Understanding The Law....intellectual Property Law

Author: Nominate A Lawyer
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Q. I am in the retail clothing business and bought some stock from a number of manufacturers. Subsequently I was approached by solicitors from a designer accusing me of infringing copyright as I was selling her designs. What should I do in the circumstances?
A. There are a number of things but the first one is to retain an intellectual property lawyer to deal with this copyright issue. There are any number of questions which come to mind with one of the most important being whether there was any holding out by you whether these particular clothes were in fact designed by the other solicitor’s client. Effectively the matter needs to be negotiated so that your position is fairly put whilst at the same time ensuring that you do everything necessary to prove that there has been no breach of copyright but you have to take the appropriate steps to cure this. Do not forget, if there has been a breach this can involve you in substantial costs including paying for the other party’s legal fees.
Q. I have a unique concept which I want to protect and don’t know what to do in the circumstances?
A. Ideas are not the subject of patents and therefore this protection is not available to you. Where you have a concept and it involves a design it cannot be protected if it is an idea. Where you have an idea it is the expression of that idea for which you can claim copyright. In order to further protect the expression of this idea it might be good to develop a trademark and have it registered.
Q. How is the Copyright Act 1968 protect copyright owners’ risks?
A. Basically the Act gives copyright owners certain exclusive rights to promote creativity and innovation with respect to their works. Normally anyone wishing to copy or reproduce copyright material will need permission from the copyright owner. There are certain exceptions which enable certain classes of persons to use copyright material without permission for restricted purposes.
Q. With digital and other emerging technologies are there traps for the normal consumer apart from copyright owners?
A. Yes. Under new legislation the new amendments will not allow you, for example, to upload a copy of a song from the internet.
Q. Is cybersqatting on the increase given that so much business is now conducted over the internet through specific domain names?
A. Yes. The registration of domain names is fairly simple but it is managing the renewals which a business may have at any one time during its life cycle which causes problems. Obviously businesses need to invest time and money in a comprehensive brand management strategy to protect themselves in this area.
Q. How does cybersquatting normally arise?
A. There are any number of well-known names or brands which are instantly recognisable to the public. Cybersqatters capitalise on this by registering in bad faith domain names which can be confused with or almost indistinguishable from these brands. As a result they take traffic away from the legitimate owners of the brands as they serve to confuse the market place. One strategy is to register a name and hopefully sell it back to the legitimate brand owner at an inflated price.
Q. What should I do to protect my brand as my business is increasing annually and it won’t be long before it is instantly recognisable?
A. Every business person or owner or company involved in the sale or marketing of goods and/or services should have a brand management strategy which should be totally comprehensive to ensure some level of real protection. One of the best ways of doing this is to closely align the business or company name and/or domain name and/or copyright of a slogan and to register a trademark to ensure the exclusive use of that name. Exclusivity is the key to your identify and therefore maintaining your market share.
Q. I have been running a business for a number of years and as part of my strategy I obtained a domain name but I have been recently contacted by solicitors acting for another party who indicate that I have infringed their trademark. What should I do?
A. Just because you have been operating a business for a number of years it does not necessarily mean that you have exclusive right to use that name. Obviously their client has a registered trademark for that name which provides them with exclusive rights to use the name in their area of business activity. Just because a domain name is available it does not mean that you cannot infringe somebody else’s trademark. Even where this arises inadvertently as appears to be the case here it seems that you are infringing their trademark and obviously they are prepared to take action against you which would prove extremely expensive if you do not retain a lawyer early on to assist you with this matter.
Q. What happens if a business is already operating under a particular name and has a corresponding domain name?
A. First you should consider whether or not you really need this name and if you require exclusivity you trademark it.
Q. Is it easy to register a trademark in Australia?
A. No. You do not know what you are doing and you will not know what outcome you have achieved without seeking expert guidance and assistance. This area of the law is rather complicated and the services of a competent solicitor should be engaged for accurate guidance and assistance. It is of note that the Trademark Act 1995 provides broad grounds for a change in registration so that genuine competitors are not disadvantaged by registration of a mark which they may honestly need to use in the course of their trade or business.About the AuthorNominate a Lawyer is a network of carefully selected, highly qualified intellectual property lawyers in Sydney, Melbourne and Brisbane.
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Understanding The Law... Conveyancing And Property Law

Author: Nominate A Lawyer
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Q. I can’t understand why conveyancing costs vary so much and what would be a fair fee to pay either on a sale or purchase of a property in NSW?
A. There is great variation in conveyancing costs as much of work is being carried out by unsupervised and unqualified staff. This practice has become widespread and no one can make any money out of conveyancing where the costs fall below $1,210 plus GST plus disbursements for a sale and $1,430 plus GST plus disbursements for a purchase. No one whether vendor or purchaser should forget that conveyancing is all about the transfer of title from one individual to another and if the work is not properly performed someone is in danger of not obtaining title which is unlikely to be discovered for a number of years until the property is sold. Why would anyone take this risk as the greatest single asset most people acquire during their life is their home, so clients should think very carefully before they accept any offer to convey property below this.
Q. How important is it to get legal advice in the area of commercial leases?
A. Most people today tend to believe that little expertise needs to be applied to both leases and conveyancing. This couldn’t be further from the truth. In the area of commercial leases there has been a recent decision of the NSW Court of Appeal which confirms how important it is for small business operators to get legal advice on commercial leases. In that case a tenant sued the landlord. In that case the tenant had failed to obtain proper legal advice and had not executed a lease leaving it open to the landlord to have him evicted causing the tenant to sue alleging that there was an informal or equitable lease on foot. The tenant lost as he had no formal right to run his business from that location and as a result he had imperilled his commercial interests and ended up having to pay the other party’s costs.
Q. I understand that there have been some substantial changes to retail leases legislation in NSW and Victoria and what impact do they have on landlords?
A. One of the most significant changes in NSW has been in the area of security bonds and as from 31 March 2007 all landlords are to deposit all tenants’ security bonds with the Director General of the Department of State and Regional Development irrespective of when the tenancy commenced. As a result it will become far more difficult for landlords to make a claim against the bond with landlords having to make a written application to the government setting out the basis for their claim. Should the tenant disagree with the claim then the dispute may be referred to the tribunal for resolution. Issues relevant to Victoria follow.
Q. Under these amendments are promotional or advertising levies caught?
A. Yes. Previously where landlords imposed levies on tenants they could determine how the money was to be spent. Under these amendments landlords are now required to advise tenants in advance how this money will be spent and need to provide a detailed explanation to tenants every six months setting out the basis on which the funds were expended.
Q. Although there have been a number of changes introduced in Victoria under the Retail Leases (Amendment) Act 2004 will they have the same impact?
A. No. The thrust of the Victorian amendments is that landlords, their agents and prospective purchasers must be made aware of these amendments and others in order to comply with their obligations under the Act to avoid penalties. Under the Victorian legislation the definition of retail premises has been amended to include part of the premises which are used wholly or predominantly for the retail sale or hire of goods or provision of services. The application of the legislation is far more straightforward than before.
Q. Is it true that the Victorian Government has made amendments reducing landlords’ obligations to maintain and repair retail premises?
A. Yes. Originally landlords were required to maintain leased premises in good order, condition and repair. Following the changes landlords are now only required to maintain the premises in the same condition that they were in at the time that they were leased or to any higher standards specified in the lease,
Q. Under Victorian legislation are there any significant procedural changes which have been introduced?
A. Yes. Some concern the time at which tenants are to be given a copy of the executed lease from the provision of disclosure statement by the landlord to the tenant and notification of renewal of a lease to the Small Business Commissioner. In both NSW and Victoria following the recent changes to the relevant Retail Leases acts lawyers should be retained to advise both landlords and tenants with respect to any matters arising there under.About the AuthorNominate a Lawyer is a network of carefully selected, highly qualified conveyancing property lawyers in Sydney, Melbourne and Brisbane.
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Understanding The Law... Building & Construction Law

Author: Nominate A Lawyer
T
Q. My next door neighbour has backfilled behind a decorative wall on one side of my property which is within my boundary and despite repeated attempts to stop this my neighbour continues to disregard my wishes. Is there anything I can do?
A. You need to retain a solicitor to write to your neighbour to serve them with notice that this practice is to stop and that they are to remove the backfill from your premises otherwise you will obtain equitable relief and take action against them for trespass.
Q. I went to a large well known building company which is involved in the design and construction of luxury homes. Some years ago I obtained a DA but construction has still not gone ahead as I had some reservations on the design. I have had a number of conversations with them and nobody seems to want to do what I want. What should I do in the circumstances?
A. There are a number of choices available to you including the following:
(i) Find another builder.(ii) Negotiate with your current builder to find a satisfactory way of having your instructions carried out.(iii) Buy the plans from them and have another builder do the building work for you.(iv) If you have signed a building contract with them then seek specific performance.(v) If there are misrepresentations involved then pursue your remedies at law.(vi) If there are any breaches of the Home Building Act, Trade Practices Act or any other Act then pursue your remedies there.
Q. I applied for a DA some time ago to build some home units and for a variety of reasons only limited work has commenced on site. I wish to maintain the DA and on sell the property which will be far more valuable if this can be done. What can I do?
A. Obviously if you allow the DA to lapse you will have to apply for a new one which you may find it difficult to obtain. Irrespective you will need to prove to the local council that substantial works have commenced on the site and provided you have enough time you should carry out substantial earthworks which may assist you in this regard.
Q. Do I have to go to the local court to take action against a builder for defects?
A. No. Often where small building matters are started in the civil claims court the CTTT will refuse to accept them as it considers the former venue to be a more appropriate one within which the matter is to be heard.
Q. Do solicitors have an automatic right of appearance before the CTTT?
A. No. If the value of a building claim before the CTTT falls below $25,000 solicitors must approach the tribunal for leave to appear on behalf of their client.
Q. Do lawyers bring any value to proceedings before the CTTT NSW?
A. Yes. Often irrespective of the value of the matter before the tribunal complex contractual issues may arise where the member would appreciate some assistance in this regard.
Q. Do lawyers have any automatic right of appearance before the CTTT?
A. Yes. On matters over and above $25,000 up to the jurisdictional limit of $500,000.
Q. Are experts’ reports important in building and construction and home warranty matters?
A. There is a significant variation in the types of reports which are required for a wide range of building matters. Often these reports go to the heart of the matter and serve to explain issues which are essential to the court or tribunal’s understanding of what has or has not occurred. In home building matters experts’ reports are required not only to identify the range of defects but also to quantify and perhaps suggest rectification or repair as appropriate.
Q. When is home warranty insurance not required?
A. Where the value of the works is less than $12,000.
Q. How long is the defects liability period?
A. 13 weeks.
Q. For how long does home warranty insurance provide protection?
A. For six years.
Q. Are licensed builders required to perform all building work in NSW?
A. No. For a building work above $1,000 licensed contractors are required but with large building works that is, above three storeys, there is no current licensing regime for builders who service this area.
Q. What does home warranty insurance cover?
A. Formerly it used to cover both defects and the death, disappearance and insolvency of the builder, however today defects remain to be addressed directly by the builder with the latter three categories the subject of insurance.
Q. I have designed and constructed a number of houses over many years and I am concerned as to whether I could be pursued by a building warranty insurer where they have settled with the claimant and my involvement has been zero?
A. Yes. The old system was predicated on the basis that the insurer would either pay to have the works rectified or cash settle the matter. Irrespective once this had been done the builder would be pursued to recover the monies paid to the claimant.
Q. Are all defects recoverable from the builder?
A. Where the defects are within tolerance then neither rectification nor compensation can be claimed from the builder.
Q. Is it normal to prepay the builder prior to the commencement of works?
A. Where the value of building works is less than $20,000 a 10% deposit is required by the builder. Where the value exceeds this figure then only a 5% deposit may be claimed. As for other payments relating to the building works they may be either preclaimed or claimed during the course of construction. With most building contracts there is a retention which can be held back pending satisfactory completion of the works mainly to cover defects.
Q. Should a home warranty certificate be sighted before the builder commences work on site?
A. Yes. Although building warranty insurance is of limited value as it now no longer covers defects it is extremely important where builders or building companies go to the wall which occurs with greater frequency in times of an economic downturn.
Q. What should I do where I am physically threatened by the builder and I am dissatisfied with the progress and quality of the works performed?
A. First you should report it to the police. Second - retain a lawyer and obtain independent legal advice. Third - if you are in arrears bring the arrears up to date. Fourth - refuse to pay where the builder is clearly in breach of contract. Five – check all variations to ensure that they are properly claimed and are within time.
Q. How effective is disputes resolution when dealing with Australian construction and infrastructure projects?
A. Parties in dispute are often dissatisfied with the disputes resolution procedures in contracts. Unfortunately disputes are widespread throughout Australia and are normally associated with cost overruns irrespective as to how or why they arise. Essentially the majority of parties are not satisfied with the time, cost, process and outcome of disputes resolution. A lot of this can be traced back to insufficient time being applied to disputes resolution clauses at the time of precontractual negotiations. As in all these cases very little time is spent on precontractual matters with some contractors preferring to issue documentation themselves without referring it for proper legal advice to avoid these issues. The fees charged in this area are not a cost but investment in the future and it gets back to the age old adage of being penny wise but pound foolish. Who can afford the increased costs of unsatisfactory disputes resolution or litigation when the real money should have been spent up front obtaining proper legal advice and assistance rather than throwing buckets of money at a process which will surely leave one party badly disadvantaged and potentially wearing substantial costs.About the AuthorNominate a Lawyer is a network of carefully selected, highly qualified building construction lawyers in Sydney, Melbourne and Brisbane.
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