model answer for parts A,B,C,D,E,F Flashcards
A
John wants to take out a loan therefore he will need to take out a security. A security is a right that the creditor may hold for ensuring the payment of the debt.
John wants to use his house as part of this process and so will be using a real security as real securities are taken over land and buildings as seen in the Conveyancing and Feudal reform (Scotland) act 1970 where any land may have a real security as in section 9(2).
John will firstly grant the security of his land therefore creating a subordinate real right. allowing the bank to be paid out if John goes insolvent.
in order to create the security it must be put in writing under the Requirements of writing scotland act 1995 and in the land register section 1(2)(a)
The court may allow the suspension of the creditors rights or the continuation of court proceedings via a resident of the house under the home owner and debtor protection Scotland act 2010 section 5
B
Section 1 + 2(a) of the Land Reform Scotland act 2003 allows people to be on land for recreational activities such as picnicking.
now we must answer whether the cyclists have exercised their rights in an appropriate way.
section 2(2) tells us that places must be accessed without causing any unreasonable interference with any rights. however the cyclists may interfere with Johns allium Sativam. therefore John under article 6(1)(i) which specifies where rights are not accessible where the land is plants. therefore john can use an interdict through the court if they may come back again.
C
Firstly, section 8(1) of the Title Conditions Scotland Act 2003 ststes that an individual needs both title and intrest to sue.
A person has title under S8 (2) if they are the owner of the benefitted property and i am assuming that they are as they are John’s neighbours.
To ensure they have interest, they would need to prove that Johns building of the rollercoaster and Garage would result in the material detriment, value or enjoyment of their property subject to S8 (3)(a)
the case law for this would be Kettlewell v Turning Point Scotland
D
YES. He would need to consider the law of Nuisance.
Neighbours have the right to enjoy their property in peace and free from interference.
They have the right to the heavens and earth so cannot put a zip wire over their gardens. the law of Nuisance can be a physical damage or interference with the enjoyment and use of their property. Therefore John may not exercise his ownership rights which interferes with the comfort and convenience of life with his neighbours which includes noise and smell.
Also the factor of Urban smells not being welcome in a remote area. Maguire v Charles Mcneil.
E
Trademarks protect things which distinguish goods from one to another.
This is governed under the trademarks act 1994 S1 “may consist of words”
Therefor you should be able to stop someone with a similar name or a similar one.
Section5(2)(b) Trademarks Act “Similar to an earlier trademark and is to be registered for goods or services similar to an earlier trade mark”
F
John would like to get a patent for his design in the UK.
Therefore it must be Novel, Have an inventive step, Must be disclosed and must not be excluded.
Novel:
The test for this is General tire v Firestone
S2 PA needs to be new globally. they check if someone has gotten there first. Moreover, they look at the date of publication, if there has been significant jumps since that publication of the previous zip wire.
Inventive step:
not obvious to a skilled but unimaginative person.test for this is windsurfing/Pozzoli. S3 PA “An invention shall be taken to involve an inventive step if it is not obvious to a person skilled in the art”
Industrial application:
capable of industrial application if it can be made or used in any kind of industry S4. S14 -Someone needs to be able to copy you.
Cant be excluded: S4A e.g a discovery
John will need to get a patent in Australia before Kara does. Needs to be a one off because if done a second time then it is not novel anymore.
