The impact of the Coronavirus (Covid19) outbreak is unprecedented and it is considered to be one of the greatest economic downturns in recent history. The corporate sector worldwide was amongst the hardest hits of Covid19, which was brought to a standstill and many organizations were forced to shut down and even more are struggling to survive. The effects of Covid19 will not fade away that easily, so service and corporate providers are called to articulate and strategize effectively to keep their clientele base and at the same time achieve their goals.

Every company’s purpose of existence is to differentiate and gain advantage over competition, which will eventually result in achieving a greater amount of market share. Competitive advantage may be successful through strategic planning, the most crucial step of which is to identify and develop mission and vision statements which will in turn add to the identity of an organisation and distinguish it from other organisations by emphasising on its own unique characteristics (Ozdem, 2011). Through strategic planning, an organisation will formulate its mission and vision statements, set up its strategy so to realise and facilitate in practice those statements and if successful, this will lead to reaching its goals and objectives.  

            According to Whittington et al. (2020), a company’s purpose must go beyond just profits and in defining their purpose, companies use mission and vision statements, statements of corporate values and objectives. For mission and vision statements to be articulate, effective and realistic, they must be formed following discussions, meetings and research. Even though Kaplan and Norton (2008) argue that formulating those is a decision for the few (i.e. executives and CEO’s), it is the author’s opinion that when developing a mission and vision statement for an organisation, the interaction and involvement of everyone in the organisation is a vital one. Taiwo et al. (2016) argue that such a formulation must have wide participation. After all, if employees feel that they are part of such a decision making, they will eventually share in practice the mission and vision of the organisation, something which will inspire and motivate them towards higher level of productivity and performance.

Cochran et al. (2008) define mission as a statement of an organisation’s business or the reason that such a business exists in the first place. It is the rationale behind an organisation’s existence and such a statement must be coherent and consistent. Whittington et al. (2020) argued that a mission statement offers to employees and stakeholders a clear picture on what the organisation is there to do. A vision statement describes the future and desired long-term goals of the organisation. Joachim (2010) stated that a vision statement is a mechanism that drives the future of an organisation and demonstrates belief and expectations about contingencies related to the desired future. To put it simplistically, the mission of an organisation is its purpose of existence, and its vision is its ambition for future results.   

For an organisation to have such statements is of parallel importance. Having clarity and coherency on vision and mission statements with no ambiguities serves as the foundation of an organisation’s strategy which will assist it to implement and reach its goals and objectives and eventually grow. Such statements provide a significant channel for communicating essential values and norms not only to consumers but also to shareholders and employees (Leuthesser and Kohli, 1997). Also, mission and vision statements are important management tools that can impact employee behavior and attitude, expressing desirables attitudes work ethics, value and culture on which employees may operationalize in their choice of actions and inactions (Taiwo, 2016).

Thus, having a correct mission and vision statement ensures that employees will serve the organisation having a joint purpose and direction, maximising in this way productivity, efficiency and actualising the core reason of the organisation’s existence. They can even provide a meaning behind assigning and allocating tasks to employees, targeting right customers, as well as they express public image of the organisation to target groups (Germain and Cooper, 2001). There are though certain problems that may arise in formulating mission and vision statements such as they might not be clearly put into words, or they might simply be not realistically achievable, or be similar or even identical to other companies’ statements (Ingenhoff and Fuhrer, 2010). Thus, a company’s statements must differentiate from its competitors, address the correct stakeholders and manage to be well known as to its products or services’ uniqueness. Only then a company will have a leverage over its competitors.

Strategic planning is essentially about choice, that is what the organisation will do and will not do to achieve its goals and objectives (Morris, no date). One of the main and basic formulas in setting up a strategy and asses an organisation’s competitive position is to gather information and conduct an analysis on the organisation’s internal characteristics and the external market conditions. Organisations, often employ a SWOT analysis to evaluate different aspects of their business, related to their strengths (S) and weaknesses (W), as well as opportunities (O) and threats (T) of the corporate environment.

Strengths include available resources, such as human recourses, skills, expertise, know-how and machinery, while weaknesses include having a weak strategy, lack of motivation and financial difficulties. An analysis of the strengths will enable an organisation to reach its goals whereas an analysis on its weaknesses will assist the organisation to discover those elements that interfere with its success (Benzaghta et al. 2021). Such an analysis on internal characteristics will assist the organisation to understand which of its resources and capabilities are likely or not likely to be sources of competitive advantage (Gurel and Tat, 2017).

Opportunities include predictions for the need of a specific service or product in the market and potential measures so to facilitate those needs. Threats include situations which either exist or may arise in the future and will prevent an organisation to reach its goals. Opportunities and threats derive from the change of the environment, for example amendment in legislation which may affect the organisation’s conduct of business. An analysis of opportunities and threats will examine how competition is likely to evolve and what implications will such evolution have on the organisation (Gurel and Tat, 2017). This will also assist an organisation to identify potential opportunities in the market, set action plans and take series of measures so to take advantage of those opportunities whereas to tackle and avoid any threats that may damage its business.

A SWOT analysis is usually formed in a power point presentation which includes a four-quadrant box (2X2 matrix). Each box will include one of the initial letters of SWOT and will list all key points for every one of them. For an objective and comprehensive SWOT analysis review, all key leaders and decision makers of an organisation must be involved in meetings, workshops and discussions. It is very important that when an organisation conducts such an analysis review, all departments of the organisation are being represented. To ensure unbiased and independent results, larger organisations may appoint external firms which will conduct such analysis review and assist to weight the various proposals. Importantly, supporting documents must be presented so to convince on the need for every element to be added in the matrix. Those may include questionnaires, and statistical analysis.

The SWOT analysis is a vital tool for an organisation’s the management team, which enables it to identify and assess internal and external factors, focus on the strengths, tackle any weaknesses, exploit opportunities and avoid threats. Strengths and weaknesses of an organisation will depend on various internal factors that may be controlled within, such as managerial skills, marketing campaigns, research and development, whereas opportunities and threats arise from external factors that may not be controlled within, such as economic, political, health, environmental.

Despite the advantages that a SWOT analysis has to offer, there are certain disadvantages and limitations. Despite not requiring a computer system or software (Beeho and Prentice, 1997), such an analysis will nevertheless need a thorough research and dedication of time and workforce. Also, the traditional 2×2 matrix encourages users to be extremely brief and not thorough something which may result in shortcuts in thinking (Minsky and Aron, 2021). SWOT analyses are often covertly political (Allio, 2006), which will often result in ignoring significant issues. 

The direct negative impact of Covid19 in the corporate sector was a great one, however it seems that organisations are adopting numerous measures so to mitigate their losses and attract business. Revising one’s mission and vision statements and adopting a SWOT analysis is of parallel importance and contributes towards the organisation’s survival and competition.

The foundation of a passing off claim lies in the injury to the reputation and goodwill of the plaintiff’s business. Spalding v. A.W. Gamage Ltd., (1914 – 1915) All E.R. Rep. 147 is considered to be one of the landmark cases in the development of such a cause of action in which it was held that:

“… the proposition that nobody has any right to represent his goods as the goods of somebody else. It is also sometimes stated in the proposition that nobody has the right to pass off his goods as the goods of somebody else. I prefer the former statement, for whatever doubts may be suggested in the earlier authorities, it has long been settled that actual passing off of the defendant’s[*376] goods for the plaintiff ‘s need not be proved as a condition precedent to relief in equity either by way of an injunction or an inquiry as to profits or damages; Edelsten v. Edelsten and Iron-Ox Remedy Go. Ltd. v. Co-operative Wholesale Society, Ltd. Nor need the representation be fraudulently made. It is enough that it has in fact been made, whether fraudulently or otherwise, and that damages may probably ensue….”

Section 35 of the Civil Wrongs Law, Cap. 148, introduced into our legal system the common law tort of passing off. The implications of this section were examined in Universal Advertising and Publishing Agency & Others v. Vouros, 19 CLR 87 which established that despite the narrow definition contained in s. 35 a trader must not only refrain from passing off his goods as those of another but also from making any such representation in respect of his business. The principle underlying the decision is that liability for passing off is extended to situations of not only goods but also services, as recognized at common law.

The elements which a Plaintiff in such an action must prove in order to succeed have been authoritatively stated in several ways, in cases involving different facts and those may be summarized as follows:

1. The Plaintiff must establish a goodwill or reputation attached to the goods or services which he supplies or provides in the mind of the purchasing public, whether it consists of a brand name or trademark or trade description or features of labelling or packaging,
2. He must demonstrate a misrepresentation by the Defendant to the public (whether intentional) leading to or likely to lead the public to believe that the goods or services offered by him are the goods and services of the Plaintiff.
3. He must demonstrate the he suffers (or that he is likely to suffer) damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the Plaintiff.

Trademarks and Trade Names

i)          Legal Action for Passing Off

The most common cases are those in which the Defendant uses or imitates a trademark or tradename under which the Plaintiff’s goods or services have become known to the public. It is important to note that if the trademark or tradename are registered then any passing of claim may also involve infringement of the rights given by registration only.

However even if the trademark or tradename are not registered that doesn’t mean that the action will not be successful if it can be established that the reputation of the mark or name is such that the use the defendant has made of it is in fact deceptive. It is not necessary for the Plaintiff to show that he is himself known to the public by name but all that is necessary is to show that the trade, or the public, recognize the mark or name under examination as denoting the goods or services of a particular manufacture or service provider, so that substantial proportion of the public, buying that good or service, would be likely to expect to get his goods or services.  

The remedies in an action for passing off are principally damages or an account of profits (loss of sales etc) and an injunction prohibiting and restraining the Defendant and his affiliated companies or representatives from using the mark or name in question.

ii)         Recourse (Art. 146 of the Constitution)

Provided that a recourse to the Administrative Court is filled within 75 days from the date of publishing the registration or from the day that the Plaintiffs came to know about such registration, the legality of such a decision by the Registrar to register such a trade mark shall be examined by the Court.

The Court is confined to review such recourse and will only intervene if the name or marks are “too like” which suggests that the similarity must be striking or overbearing (Entechno Developments Ltd v. The Republic of Cyprus (1986) 3 CLR 2613). Article 19(2) of the Companies Law Cap 113 is also relevant.

Our Litigation Team in the recent case before the Supreme Court of Cyprus, exercising its admiralty jurisdiction, represented a reputable ship-owning company and successfully obtained a decision canceling an arrest warrant issued against its vessel. The Court addressed issues of ship arrest warrants and examined matters of jurisdiction of the Court to issue such an order.

In the case under examination, the opponent Applicant, a shareholder of the Defendant Company, through an ex parte application based on Article 30 of the Cypriot Merchant Shipping Act, requested from the Court a ship arrest warrant of the Company’s vessel, which constituted the only asset of our Clients’ Company. The Court granted the arrest warrant to the Applicant who claimed, inter alia, breach of her rights, exclusion from the management of the vessel, failure by the Company to provide dividends, as well as an immediate risk of transporting the vessel to Greece for the purpose of its registration and commercial exploitation there. Immediately after the issuance of the warrant our Team objected to the validity of the arrest on behalf of our Clients, citing as the main reasons that the claim in question was not supported by the correct legal basis and the Court lacked jurisdiction, since a claim in rem is a necessary precondition for the issue of a ship arrest warrant and in the present case the vessel was not a party to the proceedings. Furthermore, the Opposition, accompanied by an affidavit, claimed irregular proceedings as well as wrongful grant of the arrest warrant for procedural and substantive reasons.

In its decision, the Court considered it appropriate to examine the objections focusing on the scope of Article 30 (aforementioned) and the vessel not being a party in the proceedings. The Court carefully examined the case-law on the nature and application of Article 30 and concluded that its scope was limited, and that our counsels had rightly argued that it did not cover the issue of a ship arrest warrant. Furthermore, the Judge concluded that it is well established from the case-law (Nakufreight Ltd v. Baltic Levant Lines (2000) 1 AAΔ 1 and Nationwide Shipping Inc v. Του Πλοίου Athena (2012) 1 AAΔ 2343) that the arrest of a vessel is possible and a relevant warrant is issued exclusively in cases of claims in rem. This is also established in Rule 50 of the Cyprus Admiralty Jurisdiction Order.

Concluding, the relevant grounds of objection were successful, and the Supreme Court delivered its judgement and ruled in favor of our Clients by canceling the arrest warrant that was wrongfully issued.

Our Litigation Team was represented by our Partner and Head of the Litigation Department, Mr. Andreas M. Damianou.

Our Litigation Team in the recent case before the District Court of Limassol with No. 1225/2019 represented a group of companies and successfully obtained a Judgement by which an interim order that was granted on an ex parte basis was cancelled.

In the case under examination, a group of companies (defendant) objected to the interim order granted to the applicant, an ex-employee of the defendant. The applicant through his ex parte application requested the court to give him back full access and control to the social media accounts and email of the company that he used to work for. The court granted the interim injection to the applicant who claimed between others that these accounts contained sensitive information for his clients as well as other personal information that were crucial for his job and clientele. He further claimed that after he stopped working for the defendant he lost communication with his clients as a result of the defendant’s action to block his access to his work email and the company’s other social media accounts that he personally run.

The defendant challenged the validity of the interim order and the District Court of Limassol ruled in their favor as the applicant did not fulfilled the main conditions for granting the interim order. Accordingly, the key conditions of Article 32 are: there is a serious matter to be heard; there appears to be a probability of success; it will be difficult or impossible to do complete justice at a later stage without granting the injunction.

On 28/08/2020 the Court decided that the applicant showed neither the probability of success of his claim, that a constructive trust was created in his favor, nor that it would be difficult to do complete justice at a later stage. Regarding the third condition of Article 32 in particular, the court mentioned that since the applicant maintained in his written statement that he also used to save his contacts and clients’ information as back up in an external disc then his claim that he would have no communication whatsoever with his clients because he couldn’t access his work email, cannot be sustained. It is interesting to note that the court observed that the fact that the applicant was the only user of his personal work email does not mean that he also was the owner of that email address. Therefore, the Court ruled in favor of the defendant and cancelled the interim order.

Our Litigation Team was represented by our Partner and Head of the Litigation Department, Mr. Andreas M. Damianou.