in the national courts but to date this has simply not happened. Crehan may lead the way, owing to the Court of Appeal's clear statement on the relationship between the UK courts and the community institutions.



Mr Crehan was a publican who had entered a lease with Inntrepreneur that included an obligation for him to purchase a minimum quantity of beer from Inntrepreneur or its nominees. Mr Crehan was obliged to pay the full price specified in its price lists whereas free houses were able to buy the same beer at substantially discounted prices.


Mr Crehan's business was in financial difficulties and, in due course, received a claim for unpaid purchases of beer. Mr Crehan defended the claim and made a counterclaim that the terms of the lease were in breach of article 81 of the EC treaty.



At first instance, judgment was given for the defendant. In reaching this decision, the judge heard argument on Whitbread [1999] OJL 88/26, a previous decision of the European Commission regarding article 81.



The first instance decision was overturned. The Court of Appeal's view was that if the commission was wrong in its decisions, that had to be decided by the European Court of Justice or the Court of First Instance. A contrary decision by a national court offended against the principle of legal certainty. The national courts were obliged under the duty of sincere co-operation to the community institutions and it was not open to the national court to declare a decision of the commission incorrect.



By Coral Hill, College of Law, London