An EU trade mark (EUTM) registration is a single trade mark covering all EU Member States. For more information about the EUTM regime, see Practice Notes: EU trade marks (EUTMs) and EU trade marks—legislation. The registration of an EUTM gives the owner the exclusive right to prevent others from using that mark, or a similar mark, without their consent in the EU. A trade mark owner may bring an action for trade mark infringement for unauthorised use of the mark. For more information, see Practice Note: Trade mark infringement—EU. In order to ensure that other traders are allowed to compete freely and fairly in the market place, however, there are a number of defences and exceptions to trade mark infringement. This Practice Note considers the application of defences and exceptions to infringement of EUTMs. In particular, it covers the following: • limitation of the effects of an EUTM • exhaustion of the rights conferred by an EUTM • the intervening right of the proprietor of a later registered trade mark

The registration of a UK trade mark gives the owner the exclusive right to prevent others from using that mark, or a similar mark, without their consent. A trade mark owner may bring an action for trade mark infringement for unauthorised use of the mark. For more information, see Practice Note: Trade mark infringement—UK. In order to ensure that other traders are allowed to compete freely and fairly in the market place, however, there are a number of defences and exceptions to trade mark infringement. This Practice Note includes discussion of the application of the statutory defences and exceptions to trade mark infringement under section 11 of the Trade Marks Act 1994 (TMA 1994)—including the defendant’s own use of a registered trade mark, use of own name and address, use of indications concerning characteristics of goods and service or intended purpose, and use of an earlier right in a particular locality. It also considers the defence of non-use in infringement proceedings pursuant to TMA 1994, s 11A. In addition, it considers

Statutory defence—section 58 The burden is on the claimant to establish a breach of section 41 of the Highways Act 1980 (HiA 1980) (duty to maintain the highway). However, once a breach has been established, a highway authority will have a statutory defence if it can prove it took such care as was reasonable in all the circumstances to ensure that the section of the highway was safe. The burden of proof is on the defendant. HiA 1980, s 58(2) sets out the matters that the court will consider when assessing whether the defence will succeed: • the character of the highway and the traffic that might be expected to use it • the standard of maintenance appropriate for a highway of that character and used by such traffic • the state of repair in which a reasonable person would expect to find the highway • whether the highway authority knew, or ought to have known, that the condition of the highway to which the cause of action relates was likely to cause danger

Defendant to raise their defence A number of defences may apply in road traffic cases. These include: • automatism • insanity • duress and necessity, and • the 'hip flask' defence When the defendant relies on a specific defence, they must place sufficient evidence before the court to properly raise the issue at trial. This is known as the 'evidential burden'. It must be distinguished from the legal burden of proof, which places an obligation on a party to prove a fact in issue. The prosecution ordinarily bears the legal burden of proof. See Practice Note: Burden and standard of proof in criminal proceedings. The 'evidential burden' can be satisfied by the defendant entering the witness box and giving details of their defence. Therefore, once raised by the defence, the onus then falls on the prosecution to prove, to the criminal standard (beyond reasonable doubt/so that the jury can be sure), that the defence raised is not true. In cases of the defence of insanity or where the defendant relies on

The usual defences are available to a defendant such as limitation. A defendant may deny that it was in occupation or control of the premises or otherwise deny that it owed a duty of care to the claimant or that there was a breach of duty. The defendant may also argue that the claimant was not a lawful visitor in terms of the Occupiers’ Liability Act 1957 (OLA 1957) and that they were a trespasser and so the more limited duty was owed to the claimant under the Occupiers’ Liability Act 1984 (OLA 1984). Alternatively, the defendant may deny that the claimant was a visitor or a trespasser and allege that the claimant was using a public right of way and therefore no duty of care was owed under OLA 1957 and OLA 1984. The following possible defences may also be advanced by an occupier. Contributory negligence The Law Reform (Contributory Negligence) Act 1945 has application in cases brought under both OLA 1957 and OLA 1984. The occupier may allege that the visitor's injuries were

This Practice Note deals with various defences which can arise in road traffic accidents (RTAs) including contributory negligence such as accidents involving failure to wear seat belts or helmets, children and alcohol use. This Practice Note also considers unavoidable accidents, involuntary acts, latent defects and the defence of illegality (or ex turpi causa). It is common for contributory negligence to be pleaded as a defence in road traffic accident cases and reference should be made to the case law in this area. In particular, if the failure to wear a seat belt has affected the claimant’s injuries this will normally result in a deduction for contributory negligence of between 15% and 25%. Unavoidable accident A defendant may be able to avoid liability if they can prove that they could not have avoided the accident. Every case turns on its own facts but the following issues may be relevant: • the speed the vehicle was travelling (not necessarily just in relation to the speed limit but also with regard to the road, weather and traffic

Defending a tort claim—general considerations In reality, many claims are ‘defended’ on the basis that the defendant either did not owe the claimant a duty, there was no breach of duty or there was a break in the chain of causation. In each of those cases, the claimant has failed to establish that the defendant is prima facie liable. For guidance on establishing liability for the tort of negligence, see Practice Notes: • Negligence—key elements to establish a negligence claim • Negligence—when does a duty of care arise? • Negligence—establishing a duty of care—specific scenarios • Negligence—when is the duty of care breached? This Practice Note considers the defences which may exculpate a defendant from liability where liability has prima facie been established. Limitation defences in tort claims Even where there has been a duty which has been breached, the claimant may still face the prospect of their claim being resisted or struck out if the defence can establish that the claim is time-barred. For further guidance, see Practice Notes: • Limitation—tort claims • Limitation—professional negligence

Limitation or exclusion of liability for defective products in any contract term, notice or other provision is prohibited. Defences to a claim under the Consumer Protection Act 1987 (CPA 1987) fall into four main categories: • the injured person has been unable to discharge the burden of proof • the defendant is able to establish one of the statutory defences in CPA 1987, s 4 • the claimant is debarred from proceeding by one or more of the CPA 1987’s time limits • the defences of contributory negligence or volenti non fit injuria (the willing acceptance of risk) apply While liability imposed by CPA 1987 is strict, it is not absolute. There is scope for avoiding liability if producers can successfully raise one or more of the statutory defences. Statutory defences Compliance with UK or assimilated EU law This statutory defence will succeed if the defendant can demonstrate that the defect is due to compliance with any requirement imposed by UK or EU law. From IP completion

This Practice Note deals with defences that may arise against a claim for injuries caused by an animal. It covers accidents caused by the claimant, voluntary acceptance of risk, trespass and contributory negligence. The Animals Act 1971 is referred to in this Practice Note as AA 1971. Accident caused by claimant A defendant will escape liability for injury caused by an animal if they can show under AA 1971, s 5(1) that the claimant’s injury was wholly their own fault. Examples might include: • riding too close to another horse in a show ring causing that horse to kick out (see Jones v Baldwin (2010) Cardiff County Court (not reported by LexisNexis®)) • grabbing and restraining a dog so that it feels threatened and bites (see Preskey v Sutcliffe (2013) Leeds County Court (not reported by LexisNexis®)) Voluntary acceptance of risk A defendant will also escape liability under AA 1971, s 5(2) if the claimant

This Practice Note focuses on the defences to enforcement of arbitral awards in the United States of America (USA or US) under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed 10 June 1958 (the New York Convention). Practice Note: Enforcing a New York Convention award in the USA, considers the enforcement of arbitral awards in the US, including the requirements of the Federal Arbitration Act (FAA) (9 U.S.C.) and the New York Convention. Practice Notes: Enforcing international commercial arbitral awards in New York and Enforcing international arbitration awards in Washington, DC may also be useful. For more information on the New York Convention generally, see Practice Note: The New York Convention—the recognition and enforcement of arbitral awards—an introduction. Note: All references to US case law in this Practice Note are not reported by LexisNexis®. Defences

This Practice Note provides an overview of the range of defences available in claims for infringement of EU designs and the counterclaims that might be advanced in such cases. The registered Community design (RCD) and the unregistered Community design (UCD), collectively referred to as ‘Community designs’, were brought into being under Regulation (EC) 6/2002. They are unitary design rights which cover the whole of the EU and can be enforced accordingly. In November 2022, the EU Commission adopted two proposals to modernise design legislation at an EU and national Member State level, to make the procedure to register designs at EU level cheaper and easier and to harmonise procedures between the EU and national systems. The primary package of legislation underpinning the reforms comprised the following legislation: • Regulation (EU) 2024/2822 of the European Parliament and of the Council of 23 October 2024 amending Council Regulation (EC) 6/2002 on Community designs and repealing Commission Regulation (EC) 2246/2002 (the Amending Regulation) • Directive (EU) 2024/2823 of the European Parliament and of the Council of 23 October

This Practice Note provides a brief overview of the range of defences available in claims for infringement of UK registered and/or unregistered designs and the counterclaims that might be advanced in such cases. It deals with UK registered designs, UK unregistered design rights and supplementary unregistered designs (SUDs). It covers non-infringement, exclusions from infringement, innocent infringement, validity and subsistence, lack of design protection and unjustified threats. For more information about infringement of UK designs, see Practice Notes: Infringement of UK registered and unregistered designs and Design disputes—a practical guide. Background to designs The designs regime in the UK is fairly complicated (especially following Brexit) and covers a number of different rights. As there is overlap between these different rights, it is possible for one product to be covered by more than one design right at a time. For more information about the interaction of the various design rights, see Practice Notes: UK registered and unregistered designs and Comparison tables for design protection available in the UK. Prior to Brexit, the UK design