The Consumer Rights Act 2015

Consumer Rights Act 2015

The Consumer Rights Act 2015 (the “Act”) received Royal Assent on 26 March and it is currently proposed that its main provisions come into force on 1 October this year. The Act is relevant to all consumers and any person or organisation that sells goods or services directly to consumers. If you are an organisation providing goods or services, the implementation of the Act provides a good opportunity for you to review your current terms and conditions and ensure that they are compliant.

Background

Before the Act, consumer law in the UK was very complicated and difficult to navigate for lawyers and even more complex for the average consumer to understand. There were no fewer than ten pieces of legislation relating to domestic consumer law ranging from the Sale of Goods Act 1979 to the Enterprise Act 2002. Consumer law was also not up to date with technological changes in the market place and did not sufficiently address issues arising from internet shopping and downloading of digital content such as apps, music, and films.

The Act seeks to amalgamate in one place the rules governing consumer rights in the UK. The Act is split into three parts: Part 1 Consumer contracts for goods, digital content and services; Part 2 Unfair Terms; and Part 3 Miscellaneous and general provisions. Below is a summary of the key provisions.

Consumer contracts

In relation to goods, the Act sets out the standards that must be met (e.g. that goods must be of satisfactory quality, as described, fit for a particular purpose and so forth) and the remedies available to consumers for goods supplied under different types of contract (previously such remedies were inconsistent). Consumers now have thirty days in which to reject substandard goods and if they reject goods within this time period, they will be entitled to a full refund. Limits have been placed on the number of times replacement goods and repairs can be offered before the provider must offer money back to the consumer and on the extent to which a provider can reduce the amount of a refund where the goods are not initially rejected (for example, if the final right to reject is exercised by the consumer in the first six months, no deduction to the refund can be made).

The Act also sets out consumer rights in relation to the provision of services. A service must be performed with reasonable care and skill, a reasonable price is to be paid for it and it must be provided within a reasonable time. The consumer has statutory remedies of repeat performance and price reduction if a service does not comply with the contract. In addition, information about the service provider or service is now binding. For example, if a salesperson says something about the service and the consumer then relies on that statement, that information will be binding (even if it is not included in a written contract).

The Act introduces a new category in consumer law namely, digital content, and sets out the statutory remedies available to consumers if their digital content rights are not met.

The rights and remedies which are available to consumer cannot be excluded or limited.

Unfair terms

The second part of the Act consolidates, but also adds to, the current laws on unfair contract terms. If a term of a consumer contract is deemed to be unfair, it will not be binding on the consumer. A term is considered unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer. Schedule 2 of the Act also sets out a non-exhaustive list of terms which may be regarded as unfair (for example, a term which has the object or effect of excluding or limiting the trader’s liability in the event of the death of or personal injury).

Certain terms in a consumer contract are excluded from the “fairness” test. Terms which specify the main subject matter of the contract or relate to the price of the contract cannot be assessed for fairness provided that they are transparent (in plain and intelligible language and (in the case of a written term) are legible) and prominent (if brought to the consumer’s attention in such a way that an average consumer would be aware of the term).

Summary

So if your organisation is providing a service or selling goods directly to the consumer, we would urge you to review your terms and conditions of sale to check that they are compliant with the relevant provisions of the Act before it comes into force later this year.

BrianMiller is a solicitor and partner and Lauren Mitchum a trainee solicitor at Stone King LLP, providing specialist advice in the fields of intellectual property, IT, data protection and commercial law.

If you would like further information about the Regulations or if you have any concerns or queries in relation to them, please contact Brian.

Disclaimer: This article may not be reproduced without the prior written permission of the author. This article reflects the current law and practice. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.

The Consumer Contracts Regulations. Is Your Business Ready?

Do you have terms and conditions with your customers which deal with consumers?  If so, the chances are that the new Consumer Contracts Regulations 2013 will apply to your business or organisation.  Brian Miller and Clive Vergnaud of Stone King LLP explain why they need to be compliant with the new Regulations.

Read more here: Consumer Contracts Regulations: Is My Business Compliant?

Protecting Your Brand and Intellectual Property by Brian Miller, Solicitor and Trade Mark Lawyer

A whistlestop tour to protecting your brand and intellectual property by registration of trademarks, design rights and domain names and the consequences of not doing so is now available at here: An Introduction to Intellectual Property by Brian Miller, Trademark Lawyer and IT Solicitor . Includes guidance on how to deal with cybersquatters, copyright and its exceptions, how to register trade marks, design rights and patents, use of databases and website compliance.

The Trademark Clearinghouse: Should I Register?

Brian Miller examines whether you should consider registering your trade mark with the Trademarks Clearinghouse or whether in fact you would just be better employing a private domain watching service. For more information, go to The Trademarks Clearinghouse: Should I Register?

EU COMMISSION PLANS INCREASE TO EU TRADE MARK FEES by Brian Miller Solicitor

Following a discovery by the EU Commission that OHIM, the body responsible for registering EU trade marks, is making a profit from its fees, the Commission plans to remove the surplus to its own funds.

As part of this review, the Commission intends to reduce the number of classes which are included in the initial one off registration fee from three classes to one. This will effectively increase costs for all businesses (but particularly small ones), who cannot ill afford this increase in costs, unless they simply decide to register an EU trade mark only in one class.

But deciding to take that strategy in order to save costs is not advisable, since if a business or organisation operates in more than one area, it will need to register in more than one class  in order properly to protect its brand. It will therefore have no choice but to pay the extra fees if it wishes to continue to do so.

OHIM fees to register a trade mark are currently €900 for an online application (€1050 otherwise), which includes three classes.  The fee for each addition class is €150 euros.  This means that, in order to sustain an application which includes three classes, the applicant will pay an extra €300 euros, an increase of 33% over the current fee for a trade mark which includes three classes.

There was a mini-hearing before the Legal Affairs Committee of the European Parliament just before the summer break, on 8 July. The issues of fees was hotly debated and member states have unanimously rejected the Commission’s legislative package, on the grounds principally that it overlooks the interests of SMEs, which the Commission hotly contests.

The debate rolls on and time will tell whether SMEs will persuade the Commission that changing from a one-fee-for-three-classes to one-fee-for-one-class approach is only going to increase the coffers of OHIM, which was the main reason for making the change in the first place!

ESTATE PLANNING: Digital Death

In an age of social networking and online media, it is easy to overlook the potential value digital data holds when dealing with the estate of a deceased person.

We all know the importance of estate planning for our investments and physical possessions, but what steps should we be taking to protect the belongings we store online and other intellectual property?

Email

Broadly, you own your personal email and electronic correspondence, which can be left to a beneficiary in a will. However, if a username and password are not specified, a will might be not enough to force some email providers to grant a beneficiary access to your emails.

By way of example, in 2005, Yahoo! refused to release the login and password to the family of a Marine who died in Iraq. The matter went to court and Yahoo! was ordered to release the account details to the family. Gmail and Hotmail will provide a CD copy of emails to a family, provided proof of death and proof of relationship are supplied.

Conversely, you might not actually want anyone to be able to access your email account on death. If this is the case and you want your executors to close your online accounts after you die, you should explicitly stipulate your login details and wishes in a letter of wishes associated with your will.

Facebook and Twitter

Facebook and Twitter will provide login details, regardless of what your will specifies, as the Terms and Conditions of both stipulate that a user’s account is the property of the company. On death, Twitter will delete your account after receiving the death certificate from a family member, even if technically this is the prerogative of your executors.

When a member of Facebook dies, their profile can be ‘memorialised’, meaning only the user’s friends are allowed to see and comment on the deceased’s page. Facebook will remove an account if requested by the deceased’s family after they provide a death certificate, although again technically this is the prerogative of your executors.

Patents

A patent is a right that allows inventors to prevent another from making, selling, or using another invention that is similar in nature. Patents may be used to protect inventions, machines, devices and processes.

In the case of a deceased owner of a patent, a certified copy of the probate or letters of administration is required. The executor named should then complete an assignment as though he were the owner but where the executor and beneficiary are the same person or the named beneficiary is to be entered as the new owner, a copy of the will or a signed statement of “assent” by the executor may be required.

Trademarks

A trademark is a legal means of identification to distinguish a trader and his or her products from those of other traders.  It can be a word, letters, a logo, a shape, numerals, a signature, and even sounds and smells, or a combination of these.

Trademark rights can last indefinitely as long as the owner continues to use the mark to identify its goods or services. The term of a trademark is 10 years, with 10-year renewal terms.

Designated trademarks and brands are the property of their respective owners. If an owner of a trademark passes away, form TM16 must be filed with the Intellectual Property Office (IPO) to record the change in the register of trade marks. As with a patent, the legal term for a transfer of ownership is an 'assignment’.

Intestacy

If an artist is domiciled in the UK and they have not made a will, then all of the assets which are in their sole name, including all real and personal property, money, artwork, copyright and ARRs, will pass to their next of kin in accordance with the rules of intestacy. These rules dictate how and to whom an estate will be distributed and as such this may not be in accordance with the wishes of the artist. In addition, unexpected inheritance tax charges can follow on intestacy, when some assets pass in trust to children and not just a surviving spouse or civil partner.

Estate Planning

A properly drafted will and effective estate planning are essential if you want to ensure that your estate passes to the people you choose it to go to in the most efficient way. 

At Stone King we can advise you on the best way to make provision for your family and loved ones, taking all your circumstances into account. Our specialist wills and estate solicitors can also act as your professional executors and trustees, either working alone or alongside others.

If you would like to know more, Brian Miller can be contacted at Stone King, Solicitors or by calling 0207 324 1523.

Disclaimer: This article may not be reproduced without the prior written permission of the author. This article reflects the current law and practice. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.

IP Lawsuits: There’s one born every minute

The latest Apple v. Samsung case is just the tip of the iceberg.

In a trend Matt Asay recently dubbed ‘patent insanity’, the likes of Google, Nokia, HTC and even Amazon have joined old culprit Microsoft in turning their attention to feuding over IP.  This pattern is leading to concerns that innovation will be stifled in the electronic market.

After the introduction of the Android smartphone in January 2010 the late Steve Jobs declared:   ‘I’m going to destroy Android, because it’s a stolen product.  I’m willing to go thermonuclear war on this’.

His infamous knack for prediction would appear to be on the money once again as bloggers liken battles over IP between corporate giants to ‘WWIII’.  Certainly, IP suits have become fiercer, and with higher stakes.

The latest suit launched by Google against Apple threatens to ban iPhones, iPads and iPods from entry into the U.S., worth an estimated $120 billion in annual revenue.

Clearly, the current climate is not one in which to underestimate the value of IP.  If you are in doubt as to whether or not your invention ought to be patented or be protected in some other way, we can offer specialist advice.