Welcome to another Lawyer Portal weekly news summary. This week’s post will cover the legal news stories from the 14th August 2017 to the 20th August 2017. This week a judge in Northern Ireland dismissed two landmark challenges against the divisive ban on same sex marriage, two former CIA psychologists have reached settlement in a lawsuit for their role in creating a torture program for the agency after 9/11 and the makers of Toblerone continue in their legal battle with Poundland over the strength of their trademark.
A Northern Irish judge has rejected arguments that the ban on same sex marriage violates the rights of LGBTQ+ couples in the region. Mr. Justice O’Hara said that he understood the reasons why the LGBTQ+ community felt so strongly about the outcome but that his decision had to be based on law and not social policy. He went on to add that it was for the Stormont Assembly to make any changes to social policy in Northern Ireland.
The two challenges to the legislation were heard together due to their similarities in legal argument. The first case was brought by two men who sought for their marriage in England in 2014 to be recognised in Northern Ireland where in law their marriage would change to a Civil Partnership. The second case was a joint challenge to the legislation by a lesbian and a gay couple who sued Stormont’s Department of Finance and Personnel, which regulates the region’s marriage laws, on grounds of infringement of their Article 8 right to family life in the European Convention for Human Rights. However, a lawyer for the department argued that there was no breach of human rights as the law regarding civil partnerships already met the minimum requirements.
Members of the Northern Irish Assembly have voted five times in the past on whether to introduce same sex marriage but the motion is always blocked by the Democratic Unionist Party (DUP). The fifth vote in November 2015 saw Members of the Legislative Assembly (MLAs) voting in favour of a change to legislation however the DUP used a Stormont veto, known as the petition of concern, to block the motion and prevent any changes. DUP Leader, Arlene Foster, has vowed to continue blocking votes on same sex marriage despite clear majority support for a change in legislation. Earlier this year she explained her position by suggesting that she cannot allow herself to condone a change to the definition of marriage.
Sinn Féin MLA Carál Ní Chuilín said this issue is one of the most poignant in the current political crisis in Northern Ireland – where the Assembly has been in halted since the power sharing government broke down in January 2017. Same-sex marriage is now legal in the Irish Republic, England, Scotland and Wales.
A lawsuit has been settled by two former CIA psychologists to avoid a civil jury trial which was scheduled for later this month. CIA contractors James Mitchell and John Jessen settled the lawsuit brought by three ex-detainees, two living and one who died of hypothermia whilst being interrogated, claiming they were illegally tortured using the men’s harsh methods. Their interrogation program, which allegedly included the administration of techniques such as waterboarding, placing detainees in tight coffins, starvation and sleep deprivation, was used during the war on terror following the attacks on September 11th 2009.
The psychologists produced proposals in 2002 for techniques to be used on terrorism suspects thought to be resisting CIA interrogations. The enhanced techniques were based on those used in military schools to simulate what servicemen might undergo if captured by regimes violating the laws of war. They were later condemned and banned by both US and international law.
The landmark lawsuit brought by the American Civil Liberties Union in 2015 was the first time the CIA or their contractors have been held accountable for actions undertaken in CIA interrogations. The terms of the settlement are confidential and thus it is unclear whether the agreement made was financial. However, the parties did agree to a joint statement in which the psychologists acknowledged they advised the CIA and that the plaintiffs had suffered abuses but that they were not responsible for that abuse.
Despite no public trial going forward, the case expanded public knowledge about the CIA’s interrogation program. For example, previously hidden documents were declassified and officials were subject to lengthy questioning in video depositions allowing inconsistencies to be isolated between the descriptions of interrogation techniques made by officials in comparison to those made by former detainees. One of the plaintiffs said through a translator that he felt that the justice they were seeking has been served.
This week Poundland have fought back in their legal battle with Mondelez, the maker of Toblerone challenging claims that their new Twin Peaks bar infringes their trademarked prism shaped chocolate bar. After a legal warning from the brand’s swiss owner, the budget chain was forced to delay the launch of its new bar which has two triangular humps as opposed to one.
In legal defence documents filed this week, Poundland argues that the triangular prism shape of the original Toblerone bar, which was registered under an EU trademark in 1997, is no longer distinctive because of their recent change in shape. It goes on to claim that any good reputation enjoyed by the trademark has been ‘abandoned’ by the launch of the chunks which are now more spaced out in an attempt to cut the cost of the bar. Moreover, Poundland claims their new two peaked bar creates a different impression to shoppers in addition to having a more uniquely British flavour.
On the other hand, Mondelez claims Poundland and its supplier Walkers Chocolates have infringed its established trademark with the overall shape of the bar as the ‘Twin Peaks’ bar is ‘deceptively and confusingly similar to Toblerone.’ The brand seeks damages in relation to the infringement.
An intellectual property lawyer, Sally Britton, said that this battle covers the issue of whether a mere specific shape could be distinctive enough to function as a trademark. She goes on to highlight that a trademark is a characteristic of a good or service which clearly distinguishes it from others. The argument here by Poundland is that by changing the original shape of the bar Toblerone is weakening the validity of its own trademark.
Words: Alicia Gibson
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