• CONTRACT

In United States District Court, Southern District of New York

Macromex Srl. v. Globex International, Inc.

Whether defendant should be exempted from performance by CISG Article 79, which covers excuses due to force majeure.

The present court concluded that the defendant's case did not come under any of the exemptions

CISG Article 79, which covers excuses due to force majeure is read as under, it contains four elements: 1) an impediment beyond the party's control, 2) unforeseeable by that party, 3) that could not be reasonably avoided or overcome, and 4) an allegation by that party that nonperformance was due to that impediment. It was found by the court that the defendant satisfied the 1st, 2nd and 4th condition but did not satisfy the 3rd condition. The situation could have been avoided if the goods were supplied in time or at a port of another nearby country under section 2-614 of U.C.C. as also held in the case of Meyer v. Sullivan.

Whether the final arbitration award could be challenged in the court

Globex (defendant) argued that the arbitrator miscalculated the damages as regards CISG Article 74. Arbitration awards are subject to very limited review in order to avoid undermining the twin goals of arbitration, namely, settling disputes efficiently and avoiding long and expensive litigation. A court is required to confirm the award unless a basis for modification or vacatur exists. The Federal Arbitration Act ("FAA") lists specific instances where an award may be vacated. The court confirmed the arbitrator 's decision and the award.

Cour d'appel [Appellate Court]

Colmar Société K... [Buyer] v. SA Q... [Seller]

Jurisdiction-Whether the County Court of Strasbourg was internationally competent to hear the case

The special provisions of the CISG are prioritized over the provisions in the general European regulation, in the light of article 71 of the Brussels-I-Regulation.

This means, the contract between the parties has to be interpreted according to the provisions of CISG, which provides in its article 3(1) that the CISG does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labor or other services

In the present case, the contract does not fall within the CISG's scope of application as the Buyer had commissioned the Seller to complete the work of printing, handling and delivering the product

Brussels-I-regulation was applied to the present case as it is a lawsuit within the European Community. Article 5, states that "A person domiciled in a Member State may be sued in another Member State: 1(a) in matters relating to a contract, in the courts where performance of the obligation in question" has been or must be effected"

Art. 2 of the Brussels-I-regulation states that "persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State". The Buyer was wrong in invoking this article as it is superseded by a rule leading to a special competence.

For the above-mentioned reasons it was held that the County Court Strasbourg was competent to hear the case.

• Intellectual property rights

In United States district court

Storus Corp. v. Aroa Mktg., Inc

Whether plaintiff's suit for trademark infringement sustainable

In the present case the suit was sustainable on grounds of consumer's initial interest confusion.

In determining whether a defendant's use of a mark creates initial interest confusion,

The court considered the eight "Sleekcraft factors": (1) the similarity of the marks; (2) the relatedness or proximity of the two companies' products or services; (3) the strength of the registered mark; (4) the marketing channels used; (5) the degree of care likely to be exercised by the purchaser in selecting goods; (6) the accused infringes' intent in selecting its mark; (7) evidence of actual confusion; and (8) the likelihood of expansion in product lines. And defendant's purchase of several keywords, including "smart money clip," from Google's Ad Words program created initial interest confusion as when Internet users entered the term into Google's search engine, defendant's advertisement prominently displayed the phrase "Smart Money Clip" which further lead to defendant's website.

It was observed by the court that the wrongful act is the defendant's use of the plaintiff's mark to divert consumers to a website that consumers know is not plaintiff's website. . It also observed that plaintiff's mark was valid and protectable, rejecting defendants' claim that the mark was merely descriptive. "Smart" did not describe any of the clip's functions. The court thus granted plaintiff's motion for summary judgment against Aroa (defendant).

• TORTS

SUPREME COURT OF CANADA

Mustapha v. Culligan of Canada Ltd,

Negligence of the manufacturer -Whether Customer can sue his bottled water supplier in negligence after finding remains of flies in unopened bottle for damages too remote or reasonably unforeseeable

A successful action in negligence requires the plaintiff to prove (1) defendant owed him a duty of care; (2) defendant's behavior breached the standard of care; (3) some damages occurred to the plaintiff and (4) because of defendant's breach some damages were caused

Mr. Mustapha's claim failed because of the following reasons:

Donoghue v. Stevenson: it was established in this case that manufacturer of a consumable product owes a duty of care to final consumer.

Linden and Feldthusen: it was held that a defendant's conduct is negligent, if it creates an unreasonable risk of harm. Therefore, a supplier of bottled water intended for personal consumption is under a duty to take reasonable care that the water is not contaminated by unwanted elements. The second element of liability in tort for negligence is therefore met.

The law does not recognize agitation, upset, disgust, anxiety, or other mental states that fall short of injury. The need to accept such upsets rather than seek redress in tort can be inferred from the quote in Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 48 O.R. (3d) 228 (C.A.): "Life goes on" (para. 60). Which means minor and transient upsets are not included in personal injury, and hence do not amount to damage.

The Wagon Mound : it was held in this case that any harm, which has actually occurred if it is "possible"; this clearly means that possibility alone, does not call for the application of reasonable foreseeability.