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New Year, New You? What are the legal challenges for 2011

While 2010 was an amazing year for innovation and the creation of new technology, it is anticipated that 2011 will bring consolidation and further growth to the IT industry and as a consequence more scrutiny and attention to the underlying intellectual property.

While 2010 was an amazing year for innovation and the creation of new technology, it is anticipated that 2011 will bring consolidation and further growth to the IT industry and as a consequence more scrutiny and attention to the underlying intellectual property. So, companies must consider and address certain intellectual property issues, which are discussed in this article.

2011 is expected to be the year when IT investment focuses on strategies rather than cost-cutting, although the dominating word will still be “value for money”. Along with a wave of enterprise resource planning deals and increasingly frequent but smaller operational outsourcing deals, increased used of online trading and social media both for business and personal use, we can expect to have to deal with the following intellectual property issues:

ISP liability: not a new issue but definitely one that continues to be relevant here because under the Copyright Directive and The Electronic Commerce Directive internet service providers can be liable for failing to take down offensive, defamatory or IPR-infringing content. In such circumstances, corporate customers should seek an indemnity for any loss suffered as a result of material being unnecessarily deleted or moved and should insist on being notified in advance if any content is to be removed. The Digital Economy Act is also making ISPs responsible in the event of online copyright infringement activities.

Interoperability and compatibility of equipment: with the convergence and synergy of action of various equipment/technology, trying to apportion liability and responsibilities in the event of IP infringement is going to get very difficult.

Content licensing: obtaining permissions from existing rights-holders for use of pictures, video or audio content, and the cost and complexity of enforcing IP rights within the UK and internationally. Generally, the standard terms and conditions include a broad licence allowing them to use any content stored on its servers. Customers should take particular care in identifying any rights they are agreeing to provide to the vendor. The content provider will look to exclude all liability for content stored or posted on its services and will normally include a right in its standard terms to remove any data from its servers.

Privacy: including online employees and children protection

Cloud computing: as service-based computing continues to move towards becoming a utility paid for by metered access, “platforms as a service” (PaaS) where third parties can host their software applications in order to distribute them to customers, software as a service and fabric-based infrastructure, where a system is aggregated from separate building block components by means of a fabric (a stack of switches on a backplane that connects together the functions that a PC or laptop performs today, like processor, memory, input/output and system software) will be used more often.

SaaS/PaaS vendors have very high numbers of contracts globally, they generally seek to offer their services on standard terms. These terms tend to be strongly supplier-centric, excluding all but the most limited of warranties and any liability for data loss or corruption or service failure. In the UK, standard terms (and in particular any exclusions or limits of liability) are subject to the Unfair Contract Terms Act 1977 (UCTA) and therefore must be reasonable but it is far safer to seek to negotiate key provisions in advance rather than rely on statutory protection after an issue arises. It is also likely that customers will need to ask for service levels and service credits to be proposed.

Also in a SaaS/PaaS scenario, appropriate software licences need to be granted to the customer. This is because users have online use of software at a PC and, without a licence, this would amount to copyright infringement.

The SaaS vendor will not always own the intellectual property rights in the software that is the subject of the SaaS arrangements. Where this is the case the SaaS vendor will need to arrange for the right to sub-license the software to its customers, or for a direct licence to be entered into between the customers and the relevant third party licensor. In these latter circumstances, the SaaS contract should make it clear that the SaaS vendor is responsible for the management of the third party licences, together with the payment of any licence fees. The third party licensor should also be informed that the licence arrangements relate to licensing only. All other issues relating to the provision of the software, such as delivery, installation and configuration requirements, should be dealt with in separate agreements between the customer and the SaaS vendor.

The inclusion of intellectual property indemnities in SaaS contracts is important, because SaaS customers have to rely on the SaaS vendor to ensure that software licensing issues have been resolved so as to entitle the customer to use the software as part of the SaaS. However, if the arrangements are not properly made, the customer may still infringe the IPR of a third party even though it may have no knowledge of the infringement. SaaS users need to be aware of the possibility of patent infringement through the use of SaaS arrangements. Patent protection is increasingly available for computer software in the US and, to a lesser extent, in the EU. Where SaaS arrangements are established on an international basis, the IPR indemnity needs to be sufficiently broad to protect the SaaS customer in all jurisdictions in which the software will be used.

In conclusion the attention and contract negotiation swifts but not disappears. Instead of software licensing or outsourcing contracts, attention will be given to services agreements, image rights and data protection issues.

All articles are for general purposes and guidance only and do not constitute legal or professional advice.
Copyright 2010 Anassutzi & Co Limited. All rights reserved. Information may be shared or reproduced only if accompanied by the author’s name and bio.

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What Does It Cost To Register a Trademark?

signing contract

The services needed to register your trademark will depend on what your situation requires. You can only assess the cost when you know what steps you need to take to register your intellectual property.

You can use the following figures as a guide.

Fees are based on IP Australia’s government charges and the rate quoted by a professional assisting you with the application. You can realistically look at a total cost of $627 (ex GST) when you register a trademark. This is for a single class of goods or services and assumes there are no objections or other complications.

The professional service included in this total cost should consist of a trademark search before you file your application. You need to confirm that your product or service does not already ‘belong’ to another entity.

A factor that could affect the professional fee is the number of services or goods that you lodge in your application. Once you’ve filed, you can’t expand the scope of the trademark when you have a new product or service on offer. A request for an additional class could cost you an extra $200 (ex GST) in IPA Australia fees and professional fees.

The next step is the advertisement. If your application has been accepted, it will be advertised to determine if there is anyone who has the right to oppose it. This will happen about five months after you file. If there are no objections within 7.5 months of filing, your trademark will be registered automatically. There are no professional or other costs in this process.

If you need to request a time extension to respond to an opposing report (filed before or after the deadline) or more time to pay the registration fee or late renewal fees, you will be charged a government fee of $297 (ex GST).

If you encounter a situation where your trademark registration is opposed, or you want to take legal action against someone infringing your rights, you can expect to pay the following government fees. You may need to pay for additional professional help too.

  • Cost of filing a notice of intention to oppose removal of registration for non-use: none
  • Cost of filing a notice of opposition to a time extension or amend application: $250
  • Cost of extending time to file a notice of intention to oppose or submit a statement or file a notice of intention to defend: $150 a month
  • Cost of applying for removal of a trademark for non-use: $250
  • The cost to request or attend a hearing as the opposition ($600), or as other ($400)
  • Cost of filing written submissions when not attending a required hearing: none.

A trademark renewal fee has to be paid every ten years. The government costs are $400 for single classes and the same for additional classes. The professional fees will be about $297.

When registering a trademark internationally, there are also professional and government fees, but they’ll vary according to the number of territories that you submit applications. The costs will also vary depending on the trademark professional that you work with and if you apply through the individual country’s office or apply through an international treaty.

The fees involved in registering your intellectual property and maintaining your trademark is costly, but you are investing in the reputation of your business as well as protecting it legally. If your product or service is not trademarked, it can be used by a trader that’s not authorised to do so. If your mark is not protected and another entity files and can prove extended use, trademark law recognises their rights over yours. This means any legal action will be at your cost.

To get started, perform a free trademark search here.

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Which entity is right for your US business startup?


Before you can start a business you need an idea, a business plan, and the necessary financial backing. But, that’s just enough to get you started.

The next big question you’ll need to tackle before you start trading is which entity is right for your US business startup?

It’s a good idea to get some professional guidance on this as it’s essential to know the right entity to use; it will make a difference to the paperwork you’re required to keep as well as your personal liability.

The Main Types Of Business Entities

Here’s a quick guide to the different options available to you:

Sole Proprietorship

In effect you’re a one-person operation, you are the company. Your business will operate in your name, you’ll be liable for all income, expenditure, and taxes.

This is the simplest arrangement and ensures you have complete control of your business.


If there is more than one of you investing in your business, this can be financial, via available resources, or just for experience; then you’re a partnership. You can’t be a sole trader if there is more than one person running the business.

You’ll need a proper agreement between the partners, this will establish responsibilities. However, all the partners will still remain liable for the debts of the business; the line between personal and business finances is still blurred.

Limited Partnership

This is similar to a partnership but it is permissible to have partners that don’t have the financial liability for the business. This keeps your personal assets safer, limiting any loss to the amount of a partner’s investment.

Limited Liability Company (LLC)

At this stage, your business is going to become more formalized. Limited liability companies are effectively separate structures to the business founders. Any funds you invest in the business will be seen as a loan that needs to be repaid and you’ll have no personal liability.

However, the paperwork side of things will dramatically increase when you have this type of business. You can also issue shares to each investor and classify the shares, allowing you to pay different dividend rates.

This is a good option if your developmental and looking to attract investors who want you to make a loss to help their tax declarations!


At this stage, you’ll have the option to float on the stock market and offer shares to the general public. This is generally an option for much larger companies that are well-established and may need venture capitalist help.

However, you should note that there are two types of corporation; C class and S class. Both will require you to do more filing and record minutes of annual meetings. But, there are also crucial differences that you should speak to a professional about first.

The great news is that you can change the entity of your business, this is commonly done as the business grows and improves; allowing you to benefit from the different entity types, helping your business to become successful.

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Six Ways to Protect Your Company in 2019

shaking hands

A new business has enough to worry about without the addition of legal trouble. With how complicated the legal system is, and how many branches of it affect businesses today, it can be a real challenge to stay within the law without inadvertently breaching it.

Not only are there plenty of laws to follow, but they also change. One year you might be well within the legal system, the next you’re breaching it because they have made a change to how you’ve been running your business for the last five, ten, or even twenty years.

Adapting with the times is a sign of a successful business, and to help you improve your company’s adaptability you will want to follow this guide:

1.    Have a Legal Team of Experts on Hand

Legal advice is invaluable, which, of course, is why it can be so expensive. For new businesses, small businesses, and those who have a narrow profit margin, this can mean a difficult period can be incredibly difficult to budget for.

A great way to avoid the unexpected legal fees, however, is to subscribe to them. That way you can budget appropriately and have a professional financial lawyer on your side as you need to. If your allocated hours run up, you will then benefit from an 80% discount for extra hours until the next month.

2.    Create an Anti-Harassment Policy

Discrimination and harassment laws should never be taken lightly. In the States, discrimination laws usually don’t come into effect until you have more than 15 employees working for you, but this changes from state to state. Assuming is your enemy, so always check up on what you are legally entitled to do and go one step beyond.

3.    Get Your Business Model Written Down

You want your company’s business model, including partner agreements, to be written down and formalized. If they aren’t this could spell trouble in the future when your partner tries to take more than his share, but you don’t have a legal document stating he can’t.

4.    Get Your Company Trademarked

Another way to protect your company is to get it trademarked. Not every brand name can be, of course, but if you have a unique name it is best to get it trademarked so that there will never be any doubt as to which company a customer is trying to deal with.

5.    Get the Necessary Copyright (When Applicable)

On top of trademarking your brand your will also want to apply for patents and copyright when applicable. New products that have a unique or distinctive design can be patented and trademarked and therefore protected from copycats.

6.    Keep Your Books in Order

Last but not least, you will always want to keep your accounts in order. Not having this information can make it difficult to acquire tax discounts, but more importantly it can be a huge disadvantage if your company is audited or money goes missing from your account.

By keeping up to date with your finances you better protect yourself and can work on how to budget better.

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What Do Trade Secrets Protect?


According to the United States Patent and Trademark Office, a trade secret is “information (that) can include a formula, pattern, compilation, program, device, method, technique or process.”

At first glance, you may think that a trade secret looks very similar to a utility patent, but as you will see, they are very different. For starters, a utility patent is something that is filed and approved through a rigorous process, whereas a trade secret is only granted limited protection in certain cases.

A trade secret aka ‘confidential information’ is non-patented information that provides a company with a competitive advantage in their industry. This could be anything from a marketing strategy to a recipe for award-winning cookies, and at their core, they enable a company to keep an edge on their competition.

As everything comes down to ‘interpretation’, and even lawyers interpret the law in a way that works for their client.  Disclaimer: Don’t get caught out in a way your competitors can steal your information. A patent attorney in Orlando recommends always seeking legal advice.  Startups are particularly vulnerable to the prying eyes of competitors.  The options for protecting your intellectual capital or business trade secret include non-disclosure agreements (NDA), and of course if deemed the appropriate strategy, applying for a patent.

Read more below about what types of protections you are granted in the United States for a trade secret.

What is a Trade Secret?

A trade secret is anything that gives you a competitive edge in your industry, whether it is a process, recipe, or simply a method of doing something. In some cases, trade secrets are eligible for patents; in other cases, a trade secret must simply be protected by ensuring this information is not leaked.

Trade secrets are not protected like a patent – instead, they only protect against unauthorized disclosure. This means that if a contractor were to leak your trade secret to a competitor, you may be able to seek damages from the contractor, royalties from the competitor, and possibly have a court force the competitor to keep the trade secret from leaking further.

However, there is nothing that bars a competitor from independently discovering the same secret. In a patent, your invention is clearly laid out by the USPTO. Since a trade secret is not disclosed in the same nature, you can not take up legal actions against a third party who has come across the same information under their own labors.

How Does a Trade Secret Work?

Since trade secrets include such a wide variety of things, they vary slightly depending on the information in question. One good example of a trade secret is a simple customer pricing list for a sales organization.

If this list were to be leaked to the competition, there is little stopping competitors from simply offering better rates to steal these clients. One way that this list can be handled is through the use of a non-disclosure agreement, otherwise known as an NDA. In the NDA, the company can indicate all information that is not to be released or shared outside of the company, and in many cases, can not be shared within the company either.

If a trade secret is shared or discovered by misappropriation, a court may force the entity to take measures to keep the information from going any further, as well as forcing royalty payments, legal fee reimbursement, and more.

Remember though: if your competition independently discovers the same information as your trade secret, you are not granted any legal protection. If you are concerned about this and believe that your trade secret is truly unique and useful, explore your options for getting it patented in order to enjoy complete protection.

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What’s in a Name: How to Choose & Legally Protect Your Business Name


When starting out on a new business, one of the most exciting parts of getting set up is choosing the perfect business name. We want something witty that sticks in people’s minds, and perfectly sums up exactly what it is that we do. Brainstorming the perfect business name can be hard, and it is made harder by the fact that just because we think we have come up with the perfect business name does not mean that we can use it.

Before we start doing anything with our amazing new business name, we need to make sure that we are actually allowed to use it. We don’t want to find ourselves with a great new website and fancy business cards only to have another business come in and stop us from using our new name, and even potentially request damages. We can save ourselves a lot of time and stress by taking the time to properly confirm whether our chosen business name is available for us to use.

Trademark Law

Business names are regulated under Trademark Law. Regulations are in place to prevent businesses from using a business name that is likely to lead them to be confused with a competing business. If a business is found to be infringing on the trademark of another business, it can be forced to change its name, which can be a costly setback, and sometimes forced to pay damages.

It is not always prohibited to use a business name that is already in use. If the business that is already using the name is relatively small, and provides drastically different services to you, you may still be able to use the name. The same applies if the business is located a significant distance from where you are and only serves a limited community, which your business is unlikely to serve.

Research your Business Name

Once you have come up with an appropriate business name, there are a number of searches to conduct in order to ensure that it is available to use. While a federal database of registered trademarks exists, it is not sufficient to just search here. Some companies with a local focus will only register their trademark on the state level, and under United States law, a business can lay claim to a trademark by using it, without registration.

As well as searching the federal database of registered trademarks, which includes every trademark registered by the United States Patent and Trademark Office, also do a state level search for your state, and neighbouring states if you think that your business will be active there.

The next place to search is the world wide web. In fact, it is probably worth doing a basic internet search before investing time and effort in trademark searches as most companies have a web presence, so this is a fast way to eliminate names.

As well as searching for companies using your exact name, look out for companies using a similar name that are active in a similar field. If there is too much crossover in your brand and service, these companies may also be able to prevent you from using your selected name under trademark law.

This type of internet search also helps you make sure that your selected business name is available as a domain name for when it comes to establishing your own web presence. Check with different abbreviations and hyphens as well as alternative top-level domains (such as .com or .net). While you may legally be able to use a business name, you may still want to avoid it if another company is already using your preferred web domain, or a very similar domain.

Conduct Business Entity Search

Finally, you need to check if the business name is available in your state.This search has to done on a state level. Each state maintains a database of all corporations, limited liability companies (LLCs) and limited partnerships registered in the state. Each state will also have a fictitious name database, which is a list of all registered business names in the state regardless of whether they have registered a trademark or registered as a corporation with the state. This is the final search that will show up unregistered companies without a web presence.

Register your Trademark

Once you have found a business name that you can use, it is a good idea to think about registering. While it is not legally required to register a trademark to start using it, registering your trademark can be useful if you do ever find that you need to defend your trademark in court. Plus, it may help reduce the risk of others using your name, as it will be easier for them to locate your business when they do their own new business trademark search.

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Brexit Unknown Makes UK Businesses Nervous


Brexit is certainly making businesses nervous right now, and there are many reasons for that. Despite almost three years having passed since the original vote, things are no clearer as to what the impact will be on business or what kind of trading relationships the UK will have with the EU going forward. Therefore, some nervousness is to be expected.

UK Businesses Rely on EU Workers

UK businesses of all kinds and in all industries employ EU workers. The question that remains unanswered is how those working relationships will function after Brexit has properly occurred.

There are guarantees in place that workers currently residing in the UK will be able to carry on living here, but it’s not at all clear whether more EU workers will be able to move here with ease after Brexit, and most indications suggest that won’t be the case. This will certainly have a big impact on businesses in many sectors.  See this article on: Solicitors talk Brexit.

All Types of Workers Are Required for the UK Economy to Function

One idea that has been floated by the UK government is the idea of an income threshold, meaning only those earning more than a certain amount of money will be allowed to live and work in the UK. This would mean that highly skilled workers would find it much easier to work in the UK than low skilled workers would.

However, the UK economy relies on both skilled and low skill labour in order to function properly. If that supply of low income workers was cut off after Brexit, more businesses would struggle.

Contingency Planning Might Not be Enough for Small Businesses

For big businesses, contingency plans are already being put in place. This is expensive and time-consuming for large companies, but it will mean that they’re able to protect themselves against the upheaval brought about by Brexit. On the other hand, small businesses don’t always have that option because they don’t have the resources to put adequate contingency plans in place. It’s those small businesses, therefore, that are likely to be hit hardest.

It’s clear that small businesses are not opening at the rate they previously were because of Brexit uncertainty too. This denies the UK economy future growth prospects as well as depriving society of potentially successful ideas and businesses.

What Can Business Do to Prepare?

In terms of what businesses should be doing now, it’s best to seek professional legal advice about the situation, what you can expect and where your business and its staff stand. You should also analyse your supply chain and think about how that could change in the future under various Brexit scenarios. It might also be a good idea to look at existing contracts with EU companies and seek clarifications regarding those.

The Brexit situation is constantly in a state of flux, so things can change very quickly in one direction or the other. Therefore, it’s important for businesses to be watching and listening so that they can work out what their next move should be in order to prepare properly and minimise risk.

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