Tag Archives: Commercial Contracts

3 Steps Every Business Needs To Take To Comply With GDPR - Apart From Email Marketing

3 Steps Every Business Needs To Take To Comply With GDPR – Apart From Email Marketing

3 Steps Every Business Needs To Take To Comply With GDPR - Apart From Email MarketingGDPR is all about introducing greater transparency, increased accountability and enhanced privacy rights for all of us. For example, we can manage our permissions to tech platforms as a result of being notified about the data they hold and collect on us. These new rights are necessary in a world  where the likes of Google collect the most mind boggling information.

The fact that GDPR requires tech companies to design their platforms with privacy built in, means a “take it or leave it” stance will no longer be the prevailing approach. The legislation has teeth. For example, there are eye watering fines for companies that ignore the regulations, which will have even the richest of them pay attention.

So, I think GDPR will introduce a sea change into the handling of data as is apparent from the changes introduced by Facebook following the recent Cambridge Analytica revelations.

Complying with GDPR

GDPR is all encompassing, impacting so many different areas of a business. So, it can be overwhelming.

A good place to start if you’re a small business wanting to understand your obligations under GDPR is the ICO’s site. There are plenty of resources provided to help you to comply, although I suspect the majority of small businesses will ultimately need help because it’s one thing to know about GDPR, but it’s quite another to know what to focus on when attempting to comply with the new laws given that there is so much to do.

There are certain actions that every business should be taking immediately to reduce GDPR risks. And that’s not the much publicised question whether or not to ask for consent to market to your lists which I previously wrote about on this blog GDPR – Why Consent Should Be Used As A Last Resort. Sadly too many advisers out there are still telling businesses that obtaining specific consent for everything is the way to go, which will place huge administrative burdens on those businesses that follow such blanket advice.

3 Steps

There are 3 steps every business should be taking in the light of the GDPR changes, that many businesses may be missing given the spotlight on email marketing. That is, to consider the data they hold in the cloud and take simple basic measures, such as:

  1. Use strong passwords. If employees, virtual assistants, or contractors (such as your website development company) have access to your data, then are they using strong passwords so as to keep your data safe?  They could easily compromise your security by their actions.
  2. You should introduce clauses and contracts with your freelancers, and contractors. Explain the impact of GDPR. Are they using laptops with encryption? Do they know not to log into your sites in internet cafés? Are they always logging off when they leave their computers unattended? These basics are essential. You are responsible for educating your workers, contractors and other team members about GDPR and the actions they need to take so they don’t compromise security of your data or otherwise cause you to be in breach.
  3. You want to let contractors such as your digital marketing agency, virtual assistance service, or web developers know that using outsourced staff and giving others access to your site without your knowledge is not permitted without your specific consent. These entities are processors of your data. They should not be appointing sub processors without your knowledge. You need to know if your agency is giving access to your data to a third party. Otherwise, what is the point of your doing  due diligence checks when taking on an agency, only for them to engage a temporary helper (possibly using a less rigorous vetting exercise than you employ) to assist them when providing their services to you?

If you’ve not yet addressed these GDPR issues in your business then don’t delay as they are, in my view, one of the greatest security risks small businesses face.

If, on the other hand, you are an agency using outsourced team members to deliver services such as website design, form building, online questionnaire development, search engine optimisation, Facebook or Google advertising, and the like, then your business model may need some adjusting. You should be thinking about what your clients will need from you, and pre-empting their concerns.

Conclusion

With just over a month to go, and many contracts and steps to take immediately, you can’t afford to leave it any longer. While it’s unlikely you will face fines for failing to address every aspect of GDPR, doing nothing is not a sensible option. Come 25 May, your website will be a tell tale sign if you’ve not taken any steps to comply with GDPR.

We have various service options to help clients, ranging from access to templates and clauses, to providing some consultancy, or taking care of the entire process for you. Get in touch if you have would like a quote or have any questions.

 

Intellectual Property Revolution – Book Launch – Video Highlights

IP Revolution Book Launch 1

The Intellectual Property Revolution, my second book, was launched with great success on 13 October 2015 at the Institute of Directors in London.

For those of you who were unable to attend the event the next best thing is to watch the videos of the night.

Daniel Priestley of Entrevo, who runs a global entrepreneurship accelerator programme known as Key Person of Influence (that I myself have attended) gave the introductions for the night.

He also took us through the ages pointing out that at one time it was ownership of land that enabled people to build fortunes, these people built themselves a reputation and became influential. Then after this agricultural age came the industrial revolution where people built their fortunes by  owning the means of production. In the digital economy it is intellectual property that is the means to building fortunes. He said millennials would rather spend all their time and money to build start-ups  than purchasing houses or land.

 

Next up was Will Critchlow of Distilled, CEO of a digital marketing agency based in London with offices in the USA. He reinforced the importance of using the right name and protecting intellectual property rights very early on, an issue he himself had encountered at the early stages of his business ventures while at school. Intellectual Property, in particular securing a trade mark helps provide businesses big or small with strong foundations to securely expand and build a reputation they establish. This will strengthen branding strategies becoming real investments rather than failing later on.

 

 

Then finally, I spoke about the importance of taking early IP advice in order to position yourself for maximum value if you succeed, and reduce the risk of disaster. When overlooked, IP can be damaging to the core features of any business. For example, a poor choice of name can be a real set back. This is something I discuss in more detail in my blog Intellectual Property Value – Do You Need Specialist Skills to Value IP?

IP is so important to any business, as the internet now dominates our daily lives, it is the ownership of these intangibles which is so necessary to protect. At Azrights, we offer a fixed price service that provides early stage businesses with comprehensive advice concerning Intellectual Property rights and strategic building of them.

 

There was a chance for guests to mingle over canapes and here are some vox pox and highlights of the event. The vox pox discussions give some insight into why attendees believe IP is so important in today’s society.

While the highlights below will give you a general flavour of the eventful evening.

Since the launch, I have revised the conclusion of the book, as this was a chapter I struggled to write last year. At the time, I wanted to finish the book so I used something. However, having had time to  reflect over the festive period, I have changed the conclusion, and am now very happy that the book will be an easy, insightful read for businesses interested in IP.

The new conclusion fits much better with the book as a whole being a kind of synopsis of the book and summarises the transformative effects of Intellectual Property rights. If you don’t have time to read the whole book, you’d now get a strong indication of what the book is all about by reading just the conclusion and perhaps revisiting the book when time allows.

Online shopping. Know your obligations.

Online Selling And Your Obligations To The Consumer

Online shopping. Know your obligations.Online selling entails certain obligations to the consumer. Online sellers, whether of goods or services, have responsibilities towards the buyer. Being aware of these obligations ensures that you are complying with the law and treating of your sellers fairly. This is becoming an increasingly important area as online selling becomes the norm.

We will look at the impact of two key legal documents, their requirements and how they regulate your relationship with the consumer. This way, you will be in a better position to ensure your online ecommerce site complies with the law.

Online Selling And The Ecommerce Regulations

Introduced in 2002, the Ecommerce Regulations apply to anyone providing a service for payment at a distance (including websites) and requiring online sellers to provide specific information at certain points on commercial websites. The purpose of them is to make sure that consumers have minimum process standards when buying online.

To be successful in the online selling business, and develop a good reputation, the minimum information to be provided is your trading and business name, geographical address, an email address (a contact us form alone is not enough), any registration number (e.g. if a business is incorporated provide its company registration number), VAT number, details of any regulatory body that regulates you, and any price indication on the website must be clear and unambiguous. The purpose of providing this information is to ensure that the consumer has a clear understanding of who they are dealing with and the costs to expect.

Further to these minimum requirements, the regulations require you to give the following information before orders are placed.

The buyer should be informed:

  • of the different technical steps to conclude the contract;
  • of the technical process for identifying and correcting errors before placing an order;
  • whether the final contract will be stored by you and whether the buyer will have access to it;
  • of the languages offered for the conclusion of the contract;
  • whether you are bound by any code of conduct and provide a link to view it.

Where you provide terms and conditions, buyers must be able to store and reproduce them.

If you intend to supply marketing emails, you will need to allow the opportunity for buyers to opt-out. The best time would be when buyers provide their contact details. It is also equally important to note that not all countries allow emails of this type and you should pay particular attention where, so you are not infringing local law.

Consumer Contracts Regulations – Selling At A Distance

More recently, regulations have come into place to govern selling at a distance, including online selling, which only applies when you do business with consumers. So if you contract with other businesses the following won’t apply.

In a previous blog, Strict Sanctions for Failing to Comply with Latest Distance Selling Regulations, we covered in brief some of the key changes.

The essence of the regulations is to ensure that you as an online seller provide the consumer with essential information so that they are able to identify you and how you trade.

Other than the information required under the ecommerce regulations there is a substantial amount of information you need to provide depending on the goods and services you sell on your online shopping website.

Examples include:

  • the need to provide the price of goods including taxes, or how these are calculated if a specific price cannot be given;
  • all additional charges must be calculated in advance;
  • the arrangement for payment, delivery, performance and the time by which you undertake to deliver goods or services;
  • and most importantly, where a right to cancel exists, the conditions, time limit and procedures for exercising that right. You must state whether the consumer is to bear the cost of returning goods in case of cancellation (otherwise you will be responsible for payment for returns).

The regulations also require specific information to be communicated at various points in the buying process. At the start of the ordering process, any delivery and payment restrictions that apply must be set. Ensuring that you provide this in your online shopping website’s terms of business will mean that consumers have the opportunity to see this information at any time before ordering.

At the stage of placing orders, consumers should be made aware that ordering involves an obligation to pay and any button to proceed beyond this point must state so clearly. This will include full price information including taxes, delivery charges and all other charges. Consumers would then understand that they will be required to pay for your product or service at that time and have all the information necessary to make that decision.

Once a purchase is made, confirmation of the purchase must be given within a reasonable time. The confirmation does not need to be acceptance of the purchase but an acknowledgment. In online selling, proper wording should be provided so that a legally binding contract is not created at this time, otherwise you may find yourself in a position where you must fulfill the contract and may be in a difficult situation if you do not have the means to complete the order.

The right of cancellation is a strong right for the consumer. For the majority of products and services, consumers must be given the right to cancel and withdraw without incurring liability within 14 days of placing the order. The consequences of breaching the notification requirements of the consumers’ cancellation rights will be that the cancellation period will be extended to 12 months.

However, it is worth noting that the regulations can reduce or limit your liability in certain situations.

For example:

  • where enhanced delivery is chosen by the consumer;
  • where the value of goods is diminished by consumer handling;
  • where goods are returned by the consumer; and
  • where consumer requests early supply of services.

There are also specific goods and services to which the right to cancel does not apply or may be lost, but the consumer has to be informed ahead of time. It is therefore important to understand whether any of the exceptions apply to you and how to make sure to properly inform the consumer.

The two regulations put a lot of pressure on online sellers to provide sufficient information to consumers and make sure their online shopping website also complies in order to ensure smooth business transactions.

The purpose of this article is to be an informative guide, providing you with the basics and raise your awareness of the issues to be in line with the regulations relating to online selling. If you need advice specific to your situation, we invite you to seek our legal advice.

For further information on how we can help, see our website for Website Terms and Conditions and E-commerce service.

Image rights

Image Rights – How Much Control Do You Have Over Your Image?

Image rightsLast week, the Republic of Ireland readied themselves to vote on what was, for a catholic state, a very controversial referendum; yes or no to gay marriage. The BBC reported here how one family in particular had other controversial concerns about the referendum for an altogether different yet important reason.

This family, unknown to them, were made the “poster boy” of the No campaign. In 2014 they had signed up for a free family photoshoot. In return the family provided consent for the photographer to sell these photos on stock image websites. Their photo was displayed amongst many other seemingly similar photos.  The family felt unfortunate to have been selected for this purpose.

Although the family morally disagree with the use of their stock photo for the No campaign they accept there is nothing they can do to prevent use of their image in this way.

There are many considerations to be made when assigning or licencing your rights; not only in relation to use of your image but also when granting permission for others to use your music, literature and branding materials such as trade marks and logos.

Not giving enough thought to the implications of a licence or an assignment can have unintended effects financial consequences as well sometimes, so take care to consider documents you are asked to sign carefully and if you aren’t sure seek legal advice.

Avoid strict sanctions when selling online

Strict sanctions for failing to comply with latest distance selling regulations

Avoid strict sanctions when selling onlineIf you sell online, then you’ll want to make sure you comply with new rules introduced by the latest consumer regulations. Businesses need to be aware of their impact, so they can update terms and procedures accordingly, and remain compliant, otherwise they face uncertainty, and potentially strict sanctions.

In this article we look at some of the key developments relating to cancellation, information and charges which are likely to have an impact on most businesses who sell online. It is important to bear in mind that these are just a handful of examples to illustrate how the law is changing in this area. In practice, your terms of business ought to be reviewed regularly along with other important documentation such as your privacy policy, so you can be confident of meeting your obligations. The consequences of failing to do so can be severe.

Ecommerce and distance selling

Distance selling occurs where a consumer buys something from you without you both having been in the same place, such as purchases by telephone and through a website. The new rules replace earlier distance selling legislation, but many of the requirements are still present, albeit with increased protection in favour of the consumer.

For example, before you are entitled to enforce a contract against a consumer, you will need to provide them with information about your identity, the main characteristics of what they are buying, your location and contact details, delivery or subscription charges and arrangements for payment, your complaint handling policy, guarantees and after-sales services, details of the functionality, technical protection measures or compatibility issues which apply to digital content, and an explanation of the customer’s rights to cancel.

Cancellation rights have long been available to consumers who buy goods and services online, and the latest changes bolster those rights even further. Before concluding a sale you should inform buyers that, except in limited circumstances, they are free to cancel their purchase within 14 days, without giving a reason and without incurring any further costs. Where you are selling goods, that 14 day period generally starts from the date on which the customer has physically received all of the goods. However, if you fail to provide certain information, the cancellation period can continue to run for over 12 months.

In the event of cancellation, you will need to promptly reimburse buyers the costs of both purchase and delivery of any goods you supply. There are some exceptions which allow you to set off some of the costs, but they are limited, and don’t apply if you fail to provide adequate information in advance in which case you will also bear the cost of returning goods. If you are distance selling services, you should not begin to supply those services until the cancellation period has ended, unless expressly asked to do so. Under any circumstances where a consumer might lose the right to cancel, it is crucial that you let them know early on, otherwise you will find yourself out of pocket.

Next steps

This is just a brief overview of some key changes, and there are other important factors to consider.  For example, it is common practice to offer extra services in exchange for a small uplift in price. If your online sales process includes something extra unless a consumer un-ticks, rather than expressly ticking a box to ask for it, you will need to reimburse them.

Although this article has focused on ecommerce, similar rules apply when selling offline, and in some cases simply failing to provide information about cancellation rights can constitute a criminal offence.

There are also circumstances when certain rights don’t apply, such as where price is subject to fluctuations in a financial market, and in some cases for perishable or bespoke goods, accommodation and transport. So, it’s important to seek expert advice to make sure you are both compliant, and also taking advantage of specific exclusions which may apply.

The regulations discussed above are already in force as of June 2014. Get in touch to discuss the way you do business, so we can help you avoid legal action, cancellations, and unhappy customers.

Ignorance not Bliss – Avoiding liability for infringing pay-per-click advertising activity

Often, businesses treat intellectual property just as something they need to own and register, without giving enough thought to the risk of infringement. Even where the risk of infringement is considered, business owners don’t often realise that they could be liable for the actions of their contractors or employees, even if they are unaware of them.

This is increasingly a problem when it comes to social media and online marketing, and a recent dispute illustrates the risks involved. Ayesha Vardag, a prominent divorce lawyer, discovered that, unbeknownst to her, the marketing agency her firm had engaged was bidding on the name of her previous employer in order to generate enquiries through Google AdWords. Following negotiations, Vardag agreed to settle for over £40,000, as reported by The Lawyer.

Intellectual Property & Change Management

Intellectual Property Rights and Change Management

Intellectual Property & Change ManagementIn any business there will be rules that management and staff need to follow. Some will be more important than others. For example, to safeguard a company’s intellectual property rights, there are a couple of useful procedures that business might introduce. IP issues arise day to day so it’s important to manage them.

If a business outsources work or collaborates on projects with others it would do well to put systems in place so as to ensure valuable IP is not lost. IP generally needs to be considered very early on.

Consider the inventor of the Karaoke machine. He earned nothing from the billion dollar industry he spawned because he didn’t realise he could take steps to protect his invention so as to reap the benefits if it succeeded. Specifically he could have patented his invention. However, it’s not just patents that can have a far reaching impact. There are other crucial IP rights like copyright which can be lost if you fail to take the right steps early on in a project.

In practice a simple rule requiring particular documents to be used before a company agrees certain terms with a third party makes the difference between protecting your brand or other IP and losing potentially valuable assets. But is that the end of it or is it likely that sometimes your best laid plans will be ignored for one reason or another?

On 13 August Shireen Smith, founder of Azrights Solicitors, an intellectual property law firm, and author of the best selling book, Legally Branded, will be running a webinar to discuss this as part of a new series of webinars looking at law in its ‘real life’ business context. Shireen will be joined by Suzanne Hazelton, author of two books, Raise Your Game, and Great Days at Work. Suzanne is an expert in getting the best from people and processes. She describes herself as a peopleologist as she works with the people in a business from a behavioural perspective. She previously worked on projects such as software beta programmes within IBM, and so has a good understanding of why it is so important to have legal controls in place. At the same time her background gives her a unique insight into the frustrations legal controls can give rise to for people within an organization, and so is ideally placed to advise companies, on how to successfully manage change. During the webinar Suzanne will focus on what a company would want to do in practice, to ensure procedures are observed by staff, particularly in a fast moving, possibly multi-national environment.

The webinar will be relevant to companies, whether based in the UK or elsewhere, as the legal controls being discussed are likely to be universally applicable in most common law jurisdictions, such as the USA, and Australia to name a few. The emphasis will be less on the law, and more on the need for procedures to protect IP. So, the webinar will be relevant regardless of jurisdiction, for any business owner, or corporate in-house lawyer looking for insights into why procedures may be necessary to preserve IP, and what pitfalls they might encounter. It will give you strategies to overcome the challenges ahead.

TV Show Mad Men faces potentially mad IP battle over photos and likeness rights

When using photographs or images in a commercial context, getting an IP lawyer to assess the copyright situation is an obvious move. However, as the producers of hit TV show ‘Mad Men’ recently discovered, it may not be enough to check the copyright position. It may also be necessary to check whether there may be problems in using the identities of the persons represented in the image or photo that is being used.

Mad Men, an American drama set 1960s New York, follows the lives of protagonist Don Draper, and his team of high powered advertising executives, whilst simultaneously reflecting the darker sides of the American dream.The show has won numerous awards, including 7 Emmys, and famously counts Barack Obama as a fan.

However, for Lionsgate Entertainment executives, the dream recently turned slightly sour, as it emerged that Gita Hall May, a former actress and glamour model, was suing the show for using her image in the opening credits, without her consent. The image appears 11 seconds into the credit sequence, for a period of 2 seconds, and shows Gita’s face on the advertising board of an animated Madison Avenue skyscraper.

Although Gita had no claim over the image copyright, she objected to her face and likeness being exploited without her consent. The original photograph was taken by Richard Avendon for a Revlon hairspray advertisement. Gita May argues that she only consented to the use of her photographic likeness in that particular advert.

Ms. May, originally from Sweden, was allegedly surprised and angry to discover that, over 40 years later, her image had been “cropped from the photo, in secret, and inserted as a key element in the title sequence of a cable television series, without her consent and for commercial purposes.”  Her legal team is demanding compensation, based on the value the image has contributed to Madmen’s revenue and profits. Clearly this will be a complicated calculation. But considering the show has now run for 6 seasons, spanning 70 episodes, across worldwide territories, any final figure may be lucrative for Gita May.

Likeness Rights

In the UK where the laws governing consent to use of images or photographs are less strict, the US rules which allow for individuals, whether famous or otherwise, “to protect against the misappropriation of their likeness” seem surprising. Essentially, this means that in the USA individuals can object to non-consensual use of their identities.

There is a still a slight caveat — likeness rights do not apply to all images featuring individuals, even if used in a commercial context. To qualify, the images must be used to represent an idea, product, service or thing. Thus in the present IP case, Ms. May asserts her rights over the image by arguing that its use in the Mad Men trailer is integral to demonstrating the authentic ‘feel’ of the show.

To expand this concept further, if for example, a photo was taken of an individual, and then used to promote a specific political party which the person did not want to be associated with, they could refuse to allow their likeness to be deployed in this way. Therefore, businesses should always be wary when using images to promote their interests, for example through product advertisements.

In the case of Mad Men, Ms. May only realised her image was being used, and consequently launched her IP claim, 5 years after the show was originally aired. This demonstrates how such claims can crop up at unexpected and potentially awkward times for businesses.

Lionsgate will undoubtedly feel frustrated that the issue has only emerged recently, when the financial stakes are much higher than say, in 2007, when the original pilot episode was aired. The moral of this story, is one can never be too careful when it comes to clearing IP rights.

Licensing – Don’t Risk Losing Your Trademark

Licensing – Don’t Risk Losing Your Trademark

If your business has reached the stage where you are looking to expand abroad or diversify into different markets, licensing your brand could be the ideal way of achieving this.

With licensing, it doesn’t matter if you haven’t the staff or the money to fund your expansion. You license your brand to a third party that already has the staff and resources available within the target market in which you wish to expand.

The positives are many: it can be a lucrative move and can generate additional revenue for your business; it can increase your brand awareness; and it can help create new products for your brand without running the risk of failure on your part.

Licensing

Licensing Without Controls

However, licensing has its downsides, too, which can be exacerbated if you don’t manage your licensing effectively. One of the biggest concerns to be aware of is loss of control. So, whilst licensing can boost your brand’s strength, it could equally damage your brand’s reputation.

This is the risk you run if a third party is licensed to use your brand without any restrictions. It’s not just your brand’s reputation that could be damaged; in some cases, a lack of monitoring on how a third party is using your brand name could result in you losing the rights over the name.

Eva’s Bridal Shop

Take the case of Eva’s Bridal Shop in Chicago . In 1966, Eva Sweis opened a bridal shop under the brand name, Eva’s Bridal. The brand built a reputation for providing top quality goods and services. Eva obtained trademark rights in that name.

The trademark was used for generations; friends and family were allowed to set up bridal shops under the Eva’s Bridal label. But in 2007, Eva’s Bridal attempted to take legal action against a former licensee for trademark infringement as he was using the trademark after the license had expired. On the surface, this appeared a fairly simple case of infringement.

However, the original licence agreement exerted no control over the way the trademark was used, and the court ruled that this therefore eliminated Eva Bridal’s trademark rights in that name.

This is because licences over a trademark granted without any regulations or restrictions, are considered to be abandoning the trademark, no matter how long you may have previously had the rights over it.

Therefore, it is vital to ensure when you license a trademark to a third party, it is  not just an agreement stipulating how much you are licensing a trademark for, but also to ensure you have control over the way the trademark is used.

Trademark as a Symbol of Trust

Trademarks are there primarily to indicate to the public the origin of goods, and to protect them from confusion. It enables the public to rely on a brand as a signifier of quality, or standard, and is a symbol of trust.

Therefore, if you are planning on licensing your business, be sure to introduce quality controls, and limit the distributor’s rights to sub-license the trademark.

How to License Effectively

The first consideration when approaching a licence agreement is to describe what is being licensed, and to take account of the extent of your trademark portfolio. What specific products or services are covered and in which geographical areas? Who will be responsible for filing further trademarks, and who will bear the cost of these?

As a general rule, it’s important for you, the licensor, to retain responsibility for the trademark registration. The licence will be for a specific period of time and may impose a number of conditions. In return, the licensee agrees to pay you royalties and is willing to do so because you have something that’s popular.

Licensing can be an invaluable tool to some business owners wishing to expand their brand, so, it is essential to make sure that licensing helps rather than hinders your business.

If you have had any experiences of licensing which you would be willing to share, I’d love it if you left a comment below.

Do you need to bother with trade marks?

Since writing my book, Legally Branded, a number of business owners have thanked me for making this fundamentally important subject of intellectual property (particularly trade marks) understandable.

Some entrepreneur friends have even suggested I emphasise the risks, and danger of ignoring intellectual property advice. However, I’ve always tried to steer clear of scare mongering as a tactic to raise the profile of intellectual property, preferring to work with those clients that “get” the importance of intellectual property. Our clients are the ones that get it, even if they’re not in industries where IP is obviously critical to their success. They value their IP from the moment they start their businesses as did our client Headspace, for example, who are doing great things to make meditation accessible.

I recently attended a meeting with a business owner whose mind was firmly made up that there was no point paying expensive lawyers to give advice on IP. I had agreed to meet with him at the request of his marketing manager who understands the importance of IP and hoped that someone more aware of the ins and outs of IP may be able to persuade his boss. However, this business owner’s views did not shift one bit as a result of our meeting mainly because he talked far more than he was willing to listen, and his mind was already made up. So, I know better than to try to address those whose minds are already made up that they know all they need to know about IP.

This is for readers who are curious, or undecided

This post is for those who may be curious, or who are still on the fence about whether it’s worth bothering with trade marks. While it’s never a good idea to generalise about who does or does not need IP, I will stick my neck out and say that if you’re a lifestyle business (by which I mean you’re aiming to earn a livelihood and are not trying to build a big business or one you can ultimately pass on or sell) you can ignore trade marks. You’re unlikely to come to anyone’s attention, or pose a threat to existing trade mark owners such that they would want you to rebrand for infringing on their rights. Even if someone did require you to rebrand, chances are it will just be an inconvenience to change your marketing materials and rename the business. You won’t have a name that attracts business, so could rename the business without suffering a drop in activity. Similarly, if you’re setting up a business and want to first see if it will take off, then you MAY, depending on your business idea, be able to use a temporary name, or take a chance with the name you want to use (provided you’re willing to change it if the advice is that you would do better to choose an alternative name), and see if you can get anything off the ground before worrying about trade marking. But for everyone else, it would be really foolish not to get trade mark advice from a specialist lawyer on the name you’re using.

Trade marks may be revoked

Trade marks can be cancelled, so even if you’ve secured a trade mark registration it doesn’t mean you’re all right to use that mark. That’s why it’s misguided to do your own registration work, just to save on legal fees. You may end up getting a registration, but it may not be for a mark that is capable of generating brand value. You may not have an adequate scope of coverage, so that although you’re registered, it may not protect you if someone were to challenge your rights. For example, registering a logo with a totally descriptive name – that is, one that describes what the business does – is easy enough to secure. However, it’s an extremely poor choice of branding.

The law protects businesses against various unfair competitive practices, and helps you fight off competitors who use similar marks to yours, but you have very limited recourse with a descriptive name. Using a descriptive name or a name that is otherwise incapable of being owned by you as a trade mark, leaves you wide open. You will lose business that may have been intended for you, and you will have a business that is far less valuable than it might have been had you selected a legally powerful name. This is the reason you should always consult your own IP lawyer on any name your branding professionals help you to choose, unless they are willing to take responsibility for its legal effectiveness.

Keyword rich names probably best avoided 

Also, take a look at the blog I wrote about Google’s recent algorithm change, which makes it even more of a poor decision to use descriptive names now online. The writing is on the wall, so I would avoid choosing keyword rich names too when branding your business online. The slides from my talk at Make It Big in 2013 also discuss descriptive names more.

Get legal advice

Even though you get some protection in this country just by using a name, don’t let that lull you into a false sense of security. For example, if someone registers a Community Trade Mark they can stop you using a name you’ve been using, or limit you to using it only in a certain geographical area. Why court the vagaries of litigation with all the cost implications when you can secure your rights in a name you’re getting recognition with, by paying ten times less?

Trade marks and legal advice should not be dismissed as too expensive to bother with for anyone who has a viable business. They are an investment, and are the foundation for licensing and other ways of monetising your products and services. In particular, don’t wait till you have reached certain turnover targets, because trade marks are fundamentally relevant to any business that aspires to be more than a lifestyle business. Your business name is what the law protects when competitors behave unfairly. So, trade marking is good business practice and isn’t just about whether you intend to become a brand, or think that if you sold your company whoever bought it would want to use your brand name.

Misunderstanding IP

There is a lot of misunderstanding about the relevance of IP, and huge generalisations are made about its costs. But given that there are many different IP rights, of which trade marks are just one type, it’s foolish to dismiss them all as too expensive. Knowing how to implement procedures to protect just one of these rights may be the critical element to your business success after all.

I think the problem is down to the complexity of IP law. We are still in a transitional period between an industrial economy and a knowledge economy. Consequently knowing how to deal with the physical things, the tangibles comes easy while intangibles that you can’t feel or touch, are less well understood. Intangibles are our knowledge, our brands, our digital content, and more. By their very nature, they are easy to lose. Being transient, and non-physical, their legal significance can sometimes be overlooked or misunderstood.

Scrabulous and other high profile cases

The fact is that it can be difficult for lawyers to point out the benefits of IP except by pointing to situations where there have been well known incidents, such as with Scrabulous, which I discussed in a post recently. Those of us IP lawyers who prefer to focus on the positives, won’t therefore want to keep pointing out the dangers, but I have outlined a number of scenarios in my book Legally Branded, which should help you better understand the risks. Don’t assume that just because big businesses like Apple resolve their IP issues, that you will do so too. People should know that for smaller businesses, the scenarios they hear about in the news about the Googles, Microsofts, Apples of this world would put them out of business because they would not have the resources to get themselves out of trouble.

So the moral is if you are a small business without access to huge sums of money to litigate your way out of  trouble then you absolutely need to make sure you avoid the problem in the first place by getting professional advice to register your trade mark.

Also, if you’re going to ignore IP protection, you need to know what you’re doing. It could in some cases be rather like deciding not to bother with the foundations of a house you’re building. In television programs like Grand Designs, the participants who overspend may end up not having enough money to do all the fine design details they had wanted. Their  lack of funds means they have to compromise on the surface issues like designs. They can’t compromise on the very structure and foundation of a building. Unfortunately, the opposite approach happens in business when IP is ignored. People can spend a fortune on the surface things like branding and websites while ignoring the fundamentals.

Distinguish IP from other legal work

While there are some legal issues you can and should skimp on in the early days of a business, IP isn’t one of them. Note that IP is very often a contractual matter, and isn’t just about registrations. So, take advice to see how to minimise your IP expenditure in a safe way if you think spending on IP may seem a waste. Some business owners question any expenditure which doesn’t enable them to make money (such as learning a new marketing trick would increase their  chances of generating revenues). However , think of IP as what enables you to keep the money you make, and in some cases to continue to earn revenues. So at the very least you absolutely have to take advice in order to develop your strategy for IP.