Grey Areas

I've been learning a lot about marketing this year. The key is to give the customer what they want. Sounds like common sense, doesn't it? What I've been learning and what is finally sinking in is that customers will value more and hence pay more for what they WANT than what they NEED. Even more to the point is that you actually don't have a potential customer if you are selling what you think the customer needs without even knowing if the customer thinks they need it!

The thing with most professional services, doctors, lawyers etc is that we provide a service that our client invariably NEED rather than necessarily WANT. So, as a lawyer we are already behind the eight ball when it comes to providing cost effective services. Customers are more likely to resent having to use legal services in their time of need than chosing the services they want at a time that suits them.

So the struggle I have is working out what preventative legal services you as a business owner will actually want, and appreciate, rather than trying to give you what I think you need.

What makes working out what you as a client might want, is further complicated by the fact that there are not a lot of clear answers in law. The example I used at a recent presentation was this:

Imagine a big red cross one side of the room and a big green tick the other side of the room and a whole lot of hazy grey area in between. There is very little definative right and wrong in law and a whole lot of grey area which is subject to interpretation.

Subject to Interpretation...

What difference would it make to you if your lawyer clearly explained that the advice they are giving you is their best guess as to how it would be interpreted by a court and not the definative right answer in your situation?

The First Legaleasy Presentation

Hi there readers,

I just gave my first live Legaleasy presentation today to a group of about 35 coaches all training for coaching certification with Beyond Success.

I provided an overview of business legal structures, briefly covering sole traders, partnerships, trusts and companies, and a discussion around business names. We then went on to get an overview of intellectual property - trademarks, copyright, patents and designs.

Then finished with obligations to clients include fair trading/consumer affairs implied warranties, duty of care, privacy, confidentiality and record keeping.

It seemed to be well received and 25 people have given me written feedback about the top three legal concerns they have in running or setting up their coaching businesses, and I'm excited to be finding out what it is people really want to know.

Thank you to Paul and Mary Blackburn for giving me the opportunity to speak today, Jules for your support, and all the people who chose to attend the session that I presented. I appreciate the opportunity to add value!

Jeanette

Is it really necessary to register a Trademark?

This is the third part response to a question posed by Jen after reading earlier Legaleasy posts, with a delay of about a week. Sometimes life gets in the way!


Trademark registration, is it really necessary?


Great question! When you are first starting a business you probably have other items of expenditure that are going to actually help generate your business income which should have higher priority than trademark registration. In a start up business, unless you have loads of money to spend on it, earning income is the most important aspect of the business, so focus there first.


If you are concerned that your really cool logo, catchphrase or name is going to be immediately snaffled by a competitor, then you can note a little TM after it and start making enquiries about trademark registration. TM is a warning to consumers and businesses that you are declaring the name, logo etc to be a trademark of your business and something you intend to take action to protect. Have a look at Google... they only use a TM and haven't go so far as to register their name as a trademark. Don't for a minute think that they wouldn't take action to do something about you using the name for your own business!


On the other hand, look at Apple®. Apple® register all of their trademarks and take prompt action to protect them. So what is the difference?


Suing for trademark infringement is much easier and cheaper if you have a registered trademark. If you haven't registered a trademark you have to put a lot more information before the court to demonstrate that it is in fact a trademark and should belong to you to the exclusion of others before you can challenge someone else's usage of it. Some companies are pedantic about their trademarks being used, others are relaxed and consider it additional free promotion.


What you need to consider is how your business will be impacted if you do or don't register a trademark and what action you are prepared to take to protect it whether or not it is registered.


Effective trademark registration is likely to require assistance from someone who has done it before, particularly if you are wanting to argue that a combination of otherwise generic words should be trademarked. For example, it is not going to be easy to get trademark registration for something like "The Timber Shop" because it is not sufficiently distinctive or unique.


Logos and names will generally not get registration if they are considered deceptively similar to already registered logos or names. The process can be longwinded as well as it can take months to assess you trademark for registration, and if there are any issues or questions that need answering prior to registration, more time.

Registration bodies are generally government or semi-government bodies. Only pay for registration through a government endorsed site, the others are scams. If you get an email inviting you to register with an organisation, check them through government sites before handing over any money, it will save you thousands! I've had a look at a few official sites lately - in Australia the official register is IP Australia (www.ipaustralia.gov.au) - and they list some of the current scams going around and the kind of money those organisations are making, without giving you any protection at all.

I'm currently involved in assisting the process of renewing and registering about a dozen trademarks with a company I work with and the cost that they've been quoted works out at about $2,000 per trademark.

So, unless you think you have an absolute winner of a name that will need protection the instant you make it public, don't spend the money and wait months to start your business. Start your business and guage the benefit of registration before you apply.



Thanks for waiting Jen, Let me know if this helps!

Jumping through domain name hoops

The law around the purchase, sale and ownership of domain names is developing all the time. There are a number of individuals and companies who have diligently gone around 'acquiring' names that can be associated with existing celebrities or businesses and put premium prices on those domain names and there has been a fair amount of discussion around whether or not that behaviour should be regulated. Some companies and individuals have sued those enterprising entreprenuers, calling them 'cyber squatters', seeking to obtain the domain names without the large price tags. (paying the lawyers instead)

Firstly, what is a domain name? Well, I had a look in Wikipedia for a useful definition and found something equivalent to legalese, so my alternative (and possibly not wholly technically accurate) explanation is that the domain name provides people surfing the web with a virtual address to find you. Thats it. It doesn't necessarily give you a website and it doesn't automatically appear as a webpage just because you purchase the address. It does give you the exclusive right to attach webpages or a website to the address for people to find for as long as you remain the registered owner.

Like registering a business name, there aren't a lot of hoops to go through. You find a domain name seller (from my experience www.godaddy.com is pretty good), search the site for the domain name you want, and purchase it if it is available.

Again, hints are:

• don't try and register something that you know is someone elses brand name, it'll only end in tears
• know who or what entity is going to own the domain name and whether that is the same person or entity that is going to operate the website (it doesn't have to be, but you should put a written agreement in place between the entities to clarify the legal relationships if it isn't)
• know why you want a particular domain name and how much you are prepared to pay for it if someone else has already registered it

You can buy a domain name from an existing registered owner rather than through a domain name company, but if you want to go down that path be careful about handing any money over before you have access to the domain name. Chasing up money you have paid overseas is expensive, labourious and often unsuccessful. Obviously a domain name which comes up without website content attached to it has the chance of being easier and cheaper to acquire than a domain name with a website attached.

.. tomorrow, a note on trademarks...

Jumping through hoops

This question comes from Jen after reading some of the earlier posts on the Legaleasy blog.

What are all the hoops we need to jump to register a business name, domain name and trademark it if that is neccessary?

Thanks for the question Jen. You actually have three questions roled into one, so I'll deal with them one at a time.

Registering a business name
Registering a business name in Australia is really easy. You simply go online to any of the Offices of Fair Trading or Consumer Affairs around the country, or turn up at one of their shopfronts (addresses are online) and complete a fairly simple form, pay a fee of around $80 and voila! I've listed the links for all of those offices below so that you don't have to search for them.

ACT - Office of Regulatory Services
NSW - NSW Office of Fair Trading
NT - Department of Business, Industry and Resource Development
QLD - Office of Fair Trading
SA - Office of Consumer and Business Affairs SA
TAS - Tasmania Office of Consumer Affairs and Fair Trading
VIC - Consumer Affairs Victoria
WA - Department of Consumer and Employment Protection

The things you need to do before you fill in an application for registration of a business name are:

1. Know who the owner will be, whether that is you, a partnership, trust or a company.
2. Do a business name search on www.asic.gov.au so that you know the name you want to register isn't already registered to someone else. You used to have to secure the name first, now you don't, but you do need to list three preferences.

Note, registering a business name is not the same as starting a company and it doesn't create a separate legal entity. The owner of the business name is the legal entity. You can apply for an ABN for the business name that you register and you can use it on bank accounts.

Registration is renewable every three years.

Tips for registering a business name - be careful if you want to try and play on the name of another business. Crazy John's (mobile phone company) successfully sued Crazy Ron's (mobile phone company) for breach of trademark even though there was no problem with registering the name in the first place.

... more tomorrow ..

What are the components of a disclaimer that covers me legally?

I hope you all enjoyed the series of exchanges with John about bad service and demands for payment. It was certainly fun for me! If you have a series of questions that you'd like to have answered, please do let me know. Now we're moving on to different topics...

Disclaimers

The purpose of a disclaimer is to let your client or customer know in very clear terms what their responsibility is and what is not your responsibility. It is not possible to disclaimer all legal liability because there are certain obligations implied into contracts. In Commonwealth countries those obligations were originally common law (law of common practice recognized by the courts) and are now included in legislation.

A disclaimer needs to be written clearly and acknowledged by the customer or client. Disclaimers written in small font and hidden in documents are generally not effective. You need to be able to demonstrate that the disclaimer was brought to the attention of the customer or client and that they have acknowledged having read it and agreed to the terms. We know that not everyone reads them, so you need a process which makes it the clients obligation to explain why they didn’t if they didn’t. You might be familiar with the tick boxes for online forms (booking flights online is a good example) where you cannot proceed without ticking the box, and next to the tick box it says “I have read and accept the airline’s Terms and Conditions”.

What's the strangest disclaimer that you have ever read?

Bad service and demands for payment - Part 4

Here's John's last query and my response. After this piece of advice John managed to resolve the dispute and move on with his business. Without court proceedings!

I have one more question to ask, and I am absolutely more than willing to pay for your time – I am not asking for a freebie. So, please send me an invoice. (I didn't)

With respect to this contract:

They have done some work and that is what they are claiming costs for, however…

After they had done the work, and they had invoiced me for this work, I rang the guy up and complained and after a bit of argument, I said “I don’t want to pay and I want you to cancel the invoice” to which he eventually said “Well, you are the most difficult customer I have ever had and I don’t want to have anything more to do with you, so we will just walk away and leave it then.” And I said “good thanks”

Now, isn’t that an offer to cancel everything and walk away? I accepted it.

The next day he changed his mind and said in an email… “where you have AGAIN agreed to withdraw the invoice” that’s just confusing & misleading. "That offer was made on the basis that you had advised us that you had cancelled the job, I have reviewed all correspondence from you & the offer is withdrawn as at no point have you communicated in writing as is in our terms”

He never said that the offer to withdraw the invoice was based on cancelling the job in writing during the telephone call, but it is going to be his word against mine !!!!!

So that was the question. Here's the response -

John

Why would you pay for my time just to be right?

Stop. Look at the situation. You have a relationship breakdown with the person doing the work.

Is the work already done of any use to you? Is it fair that the person who did the work gets paid for the time? Do you want to continue to work with this person in the future?

My suggestion, rather than legal advice is this:

It is a very small amount of money in the grand scheme of things, so don’t make it about the money. If that brings up a reaction for you, be interested in your reaction and what you can learn from it. It’s still not about the money.

You may chose to very respectfully and politely refer him to your telephone conversation (by time and date) and advise that you are confirming in writing the discussion on the phone that you do not require his services any further, and thank him for having agreed to cancel the invoice at that time.

Consider how you are feeling when you write that email and do it from a position of complete acceptance of the person you are writing to rather than a position of being right or being in dispute.

My legal advice is to pay the money and get on with life. Continuing this dispute is only going to hold you up from moving forward and cost you more time, money and energy than the invoice is worth.

There is no predictable result in court on the basis of the information that you have given me. Because they have done some work and issued an invoice they have a greater chance of success than you do if they took the matter to debt recovery or court. Your word against theirs is not a good position to be in when heading to court.

So tell me, what do you think of this last piece of advice?