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English to Japanese: In re Becton, Dickinson & Co. (Fed. Cir. April 12, 2012) General field: Law/Patents Detailed field: Law: Patents, Trademarks, Copyright
Source text - English BD attempted to register as a trademark a closure cap for blood collection tubes that included both functional and non-functional features. The TTAB affirmed the Examiner's refusal to register the mark, applying the four factors for determining functionality set out in In re Morton-Norwich Products, Inc., 671 F.2d 1331 (C.C.P.A. 1982). The TTAB specifically found: (1) existence of a utility patent disclosing the usefulness of several features weighed in favor of functionality; (2) BD's advertising identifying the utilitarian advantages of several features weighed in favor of functionality; (3) the submitted evidence was insufficient to establish whether there are alternative designs available; and (4) the minimal evidence of whether the cap design resulted in a simple or inexpensive method of manufacture did not favor a finding of functionality.
The Federal Circuit affirmed. The Federal Circuit rejected BD's arguments that the presence of non-functional elements should remove the mark as a whole from being functional. The Federal Circuit stated a mark with both functional and non-functional elements should be assessed by weighing the elements of the mark against one another to develop an understanding of whether the mark as a whole is essentially functional. The functional superiority of the design as a whole, not whether each specific design feature is useful, is the basis for finding functionality. In affirming the TTAB's Morton-Norwich analysis, the Federal Circuit held that: (1) a utility patent need not claim the exact features for which trademark protection is sought to favor finding functionality, and that existence of a design patent does not, without more, overcome functionality of a mark; (2) the mention of the utilitarian features of the cap in BD's advertisements were substantial evidence of functionality; (3) because factors (1) and (2) weighed in favor of functionality, whether competing alternative designs exist does not need to be considered; and (4) the TTAB did not err by refusing to weigh factor (4), due to lack of evidence of the impact of the cap's design on manufacturing.
English to Japanese: Fraudulent trading General field: Law/Patents Detailed field: Law (general)
Source text - English Where during the course of a winding-up it appears to the liquidator that fraudulent trading has occurred, the liquidator may apply to the court for an order any persons who were knowingly parties to the carrying on of such business are to be made liable to make such contributions (if any) to the company's assets as the court thinks proper.
Conceptually, fraudulent trading is similar to a fraudulent conveyance, but the key distinction is that an application to have a transaction set aside as a fraudulent conveyance usually requires to the third party beneficiary to disgorge the benefit of the conveyance to undo the loss to the company's assets, whereas a court order in relation to fraudulent trading it is the responsible parties (usually the directors) who must make up the loss and the third party beneficiaries will usually retain the benefit. However, it is perfectly possible for a single transaction to be simultaneously fraudulent trading and a fraudulent conveyance, and to be the subject on concurrent applications. Some legal systems permit a director who makes a contribution to the company's assets pursuant to an order for fraudulent trading to subrogated to any claim that the company might have with respect to a fraudulent conveyance.
In practice, applications for orders in respect of fraudulent trading are rare because of the high burden of proof associated with fraud. Usually, even where fraudulent trading is suspected, an application is made with respect to an allegation of "wrongful trading" (or "insolvent trading") where the burden of proof is lower. Where applications are brought for fraudulent trading it is usually because when the trading occurred, the company was not insolvent at that time (insolvency at the time of the trading is normally a requirement to establish wrongful trading, but not fraudulent trading).
The effect of a successful application for fraudulent trading varies between different legal systems. In some countries the assets contributed by the directors are treated as general assets which may be taken by any secured creditors who may have a security interest which attaches to all the company's assets (characteristically, a floating charge). However, some countries have "ring-fenced" payments made for fraudulent trading so that they are made available to the pool of assets for unsecured creditors.
Fraudulent trading is entirely separate and distinct from "insider trading", which focuses purely upon the abuse of inside information in relation to financial markets for personal financial gain, and is wholly unrelated to creditor's rights or insolvency law.
Translation - Japanese 清算財産管理人が清算手続きの過程で、不正取引が行われたことを発見した場合において、行為者がその不正行為の事実を認識つつ取引に応じた場合、清算財産管理人は裁判所が適当と考える額（該当する場合）を当該会社に返金することを義務づける命令判決を裁判所に申し立てることがある。