In this series, we will be covering topics that highlight a number of risk factors in blogging and participating in social media, to help you navigate this area without inadvertently stepping on a waiting landmine, including:

-          Could your innocent blog comments amount to defamation?

-          How can you control social networking by your employees?

-          Facebook: are you liable for other people’s postings on your wall?

-          When does using another article for inspiration amount to copyright infringement?

-          What is copyright

If you can’t wait for our coverage of these issues, contact us (details below) for some tailored advice for your situation.

To claim a tax deduction, the tax office requires that a training expense, including the cost of any travel expenses, be related to your income earning occupation.

However,  the Tax Office doesn’t look at  how much someone should spend in deriving assessable income, which means, for example, that it can’t say someone should have travelled economy rather than first class. The Tax Office can only say whether the expenditure was incurred in deriving income or not.  And it looks like this is precisely the issue it will be pursuing when examining the deductions that are being claimed in this area.

When it comes to overseas conferences, normally there’s no issue when claiming this as a deduction if the entire period overseas is spent at the conference. However difficulties start to emerge in apportioning expenses in cases where someone wants to  attend both a conference and take a holiday. (It need not necessarily be on a time-spent basis).

Over the past years conferences that provide training in traditional “holiday” locations have become more common place – for example the conference at a Canadian ski resort where formal sessions are held between 7am and 9am so as not to interfere with a day’s skiing… (we see ads for these sorts of gigs all the time). And apparently the creative juices of travel companies have taken this one step further – by offering self study programs to attendees to allow them to choose the holiday destination of choice at which to undertake their “study”.

If this all sounds like something that is right down your alley, perhaps its time to take a breath. The Tax Office has said that these types of arrangements are under now review. In particular overseas conferences that allow attendees their own leisure time, and conferences conducted on cruises. So maybe think twice before you take up that next great offer for study in Aspen. It might just cost more than you had originally budgeted.

Currently directors are provided 21 days’ notice before they become personally liable for various unpaid taxes (known as a “director penalty notice”). However the new legislation is intended to remove this notice period, so that directors will become personally liable for superannuation guarantee liability and PAYG withholdings that are unpaid and unreported 3 months after the due date.

The move is part of the focus on ‘phoenix activity’, which has been under the radar of the ATO in recent years. ‘Phoenix activity’ is the name used to describe the situation in which companies build up large debts, are wound up before paying taxes or super to their staff, and then resurface in a new entity, with the same name and with essentially the same owners, but free of the debts of the old entity. Like a phoenix rising from the ashes.

However some of the proposed changes could have an impact on directors more broadly than just the “phoenix activities’ that they are designed to tackle.

Some of the danger areas for all directors to be wary of include liability for superannuation deficits due to innocent errors in accounting for over time, or failing to include contractors who may be deemed to be employees for the purposes of superannuation.

We will keep you advised on the legislation as it passes through Parliament and will be publishing a series of items reminding directors about their duties, and what you should be doing to keep risk at a minimum. But for now, this is just a reminder to keep in mind the importance of getting into good habits in relation to the reporting and payment of your tax and super obligations.

If you have any questions at all in relation to your duties as a director, drop us a line. Enquiries@aspectlegal.com.au or 02 8666 7900.

Two-price advertising, often called comparative price advertising, contrasts the sale price with a higher price for the same or a similar product.

It usually takes one of four forms:

• recommended retail price
• ‘was/now’ advertising
• strike-through
• competitor price advertising

A powerful marketing tool, it generally doesn’t offend Australian consumer law if the overall impression created is genuine, rather than “illusory”.

Ads risk breaching the law if the calculated saving is based on the difference between the current sale price and a higher price at which the product has not actually been sold for a reasonable period of time and in reasonable quantities immediately before the date of the ‘discount’.

Whether conduct is misleading or deceptive is largely determined by the overall impression created in the minds of consumers. Take note – a fine-print disclaimer may not be enough to stop consumers being misled over the true nature of savings.

A significant number of ACCC investigations into advertising practices conclude in companies making enforceable undertakings to take corrective advertising, implementing compliance programs and acknowledging the undertakings will be available for public inspection.

If you are concerned that your marketing could be a little grey in these areas, contact us now for a confidential discussion. Call us on 02 8666 7900, or email us at info@aspectlegal.com.au

Statistics show that more than 90 per cent of cases are settled before they reach court. Mediation can enable settlement to occur even earlier.

Early settlement can reduce the stress that is very commonly involved in court proceedings, particularly where a person may have to give evidence.

It also reduces legal and other costs, such as those involved if you have to take time off work or from business for prolonged court attendance.

Mediation can also help the relationship between parties to survive their dispute, because it allows them to formulate their own mutually acceptable solutions.

Even if parties do not settle their dispute, they do clarify and narrow the issues at the mediation, which can reduce the time and expense of the court hearing. At the very least, parties who have been through a mediation will have had an opportunity to discuss and clarify the disputed issues.

Contact us if you are involved in a dispute and are interested in looking at ways to try to resolve it. 02 8666 7900 or info@aspectlegal.com.au

But this change could have major implications in situations where there is a double up of the same trading name (because it has been registered in multiple states by different people), and we suspect will cause a bit of movement in the trade mark registration area as businesses start to recognise the importance to them of their brand!

The benefits and the process

The new system is expected to save business start-ups time and money, with confirmation of registration to be received immediately in most cases when completed online, and the fee to be around $70 for 3 years.  There will also be a joint online application for Australian Business Numbers (ABN) to further streamline the process of starting up a business.

Existing business name registrations will be automatically migrated over to the new register, and the new business name fee will apply when it comes time to renewal.

What happens with multiple registrations of the same name?

This is an interesting question. If the same trader currently has multiple registrations in various states, these will be consolidated to a single registration.

However if the same business name is registered to different traders in various states, then the new registration will be marked with a state identifier, eg (NSW), (TAS) etc.

Trademark registrations set to become more important than ever

This new system places even greater importance of obtaining trademark protection. In fact one of the objectives intended to be delivered through this new system is an improved awareness about the differences between business names and trademarks.

A business name registration will not automatically provide you with trademark protection, nor guarantee that you will be able to register your name as a trademark.  In fact, it will not even provide you with the peace of mind that you are not infringing someone else’s trademark, and without doing the proper trademark searches first, you risk having to potentially change your business name.

Click here to read our previous article on the differences between company names, business names, domain names and trademarks.

We envisage a rush to obtain trademark registrations, particularly for those traders who currently coexist on the current state business name registration system with other traders in different states for the same name.  As the system migrates to a national registration, who will be able to claim legal ownership of your name?  Having a trademark registration is the only way to be certain that you OWN the name!  As the trademark system is on a first-come-first-served basis, we cannot emphasise enough how important it is for businesses to start looking at trademark protection for their business name now.

Contact us by email at enquiries@aspectlegal.com.au or phone us on 02 8666 7900 if you would like more information, we are more than happy to help you get this sorted before the new system starts.

‘The cloud’ relates to providing computing services such as computer power, data storage and applications over the internet. Businesses can usually buy these services from companies such as Microsoft, Salesforce, Google or Telstra.

For businesses, the benefits of the cloud are that it can be cheaper than the outlay on hardware or software, more flexible, easier to manage and efficient.

There are, however, some issues to consider. A key question is where your data is stored or processed. The cloud may not be tied to any location, and the service provider may not know where your data is residing. The issues that arise here relate to your responsibility for data protection and privacy.

Before you consider moving to the cloud, you will need to perform proper due diligence. This should cover the parties in the cloud relationship, enforceability of the contract, and liability for breaches.

One remaining issue to be aware of relates to being locked-in to certain applications or systems – and if you want to transfer data or applications, whether the data is portable between service providers. You need to be aware of this, particularly in relation to data retention laws and regulations. Depending on the situation, data needs to be accessible for five, seven or 10 years after creation.

If you are thinking of joining the cloud, we can help you to carefully review your cloud computing service contract and its terms and conditions of use. Contact us at 02 8666 7900 or info@aspectlegal.com.au

What does the ™ symbol mean?

When someone uses the ™ symbol, they are asserting that they own the trademark rights to the particular “mark” that the symbol is applied to.  This might be a brand name, word, phrase, letter, number, sound, smell, shape, logo, picture, aspect of packaging or a combination of any of these.

™ stands for “trademark”. Trademarks are what a trader uses to distinguish its goods and services from those of other traders. Getting a bit more technical, a trademark can either be a registered trademark (one that is recorded on the national register of trademarks) or an unregistered trademark, sometimes referred to as a “common law” trademark.

When can I use the ™ symbol?

This is what surprises our clients the most – you can use the ™ symbol at anytime, as long as you really are the true owner of that trademark that you are applying it to. You don’t necessarily need to have that trademark registered, but you do have to at least own the common law rights to that trademark (otherwise your use of the symbol could be claimed to be misleading, not to mention an infringement of the true owner’s rights).

Then what does ® mean?

The ® symbol is a way of telling the world that you have an officially registered trademark, that has been accepted and listed on the national register of trademarks.  By law, you cannot use the ® symbol unless you have an official trademark registration, so we advise our clients that they must not start using the ® symbol until they have reached the final stage of their trademark application.

An easy way to remember this is to think of the ® as standing for the word “registered”.

Can I really start using the ™ at any time? Is there any risk for me?

Subject to the exceptions we have outlined above, yes, you can use the ™ at any time, but practically speaking there is still some risk if you haven’t done the appropriate checks to make sure you are not breaching someone else’s rights.

For any one that is starting to use a mark as a trademark, there is always the risk that someone else may have started using that mark first! If that is the case, and they are using that mark for similar goods or services that you intend to use your mark for, then your use is likely to infringe the intellectual property rights of that trademark owner.

We always advise clients to have the appropriate checks and searches conducted before adopting a brand or mark, to give you the peace of mind that you are not investing marketing dollars, time and building up goodwill in a mark that turns out to be a risky choice because of it’s similarity to a mark belonging to another trader.

And of course, one of the best ways to get that peace of mind, is to register your trademark.

If you have any questions about this article, or about the topic area, please do not hesitate to give us a call. We are always more than happy to answer any questions you might have about trademarking, trademark searching, or any other trademark or brand protection questions you may have.

So if you are in the creative side of brand development, read on for a background as to why some marks are much harder to protect than others, and how to ensure you aren’t at the end of a phonecall with an angry client!

In the area of trademarks, it has become very clear to me over the years, that lawyers and marketers want different things. The marketers want something that looks good. That is memorable. Catchy. That conveys information about the service or product – and often you might even feel that the more descriptive your branding is, and the more it conjours up an immediate connection to the good/service you are marketing, the better.

On the other hand, us lawyers, are focussed on a slightly different objective. Where the look and feel of a mark pales in significance to the simple question – can we register this as a trademark, and get monopoly rights over that branding for your client?

So here’s a summary of what you should be looking out for in your design or creative phase, to make sure you are creating a mark that can be protected.

The most important question is “Is it distinctive?”. A mark that is distinctive (rather than descriptive or generic) is much easier to get trademark registration protection for. And it is much easier to stop a competitor from copying.

So what is good to include in your branding?

✔   Coined or invented words are good. These are made-up words that cannot mean anything else other than your client’s product or service, because they have no meaning. Examples are words like ADIDAS, which is a portmanteau of the name of the founder Adolf (ADI) Dassler (DAS) and SKYPE which means sky-peer-to-peer.  Generally speaking, these sorts of marks are immediately protectable.

✔   Arbitrary words, expressions, slogans are good. These are real words, but have no meaningful relationship to the goods or services they represent. For example “SIX APART” a blog solution provider company, the founders were born six days apart, and  “JUST DO IT” which is the slogan for NIKE. These sorts of marks are generally immediately protectable.

✔   Unlikely grammatical constructions are good. Especially those with a misspelling and unlikely grammatical constructions. For example “GROUPON” for group coupon.

✔   Suggestive words are good. These are words that contain hints of descriptiveness but are vague.  They usually involve lateral, circuitous thinking, humour and/or surprise.  Essentially, the market needs to be familiarised with the name to make the connection with the goods or services that the mark represents. For example “TWITTER” as it describes the product as providing a “short burst of inconsequential information”.  These sorts of marks are generally immediately protectable, and are usually given somewhat broader protection against infringers than descriptive marks that have acquired a secondary meaning.

✔   Unusual surnames, personal and company names can be good. Although this depends on each individual case. For example “MAGGI” named after the founder Julius Maggi.

Hint: If you are going to use a combination of words, both distinctive and some less so, make sure that the most distinctive is the first word.  The case law suggests the first word is the most memorable.

What isn’t good?

✘   Purely descriptive or generic marks – don’t use words that describe the nature, quality, geographical origin or other characteristics of the goods or services that the mark is designed for.  Eg “MILK” for milk, “THE GOOD DENTIST” for a dental surgery, “PERFECTION” because is praises your goods or services. If you use these in your mark, expect to have a very hard time registering the mark. And expect to have a hard time stopping copy cats! There is an exception to this rule if the owner has used the mark exclusively for a long period of time, during which time it may have acquired a “secondary” meaning  – on the basis that the market has been educated to recognise the brand.  However, at the design stage we want to avoid going down this road. Why risk it?  It’s a costly exercise which involves gathering evidence in the form of sales figures, income produced figures, marketing surveys, etc.

✘   Common surnames For example, there are many people in the public with the surname Smith so it would not be registrable as a trademark.

✘   Short combinations of numbers or letters on their own. Short combinations of numbers are often used as serial numbers, and combinations of letters are commonly used as initials and so would face difficulty getting registered.

✘   Marks that are similar to a mark that is already registered.  Marks that are deceptively similar to a mark that is already trademarked can be very difficult to register.   A search of the trademark database is an absolute must to avoid the disappointment of having a mark that is not only unregistrable, but also to avoid the risk of infringing on someone else’s intellectual property.

We apply the same sorts of tests when looking at the distinctiveness of a logo.   So for example, a very ordinary image of a car with mere borders or flourishes on their own would probably not be able to be registered for a car sale business.

At the end of the day, it can be very confusing trying to work out whether the branding you are designing is likely to be something that can be protected, or something that could cause your clients problems. Why not give us a call if you have a brand that you aren’t sure about? We are happy to answer your questions for free.

What to do next

All of these design considerations can be extremely confusing. Don’t risk it yourself, talk to us about the products that we have available for you to use at the design stage, to make sure you are creating something that your clients will be able to protect in the future – by calling 02 8666 7900 or emailing us: info@aspectlegal.com.au

This case starts back in 2009, when the ACCC brought an action against Allergy Pathway (then Advanced Allergy Elimination – for ease, I will just call it “Allergy”), alleging that it, and its director, had engaged in misleading and deceptive conduct, and false representations, in relation to its allergy products. Allergy operates clinics for the diagnosis and treatment of allergies. It posted claims on its social media pages, and more broadly in print, radio and newspapers that it could test for allergens and cure or eliminate them. The ACCC alleged that Allergy’s claims had no proper testing basis – and were misleading and deceptive (among other things).

The court agreed with the ACCC and ordered costs against both the company and the director – and required that they both provide undertakings that they wouldn’t make any similar representations for 3 years.

So rolling on a year or so into 2010, the ACCC became aware of a Facebook page in the name of Allergy.  The ACCC claimed that Allergy and the director were liable for postings made by clients on Allergy’s Facebook “wall”, because these statements were misleading and deceptive, and Allergy knew they were and they had not removed them.

Of course, Allergy’s response was that the testimonials on their Facebook page were made by other parties. Not them. And that they shouldn’t be held accountable for statements made by other people.

However, this is where the Court’s decision is so pertinent for businesses.

The court found that Allergy, and its director personally, were liable for the statements made by fans because:

1. it was aware that these misleading statements had been posted on their Facebook page; and

2. it had made no effort in removing them

In coming to this decision, the Court found that because Allergy had not removed these comments, it then became “publisher” of the testimonials, even though they weren’t the actual author.

So if you are in business, this decision means that it’s your responsibility to ensure that all content on your social media sites regarding your business is accurate, whether that material is uploaded yourself or posted by the public.

It’s important to have some procedure in place to monitor your fan pages, and be proactive in the management of your websites and social media sites.  And if a member of the public does post any material that is misleading, it is your responsibility to remove it as soon as you become aware of it.

Give us a call if you would like our help or assistance in working out whether content on your social media sites might possibly land you in trouble. We are always only too happy to help!