The essence of a trade mark

The draft agreement I am currently reviewing - I won't disclose more about it - contains a definition of "Corporate Design" which has a nice form of words in it: "[T]he official design of the logo and name of the [redacted] brand by which the brand's personality is brought to life in communication." I wonder why the drafter of the trade marks directive and the regulation on the EU trade mark didn't see fit to put it that way? It's not exactly poetic, being (I think) spoilt by the last couple of words, which don't seem to add anything, but it's much closer to poetry than most EU legislation.

IP Draughts pans Google patent contract

Do no evil …drafting is a typically robust piece of work from Mark Anderson, whose IP Draughts blog should be essential reading for anyone with any aspirations to write contracts, whether relating to intellectual property or not. In it he demolishes a badly-drafted contract the terms of which are intended to govern the acquisition by Google of any US patent you might wish to sell to them - the rest of the world, typically, not existing for the purposes of their mindset. Google's professed aim is to prevent unwanted patents falling into the hands of trolls - in the pursuit of which Google will become potentially the biggest troll in the world. Just as well that its well-known slogan (quoted by Mark in the title of his posting) rejects any possibility of trollery!

So, what's the big deal about 9 November?

The same correspondent as I quoted earlier also writes:

And what does 7/8 mean to you? 7th August or 8th July ? This was one where, back in the 1990s and the days of contracts to develop computer or video games, some thought went into whether to "spell out": if the contract was US-driven and delivery of code was required (as it often was) early-October, then there could well be oral agreement for a date of 12th October - so 10/12 was tucked into a Schedule (no "spelling out") and then, if code wasn't on track for delivery, a reasonable argument arose over working to 10th December because that's what the US-driven contract meant by 10/12 ...

I don't recall ever encountering this in a contract, but it is certainly ripe with ambiguity, as I was reminded last year at the première of Richard Blackford's oratorio, Not In Our Time. On 11 September, not 9 November.

The Oxford Style Manual naturally tells us to use day-month-year, and notes that in America the order month-day-year is used. Surely it is much more logical to proceed from the smallest unit to the largest rather than jumping around? Or going from largest to smallest would also make sense, which is what we do with hours, minutes and seconds - an approach promoted by the International Standards Organisation, but not one that would help very much in legal drafting, where the only workable solution seems to me to write out the month in full.

Next: billions.

More irritating writing habits ("Irritating Things")

A long-standing friend dropped me a line yesterday, having read my posting, to reminisce about teaching Wills - something that I'd probably want to forget, had I ever done it: I certainly want to forget about teaching conveyancing, as the students did immediately -  and reinforcing numerals with the numbers spelt out in full. That way round, definitely.

[The] primary reason was to add certainty to the will which was only likely to be read after someone died and avoid "He definitely said he was going to leave me £100,000 - £10,000 cannot be right!" and [the] secondary reason was to draw attention to numbers when someone (usually emotionally) was checking through a will prior to signing. I kept the habit in commercial life because when prices were being changed from draft to draft over (sometimes) months - the words really helped keep track of totals payable.

Yesterday I was reading through a contract, drafted by one party and apparently approved by another, and evidently satisfactory as far as my client was concerned. I was however the first lawyer ever to come anywhere near it ... It purported to deal with the paternity right of a corporate body, and also protected the personal data of the three parties none of which are natural persons; it required none of the parties to do more than use reasonable endeavours to discharge the key obligations it imposed; and, the real reason for this digression, it contained many words and phrases given capital initials in the manner of defined terms, but not a single definition. Which reminded me how much I hate unnecessary defined terms.

Don't get me wrong, I love the way playing with defined terms in a legal document can have a huge effect on its meaning, and how a long and impenetrable contract can be made so much more terse and comprehensible by judicious use of defined terms. If I were minded to improve the one I read yesterday the first thing I would be would be to introduce a set of defined terms. I don't, however, feel that defined terms add anything except pomposity to client briefings and newsletters of the sort mass-produced by what I suppose we can now properly call "law firms", those professional organisations formerly known as firms of solicitors. Here's a doubly appalling example (no names, no packdrill) which I found after about 15 seconds' research on the Net:

The Bribery Act 2010 (the Act) 
The Bribery Act 2010 (the Act) came into force on 1 July ...

Classic! Just in case, in an article about the Bribery Act 2010, the reader would have trouble understanding what the author (who was not identified) meant by the expression "the Act". This is what  Robert St Ivo might call the Statement of the Bleeding Obvious school of drafting. I wonder whether it was a fee earner or someone in the firm's marketing department (they definitely have one) who created that abomination?

Even when used in legal documents, the irritation value of defined terms is greatly enhanced when bold type is used for them. I fail to see what additional value this has, unless the document is being written for the benefit of someone who is too dim to understand how these things work. The same goes for defined terms in block capitals, which are less often encountered but which seem to me to be equally unnecessary.

Next: date formats. I can hardly wait to let off steam!

Three (3) things that really irritate me ...

I already aired my views about the bastard conjunction (pace Viscount Simon LC) "and/or", and I just encountered another piece of drafting nonsense that always gets my goat. I entered a competition online, and the rules state -

Two (2) prizes are available. Prize A consists of two (2) economy return flights from Heathrow to Rome and three (3) nights accommodation in a four (4) star hotel in a double/twin room on a bed and breakfast basis. Prize B consists of two (2) economy return flights from Glasgow to Rome via Heathrow and three (3) nights accommodation in a four (4) star hotel in a double/twin room on a bed and breakfast basis.

You don't need to know whose competition it is - anyway, I don't want everyone entering and lengthening the already considerable odds against my winning. What is it with this "number (numeral)" thing? And why that way round? I recall seeing it first, many years ago, where the number was spelt out in words to avoid ambiguity. That was probably back in the dark ages when people wrote using pen and ink (as I was reminded when I wrote a rare cheque yesterday), or typed on sometimes-not-very-legible typewriters, but there is not the slightest possibility of ambiguity arising in clearly presented type on a computer screen. Why do it? There are rules - somewhat variable ones - about when to spell out and when to use numerals: the Oxford Style manual tells me that at OUP the change is at 100, which seems very high; the Economist Pocket Style Manual sets it at 11. The author of the competition rules doesn't seem to agree with either. Would Viscount Simon have called these "bastard numbers", I wonder?

My third bugbear - might as well get them all off my chest at once - is the common use of 23:59 as closing time for competitions and other matters that require precision in this regard. Fine, the promoters are at liberty to set whatever closing time they like, and if they wish to have the competition close at such an odd time of day that's their privilege. If they are potentially giving something to me for nothing, I won't quibble about the qualifying terms. If, however, they have chosen to use one minute to midnight because they cannot grasp, or fear that entrants will not be able to grasp, that the day ends at 24:00, I have no sympathy. It is not a difficult concept. It is not even difficult to grasp that 24:00 one day is exactly the same instant as 00:00 the next. To carve out a minute here and there is nothing but laziness, and a lack of intellectual rigour.

And if I were to enumerate a fourth, it would be the unbalanced parallel construction, but let's leave that for now.

Word and/or phrase

Talking the other day to a former colleague and professional pedant (in the best sense of the word: indeed, there should be no bad sense of it) I bemoaned the use of the expression "and/or". Of course, he had a relevant quote, but he rattled it off so quickly that I missed it. I spent a few minutes in the Law Society Library subsequently trying to find what he had been talking about, and came up with some great material - but not what I was after ...

"... that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning ..." Employers Mut. Liab. In.s Co. v Tollefsen, 263 N.W. 376, 377 (Wis. 1935), per Fowler J.

And (or or, or both):

"To our way of thinking the abominable invention and/or is as devoid of meaning as it is incapable of classification by the rules of grammar and syntax." American Gen. Ins. Co. v Webster, 118 SW 2d 1082, 1084 (Tex. Civ. App. Beaumont, 1936) per Combs J.

Excellent stuff. The American courts always get there first, and usually say it very well. There are instances over there of statutes being struck down for uncertainty because of their use of the monstrosity. All I found from the English courts - all that merited repeating, anyway - was Lord Reid in John G Stein & Co v O'Hanlon [1965] AC 890, saying that the expression was "not yet part of the English language". In fact, it could be argued - couldn't it? - that he was wrong, by the mere act of uttering it himself. But 21 years earlier Viscount Simon had formulated the most powerful denunciation of the usage - too strong, perhaps, for judicial repetition:

"... the bastard conjunction ... which has, I fear, become the commercial court's contribution to basic English."

Bonito v Fuerst Bros [1944] AC 75, which Robert directed me to after I asked him to repeat it. It's good to know that even with a world war in progress the then Lord Chancellor could find time to try to keep the language on the straight and narrow. A pity that his judgment isn't required reading in law schools.

Oh, and you'll find the sources explored at some, entertaining, length in Miscellany-At-Law by the great Sir Robert Megarry. A book that should be on the shelves of every lawyer - why have I never had a copy?

For anyone looking for a steer: the abomination can usually be replaced just with "or", and if necessary the formulation "A or B, or both" (or, I suppose, "any one or more of A, B and C") can be deployed without damaging the language, or offending a pedantic reader. And it will be clearer what is meant.

What to do with a redundant definition in your document?

Although it's a case involving banking documents, Rayford Homes Ltd v Bank of Scotland Plc and Anor [2011] EWHC 1948 (Ch) (23 July 2011) raises points of more general application. It concerned a strange situation: there was an unused definition (of the expression "BoS Priority") in a document that had been based on the bank's standard form, and it should have had a number inserted to give it any meaning anyway. What was the court to make of it?

The correct thing to do is to adopt the "Chartbrook approach", after Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101: "there is not, so to speak, a limit to the amount of red ink or verbal rearrangement or correction which the court is allowed. All that is required is that it should be clear that something has gone wrong with the language and that it should be clear what a reasonable person would have understood the parties to have meant" (per Lord Hoffmann). The purpose of the definition, even without a connection to an operative provision in the agreement, was clear enough, and the later insertion (by the bank) of a figure in the space provided. It looked as if it limited the bank's priority to the amount stated, although the bank argued that it didn't because the definition wasn't actually used in a provision of the loan agreement. Not a very attractive argument when it was the bank that had, first of all, deleted the provision which the definition should have been connected to, and second, inserted a figure that placed a limit on its own priority. And adopting a Chartbrook approach the court took the view that the bank was indeed bound by what it had written into the definition. The fact that all that was needed to give the definition effect was to add a few words to an operative provision was not determinative, but it seems to me that it indicates that little ink would be needed to make the agreement work as it looked as if it should work.