Doing business in the United Kingdom
A Q&A guide to doing business in the United Kingdom.
This Q&A gives an overview of key recent developments affecting doing business in United Kingdom as well as an introduction to the legal system; foreign investment, including restrictions, currency regulations and incentives; and business vehicles and their relevant restrictions and liabilities. The article also summarises the laws regulating employment relationships, including redundancies and mass layoffs, and provides short overviews on competition law; data protection; and product liability and safety. In addition, there are comprehensive summaries on taxation and tax residency; and intellectual property rights over patents, trade marks, registered and unregistered designs.
To compare answers across multiple jurisdictions, visit the Doing business in... Country Q&A Tool.
This article is part of the multi-jurisdictional guide to doing business worldwide. For a full list of contents, please visit www.practicallaw.com/dbi-mjg.
The Financial Services Authority has now become two separate regulatory authorities:
The Financial Conduct Authority.
The Prudential Regulation Authority.
The European unified Patent System will be implemented during 2014.
By April 2014, the Office of Fair Trading and the Competition Commission will be merged and replaced by the Competition and Markets Authority, which will have increased powers.
Scotland, England and Wales, and Northern Ireland are largely separate jurisdictions for a number of legal purposes, in particular, property and litigation.
Scotland has a mixed common law and civil law system whereas England and Wales and Northern Ireland have a common law system.
The following answers apply to England and Wales and Scotland, unless otherwise stated.
In general, there are no restrictions on foreign ownership or investment. However, authorisation is required for investment in certain regulated areas, including:
Foreign investors should be aware of EU competition rules and sector-specific regulations in, for example, the utilities sector.
Licences are required for the export of certain controlled goods outside of the EU (only particularly sensitive goods require a licence for EU countries). Controlled goods include:
Dual-use goods (civilian goods with a potential military use or application).
Associated technology or software, and goods which could be used for torture or radioactive sources.
Such items may appear on one of a number of lists maintained by the UK government or be subject to control because of the potential end-use or end-user. Whether a licence is required can also depend on the export destination and any sanctions in force on that destination. Trafficking or brokering such items is also subject to a trade licensing regime.
Iran is subject to the tightest controls, which prohibit the export of certain goods to Iranian entities or for use in Iran. Certain technical assistance, investments and financial transactions are also prohibited. Licences may be available for activities which are not prohibited, but advice should be taken before doing any business in, or involving, that jurisdiction or Iranian entities, given the serious penalties for non-compliance (that is, up to two years' imprisonment and fines) and the regularity with which the rules are subject to change.
Export control advice can be obtained from the Export Control Organisation (the UK government's regulatory body for export licensing). Guidance is available at: www.gov.uk/about-the-export-control-organisation. An export control licence can be applied for using SPIRE, the government’s online system (www.spire.bis.gov.uk).
There are no exchange control or currency regulations, except those relating to money laundering. The Money Laundering Regulations apply to various categories of businesses, including:
Most UK financial and credit businesses, such as bureaux de change, cheque cashers or money transmitters.
Independent legal professionals.
Accountants, tax advisers, auditors and insolvency practitioners.
High value dealers, that is, businesses that accept cash payments for goods worth EUR15,000 or more, either in a single transaction or in instalments.
Trust or company service providers.
Grants vary throughout the UK. There is a wide range of grants available in the UK to support private sector investment by foreign and domestic investors. Grants can cover capital expenditure, job creation, research and development, and energy projects. For further information, see www.gra-ukgrants.com or www.scottish-enterprise.com/fund-your-business.
Funding from the EU generally favours research and development. Investors should be aware of European state aid rules when receiving grants or incentives from public authorities.
The common forms of business vehicle used in the UK are:
Public and private companies limited by shares, governed by the Companies Act 2006. The company is a separate legal entity and the liability of shareholders for the debts of the company is limited to the amount they subscribe for their shares except in very limited circumstances. A company may have only one shareholder. Public companies are subject to greater regulation than private companies, but have the ability to offer shares to the public, which private companies are not able to do.
General partnership, governed by the Partnership Act 1890. General partnerships have separate legal personality in Scotland, but not in England and Wales. The partners have unlimited liability and each has authority to act as agent for the partnership. There must be at least two partners. There are no registration or reporting requirements.
Limited liability partnership (LLP), governed by the Limited Liability Partnerships Act 2000. An LLP has separate legal personality in both Scotland and England and Wales. Members generally have limited liability, and the LLP must file annual accounts and other information. Each member is an agent of the LLP. There must be at least two members.
Trusts could technically be used, however this is rare because they are not as flexible and do not provide the protection of limited liability.
The most common form of business vehicle used by foreign companies is a private company limited by shares as it provides the protection of limited liability and has fewer corporate governance requirements than a public company.
Registration and formation
Ready-made companies are available from solicitors or company formation agents. When forming a company, the following documents must be sent to Companies House (the official UK government register):
Memorandum of association stating that the subscribers wish to form a company and agree to take at least one share.
Articles of association, except where the default statutory model articles are adopted without modification.
Form IN01 detailing basic company details including its name, the type of company and details of its share capital, registered office, directors and company secretary (if the company chooses to have a secretary).
The Registrar of Companies provides a certificate of incorporation. Registration takes between eight and ten days, and costs GB£40. A company can be incorporated within one day for a fee of GB£100. Alternatively a web incorporation service can be used at a cost of GB£15. Full details can be found at www.companieshouse.gov.uk
The name of a private company limited by shares must end in the word "limited" or the abbreviation "Ltd". The name must not be the same as an existing name and there are restrictions on the use of certain sensitive words, expressions or offensive names. There are also controls on the use of certain characters, signs, symbols and punctuation. After incorporation, a company can be required to change its name in certain circumstances, including if the name is too like an existing name, too similar to a name in which someone else has goodwill, or if it gives a misleading indication of the nature of the company's activities.
A company must submit to the Registrar of Companies:
An annual return.
There are exceptions to the account filing requirements depending on thresholds relating to company turnover, balance sheet total and number of employees.
There is a fee for filing the annual return of GB£40 (or GB£13 if delivered electronically). It is a criminal offence not to deliver the company's annual return within 28 days of the made-up date. The accounts of a private company must be filed within nine months of the end of the financial period to which they relate. There is no charge for filing the company's annual accounts, although there is an automatic civil penalty (in the form of a statutory fine) for late filing of accounts.
In addition, the company must file copies of certain shareholder resolutions and notify all changes to its particulars from time to time, such as:
Allotment of shares.
There is no maximum or minimum share capital for a private limited company.
Shares can be issued for non-cash consideration. No formal valuation process is required for a private limited company.
Rights attaching to shares
Restrictions on rights attaching to shares. Companies are generally free to determine the rights attaching to their shares, although the Companies Act 2006 imposes some limits, for example:
No dividend can be paid except out of distributable profits.
There are restrictions on the company's ability to redeem or purchase its own shares.
Specific rights and restrictions on different classes of shares are usually set out in the company's articles of association.
Automatic rights attaching to shares. If there is only one class of share in the company, the shareholders can share in any dividends or permitted return of capital on the basis of the number of shares they hold or, if the articles of association allow it, the amount paid up on their shares. In the absence of any contrary provision in the articles of association, the Companies Act 2006 provides default voting rights of one vote per share on a written resolution or a poll.
Private companies typically have a single-tier board with at least one director who must be a natural person. Directors can be executive (with a service contract) or non-executive, with varying roles and duties.
There are no restrictions on foreign directors.
Directors' and officers' liability
Directors are personally liable for, among other things:
Breach of their fiduciary duties and their duty to act with reasonable skill and care (Companies Act 2006).
Fraudulent or wrongful trading if the company becomes insolvent (Insolvency Act 1986).
Directors can be disqualified for up to 15 years for general misconduct or for unfitness (Company Directors Disqualification Act 1986).
Directors, managers and any company secretary must ensure the company keeps proper accounting records, maintains the proper registers and complies with its reporting requirements (Companies Act 2006). Default is a criminal offence.
Parent company liability
Parent companies are not automatically liable for the debts or other liabilities of their subsidiaries except in certain cases, such as fraudulent and wrongful trading, transfers of assets at an undervalue, and unlawful distributions.
Laws, contracts and permits
The main employment statutes include the:
Trade Union and Labour Relations (Consolidation) Act 1992.
Employment Rights Act 1996.
National Minimum Wage Act 1998.
Work and Families Act 2006.
Equality Act 2010.
There is secondary legislation covering areas such as:
Informing and consulting employees.
Maternity, paternity and adoption.
Statutory provisions can apply to both foreign employees working in the UK and employees from the UK working abroad, depending on the statutory provision in question. Mandatory statutory provisions apply regardless of any choice of law in the employment contract, such as in relation to redundancy pay, minimum notice periods and the right to claim unfair dismissal.
A written statement of certain employment terms must be given to each employee within two months of commencing employment (Employment Rights Act 1996).
Terms of employment can also be recorded in or arise out of:
A course of dealing between employer and employee.
Mandatory terms are implied into the employment relationship by:
The most common implied term is a mutual obligation of trust and confidence.
European Economic Area (EEA) and Swiss nationals can:
Enter and live in the UK without applying for permission.
Start work without a permit.
Nationals of Romania and Bulgaria will, until 31 December 2013, have to apply for an accession worker card to work in the UK. Transitional arrangements for Croatian nationals were introduced from 1 July 2013 and generally require the individual to apply for a registration certificate.
Non-EEA nationals must usually obtain permission to work or train in the UK under the points-based system. Grant of permission to work or train in the UK includes permission to enter or remain for a limited period. There are five tiers as follows:
Tier 1: entrepreneurs, investors, graduate entrepreneurs and individuals who demonstrate exceptional talent in the fields of art or science.
Tier 2: sponsored skilled workers with a job offer, including those transferring from an associated company overseas.
Tier 3: unskilled workers, although this category has not been opened to date.
Tier 4: students.
Tier 5: temporary workers and the youth mobility scheme.
Applicants are awarded points based on, for example:
Available maintenance funds.
English language abilities.
The cost of applications varies depending on the type of application made and whether the applicant is inside the UK when applying.
Applicants under tiers 2 and 5 must be sponsored by a licensed sponsor. Employers must apply to register as licensed sponsors. This separate application involves a fee and a processing time of about eight weeks, and must be renewed every four years.
Termination and redundancy
Employees are not entitled to management representation.
Employers must consult:
Individuals in redundancy situations.
Appropriate employee representatives if proposing to make 20 or more people redundant within a period of 90 days or less.
Employees or employee representatives if they might be affected by the transfer of an undertaking.
Employees before making certain changes to pension schemes.
Appropriate employee representatives about arrangements for promoting, developing and checking the effectiveness of measures to ensure the health and safety of their employees.
The Information and Consultation of Employees Regulations 2004 establish a general framework for informing and consulting employees. In certain defined circumstances, employers who employ more than 50 staff must inform and consult employee representatives in relation to a number of issues.
Employees whose continuous period of employment began on or before 5 April 2012, who are dismissed without good reason, can claim unfair dismissal if they have one year’s continuous service. For those whose employment began on or after 6 April 2012, two years' service is required.
There are five potentially fair grounds for dismissal:
Breach of statute.
Some other substantial reason (such as a business re-organisation).
An unfairly dismissed employee can be entitled to:
The employer must follow the Acas Code of Practice on Disciplinary and Grievance Procedures for dismissals on grounds of misconduct and poor performance. Failure to comply with the Acas Code can result in compensation being increased by up to 25%.
An employee who has been dismissed for an automatically unfair reason (for example, pregnancy or membership of a trade union) can claim unfair dismissal in most circumstances, even if the employee has not completed a set period of continuous service.
Redundancies and layoffs are regulated by the Employment Rights Act 1996.
To ensure that redundancy dismissals are fair, the employer must consider, among other things:
Reasonable notice periods.
Reasonable time off work to look for another job.
Notification to the Secretary of State where collective redundancies are proposed.
Employees continuously employed for two years and dismissed due to redundancy are entitled to a statutory redundancy payment.
Employers must have an express contractual right in order to lay off an employee without payment.
Taxes on employment
A statutory residence test was introduced from 6 April 2013 (that is, for the 2013/14 tax year onwards), subject to transitional rules in certain cases.
An individual is automatically a non-UK resident if he meets one of the conditions of the 'automatic overseas test'. If not, the person will qualify as a UK tax resident by satisfying one of the conditions for the 'automatic UK test'. If the automatic tests are not satisfied, an individual's tax residence status is determined by reference to the 'significant ties test', the test considers the extent of his ties to the UK. The statutory test is intended to provide greater certainty as to whether or not an individual is a UK tax resident. However, it is quite complex and it is recommended that detailed advice on an individual's personal circumstances is obtained. HM Revenue and Customs have produced guidance on the statutory resident test which can be found at www.hmrc.gov.uk/international/rdr3.pdf.
Tax resident employees
The tax-free personal allowance for the 2013/14 tax year is GB£9,440. The personal allowance is withdrawn gradually for those with adjusted net income of more than GB£100,000 so that no personal allowance is available when income exceeds GB£118,880.
Employees must pay income tax on income over the personal allowance level. The rates of tax on taxable income (that is, income above the personal allowance) for the tax year 6 April 2013 to 5 April 2014 are:
Basic rate. Paid on first GB£32,010 of taxable earnings at a rate of 20%.
Higher rate. Paid on taxable earnings between GB£32,011 and GB£150,000 at a rate of 40%.
Additional rate. Paid on taxable earnings over GB£150,000 at a rate of 45%.
There is also a 10% starting rate for savings income only, with a limit of the first GB£2,790 of taxable income (that is, income above the personal allowance). If an individual's taxable non-savings income is above this limit then the 10% rate does not apply.
Employees must pay national insurance contributions. Information about applicable rates can be found on the HM Revenue and Customs website, www.hmrc.gov.uk/rates/nic.htm.
Non-tax resident employees
Subject to any double tax treaties, non-tax resident employees are liable to UK income tax on:
Earnings from employment where their duties are carried on in the UK.
UK-source investment income.
Income arising from property located in the UK.
Non-tax residents are generally not liable to pay national insurance contributions.
Employers must make national insurance contributions of 13.8% of an employee's gross salary.
Tax resident business
A company is tax resident if it is either:
Incorporated in the UK.
Managed and controlled from the UK.
Non-tax resident business
Non-tax resident companies with a permanent establishment in the UK are liable for corporation tax on:
Income profits of that establishment.
Gains from the disposal of assets situated in the UK that are used in the trade of the establishment.
Non-tax resident companies that do not trade through a permanent establishment must pay income tax on rents from UK property. The basic rate for the tax year 2013 to 2014 is 20%.
Permanent establishment is defined at www.hmrc.gov.uk/manuals/intmanual/INTM264050.htm.
UK tax resident companies must pay corporation tax on their worldwide profits. The main rate for the financial year 1 April 2013 to 31 March 2014 is 23%. The government has announced its intention for the main rate to reduce to 21% from 1 April 2014 and 20% from 1 April 2015.
Value added tax (VAT)
VAT is charged on:
Goods and services supplied in the UK by businesses.
The standard rate is 20%. Some supplies are zero-rated (for example, books) and some are exempt (such as financial services).
Stamp duty/Stamp duty reserve tax
This must be paid on transfers of shares and certain securities. The standard rate is 0.5%, although a higher rate of 1.5% applies in certain cases where shares are transferred to depositories or into a clearance system.
Stamp duty land tax (SDLT)
SDLT is a tax on land transactions. The rates are:
1% of the net present value of lease transactions (including grants, variations and renunciations).
Up to 4% of consideration paid for the acquisition of land.
5% when residential property is acquired for more than GB£1 million.
7% when residential property is acquired for more than GB£2 million.
15% when residential property is acquired for more than GB£2 million by a company, partnership with a corporate partner or a collective investment scheme.
Land owners must pay business rates on non-domestic premises. Business rates are usually an allowable deduction when calculating profits for corporation tax purposes.
Dividends, interest and IP royalties
Dividends paid to foreign corporate shareholders?
Dividends received from foreign companies?
Interest paid to foreign corporate shareholders?
Intellectual property (IP) royalties paid to foreign corporate shareholders?
Withholding taxes do not apply to dividends paid to foreign corporate shareholders.
Subject to conditions and anti-avoidance provisions, most foreign dividends are exempt from corporation tax under the tax rules.
A withholding tax of 20% applies to certain interest payments to foreign corporate shareholders, subject to any direction to pay gross or deduct a lower amount under a double tax treaty.
IP royalties paid
A withholding tax of 20% applies to patent royalties and annual payments to foreign corporate shareholders, subject to any direction to pay gross or deduct a lower amount under a double tax treaty.
Groups, affiliates and related parties
Revised controlled foreign company (CFC) rules were introduced for accounting periods commencing on or after 1 January 2013. Under the new rules, profits can only be imputed to a UK parent company if passed through one of the prescribed gateways and if the foreign subsidiary does not qualify for one of the entity-level exemptions. For example, an exemption would be available if it is subject to a level of local tax that is at least 75% of the UK tax that it would be subject to if it was UK tax resident.
Transfer pricing rules provide that transactions between UK companies and UK or foreign affiliates must be taxed on the arm's-length value of the transaction. These rules apply where any of the following conditions is satisfied:
One party has overall control of the other, or both are under common control.
One party holds at least 40% of the other's share capital and another entity also holds at least 40%.
A number of persons act together in relation to the financing arrangements of a business where collectively those persons would be capable of controlling the company if all their actual or potential rights and powers were aggregated.
In certain cases, the transfer pricing rules do not apply to small and medium-sized enterprises.
This depends on whether goods are imported or exported within the EU or outside it.
Outside the EU
Imports from outside the EU are subject to VAT, which is payable by the importer at the same rate as if the goods were supplied within the UK. Customs duty and excise duty may also be payable on imports.
Exports of goods outside the EU are subject to VAT but are generally zero-rated.
Within the EU
The supply of goods between VAT-registered traders is generally zero-rated (to qualify, the customer state code and VAT registration number must be put on the invoice). Where VAT is payable, the customer receiving supplies must pay VAT at his country's rate. VAT is charged in the normal way on sales to non-VAT registered customers.
Double tax treaties
In the UK, there are currently two principal competition authorities:
The Office of Fair Trading (OFT) which investigates restrictive agreements and practices and abuses of dominance under both the UK and EU competition law, and conducts Phase 1 merger analysis under the UK mergers regime. For guidance on competition rules, see www.oft.gov.uk.
The Competition Commission (CC), which conducts Phase 2 merger assessment and market inquiries. For guidance and advice on assessment and procedure, see www.competition-commission.org.uk.
By April 2014, these will be merged and replaced by the newly created Competition and Markets Authority (CMA). There are also a number of sectoral regulators with concurrent jurisdiction in, for example, telecoms, electricity and gas, and water.
The Financial Conduct Authority also has a role in competition law in financial services.
Restrictive agreements and practices
The main sources of UK competition law are:
The Competition Act 1998.
The Enterprise Act 2002.
The Competition Act introduced two prohibitions into UK law:
The Chapter I Prohibition (modelled on Article 101 of the Treaty on the Functioning of the European Union (TFEU)) of agreements which prevent, restrict or distort competition or which affect trade within the UK.
The Chapter II Prohibition (modelled on Article 102 of the TFEU) prohibits conduct by undertakings amounting to abuse of a dominant position.
The Chapter I Prohibition gives a non-exhaustive list of the types of agreement that will be caught, namely those which:
Directly or indirectly fix purchase or selling prices or any other trading conditions.
Limit or control production, markets, technical development or investment.
Share markets or sources of supply.
Apply dissimilar conditions to equivalent transactions with other trading parties, placing them at a competitive disadvantage.
Make the conclusion of contracts subject to supplementary obligations which have no connection with the subject of the contract.
An agreement only infringes the Chapter I Prohibition if it has an appreciable effect on competition in the UK and fails to qualify for an exemption. There is no appreciable effect on competition if:
Where the agreement is between competitors: their aggregate market share does not exceed 10% of any relevant market affected by the agreement.
Where the agreement is between non-competing undertakings: their market share does not exceed 15% of any relevant market affected by the agreement.
Where competition in the relevant market is restricted by various parallel networks of agreements with similar effects: thresholds are reduced to 5%.
To be exempted an agreement must:
Provide efficiency gains.
Allow consumers a fair share of the resulting benefits.
Not impose restrictions beyond those indispensable to achieving those objectives.
Not eliminate competition.
Alongside the Competition Act regime, which applies to undertakings, under the Enterprise Act, it is currently a criminal offence for individuals to dishonestly engage in certain types of cartel agreements. This will be amended by the Enterprise and Regulatory Reform Act 2013, making it easier to convict individuals by removing the dishonesty element of the test. In addition, the Enterprise Act gives the Office of Fair Trading (OFT) the power to apply to the courts to disqualify individuals from being directors of companies (a competition disqualification order (CDO)) where they are unfit to be directors as evidenced by the company infringing the competition laws.
The Chapter II Prohibition (see above) deals with conduct by one or more undertakings amounting to an abuse of a dominant position on a market in the UK. An undertaking is dominant if it can act to an appreciable extent independently of its competitors and customers when making decisions.
Examples of offending conduct include:
Directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions.
Limiting production, markets or technical development to the prejudice of consumers.
Applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage.
Making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which have no connection with the subject of the contracts.
Unlike the position in some jurisdictions, it is necessary for a company to be dominant before its unilateral conduct can be criticised. There is no concept of dependency.
Damages are regularly claimed for anticompetitive conduct.
Mergers are regulated under Part III of the Enterprise Act 2002, by the OFT and the Competition Commission (CC). By April 2014, mergers will be regulated by the Competition and Markets Authority (CMA). In certain narrow cases of public interest, the Secretary of State is also involved in the decision-making process.
The UK has a wide definition of merger. It includes not only obtaining legal control, but also de facto control and obtaining material influence. The acquisition of material influence through voting rights or by other means may be sufficient and has been found at shareholdings below 18%. Therefore, many minority investments and participations are to be assessed as if they were mergers in the regular sense, providing the jurisdictional thresholds below are met.
A transaction may be investigated by the OFT if the merger meets either the:
Share of supply test. This is met if the transaction creates or enhances a 25% share of supply or purchases in the UK or a substantial part of the UK.
Turnover test. This is met if the business being acquired has a UK turnover in excess of GB£70 million in the previous business year.
If the jurisdiction thresholds are not met, the authorities cannot intervene and examine it.
There is no obligation to notify a merger to the UK authorities even if these jurisdictional thresholds are met and even if it may have anti-competitive effects. Under the current rules, in the event a merger is not notified, the OFT can investigate it for up to four months after its publication, providing it has jurisdiction. After that period, the OFT cannot call it in for investigation and it is safe. If the merger is not in the public domain, the OFT has four months from when it finds out about it.
Following notification (or, if the merger has not been notified, the date it was made public) the OFT has 20 working days (which it can extend to 30) to make its assessment. It can then either clear the merger or refer it to the CC. The OFT must refer a transaction to the CC where it believes there will be a substantial lessening of competition (SLC).
The CC must decide, within 24 weeks (which can be extended by eight weeks), whether the merger would result in a SLC within any market in the UK, after which time it can either clear the transaction or prohibit it. Subject to some limited exceptions, any merger which qualifies for reference to the CC is subject to a fee, where the OFT decides to examine it, irrespective of whether a reference is actually made.
Under the new rules, that will apply from April 2014, mergers will be reviewed under a Phase 1 and Phase 2 structure within a single body: the CMA.
Merger filing fees will increase significantly. For large mergers (where turnover of the target exceeds GB£120 million) the merger filing fee will be GB£160,000 (current fee is GB£90,000).
New statutory time limits will also be introduced to simplify the process and create certainty and consistency for businesses.
Phase 1. The CMA will have a limit of 40 working days for phase 1 investigations. This time limit can be extended whilst the CMA waits for information from the merging parties.
Phase 2. The CMA will have 24 weeks to conduct the phase 2 investigations.
Mergers falling within the criteria and thresholds laid out in the European Merger Control Regulation must be notified to the European Commission.
The UK Intellectual Property Office website has detailed guidance regarding the grant, registration and protection of intellectual property, see www.ipo.gov.uk/home.htm.
Definition and legal requirements. There are two relevant types of patent: UK patents (applicable only in the UK) and European Patents (a bundle of patents applicable in the different countries of the Europe). To be patentable, an invention must:
Involve an inventive step.
Be capable of industrial application.
Not be specifically excluded by statute.
A patent holder can:
If the invention is a product, prevent the unlicensed manufacture, use, disposing of, offering to dispose of, keeping, importation or sale of the patented product.
If the invention is a process, prevent the unlicensed use of the process, or offer for use of the process.
If the invention is a process from which a product can be obtained directly, prevent the disposing of, offering to dispose of, using, keeping or importing of such a product.
Assign or license the patent to another party.
Registration. Applications for UK registered patents must be made to the UK Intellectual Property Office. European (UK) patent applications must be made to the European Patent Office.
Enforcement and remedies. UK patents are generally enforced through the UK courts. European patents that extend to the UK can also be enforced through the UK courts. The main remedies the courts can grant are:
Permanent or interim interdicts (in Scotland) or injunctions (in England and Wales).
An account of profits.
Criminal sanctions are also available (see www.ipo.gov.uk/ipenforce).
Length of protection. Subject to certain exceptions, protection in the UK, as elsewhere in the EEA, lasts for a maximum of 20 years provided that renewal fees are paid annually from the fourth anniversary of the filing date.
Definition and legal requirements. There are two relevant types of registered trade mark: UK registered trade marks (applicable only in the UK) and Community Trade Marks (applicable throughout Europe). To be registered as a trade mark, a mark must generally:
Be capable of graphical representation.
Be capable of distinguishing the goods or services of one undertaking from another.
In addition, there are various exceptions where trade mark applications will not be approved.
The rights holder can:
Enjoy the exclusive right to use the trade mark in the UK (UK registered trade mark)/within Europe (Community Trade Mark).
Prevent others in the course of trade from using a sign which:
is identical to the registered trade mark in relation to goods or services which are identical to those for which it is registered;
is the same (or similar to) the registered trade mark and used for the same (or similar) goods or services, where the use has caused or is likely to cause confusion; or
if the registered trade mark has a reputation in the UK, is identical or similar to the registered trade mark where such use takes unfair advantage of, or is detrimental to, the distinctive character and repute of the trade mark.
Assign or license the trade mark to other parties.
The UK also protects unregistered trade marks (including trading names, brands or get-up) through the common law of passing off. If a party has acquired goodwill in the UK in goods or services supplied under an unregistered trade mark, it can prevent third parties making a misrepresentation likely to lead the public to believe that its goods/services are those of the unregistered trade mark owner.
Protection. Applications for UK registered trade marks must be made to the UK Intellectual Property Office. Applications for Community Trade Marks are made through the European Office for Harmonisation in the Internal Market (OHIM). Unregistered trade mark rights arise automatically and need not be applied for.
Enforcement and remedies. UK registered trade marks, Community Trade Marks and unregistered trade marks with goodwill in the UK can be enforced in the UK courts. The Trade Marks Act 1994 and the Community Trade Mark Regulations 2006 set out civil remedies and criminal sanctions for infringement of UK registered trade marks and Community Trade Marks. These are similar to those for patents (see above, Patents). Similar civil remedies are available for passing off.
Length of protection and renewability. Registered trade mark protection lasts indefinitely, subject to renewal every ten years and any challenges to its validity (for example, on grounds of non-use).
Unregistered trade mark protection lasts for as long as the goodwill does. It can last indefinitely.
Definition. There are two relevant types of registered design: UK registered designs (applicable only in the UK) and Community Registered Designs (applicable throughout Europe). Broadly, registered design protection protects the appearance of the whole or part of a product resulting from various physical features of the product or its ornamentation, including both 3D and 2D features.
To qualify for registration, a design must:
Have individual character.
In addition, there are various exceptions where certain designs will not be granted protection.
The holder of a UK registered design can:
Enjoy the exclusive right in the UK to use the design and any design which does not produce on the informed user a different overall impression. The right holder has the exclusive right to make, offer, put on the market, import or export, use or stock any product in which the design has been applied or incorporated.
Assign or license the right to other parties.
The holder of a Community Registered Design has similar rights.
Registration. Applications for a UK registered design must be made to the UK Intellectual Property Office. Applications for a Community Registered Design must be made to OHIM.
Enforcement and remedies. UK registered designs and Community Registered Designs can be enforced in the UK courts. Various civil remedies and criminal sanctions are available under the Registered Designs Act 1949 (as amended) and the Community Design Regulations 2005. These are similar to those for patents (see above, Patents).
Length of protection and renewability. Protection lasts for a maximum of 25 years subject to renewal fees every five years.
Definition and legal requirements. There are two main types of unregistered design: UK unregistered designs (applicable only in the UK) and Community Unregistered Design Right (CDR) (applicable throughout Europe). There is also a special type of unregistered design which applies to semiconductor chips (semiconductor topography right) which is less common. Broadly, CDR protection protects the appearance of the whole or part of a product resulting from various physical features of the product or its ornamentation.
A UK unregistered design protects the design of any aspect of shape or configuration of the whole or part of an article. Only 3D features are protected, so for example, a 2D pattern on a 3D object would not be protected.
For UK unregistered design protection, the design must:
Comprise an aspect of shape or configuration (whether internal or external) of the whole or part of an article.
Be original and not commonplace.
Be recorded in a design document or be the subject of an article made to the design.
Be created by a qualifying person (a person or company/entity in the UK, EU, Channel Islands, the Isle of Man, any UK colony, or any country designated as qualifying for reciprocal protection).
The legal requirements for a CDR are broadly the same as for a registered design (see above, Registered designs).
In addition, various exceptions apply where certain unregistered designs and CDRs will not be granted protection.
The holder of a UK unregistered design can:
Enjoy the exclusive right to reproduce the design for commercial purposes by making articles to that design or by making a design document recording the design for the purpose of enabling the articles to be made.
Prevent others from infringing his rights by copying the design or design document.
Assign or license the right to other parties.
The rights of a CDR holder are broadly the same as the rights of a registered design holder (see above, Registered designs).
Enforcement and remedies. UK registered designs and CDRs can be enforced in the UK courts. Various civil remedies and criminal sanctions are available under the Copyright Designs and Patents Act 1988 and the Community Design Regulations 2005. These are similar to those for patents (see above, Patents).
Length of protection. UK unregistered design protection lasts for either:
15 years from the end of the calendar year when the design was first recorded in a design document or, if earlier, from when an article was first made to the design.
Ten years from the end of the calendar year when articles made to the design were first made available for sale or hire.
CDR protection lasts for three years from the date on which the design was first made available to the public within Europe.
Definition and legal requirements. Copyright subsists in the following works, provided they are the author's own independent creation:
Literary (including software), dramatic, musical or artistic works.
Sound recordings, films or broadcasts.
The typographical arrangements of published editions.
The copyright holder has the exclusive right to do the following in the UK:
Copy the work.
Issue, rent or lend copies of the work to the public.
Perform, show or play the work in public.
Communicate the work to the public.
Make an adaptation of the work.
Do any of the above in relation to an adaptation.
The copyright holder has also the right to:
Be identified as the author or director of the work.
Object to derogatory treatment of the work.
Not have work falsely attributed to him.
Prevent others from infringing any of his rights.
Assign or license the rights to other parties.
Protection. Protection subsists automatically when the work is created. The rules on protection are set out in the Copyright, Designs and Patents Act 1988. There are certain exceptions to protection.
Enforcement and remedies. There are various civil remedies and criminal sanctions set out in the Copyright, Designs and Patents Act 1988. These are similar to those for patents (see above, Patents). There is an extra remedy of additional damages which is available for flagrant copyright infringement.
Length of protection and renewability. The length of protection depends on the work:
Literary, dramatic, musical and artistic works: 70 years from the end of the calendar year after the death of the creator of the work.
Computer generated literary, dramatic, musical or artistic works: 50 years from the end of the calendar year in which the work was made.
Films: 70 years from the end of the calendar year after the death of the last surviving director, author of the screenplay or composer of music specifically created for the film.
Sound recordings: 70 years from the end of the calendar year in which it is first published or played in public. If a sound recording has only been recorded (that is, it has not been published or played in public) then it will be protected for 50 years from the end of the calendar year in which the recording is made. If during those 50 years, the work is published or played in public, a new 70 year period of protection will commence.
Broadcasts: 50 years from the end of the calendar year of the first broadcast.
Published editions: 25 years from the end of the calendar year of the first publication.
Other types of IP rights in the UK include:
Protection for geographic indicators of origin (for example, the Scotch Whisky Regulations 2009, which govern the production, labelling and presentation of Scotch Whisky).
Plant varieties protection.
Olympic symbol protection.
Games Association Right relating to the Glasgow Commonwealth Games.
The Commercial Agents (Council Directive) Regulations 1993 protect an agent who is paid to negotiate the sale or purchase of goods within the EU. The regulations are onerous for principals in relation to the agents' rights.
There are no specific laws which govern the distribution of goods and/or services, see Question 33 for the provisions for products. Certain regulations should also be considered, for example, parties should consider the application of the EU vertical agreements block exemption under Regulation (EU) 330/2010.
There are no specific franchise laws in the UK. A franchise is treated in a similar way as a licence for intellectual property.
Parties should be aware that EU rules apply to agency, distribution and franchising in the UK, for example, (Regulation (EU) 330/2010 on the application of Article 101(3) of the TFEU to categories of vertical agreements and concerted practices (Vertical Restraints Block Exemption). These rules provide a safe harbour for certain types of arrangement, as well as applying an outright prohibition on some practices (such as export bans).
The main laws regulating e-commerce include:
Electronic Communications Act 2000. This provides that electronic signatures are admissible as evidence in relation to questions on authenticity of an electronic communication.
Electronic Signatures Regulations 2002. These regulate liability for providers of certificates relating to electronic signatures and establish a register of providers.
Consumer Protection (Distance Selling) Regulations 2000. These oblige suppliers to provide certain information to consumers in relation to contracts to buy goods and services concluded at a distance. They also impose a cooling-off period giving consumers the right to cancel contracts.
Electronic Commerce (EC Directive) Regulations 2002. These determine which EU member states' laws apply in cross-border e-commerce trade. They also regulate the information to be provided by information society service providers and the liability of intermediaries for information transmitted, cached or hosted.
Privacy and Electronic Communications (EC Directive) Regulations 2003. This prevents businesses sending unsolicited e-mails to individual subscribers, unless:
They have given their consent to receiving them.
The goods or services are similar to those previously sold by the same trader.
Their contact details have been obtained as a consequence of selling the consumer goods and/or services.
Data Protection Act 1998. This governs the processing of personal data collected via the internet, security, direct marketing, cookies and international data transfer on the internet.
Advertising is regulated by a combination of legislation and a self-regulatory framework. The main enforcement body in the UK is the Advertising Standards Authority (ASA), which enforces rules for both broadcast and non-broadcast advertising.
The legislative framework includes:
Consumer Protection from Unfair Trading Regulations 2008 (SI/2008/1277). These implement Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market (Unfair Commercial Practices Directive). They contain a general prohibition on traders acting in a way that treats consumers unfairly, and place obligations on traders not to mislead consumers or partake in aggressive commercial practices.
Communications Act 2003. This regulates telecommunication and broadcasting industries in the UK and gives enforcement powers to the Office for Communication (Ofcom).
Audiovisual Media Services Regulations 2009 (2009/2979). These regulations were introduced to implement the Audiovisual Media Services Directive. The regulations introduce a minimum standard for advertising and product placement provisions in programmes(whether broadcast through television or on-demand services).
Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) and the Consumer Protection (Distance Selling) Regulations 2000 (SI 2000/2334). These regulate online advertising by imposing certain information requirements that online traders must adhere to when advertising goods or services.
Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276). These implement Directive 2006/114/EC concerning misleading and comparative advertising (Misleading and Comparative Advertising Directive) and provide specific rules that advertisers must comply with in relation to comparative advertising.
The self regulatory framework comprises:
UK Code of non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code). The CAP Code is administered by the Committee of Advertising Practice (CAP) and provides a framework of rules that advertisers must comply with when advertising via non-broadcast media such as advertisements in publications and online advertisements.
Broadcast Advertising Code (BCAP Code). The BCAP Code applies to broadcast media such as radio and television.
Both codes are enforced by the ASA and are available at www.cap.org.uk.
Data protection rights are governed by the Data Protection Act 1998 (DPA).
Further regulation includes:
Human Rights Act 1998.
Freedom of Information Act 2000 (FOIA).
Freedom of Information (Scotland) Act 2002 (FOISA).
Privacy and Electronic Communications (EC Directive) Regulations 2003 (Privacy Regulations) (as amended).
A developing common law of personal privacy.
It is expected that a new EU Data Protection Regulation will come into force soon.
The DPA regulates the processing of personal data, which is data relating to a living individual who can be identified from that data (or that data in combination with other data held by a party). Fines of up to GB£500,000 can be imposed by the Information Commissioner on those breaching the DPA.
FOIA and FOISA give any person access to information held by public authorities (subject to satisfying a number of tests) and sets out the procedure to be followed.
The laws regulating product liability and product safety include the following:
Common law of tort in England and Wales (or delict in Scotland).
Statutes and secondary legislation, including:
General Product Safety Regulations 2005.
Sale and Supply of Goods Act 1994.
Consumer Protection Act 1987.
Sale of Goods Act 1979 (as amended).
Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contracts Regulations 1999.
Consumer Protection from Unfair Trading Regulations 2008.
Statutes and regulations imposing criminal penalties where goods are supplied in ways which do not conform to relevant standards (for example, the Business Protection from Misleading Marketing Regulations 2008, which prohibits misleading advertising to businesses).
Main business organisations
Department of Business Innovation and Skills (BIS)
Main activities. BIS invests in skills and education to promote trade, boost innovation and help people to start and grow a business. It works to enable growth and covers almost every aspect of the economy, from higher education and skills to business and trade, from consumer issues to regulation.
Main activities. The main functions of Companies House are to:
Incorporate and dissolve limited companies.
Examine and store company information delivered under the Companies Act and related legislation.
Make this information available to the public.
Financial Conduct Authority (FCA)
Main activities. The FCA is an independent body that regulates the financial services industry in the UK. The regime changed in April 2013 to a two-tier system with the FCA working in partnership with the Prudential Regulation Authority www.bankofengland.co.uk/PRA/Pages/default.aspx.
HM Revenue and Customs (HMRC)
Main activities. HMRC collects and administers direct and indirect taxes and benefits. It also enforces and administers border controls.
UK Border Agency (UKBA)
Main activities. The UKBA administers immigration and visas for entry to the UK on behalf of the Home Office.
Main activities. The Land Registry registers the ownership of land and property in England and Wales. They keep and maintain the Land Register, which is the property register for England and Wales. There are separate Registers for Scotland and Northern Ireland.
Description. This website is managed by The National Archives on behalf of HM Government. The original (as enacted) and revised versions of legislation for the UK on this website are published by and under the authority of the Controller of HMSO and the Queen's Printer for Scotland. The revised versions of legislation held on this website are maintained by the legislation editorial team at The National Archive.
Chris Smylie, Chief Executive
Maclay Murray & Spens LLP (Lex Mundi Member Firm)
Professional qualifications. England and Wales, Solicitor, 1982
Areas of practice. Planning.
- Expertise in inquiry advocacy and was responsible for leading the department's UK-wide contentious planning practice.
- Represented clients in both the private and public sectors at major planning inquiries and development plan examinations.
- Dealt with a number of high profile judicial review applications.
Gwen Souter, Head of Tax
Maclay Murray & Spens LLP (Lex Mundi Member Firm)
Professional qualifications. Qualified accountant
Areas of practice. Tax.
- Advising on the tax aspects of a reconstruction designed to return banking operations to the UK.
- Providing tax advice on transactional and structuring matters to a large pension fund and its manager.
- Assisting high net worth individuals with business succession planning, whether retaining family ownership or transferring to employees.
- Acting for parties on several UK and cross-border corporate deals.
- Advising on the tax implications of carrying on business in the UK.
Kenneth Shand, Partner, Corporate
Maclay Murray & Spens LLP (Lex Mundi Member Firm)
Professional qualifications. Scotland, Solicitor, 1984
Areas of practice. Corporate; M&A.
- Aberdeen Asset Management. US$500m capital notes issue.
- Ezeflow. Acquisition of Munro & Miller business.
- Capsugel. Acquisition of MW Encap (Holdings).
- Weir Group. Sale of LGE Process.
- Baxters Food Group. Acquisition of Mizkan Europe.
- MB Aerospace. Secondary buyout.
- Scottish Equity Partners. MBO of Tryzens.
Jane Green, Partner and Head of Employment Team
Maclay Murray & Spens LLP (Lex Mundi Member Firm)
Professional qualifications. Scotland, Solicitor
Areas of practice. Employment.
VION Food Group. Advising on employment aspects of internal restructure, plant closures and subsequent disposal of UK business across 40 sites.
Diageo. Advising and drafting a ground breaking employment security agreement for the Scottish workforce combining job and income security in return for service continuity.
MB Aerospace. Employment assistance in relation to a secondary management buyout and subsequent acquisition in the US, including negotiation and preparation of service agreements for senior executives with dual UK/US tax status.
Laura Morrison, Senior Solicitor, Employment and Pensions
Maclay Murray & Spens LLP (Lex Mundi Member Firm)
Professional qualifications. Solicitor, Scotland
Areas of practice. Employment; immigration.
Advising a number of clients on successful applications for sponsorship licences in tier 2 (general) and intra-company transfer categories.
Assisting an individual client with a successful application for indefinite leave to remain in tier 1 (general) category.
Assisting a corporate client with a successful application for a tier 2 (intra-company transfer) visa for a Chinese colleague.
Advising a corporate client in relation to a successful application for a business visitor visa for a senior executive based in Canada.
Advising a number of clients on prevention of illegal working and the necessary pre-employment checks.
Alison Bryce, Partner, Intellectual Property and Technology Team
Maclay Murray & Spens LLP (Lex Mundi Member Firm)
Professional qualifications. Scotland, Solicitor
Areas of practice. Intellectual property; commercial contracts; information technology and data protection.
Advising Creative Scotland (the national body responsible for Scotland's arts, screen and creative industries) in relation to funding grants to artists, and also on a key software licensing agreement.
Advising luxury fashion label Pringle of Scotland in relation to the negotiation of a licence agreement with a new overseas agent in Japan, a new territory for the label.
Advising Polaroid Eyewear on a licence of certain intellectual property from a leading worldwide technology brand, for the production of 3D glasses.
Michael Dean, Partner, EU, Competition and Regulatory
Maclay Murray & Spens LLP (Lex Mundi Member Firm)
Professional qualifications. Scotland, Solicitor, 1984
Areas of practice. Competition; regulatory; state aid; procurement.
Leading and co-ordinating the team's work representing Stagecoach in the local bus market investigation and two merger investigations by the Competition Commission.
Successfully appealing a merger decision by the Competition Commission in the Competition Appeal Tribunal on grounds of rationality.
Leading and co-ordinating the defence of BPI at simultaneous inspections by the Office of Fair Trading and European Commission.
Representing AB Nynas Petroleum in European Commission proceedings in two cartel proceedings including appearing at European Commission hearings.
Acting for AB Nynas Petroleum in its subsequent appeals to the Court of First Instance (now the General Court) against the penalties imposed of the Commission’s cartel decisions.
Assisting various clients to put in place robust and thorough competition and bribery compliance programmes, with effective staff training and sign-off; including the delivery of staff training workshops across the UK, in Norway, Spain, Belgium, Denmark, USA and Canada.
Advising Oil & Gas UK in relation to the competition law compliance of a number of ongoing industry-led projects aimed at rejuvenating oil and gas production in the North Sea.