星空传媒

The sincerest form of flattery...

Ultraframe, a manufacturer of conservatory roof components, had developed its Ultralite 500 system from the earlier Ultralite 250 system to build conservatories with low-pitched (less than five degree) roofs. This allowed it to enter the lucrative market for conservatories to be built onto bungalows without the need for dual-pitched roofs or pricey, unreliable box gutters. Ultralite 500 also simplifies on-site erection by using wide panels and zipping them together. Sounds like a great idea, doesn鈥檛 it?

Clearly a rival firm though so too. Ultraframe鈥檚 technical training manager was shocked when he saw Eurocell鈥檚 Pinnacle 500 at the Glassex exhibition. Despite training people and working with Ultralite 500 on a daily basis, he could only tell the Pinnacle 500 and Ultraframe鈥檚 Ultralite 500 products apart at close range. 鈥淚 recall saying to myself at the time that it was a close a match as you would ever get鈥�, he said.

Ultraframe sued Eurocell for breach of its patents and its design right. At first, Eurocell argued its Pinnacle 500 design decisions had been taken independently. But under cross-examination, Eurocell鈥檚 Adrian Redshaw admitted Eurocell had adopted the Ultralite 500 design and made a couple of changes.

The court held that Pinnacle 500 did not infringe the patent for Ultralite 500 due to the changes. However, it did hold that Pinnacle 500 infringed the part of Ultraframe鈥檚 design right for the whole assembly and panels of Ultralite 500, though not for certain details.

Moral: If you copy a design, don鈥檛 make an exhibition of yourself!

Case: Ultraframe (UK) Ltd versus Eurocell 星空传媒 Plastics Ltd, Eurocell Profiles Limited HC0302313, July 22, 2004

TRS and Ultraframe part one - Discounted and distressed

It鈥檚 not fair, said fabricator TRS. Its exclusive supplier Ultraframe, which manufactures conservatory roof components, was targeting TRS鈥檚 clients. TRS flat-packs components and sells them on to installers.

Untraframe became TRS鈥檚 exclusive supplier in 1999. The benefit for TRS is that Ultraframe discounts its selling price to fabricators as their turnover increases. The agreed deal between the two parties did not oblige either party to sell or take any specific quantity and the arrangement could be terminated on 12 months鈥� notice.

But Ultraframe also sells flat-packs direct to installers and offered discounts to TRS鈥檚 customers to buy from Ultraframe direct.

TRS sued Ultraframe, arguing that there was an implied term in the deal that said Ultraframe could not indulge in such unhealthy competition (but admitted that healthy competition was ok).

The Court of Appeal found that for a term to be implied, it had to be necessary to make the contract work. In this case there was no exclusivity of sales to installers and as a result Ultraframe was not in breach of contract.

Moral: Courts do not plug all the holes

Part two - deliverance

Ultraframe and TRS also argued about a part delivery of 拢21,328.92 worth of goods to TRS on September 19, 2000. The paperwork on both sides was incomplete and confusing.

Ultraframes鈥� driver said he delivered the goods to TRS at 7.00am and had left all the despatch notes with TRS. After some to-ing and fro-ing, the two firms agreed that there was a delivery of at least some goods on the day but that the driver had brought back the documents unsigned.

Ultraframe wrote to TRS on September 26 saying that it had made two attempts to get its paperwork signed without success. TRS replied on October 9 saying it could not trace the paperwork or the goods delivered.

TRS did not differentiate between goods that were in dispute and those that had been delivered.

Ultraframe then argued that if TRS had been protesting about being short of important goods needed for orders at 10.30am on September 19, it should have made immediate and vociferous protests and issued non-conformance sheets as part of its non-conformance procedure.

As TRS did not, the Court of Appeal held that the full delivery had been made. Ultraframe was entitled to its 拢21,328.92 even though it did not have any signed sheets.

Moral: If they won鈥檛 sign, keep trying

Case: Ultraframe (UK) Ltd versus Tailored Roofing Systems Ltd. Court of Appeal May 14, 2004

Spells disaster

When an adjudicator decided in builder Ken Biggs鈥� favour, homeowner Mr Norman refused to pay. So Biggs started enforcement proceedings.

Biggs had offered to do the work by letters that referred to the 鈥楯CT Standard Form of Contract with Contractor鈥檚 Designs, 1988 Edition鈥�, saying that its principles would apply and referring to a certain JCT clause stating that certain insurance provisions would apply. And if a dispute were to arise, then the contract provisions would apply.

Biggs had been right to put it in writing. There is no statutory right to adjudication with a homeowner under the Housing Grants, Construction and Regeneration Act. Adjudication has to have first been agreed between the parties in writing.

But Norman argued that the adjudicator had not had jurisdiction to decide the dispute as there was no 1988 edition of the JCT With Contractor鈥檚 Design form. The correct dates were 1981 and 1998. As the Construction Act did not come into existence until 1996, the 1981 edition had no adjudication clause.

The Court agreed. If no date had been mentioned, the inference would have been that the latest edition applied. Even if 鈥�1988鈥� had been simply a typo for 鈥�1998鈥�, it could just as well have been 鈥�1981鈥�. In any event, the court was unsure that all the JCT conditions applied as the letter only referred to specific principles of JCT With Contractor鈥檚 Design.

Moral: You can be court by a tyopgrhapical errer

Case: Ken Biggs Contractors Ltd versus Norman TCC. August 4, 2004