IP in M&A

When businesses are bought or sold, or assets reorganised within a corporate group, it is important that intellectual property (IP) issues are considered and addressed so that businesses can continue to operate normally and without disruption. In some cases IP will be critical to the operation of a business, and in others IP will play a more ancillary role. There are almost no cases where a business will not rely on any IP rights or use no material subject to IP protection in its wider operations.

IP as a business asset

IP is first and foremost a form of property, and is a key asset for many businesses. How critical a role that IP plays in the success of a business will depend both on the nature of the business and the nature of the IP. A business engaged in producing consumer products will depend heavily on trade marks and rights in passing off to protect their brand and position in the market. For some businesses their core value may come from ownership of patents giving them a monopoly over a particular inventive product or process. For other businesses,

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The construction of jurisdiction clauses in the context of the Contracts (Rights of Third Parties) Act 1999 and the mechanisms of service(Campeau v Gottex Real Asset Fund 1 (OE) Waste S.À.R.L)

Dispute Resolution analysis: This case considers a jurisdictional clause in the context of service under CPR 6.33(2B)(b), which allows service out of the jurisdiction where the defendant is party to a jurisdiction clause. There is no corresponding requirement for the claimant to be a party to that jurisdiction clause. The starting point is that jurisdiction clauses are not generally intended to concern disputes with third parties. However, that is no more than a starting point and one which can be departed from in appropriate cases. This was one such appropriate case whereby the circumstances and construction of the clause led to the finding that it did include the third party claimant’s (Mr Campeau) claim. While not strictly necessary given the judge’s findings in relation to the construction of the clause, Mr Justice Butcher considered that, where a jurisdictional clause was wide enough to encompass disputes from third parties, then it will likely also amount to a ‘relevant term’ for the purposes of section 1(4) of the Contracts (Rights of Third Parties) Act 1999 (C(RTP)A 1999). That meant that the third party, in seeking to enforce their rights under the SPA, was statutorily obliged to do so in England and so could rely upon CPR 6.33 (2B) (b) in that respect also. Written by Georgia Whiting, legal counsel (contentious construction) at Capita.

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