@Oisin: I accept it is rather pushing the envelope to suggest that the YCYC IP provisions would be unfair under the Regulations!

@Antoin: Insofar as it can be ascertained from the vague website, YCYC appears to be a “consumer” type competition rather than a business contest. YCYC is not a Dragons’ Den scenario: it appears unlikely that the winners will have any involvement with whatever organisation develops the winning ideas.

However, I’d be pretty surprised if the Unfair Contract Regs Applied here.

First, it’s very hard to see how YCYC is a supplier of services. I’d have to read the contract in depth but from a quick glance it seems to involve an assignment of IP rights from the user to the organisation in exchange for consideration in the form of cash, i.e. the prize. I would be extraordinarily surprised if a cash payment was characterised by the court as a service. However, if other services were provided e.g. marketing support, this analysis may change.

Second, Reg 4 provides that “A term shall not of itself be considered to be unfair by relation to the definition of the main subject matter of the contract or to the adequacy of the price and remuneration, as against the goods and services supplied, in so far as these terms are in plain, intelligible language.”

Even if the Regs applied to this contract, it’s debatable whether or not they would apply to the IP assignment provisions which, given their subject matter, are drafted relatively clearly. The IP assignment is arguably “the main subject matter of the contract”. That fact alone may bring them outside the scope of the Regulations.

For the purposes of the Regulations, a consumer is “a natural person who is acting for purposes which are outside his business”, so certainly some people making proposals to YCYC might be doing so “inside” their business. However, many will not.

For example: if an individual wins a competition by composing a catchy slogan, should they be considered marketing executives rather than consumers? In the YCYC context, if a sales assistant makes a proposal about something completely unrelated to sales, should they be deemed not a consumer? It is just a competition after all, not a process whereby the winners participate in forming a business.

The Regulations apply to “any term in a contract concluded between a seller of goods or supplier of services and a consumer which has not been individually negotiated”. There are excluded categories of contract, but they are not relevant to YCYC.

The questions that arise are: (1) whether someone making a proposal to YCYC is a consumer; and (2) whether YCYC is a supplier of services.

I left it as an open question as I didn’t have time to research the point. The Regulations implement the Unfair Contract Terms Directive and while there is very little caselaw in Ireland on this issue (the most well known being the Law Society’s challenge to certain building contract terms) guidance could be found elsewhere in the EU. There was a database of unfair terms (CLAB) but I can’t find it anymore.