Overseas students barred from switching from student visa to work visa until education is completed

In 2022 there were over 485,000 student visas granted according to the Government website. This represents a 29% increase compared with visas granted in 2021.

Many who come to the United Kingdom on a student visa complete their studies and apply for employment in the United Kingdom with their newly earned qualifications. This process involves obtaining sponsorship from an employer and applying for a work visa.

There are also those who have come to the UK to study and before completing their course have been able to secure sponsorship from an employer and have applied to switch from a student visa to a work visa, prior to completing their course. Immigration rules permit this, and we have helped those who have received an attractive offer midway through their studies do so.

Despite this, the Home Office has become increasingly concerned by the large increase in the number of students that are switching to work visas midway through their studies. The increase is something that the Home Office did not expect.

Change from January 2024

On 23rd May, the Home Office announced new restrictions to the student visa route. From January 2024, the Home Office’s new reforms will prevent overseas students from switching to a work visa until their studies have been completed. The government’s reasoning for this is to “prevent misuse of the visa system”.

This change is part of the government’s overall aim to cut net migration, a popular move with Conservative politicians and voters alike. Net migration was over 500,000 between June 2021 and June 2022, a figure expected to rise in tomorrow’s announcement by the Office for National Statistics. Home Secretary Suella Braverman has previously stated her aspiration to cut net migration to the “tens of thousands”, a figure unlikely to be achieved even with the latest announcement.

If you have been offered an attractive job offer and wish to switch, then contact us today and we will be happy to help.

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Welcome Qingge

We are delighted to welcome Qingge Zhao to Lisa’s Law. Qingge joins the team as a legal assistant and has already displayed her aptitude in the role since joining.

Qingge is a recent LLM graduate from London School of Economics and Political Science, and is hoping to qualify as a solicitor in the future. Previously, she completed her Bachelor of Laws at East China University of Political Science and Law in China.

Prior to joining Lisa’s Law, Qingge worked as a paralegal at a law firm, and as a judge’s assistant at a local court in China.

She is fluent in both English and Mandarin.

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May 19, 2023
Family, Family Law, FAQs

Probate – frequently asked questions

In the last article in our series of frequently asked questions about some of the biggest Family Law topics, we take a look at the topic of probate, the process of dealing with someone’s estate once they die.

At Lisa’s Law, we specialise in probate and all other major aspects of family law. Need help with probate? Get in touch with us today.

But without further ado, let’s get into the FAQs.

What to do after someone passed away?

You first need to register the deceased’s death, obtain the death certificate, plan their funeral, and submit an application to the Court. If the deceased has a will, the executor named in the will can apply for probate, which he/she will have the authority to do so from the day the deceased passed away. If there is no valid will, it is a bit more complicated. Family members will need to submit an application to the Probate Registry for a grant of representation.

What is a grant of representation?

A ‘grant of representation’ is the generic term for the legal order issued by the probate court in the estate of a deceased person in England and Wales. The grant gives legal authority to prove that the executor or administrator (the personal representative) can administer the estate. There are two common types of grants of representation: (a) a grant of probate, which is used where the deceased left a valid will appointing executors who are able and willing to prove the will; (b) a grant of letters of administration, which is used when the deceased died without a valid will.

What do you need to do before applying for a grant?

Executors/administrators first need to identify assets and liabilities and ascertain the value of the estate, this might include checking how much is left in the bank account(s) or checking whether there is anything valuable left in the deceased’s safe. If the deceased owned properties, the value of the properties needs to be ascertained. They would also need to acquire information on the amount of outstanding liabilities as of the date of death, any credit card bills etc.

If the total amount of the estate is over the nil rate band (£325,000 for 22/23), the executor/administrator should deliver an account to HMRC giving full details of the deceased’s estate and pay the relevant inheritance tax. The executor/administrator also will need to submit an application for the grant of representation.

What do you need to do after obtaining the grant? Is a grant necessary?

The grant application involves filling in an application form, you would also have to submit the original death certificate and the original will. After the grant is issued by the court, you would have to repay all the debts owed by the deceased before distributing the estate to the beneficiaries. If there is a will, the estate can be distributed according to the testator’s wishes. If there is no will, you would have to administer the estate according to the intestacy rules.

It is necessary to apply for a grant if there are real properties in the estate, or if the deceased had a large amount of cash in his bank account(s), or if he had stocks and shares. That is because in order to deal with these assets, organisations such as the banks, the Land Registry and companies etc would need to see the original grant issued by the court.

Does inheritance tax need to be paid before the application for a grant of representation?

Before you submit an application for probate, you would first need to declare and pay the inheritance tax due. In practice, after HMRC confirms the IHT has been paid in full, HMRC will issue the IHT receipt to the Probate Registry directly (not to the payee). Once the Probate Registry has the record of the IHT receipt, it can proceed with the relevant probate application. Therefore, in order to obtain the grant, the personal representatives will have to pay any IHT due on the delivery of the IHT account.

Is it correct to think of inheritance tax as a death tax?

Most people understand inheritance tax to be a tax on the deceased’s estate (property, money and belongings), but this is not entirely true. The value transferred for IHT purposes is measured by the “loss to donor” principle, which means if an individual gives away an asset, the value of his overall estate is reduced. The amount of this reduction is the ” loss to donor “.

For inheritance tax purposes, a “chargeable transfer” is not only a transfer on death, but also applies to lifetime gifts. In effect, when an individual dies, he is deemed to have made a chargeable transfer of the amount equivalent to the value of all his assets at the date of death. If a gift is made during an individual’s lifetime, the value transferred by that gift may also be subject to inheritance tax, as there would be a loss to the transferor of the estate as a result of such an actual disposal. Of course, there is no inheritance tax involved in arm’s length transactions, i.e. where a sale is made without any “gratuitous intent”. Expenditure on the maintenance of an individual’s family is also not considered to be a transfer of value for inheritance tax purposes.

What are Potentially Exempt Transfers?

Potentially exempt transfers are deemed to be exempt while the donor is alive. All gifts between individuals are generally potentially exempt transfers, whereas a gift to a corporation is not a potentially exempt transfer. A potentially exempt transfer will not give rise to an inheritance tax charge while the donor is alive. If the donor survives for 7 years from the date of the gift, then the potentially exempt transfer will be fully exempt. If the donor dies within 7 years of the transfer of the gift, it becomes a chargeable transfer.

It is important to note that if the transferor retains any interest in the assets after giving them away, regardless of when the gift is made, it does not qualify as a potentially exempt transfer, which is known as a gift with reservation of benefit.

Inheritance Tax nil-rate band

The nil rate band is the maximum amount on which an estate is not subject to inheritance tax. Everyone is entitled to a tax-free nil rate band, which is £325,000 in the tax year 22/23. The portion of an estate that does not exceed the nil rate band threshold is charged at a rate of 0%. Any part of the estate above the threshold is subject to a rate of 40%.

What should I do if my relative passes away without leaving me any inheritance in the Will?

Testators are free to dispose of their estate, but they have to satisfy the test of testamentary capacity, and they have to comply with the formal requirements for making a will, etc. They can choose to not make a will, in which case their estate will be distributed according to the rules of intestacy. The Inheritance (Provision for Family and Dependants) Act 1975 gives the Court the power to change how the deceased’s estate will be distributed so that the deceased’s family and dependants will be able to get a certain amount from the estate.

The effect of the said legislation is that the testator will not be able to disregard the need of someone who is dependent on him. However, the purpose behind the legislation is not to reward disappointed beneficiaries but to ensure that the reasonable needs of dependents are met.

What are the conditions for making a claim under the Inheritance (Provision for Survivors and Dependants) Act 1975

The first requirement is that the deceased had to be domiciled in England and Wales at the date of death. There are also strict time limits on the application as it must be brought within six months of the date of the grant of representation. If six months have passed, it can only be brought with the permission of the Court.

The applicant can be the deceased’s spouse or civil partner; the ex-spouse who has not remarried; a cohabitant who has lived with the deceased for at least 2 years; a child of the deceased or a person who was considered a child by the deceased during his or her lifetime; a person who was wholly or mainly dependent on the deceased immediately prior to his death. An applicant may apply to the Court for reasonable financial support in respect of the deceased’s estate.

What are the factors the Court must consider in an Inheritance Act claim?

The Court must first consider two questions: (a) Whether reasonable financial provision has been made for the applicant under the Will or the intestacy rules and (b) if not, what order should be made for financial provision from an estate. The Inheritance (Provision for Family and Dependants) Act 1975 gives a list of factors for the Court to consider, this includes:

the financial resources and needs that the applicant has or is likely to have in the foreseeable future;
the financial resources and needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
the financial resources and needs which any other applicant has or is likely to have in the foreseeable future;
any obligations and responsibilities which the deceased had towards any applicant or any beneficiary of the estate of the deceased;
the size and nature of the net estate of the deceased; any physical or mental disability of any applicant or any beneficiary of the estate of the deceased;
or any other matter the Court may consider relevant, including the conduct of the applicant or any other person.

How much do your change for the application for a grant representation?

Depending on the complexity of the estate, our fees start from £2,000 to around £5,000+VAT.

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Late-night sausage rolls on the menu as Greggs and Westminster Council reach license agreement

There are many who, after a night out on the town, may find it difficult to resist the siren’s call of the nearest fast-food establishment. However, licensing rules in England and Wales often prevent certain hospitality businesses from opening late at night. Such a situation recently arose in a dispute between the high-street bakery chain, Greggs, and Westminster Council over the past year. However, in the lead up to an appeal hearing, the two parties finally came to a license agreement earlier this week.

But what was this dispute about and why are Greggs unable to sell ‘hot food’ from their flagship Leicester Square store?

Keep reading to find out.

Background

Prior to opening its flagship Leicester Square store last year, Greggs applied for a license under the Licensing Act 2003 to sell hot food between the hours of 11am and 5am. This formed part of their plans to operate the store 24 hours a day, however this was quickly quashed by the council’s decision to reject the application. This decision was informed by claims by the police that a successful application could lead to a wave of “crime and disorder” through “late-night disturbances and antisocial behaviour” in the area. This is despite the fact that a nearby McDonald’s is allowed to open late into the night.

The situation is slightly complicated by the fact that Greggs doesn’t need a license to sell products such as sausage rolls and other bakes as they are made elsewhere and kept at an ‘ambient temperature’ in the store.

Greggs does however need permission to sell hot food and drinks, including bacon baps, sausage breakfast rolls, chicken goujons, as well as tea and coffee between 11pm and 5am. Schedule 2 to the Licensing Act 2003 specifically refers to ‘hot food and drink’ between the hours of 11pm and 5am. Food is only considered to be hot if, prior to being supplied to the consumer, it has been heated for the purposes of being consumed above the ambient air temperature. The point of supply is defined as being when a meal is served at a table or when a takeaway is handed to the customer.

This only applies to premises such as takeaway food outlets and night cafes, with shops, stores and supermarkets selling cold food and cold drink from 11pm not licensable as providing late night refreshment.

Greggs announced its intention to appeal the ban in April 2023, with the three-day appeal hearing scheduled for 16^th May at Westminster magistrates court.

Greggs and Westminster reach agreement

Despite the scheduled court hearing, the two parties reached an agreement in the last few days to trade into the early hours at its Leicester Square store. The agreement will allow Greggs to open the flagship store until 2am from Thursday to Saturday, and until midnight from Sunday to Wednesday.

Despite this, the bakery chain will continue to be unable to sell hot food after 11pm. This means no chicken goujons and potato wedges for customers, but hot drinks will be permitted.

Further conditions will also be applied to Greggs, including the installation of CCTV, use of door supervisors, as well as the requirement to clear litter outside the premises. Greggs have argued that the overnight hours would mainly attract shift workers and emergency service workers, rather than groups of antisocial people.

Our comments

The continued restrictions on Greggs being able to sell hot food late at night seems fairly arbitrary considering that the nearby McDonald’s is able to do so. Westminster Council stated that Greggs would “need to try to convince the court that their evidence provides exceptional reasons for allowing the premises to operate until 5am”, which clearly it failed to do.

The official guidance on the licensing of late night refreshment states that the reason for the regulations is because of alcohol-fuelled crime and disorder in the night-time economy, particularly if they are near pubs and nightclubs. Clearly, this disproportionately affects a capital city like London, which has continued to seen a decline since Covid. This is exemplified by the fact that there has been a 27% fall in the number of hospitality employees working between 6pm and 6am since 2018.

Fundamentally, it is important to ensure that you and your business understand the rules regarding the licensing of late night food and drink. This also applies to the sale of alcohol, which can itself carry a punishment without the appropriate license.

As a law firm which specialises in commercial law, if you have any doubts regarding whether your business requires a license, please don’t hesitate to get in touch with us today!

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UK Visitor Visa – FAQs

You may have seen our recent guide on the UK Visitor Visa. Well, in today’s article we have compiled a range of the most frequently asked questions about the Visitor Visa.

Have a question about this visa? You’ll probably find the answer to it below. If not, get in touch with us today!

Q: How much funds do I need to show for a UK Visitor visa?

A: It is necessary to have enough money to support yourself during your stay in the UK, but there is no specific amount required. It’s important to consider your planned activities and living expenses in the UK, as the caseworker reviewing your application will assess the potential cost of your stay and your available sources of revenue. They will also consider your income and savings in relation to any financial responsibilities you have in your home country to determine whether you have enough funds to support yourself during your visit.

Q: What is the earliest time for me to apply for a Visitor visa?

A: The earliest you can apply is 3 months before you travel.

Q: Who can sponsor a visitor to the UK?

A: To support an application for a UK Visitor Visa, a sponsor such as a friend, family member, or business associate can provide sponsorship. The necessary documents for sponsoring a UK Visitor Visa typically include evidence of accommodation arrangements and the sponsor’s financial status, as demonstrated by their bank balance.

Q: What does it mean to make “frequent or successive visits” to the UK?

A: There is no fixed limit on the amount of time you can spend in the UK as a visitor, as long as you don’t exceed six months on each visit. However, if a caseworker suspects that you are attempting to establish UK residency through frequent or repeated visits, your application for a Standard Visitor Visa may be rejected. Your travel history will be assessed by the caseworker, including the duration and frequency of your previous visits to the UK.

Q: Can I renew my Visitor visa?

A: The maximum duration for a Tourist visa is six months, and it is not possible to apply for or extend it beyond that period. If an applicant initially applied for less than six months and wants to extend their stay, they must apply for an extension before their current leave expires.

Individuals who require frequent visits to the UK can apply for a multi-entry visit visa that can be valid for two, five, or ten years. However, they must provide evidence that there is a valid reason for their frequent visits. It is mandatory for multi-entry visa holders to ensure they do not stay in the UK for more than six months in any consecutive 12-month period.

When applying for a multi-entry visa, the applicant should provide evidence that they will depart the UK at the end of each visit and that their purpose for visiting the UK remains the same throughout the validity period of their visa.

Q: What happens if my application for a UK Visitor visa is refused?

A: If your application is refused, it is unlikely that you can appeal the decision. If you wish to challenge a refusal, you may have to do so by way of judicial review.

In case of a refusal, seeking expert legal advice from our immigration solicitors might be helpful for making a fresh application. Lisa’s Law will help you with a well-prepared application that addresses each reason for the refusal, which would be essential for the success of the fresh application.

Q: Can I switch from a Visitor visa to a different type of visa?

A: No, you cannot switch from a Visitor visa to any other visa in the UK. You will need to make a fresh application on other types of visa which you wish to apply. The purpose of the Visitor visa is to allow individuals to come to the UK for a temporary visit rather than for a long-term or permanent stay in the country.

Q: What happens if I have overstayed on my Visitor visa?

A: In case you fail to leave the UK within 30 days of your visa or leave expiring, you will be considered an overstayer and will be liable for deportation. You should find out what steps to take if you are at risk of being deported. If you leave the UK after 30 day, you may face a ban from re-entering the UK for a period between 1 to 10 years.

Q: What happens if I get caught working on my Visitor visa?

A: If you get caught, there are several consequences you may face such as being deported to your home country, needing additional documents for future travel to the UK, or receiving a ban from entering the UK for several years. Should this be applicable to you, please contact us.

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Can I still apply for settlement if I exceeded the absence limit due to Covid?

We were recently approached by a client who entered the UK in 2012. Since entering, he applied for a number of visas and accumulated 10 years lawful residence in the UK. Our client applied for Indefinite Leave to Remain / Settlement himself on the basis that he had been in the UK for 10 years lawfully.

Paragraph 276 of the immigration rules confirms what is considered as lawful residence and in what circumstances lawful residence is considered broken. One of those circumstances is if the applicant has left the UK for longer than 548 days in 10 years.

Our client left the UK for over 1,000 days within the last 10 years and therefore his application was refused. However, the Home Office did not seem to consider the fact that 700 days’ worth of absences was due to the client being stuck in China during the Covid-19 pandemic.

We are of the view that the Home Office have a duty to consider such circumstances as exceptional. Covid was a worldwide catastrophic event and should not be taken lightly. There are many people from China and other places in the world who faced severe restrictions preventing their return to the UK.

We have helped many in successfully waiving such absences. However, we do note that many have submitted applications themselves or are preparing to do so. We would like to give some guidance on how to prepare such an application.

So how should you prepare an application where you have exceeded absences due to Covid?

Well, the starting point would be to ensure that you are requesting that your absences related to Covid are to be considered exceptional and / or compassionate circumstances.

Entry and Exit

We suggest including your flight ticket in your application. If you could not use your return ticket, it shows that you have had an intention to return to the UK on a scheduled date but for unforeseen circumstances.

If you didn’t book a return ticket, then explain why. Were you unsure as to when you would come back for a particular reason? If so, explain and how long you were intending to leave the UK for.

UK Employment / Studies

If you had employment or studies in the UK at the time you left the UK, provide details. This is a good way of showing your commitments in the UK and that you did not intentionally wish to travel abroad for such a long time. If any consequences arose from this explain. For example, if you had to resit exams, take unpaid leave etc.

Health

If you or your family member fell ill provide details. Hospital records would help if you had them. If you had elderly family members who required support and had no one else to turn to explain. A good way is to write a statement explaining the support that you had to give. It is well known that Covid-19 posed the most risk to those who are elderly or vulnerable.

Family in the UK

If you left the UK during Covid but had family living in the UK provide details. This helps to show that you did not intend to leave the UK for so long. If you were still supporting them from abroad then provide details.

Covid-19 restrictions

Many countries had restrictions during the pandemic. For example, if you are from China, like the person in this case, explain the restrictions that China had during Covid-19. Flights were cancelled and the country was in lockdown. Once flights resumed, mention how soon after you returned.

Efforts to return to the UK.

A good idea is to provide details of efforts that you made to return to the UK. This could be arranging flights, communicating with your UK employer, or University. Email correspondence could really help evidence this.

Accommodation

Provide details if you had to organise temporary accommodation. Were you staying in a hotel? If so, provide details and argue that this cannot be considered a permanent solution. Back in the UK was you still paying your rent and complying with your tenancy, or if you own a property, still applying the mortgage? All of this shows that you had an intention to return much sooner than you did. Bank Statements would be the starting point to evidence this.

Future lies in the UK

Finally, it is a good idea to conclude such an application by providing details as to how you have built a life in the UK, how your future clearly lies within the UK and how any refusal would breach your rights under the European Convention of Human Rights.

The above is of course not an exhaustive list. It is situations that you should think about to see if it applied to you and if so, then any application should argue that the absence should be considered as a compassionate or exceptional.

All applications relying on this should be carefully considered a well prepared. Should you require assistance with such an application, then please contact us.

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Retained right of residence for family members of EU citizens

By Victor Falcon Mmegwa

Can family members of EU citizens acquire independent rights of admission or residence in the UK where they have lost their family connection to the EU citizen they are related to?

Qualifying family members can continue living in the UK lawfully without their EU citizen sponsor. But a person who qualifies for this right does so exclusively on a personal basis, and so cannot be the sponsor for another family member. This is called retained right of residence.

Article 13 of Directive 2004/38/EC states

1.Without prejudice to the second subparagraph, divorce, annulment of the Union citizen’s marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.

Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

2.Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where:

(a)prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or

(b)by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen’s children; or

(c)this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or

(d)by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. ‘Sufficient resources’ shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on personal basis.

This case will look into how qualifying family members are able to continue living in the UK without their EU citizen sponsor.

Balogun v Secretary of State for the Home Department [2023] EWCA Civ 414

On 19 April 2023, The Court of Appeal made a judgment in Balogun v Secretary of State for the Home Department [2023] EWCA Civ 414. The key issue of the case was whether Mr Balogun enjoyed an EU right to reside after his divorce and release from prison. The appeal pre-dated the end of the transition period and EU law continued to be relevant.

Mr Balogun is a national of Nigeria who had been married to a national of France exercising her Treaty rights in the UK, but who was then imprisoned for 27 months for an offence of dishonesty. Before he was imprisoned, divorce proceedings were begun. While Mr Balogun was in prison, his wife stopped exercising Treaty rights and left the UK. Their divorce was then finalised.

On his release from prison, Mr Balogun relied on the right of residence in Article 13 of Directive 2004/38/EC, arguing that this right was triggered on initiation of divorce proceedings and that he should be treated as meeting the “work” condition in Article 13 while he was in prison relying on the case of Orfanopoulos v Land Baden Württemberg (C-482/01) [2005] CMLR 433).

The Court of Appeal rejected Mr Balogun’s arguments, accepting the Secretary of State’s case that Mr Balogun could only rely on Article 13 from finalisation of his divorce, not initiation, and that since imprisonment brought any lawful residence as a family member under EU law to an end, by the time of his divorce he did not enjoy any EU right to reside which could be preserved by Article 13.

The Court rejected Mr Balogun’s reliance on Orfanopolous, accepting the Secretary of State’s submission that Onuekwere v Secretary of State for the Home Department (Case C-378/12) [2014] 1 WLR 2420 was authority that Mr Balogun did not meet the conditions in Article 7(2) of the Directive while he was in prison.

Our Comments

From the above judgement, we can see imprisonment can bring an end to any lawful residence as a family member of an EU citizen. This is as a family member of an EU citizen who is unable to be employed, self-employed or self-sufficient where in prison. Should you require any assistance, then do not hesitate to contact us.

Have questions about this article? Get in touch today!

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Tesco found to have copied the Lidl logo in trademark lawsuit. Why did the High Court come to this decision?

In a recent case, the High Court has ruled that Tesco’s use of its Clubcard logo constituted trademark infringement, copyright infringement and passing off. Tesco filed a counterclaim in response in which they alleged some of the Lidl trademarks were registered in bad faith and are therefore liable to be declared invalid.

You may or may not have noticed that the Tesco Clubcard logo has a resemblance to Lidl’s own logo. Lidl certainly thought so, having originally filed a lawsuit which said that Tesco’s use of the yellow circle on a blue background was an example of the supermarket trying to ride on Lidl’s coat-tails to promote its “Clubcard Prices” discount scheme due to Lidl’s reputation as a discount supermarket.

Lidl’s claim relies on trademarks relating to two versions of the Lidl logo. One is a logo which includes the word “Lidl”, while the other is a logo without the word Lidl. These are known throughout the case as “the Mark with Text” (MWT) and “the Mark without Text” (MWOT). The latter is a graphic made up of a blue background behind a yellow circle which is bordered by a thin red line.

Although the High Court is set to order an injunction against Tesco’s use of the Clubcard logo, Tesco is likely to ask the court to postpone requirements to change its logo until they have heard Tesco’s appeal. The injunction is likely to have a costly impact on the country’s largest supermarket by market share, with its Clubcard logo prominently featured throughout its marketing.

Keep reading to learn more about why the court came to the decision they did in relation to trademark infringement, passing off, and Copyright infringement.

Trademark infringement and passing off

When looking at whether the mark with text (Lidl’s main logo) was similar to Tesco’s Clubcard logo, the judge came to the conclusion that it was. The judge found that the presence within the logos of the brands “Lidl” and “Clubcard” respectively did not undermine this. Lidl brought its claims to the court on the basis of an infringement of Section 10 (3) of the Trade Marks Act.

The requirements for a successful claim mean that a claimant must shows a total of 9 criteria. These include the following:

i. the trade mark has sufficient reputation in the UK,
ii. the defendant is using its sign in the UK,
iii. that use must be in the course of trade,
iv. the use is without the consent of trade mark owner,
v. the defendant’s sign must be identical with or similar to the trade mark,
vi. the use is in relation to goods or services,
vii. the use of the sign must give rise to a link between the sign and the trade mark in the mind of the average consumer,
viii. this has to lead to at least one of the following consequences:
(a) detriment to the distinctive character of the mark (“dilution”), or
(b) detriment to the repute of the mark (“tarnishing”), or
(c) unfair advantage being taken of the distinctive character or repute of the mark (“free riding”),
ix. the use of the sign must be without due cause.

While most of the criteria were successful in the eyes of the judge, there were a few contentious issues which had to be decided.

Evidence for the similarity within criteria (v) included discussions inside Tesco itself, where internal communications saw concerns raised during the development of the Tesco Clubcard signs regarding the closeness in appearance between Lidl’s Mark with Text and Tesco’s Signs.

There were also several other criteria within Section 10 (3) of the Trade Marks Act which the judge assessed in order to decide whether Lidl’s trademark claims were successful.

A key question for the Judge was the question of whether the use of the Tesco Signs meant that the consumer linked them with Lidl’s Mark With Text (vii). In investigating this, the Judge found that consumers believed that the Tesco Signs meant that Tesco was matching their prices with Lidl’s prices. Tesco’s own research carried out in the form of customer surveys also provided support for the idea that the Tesco Signs led the consumer to link them with Lidl. Indeed, in these surveys, some believed that the Tesco Signs were in fact a Lidl campaign. Once again, this was further evidenced by Tesco’s own internal communications.

All of this led to requirement viii, which asks whether it has given rise to one of three possible forms of injury: (a) detriment to the distinctive character of the trademark, (b) detriment to the repute of the trademark, or (c) unfair advantage being taken of the distinctive character or repute of the trademark. These are also sometimes also known as dilution, tarnishing and free riding. The judge found that two consequences were suffered by Lidl: dilution and free riding.

For detriment, it was determined to be very difficult to prove that customers had changed their behaviour as a result of the Tesco signs. Nevertheless, the introduction of said Tesco signs necessitated a campaign by Lidl to address any perceived similarities between the two described as “reasonably expensive” in the form of half-page newspaper adverts.

The unfair advantage requirement was deemed to be fulfilled by Tesco’s benefit from the use of the Tesco signs. The Judge determined that due to the resemblance between the Tesco Clubcard Signs and Lidl Marks, Tesco was able to take advantage of Lidl’s “distinctive” reputation for low prices. It also conveyed the message that Tesco offered quality goods at the same or even lower prices than Lidl.

While it was found that the Mark with Text had been infringed by Tesco, the Mark without Text had also been found to be infringed and was a stronger claim due to the absence of the word “Lidl”.

Passing off

Lidl also won for the passing off claim it had brought to court. Their claim relied on the notion that by using the Tesco Signs, Tesco were alleging that their products shared the same attributes as Lidl’s of being good quality at low prices. Passing off claims usually succeed on the basis that one party tries to deceive the consumer into believing a good or service actually belongs to another party, however this was not quite the case in this instance.

Instead, the passing off claim relates to the consumers being deceived into believing that the defendant’s products are of an quality or price to the claimant’s.

Copyright infringement

When it came to the claim for copyright infringement, Lidl also won. Tesco’s access to the Mark With Text and all of the prior evidence uncovered during the case was deemed to have been proof that Tesco had copied it when arriving at the destination of their design for the Tesco Signs.

The Judge found that the incorporation of the yellow circle within a blue square meant that the Tesco Signs consisted of a substantial element of the Mark With Text.

Tesco’s evidence was undermined by the fact that they had inaccurately explained how the Tesco Sign had come into being during cross-examination. The agency which had been involved in creating the logo was not called upon by Tesco to give evidence. The judge therefore inferred that the agency’s provision of evidence would have damaged Tesco’s case on the development of the signs.

The judge also evaluated the evidence regarding communications between Tesco and the agency, leading them to conclude that the agency copied the Mark With Text’s blue background and yellow circle concept in the development of the Tesco Signs.

As a result, the Judge concluded that Tesco had infringed the Mark With Text.

Despite losing on trademark infringement and copyright infringement, Tesco did have partial success when it came to the counterclaim.

Tesco counterclaim

While Tesco failed to have the four trademark registrations for the MWOT, they did succeed in having the four trademark registrations invalidated.

The reason for their success is that while Lidl applied for a trademark for the mark without text (MWOT) in 1995, and on four further occasions, the Judge decided that Lidl failed to provide positive evidence of an intention to use the MWOT. Nevertheless, the Judge ruled found that the trademark application in 2021 was not filed in bad faith, partly because it had been 11 years since the last registration. Despite the invalidation of the four previous trademark applications, as a result of the latest one, Lidl will continue to have a registration for the MWOT.

Final comments

Tesco has since said that it plans to appeal, however it seems unlikely to succeed. Permission for such an appeal would need to be granted by either the Judge or the Court of Appeal.

The case itself offers an important lesson when it comes to trademark law and copyright law. It is distinct from many other cases because its focus was not on whether customers themselves were confused between the two brands, but whether Tesco exploited the reputation Lidl had for low prices by using a similar logo for its new Clubcard scheme.

It remains to be seen what will happen in the event that Tesco does decide to appeal, or the consequence it will have in terms of opening up the door to similar cases. Nevertheless, it is likely to have a significant impact on Tesco by forcing them to change their branding for their Clubcard range.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

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May 4, 2023
Family, Family Law, FAQs

Making a Will – what are some of the most common questions about this topic?

The importance of Wills cannot be understated, however sometimes they can be an area which open up some difficult conversations with families and loved ones. For the fifth and penultimate article in our series of FAQs about Family Law, we will take a look at the importance of Wills, particularly making a will, or will drafting. Keep reading to learn more about the topic of Wills in the form of questions frequently asked by our clients.

Do I need a will?

Having a Will ensures that: 1) Your assets are disposed of as you wish after your death. A professionally drafted Will takes into account your finances and personal circumstances, this will give you the opportunity to discuss your estate planning with your family which will significantly reduce the likelihood of disputes arising after your death; 2) Your assets do not pass under the general intestacy rules and that your estate is administered by people of your choosing (not dictated by intestacy rules). 3) The people who matter most to you are looked after if you die, this is particularly important if you have young children or if someone vulnerable is dependent on you.

What is the process of making a Will?

Initial information will come from a questionnaire filled out by you or from a meeting with you. Information needed include Your personal circumstances (marital status, children and dependents, previous wills etc.); your assets (property, business assets, joint assets, saving, pension, life insurance, debts or liabilities etc.); whether you want gifts to be made through the will etc. We will then prepare a draft will based on your instructions. The time for preparation will depend on the complexity of your estate and personal circumstances.

What are the requirements for a valid Will?

The basic requirements for a valid Will are that the testator must: 1) have the capacity to make a Will, the testator must be of sound mind, memory and understanding when giving instructions for the Will and when they execute the Will. 2) have the intention to make a Will and 3) comply with the prescribed formalities, e.g. be in writing; be signed by the testator or by some other person in their presence and by their direction; have a signature made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and be witnessed, where each witness must attest and sign the Will or acknowledge their signature, in the presence of the testator

Who should your executors be?

The executors are the people who will administer your estate, e.g. ascertain your estate, pay any inheritance tax, apply for probate and distribute your estate according to the terms of your Will. Executors can be anyone (including a beneficiary) over the age of 18. It is normal to have at least two executors to ensure they can deal with real property. As executors often play an important role, you will need to consider carefully who they should be. Sometimes professional executors may be the better option e.g., solicitors.

Who are the beneficiaries?

Beneficiaries are the people who stand to benefit from your Will. The general rule is that the testator is free to leave their estate as they wish.

Who do you want to appoint as guardians of your children under the age of 18?

This appointment would take effect if no other person with parental responsibility survives you. It is advisable to discuss any appointment with your spouse and to consider what happens if something were to happen to the appointed guardians.

What assets should be left in my will?

You will need to consider what particular assets you may want to leave to certain people. Gifts in your will are known as legacies. Generally speaking, there are two kinds of legacies: (1) General legacies, which are not distinguished from other properties in the estate, which commonly will be a gift of money; and (2) Specific legacies, which are specific items you want to give away.

You will be asked to provide the list of gifts you would like to make, i.e. the description of the assets and the names and addresses of the intended beneficiaries. Gifts to minors need careful consideration as a gift to a minor beneficiary will have to be held on trust until they reach the age of 18.

If a resident in England and Wales passed away without a Will, what is the order of entitlement under the intestacy rules?

When a person dies without leaving a valid Will, their property (the estate) must be distributed according to the rules of intestacy. If the deceased has a surviving spouse or civil partner, he/she will be entitled to all the personal property and belongings of the person who has died, the first £270,000 of the estate (statutory legacy), and half of the remaining estate.

The other half will be distributed to the deceased’s children. If the deceased passed away without a surviving spouse or civil partner, the estate will be inherited by the children. If the deceased does not have a surviving spouse and children, the order of entitlement would be in the following order: Parents, then brothers and sisters, nieces and nephews etc.

How much does Lisa’s Law charge for will drafting?

Our starting price is £250.00 plus VAT for a simple Will provided that there are no trusts or minor beneficiaries involved (Simple Mirror Wills are £400 plus VAT). If there are any minor beneficiaries involved in the Will, it will be around £350 plus VAT (Minor Mirror Wills are £500 plus VAT). We charge extra if there are other complicated circumstances.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

iPhone version.

Android version.

lisaslaw@web

See Full Bio