Copyright & Trade-mark

I was at a trade show recently, not a boring legal trade show, but the Outdoor Adventure show (hey, I have a life that extends beyond Court Rooms – honest!) and I was overwhelmed by the way many vendors were blurting out information as we walked past their booths. Many of those people spoke so quickly, I had no idea what they were marketing and apparently neither did they. One vendor told us how her product was great for “exhibitionists”: she meant exhibitors. She was mortified when she realized she had been saying “exhibitionists” all weekend.

Fast forward to the Monday after that weekend and I had a great meeting with some entrepreneurs excited about starting a new venture together. I took the time to listen to their thoughts, then slowly explained what legal help we could provide that would suit their needs.

I didn’t go on in detail about the facts from latest Court decision that would impact their situation, I didn’t recite a law from memory and I didn’t use a lot of legal language. I listened and then, in plain English, gave them my advice.

Many lawyers are like the vendor selling to exhibitionists. They speak quickly and are not even aware of what they’re saying. They don’t connect with their clients as business people, they preach down as if law is a pulpit and the client is listening in a church pew (and has to put a lot in the offering plate).

Business law is a conversation between a lawyer and their client. Lawyers need to listen up and be in tune with their client’s business.

If you’d like to talk, I’m listening. (with apologies to Frasier Crane)

Inga B. Andriessen JD
iandriessen@andriessen.ca

I snagged the title to this Blog from a Huffington Post Blog by Krizia. The original blog described the evolution of a small business called Lotus Premium Denim. This Blog is not about Denim.

The title of the Blog grabbed my attention because it refers to two things many lawyers fail to do, but two things I know that we do at our firm.

The title of the Blog grabbed my attention because it refers to two things many lawyers fail to do, but two things I know that we do at our firm.

Delivering on our promise is critical in maintaining the client relationships we have established over the past 20 years. I’m proud to say that many of the clients we have today are clients we have had for the entire 20 years the firm has been around.

The keys to “promising” as a lawyer in my opinion are:

1. Communicating clearly to the client what you will be charging them.
As lawyers all we have to sell is our time, but how we sell it (by the hour or by the task) is an important difference and clients must be told about this up front.

2. Honestly evaluating any litigation and being clear, even if you have a strong case, there is always a possibility of a Judge finding against you.
Clients have to be told Judges are human and let’s face it, there is a reason we have Courts of Appeal.

3. Before starting any litigation, assess the likelihood of collecting on a Judgment and advising the client if the only result will be a “pretty piece of paper stamped Judgment”.
No one just wants a pretty piece of paper and why should the law firm be the only party that benefits from litigation?

If you are our client, we understand you and we promise to continue delivering excellent legal services to you.

Inga B. Andriessen JD
iandriessen@andriessen.ca

There’s an interesting article in Huh Magazine about the costs of a few widely-known logos.

Seeing the low price paid for some of the more iconic ones is a good reminder of how much value can be put into branding at the early stages of a business’ development by being creative, or by tapping into some professional creative talent.

We’ve talked about the value of branding before, but we’ve mostly discussed the trade-name or other word phrases used in conjunction with the business. Graphic logos are an increasingly important aspect of branding – in some industries, the graphic logo is a far more recognizable aspect of brand identity than the company name or any slogan.

Proceeding through the trade-mark registration process with a graphic logo can be difficult, but, as always, if you have any questions about it, please give us a call.

Scott R. Young

Amidst all the Facebook IPO hype this week, there was the release of an e-mail from Mark Zuckerberg to his corporate lawyer, instructing them to dilute Facebook co-founder Eduardo Saverin’s share in the burgeoning company.

Aside from the obvious professional responsibility issue that this presents for the lawyer (assuming the lawyer was acting for the corporation, they had an immediate duty to declare a conflict of interest and cease all representation of the company), the story highlights the need to get good independent legal advice before entering into any legal agreement. I had a great example of the right way to do things last week – we were retained to give ILA to a shareholder on a Shareholder’s Agreement that they had largely formulated. Despite the fact that this shareholder had been the principal instructor to the corporation’s lawyer, and was intimately familiar with most of the terms of the agreement, the corporation’s lawyer still thought it would benefit all of the shareholders to get ILA – not just to waive it as is sometimes (unfortunately) done.

The shareholder was convinced that ILA would add value even if only to have a fresh set of eyes review the agreement. In our review, we offered more than that; considering various critical events from the shareholder’s individual perspective was very different than the perspective of corporate representative they had while preparing the agreement.

The details of the Facebook dilution are not entirely clear (the ensuing litigation was settled and not much is on the public record) but presumably the restructuring that diluted Savarin down to 10% was ultimately effected, and presumably without Savarin retaining counsel to explain this to him. And when he did realize the dilution, litigation was the only option available.

Getting independent legal advice is not cheap, but the value in what you are getting is often immeasurable. If you are entering into an agreement of any significance (including potential future liabilities), you absolutely must have legal counsel review the agreement and confirm that your interests are protected (or that your unprotected interests are known to you). It’s that simple.

Scott R. Young

So you’ve gone to all the time and expense of developing a brand, establishing goodwill in the marketplace and even registering your trade-mark – now what? Just like the title says, use it or lose it. The rights and responsibilities that come along with trade-mark registration are important to keep in mind.

1. A mark only has rights so long as it is used in conjunction with the goods or services that its registration is associated with. If you stop using the mark, a competitor can have your mark expunged from registration; this includes not using the mark in conjunction with the goods and services that its registration is associated with, but still using it in association with other goods and services.

2. If you do expand the scope of usage to include goods and services not in the original registration, you’ll need to apply to have those categories added. Failure to do so may weaken your rights in the trade-mark.

3. Make sure no one else is using your mark. Trade-mark rights diminish if they become generic. If others use your trade-mark improperly, or as a generic term to describe certain goods and services, you could lose you trade-mark rights. This means you’ll need to keep an eye on your competitors, wherever they may be. Regular searches are key.

4. Renew your registration. Remember that trade-mark registration is a limited right, lasting for 15 years. After that, you’ll need to renew the mark’s registration every 15 years or your rights to it disappear.

If you have any questions about this topic, please contact us.

Scott R. Young

Well, yesterday’s Ontario Court of Appeal decision certainly has generated a lot of discussion. You know, the one where Brothels are now legal, well they will be in a year if the Supreme Court of Canada doesn’t disagree.

In our office the talk was not of the morality of the decision (we’re lawyers after all, discussions of morals are better left to those with higher callings) rather it was the business aspect of brothels.

The business issues will not be any different that any other business: they are a commercial enterprise and will have to be carried on in areas zoned appropriately. They will require a licence, be subject to all of the Government regulations the rest of the business world is subject to and they will pay taxes.

Trademark will be an interesting legal/marketing issue as the brothels are not allowed to communicate what they do.

Additionally, determining at what level charging fees to manage the brothels is exploitation and therefore illegal: some Bay Street Law Firms might want to avoid working for brothels given the fees they charge could be exploitative. (joking, of course)

An interesting decision generating interesting discussions. We certainly live in interesting times.

Inga B. Andriessen JD
iandriessen@andriessen.ca

Tomorrow is New Year’s Eve – time to promise to workout more, eat less & be kinder to everyone (except the Kardashians, well, maybe even them).

As many people find personal resolutions hard to keep, I’m happy to propose a few business resolutions which should be easier to keep and therefore give you smug satisfaction next year at this time when you look back on the year.

So, without the snappy banter of Dick Clark’s Rockin’ New Years Eve, here are some suggested resolutions:

1. Have your lawyer prepare your annual business minutes and esnure your minute book is up to date.

2. Prepare both a personal and business will.

3. Register a Trademark if it has value to you.

4. If you are in Construction, lien projects within 45 days of last service or supply.

5. Follow 30-60-90 Sue to ensure your receivables do not cripple your cash flow.

Wishing you a Happy & Profitable 2012 !

Inga B. Andriessen J.D.
iandriessen@andriessen.ca

One of the many positives to being a small law firm is the close interaction between the litigation and non-litigation sides of the firm. We meet together on a regular basis to discuss files from both perspectives (how to avoid litigation and what strategy to pursue when litigation becomes inevitable). We also talk about avoiding disputes from the very beginning of a commercial relationship – this usually means getting the documentation right.

When we draft documentation for a client, we try to find out as much as we can about the way they do business; or more exactly, we find out about the way they want to do business and then we try to make sure that its completely compliant with the statutory framework under which the client operates, and any applicable case law. When possible, we try to approach the process holistically, and address as much of the business relationship as possible. We consider client solicitation, customer intake, the review of documents, imbalances in bargaining power, the need to retain specialized counsel on both sides of a transaction, the execution of the documents, the clarity of the documents, the term and termination of the agreement and what rights the parties have after the life of the document has ended.

When we talk about the clarity of legal documents, we’re talking about more than plain language and the clarity of our words – although we are talking about that too. We’re talking about everything from the readability of documents to font size, white space, kerning, the appropriate placement of margins in the event that a document will be faxed repeatedly, organization, numeration, and everything else we can think of. And then the litigators look at the document from the perspective of a judge, squinting to read and understand what exactly the parties have bargained for. And we fine tune.

At the end of the day, our goal is to provide a legal document that envisions the intention of the parties in a clear manner, contemplates current and incoming legislation, is adaptable for changes in case law and will add value to the underlying interaction between the parties. Our multi-disciplined and flexible approach produces excellent documentation. And that documentation improves the systems of our clients.

That’s the Andriessen Document Advantage.

Scott R. Young

We’ve rolled out a new service for clients that has met with a considerable degree of success; so much so that we’re planning on expanding it in the coming months. Combining two of my favourite things – eating and getting free legal advice – our Lunch and Learn series focuses on getting small groups of clients into our office to talk about areas of law specific to their interest.

The intimate lunchtime gathering is the perfect setting. Instead of sitting and listening to a lawyer drone on about the law, the atmosphere is much more give and take and we get to talk about the real world business application of the law. It’s a good place to find workable solutions for our clients. And it’s a good place for us to find out what our clients are doing in their day to day operations – we do as much learning as anyone.

Inga had the opportunity to speak about our 30-60-90 Sue™ philosophy to a few groups recently and it was very well received – to some clients, the idea of getting paid for the work they did was somewhat revelatory – to others, it just tweaked the good habits that they already had.

Paul Voorn will be hosting a Lunch and Learn soon on Construction Lien Act considerations. If you perform any construction services or have an interest in commercial property, this event will be enormously beneficial to you.

I’m planning a complete corporate compliance Lunch and Learn in the coming weeks that will deliver a broad overview of the current legislative scheme and a focus on what smaller businesses really need to concentrate on in terms of legal compliance.

Also in the pipeline, some litigation-oriented events, focusing on the stages of a lawsuit, as well as some specific corporate events.

If you have any ideas for a topic that you’d like to see covered, or want to attend one of the lunches I’ve mentioned, please drop us a line.

Scott R. Young

Toronto’s world-famous Caribana festival has just been rebranded as the Scotiabank Toronto Caribbean Carnival.  Or…there is a new multi-ethic festival slated for Toronto this summer, named the Scotiabank Toronto Caribbean Carnival and the Caribana festival is no more.  It depends on whose lawyer you ask.

The name Caribana was the subject of a trade-mark dispute between an entity known as the Festival Management Committee and the Caribbean Arts Group.  The latter group founded and named the festival but has little involvement in organizing it in its current manifestation.  The former group are currently involved in the festival’s organization.

Last week the Ontario Supreme Court ruled in favour of the Caribbean Arts Group and that led to the decision to rebrand with the corporate-sponsored name.  However, the name change has done little to quiet the legal battle, with renewed threats this week by the CAG, suggesting that any attempt to pass off Caribana under the new name will be fought in court.

This issue highlights the importance of branding in general and of trade-mark rights in particular.  Any halfway recognizable brand with an ounce of equity has to be protected.  I tell horror stories like that of the Caribana dispute over and over to new business owners and it seems there is still a massive mental hurdle in accepting it.  In an age of increased technical expertise and ever-more complex business models, the idea that the biggest asset is your name might just be a tough pill to swallow.  And yet it often holds true.

The time and expense involved in protecting a trade-name at the right stage of business development will always pale in comparison to the expense involved in either litigating an issue later or in the lost business that comes from losing out in a branding war. 

So if it isn’t money, then what is it?  It’s a probability gamble.  If you aren’t securing your trade-marks, then you’re betting that your brand will never be recognizable.  You’re betting against the success of your name and your reputation in the marketplace.  And it’s a bet that you will lose either way.

If you have a brand, a name, or a reputation in the marketplace and it isn’t protected, call a professional.

Scott R. Young