IP analysis: The Intellectual Property Enterprise Court has dismissed Oatly’s claims of trade mark infringement and passing off. The claims concerned infringement under sections 10(2) and (3) of the Trade Marks Act 1994 (TMA 1994) and passing off in relation to several variants of the OATLY trade mark and product packaging. Oatly sell an oat-based dairy alternative drink under the brand name OATLY. Glebe Farm sell a competing oat-based drink under the brand name PUREOATY. Following the commencement of legal proceedings, Oatly’s claims ultimately failed due to a lack of evidence of actual consumer confusion and the low level of similarity between the marks. Written by Joshua Marshall, senior associate at Fieldfisher LLP.

Latin for 'said in passing'.

In legal practice, “object” usually refers to the purpose or aim of a legal arrangement, act or entity, rather than a physical thing. For companies and other bodies corporate, it commonly denotes the “objects” or purposes set out in the constitution or articles of association (formerly the objects clause in a memorandum of association). These objects define, and historically limited, the company’s capacity and powers. Across England and Wales, Scotland, Northern Ireland and Ireland, the term is used consistently in company law, charity law and trust law to describe stated purposes (for example, charitable objects in a trust deed or constitution). Statute and case law in these areas often refer to “objects” when assessing validity, ultra vires acts, or whether purposes are exclusively charitable. “Object” is also used in contract, criminal and EU/competition law to denote the aim or intended effect of a provision or conduct (for example, an agreement having as its “object” the restriction of competition). In these contexts it is a descriptive expression, interpreted in line with the relevant statutory or common law framework.

Where the agreement or conduct in question reveals a sufficient degree of harm to competition that there is no need to examine its effects, having regard to the contents of its provisions, its objectives and its economic and legal context.

Generally, agreements that have either the object or effect of restricting, distorting or preventing competition are prohibited under Article 101(1) TFEU. Agreements with an anti-competitive object are those that are particularly high risk and are presumed to have a negative impact on markets—because of their seriousness, there is no need to prove that there is an actual negative effect on competition. The meaning of what the object of an agreement is has been one of the most debated points in competition law, with a long line of case law dating back to 1966. The test to determine whether an agreement has an anti-competitive object was historically interpreted widely, meaning that many agreements could fall within the test, even where it appears that the parties did not intend to do so. The reason why the test has been interpreted widely is that, prior to 2004, only the European Commission (the Commission) could apply the exemption in Article 101(3) TFEU to agreements. Therefore, Article 101(1) TFEU and the object test existed solely to determine when the

Pre-application—finding out about proposals In England, proposals for major development should be informed by early engagement with neighbours and the local community, as well as with the local planning authority (LPA) and other relevant bodies, to identify and seek to resolve key planning matters before an application is submitted. The engagement should be proportionate to the nature of the proposal and those likely to be affected. The proposal should be accompanied by a concise planning statement explaining the outcome of the engagement and the extent to which the proposal has changed in response. Objectors should therefore consider participating in any pre-application engagement and retaining a record of the planning matters raised and any response. Before a planning application is submitted, an objector can find out more about a development proposal by: • checking the online planning register of the relevant LPA. Most online planning registers can be searched using a property address, and many LPAs keep details of pre-application discussions with developers on their planning register. Such details may reveal what is proposed for a site, at what stage

The EU courts, followed by the EU Commission have created the possibility that firms can present objective justification for conduct that appears to abuse a dominant position.

This Practice Note contains references to case law of the Court of Justice of the European Union (CJEU). For guidance on whether EU judgments are binding on UK courts, see Practice Note: Assimilated law — Assimilated case law. What is objective justification? As explained below, objective justification may be a defence to a claim of either direct or indirect discrimination, but is available in only very limited circumstances in cases of direct discrimination. Under the Equality Act 2010 (EqA 2010), there is prima facie indirect discrimination if A applies to B a provision, criterion or practice (sometimes called a 'PCP') which is discriminatory in relation to a relevant protected characteristic of B’s. A PCP is discriminatory if: • A applies it, or would apply it, to persons with whom B does not share the characteristic • it puts or would put persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, and • it puts or would put B at that disadvantage This

• For trustees and managers of occupational pension schemes: ◦ Ensure that the provisions, criteria and practices (PCPs) of the scheme have been reviewed to ensure compliance with the non-discrimination rule. ◦ If a PCP is prima facie discriminatory and does not appear to fall within an exemption, raise the question of whether there is an objective justification with the employer. ◦ Be aware of the general approach taken by courts and tribunals to the objective justification defence. Do not accept as sufficient response generalisations or stereotypical thinking. ◦ If necessary, consider whether the power of amendment

In Odar v Baxter Deutschland GmbH (Case C-152/11), the Court of Justice of the European Union held that a redundancy policy which gave rise to discrimination (by reducing the compensation payable to a younger employee on the basis that they will be entitled to an early disability pension at a younger age) could be objectively justified.

This Practice Note considers some of the key cases on the concept of objective justification. It contains references to case law of the Court of Justice of the European Union (CJEU). Broadly, EU judgments handed down on or before IP completion day continue to be binding on UK courts and tribunals (even if the EU courts later depart from them) until the UK courts exercise their powers to diverge. For the most part, EU case law made after that date is not binding on the UK, although the UK courts and tribunals may continue to ‘have regard to’ EU judgments if relevant. For more detailed information on the treatment of EU case law, see Practice Note: Assimilated law—Assimilated case law Objective justification is a phrase most often encountered as shorthand for the process of showing that a provision, criterion or practice (PCP), which is disadvantageous to an individual or group when compared with others, is nevertheless a proportionate means of achieving a legitimate aim. Under the Equality Act 2010, s 19(1)–(3),

ARCHIVED: This Practice Note has been archived and is not maintained. This archived Practice Note discusses the requirement in the National Planning Policy Framework (NPPF) as first published in 2012 (the 2012 NPPF) for local planning authorities (LPAs) to plan to meet full, objectively assessed needs (OAN) for market and affordable housing in their areas. On 24 July 2018, the government published a revised version of the NPPF (the 2018 NPPF), which replaced the 2012 NPPF from 24 July 2018 onwards. It amended the policy requirements around establishing housing need and housing land supply. Transitional provisions in Annex 1 of the 2018 NPPF provide that: • the policies in the 2018 NPPF should be taken into account as material considerations in the determination of planning applications from 24 July 2018 onwards • development plans ‘may’ also need to be revised to reflect policy changes brought about by the 2018 NPPF. The 2018 NPPF advises that such revisions should be progressed as quickly as possible,