Monday 18 August 2008

Around the periodicals

The August 2008 issue of OUP's Journal of Intellectual Property Law & Practice (details here) contains two features of particular interest to IP Finance. The first is an article by Hidero Niioka (right), "IP in investment banking: IP in IPOs". According to the abstract
"This article looks at current IPOs, convertible bond offerings, trends of the global market, etc. In the context of this capital market trend, important legal issues arise.

Key points: The cases discussed concern IP litigation, civil procedure law, securities law, securities exchange law, and corporate law.

Practical significance: The purpose of this article is to provide a quick overview of how IP law issues can impact upon securities law issues. The article has a high practical relevance for those advising all companies that want to raise funds around the world".
The second is David Ehrlich's "Trade mark warranties in M & A transactions". According to the abstract,

"Legal context: As the credit crisis wanes and corporate liquidity becomes more available, deal making is sure to return to past levels of activity. Ask any of these dealmakers why they made their acquisitions and inevitably they will return to the ‘brand's equity’. Trade mark assets, however, are very unusual types of property which require finely tuned warranties in merger and acquisition (M & A) transactions in order to prevent costly set-backs and even litigation.

Key points:

• Both buyers and sellers in an M & A transaction have a mutual interest in accurately defining the trade mark assets included in a deal, but their interests may diverge when it comes to negotiating certain warranties.

• Buyers should seek wide ranging assurances of trade marks' validity while sellers should try to resist giving general warranties beyond their knowledge.

• Prudent negotiators should also consider the duration of warranties and negotiate limitations on breach of warranty claim amounts.

Practical significance: Many corporate deals are agreed upon in haste and neglect key trade mark issues that can cause serious problems and costly surprises years after a deal has closed. Through proper due diligence and clearly worded warranties, this risk can be reduced".

Sweet & Maxwell's Journal of Business Law (issue 6, 2008; details here) carries a feature, "Divergences of Security and Property Law in the European Union: the Need for Action", by avvocato M. Cristina di Luigi. Diappointingly (from the point of IP readers) this article makes virtually no reference to intangibles other than to recognise their existence and to concur that their position is complicated; nor does it appear to deal with UNCITRAL's work regarding the securitisation of intangibles and the specific issues regarding IP law.

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