Tag Archives: Legal

Trademark, Copyright and Intellectual Property

People get confused between copyright and trademarks. The area of law is called Intellectual Property (IP).

Copyright protects the expression of an idea. This includes spoken, written and audio-visual expressions. Hence books, movies, documentaries, photos, recordings, paintings, articles, drawings, poems, songs and music are all covered by copyright (subject to the creators jurisdiction).

Trademarks (and service marks) are a distinctive sign, logo, word,  phrase or indicator used to indicate a good or service comes from a specific individual, company or group as opposed to some other source. It is designed to give consumers confidence in the quality and reputation of a good or service.

Many people say “Monster cable” is copyrighted when they actually mean it’s trademarked.

Trademarks were invented to prevent unscrupulous merchants passing off an inferior tradesman’s work for a more reputable work. So master tradesmen would make their mark on the item they’d made indicating they had approved it’s quality and finish, much like a master painter signs his work.

Really good and expensive work attracts counterfeits. Wanna purchase a watch?

Trademarks don’t have to be registered, but it’s a good idea. Then other similar trademark holders can object and everyone does the intellectual property dance.

It is supposed to be nearly impossible to trademark something generic such as the word “Elite”, but large IP practices seem to get them registered. Often a registration is canceled  on appeal for being too generic or if found to be in broad use by many people.

If the name is a range identifier as opposed to the main brand, and it is not attempting to pass itself off as another brand, then trademark registration is either not worth defending or too generic. So Kogan is releasing the Elite range and Panasonic also has an Elite range. Nobody is going to think they come from the same company.

My preference  is brands, ranges and models be uniquely named as it makes searching for them so much easier.

Risks of serving on a board of directors

Directoship Risk was a question asked and answered by a LinkedIn connection of mine – the erudite Dr. Earl R. Smith II Executive Director of Longview. Actually Dr Smith covered more than risk, he laid down some Board of Directors – Basic Principles and included great perspectives on Director compensation. He also invited comments on the risks of serving on a board. I replied…

Keep detailed minutes of the meeting and if there is an error or over-simplification move an amendment before adopting the minutes of the previous meeting.

I am aware of a board currently trying to deal with a decision that was not properly minuted. An executive director overstepped her delegation but the minutes of the relevant meeting did not spell the limitations out. But every board member remembers the discussion and the limits placed on the delegation. When the deal came unstuck 12 months later the board have a major problem with their process.

Directors in common law countries have a duty of care to ensure they are adequately informed. Directors are expected to make their own enquiries to ensure they are receiving accurate information from the executives reports.

Some risks haven’t been mentioned.
Sarbanes-Oxley Act (SOX): Directors have significant and onerous obligations even if they are on the board of a small public company.

NEWS ALERT: SOX could apply even if your company is not domiciled in the USA. If you do business in the USA there is the potential to be within that jurisdiction.

This includes selling products to a USA domiciled customer especially if you sell FIS, CIF or C&F. As the risk and title of the goods does not pass until the goods are in the USA a case can be made that you are trading in the USA.

If your email or webhosting is in the USA an argument can be made that you have a US presense and are subject to SOX.

This is a stretch but ignore it only if you never intend to set foot in the USA. They’ve arrested hackers on tourist visas in the past. Google Jon Lech Johansen (DeCSS) and Dmitry Sklyarov.

Secondly boards of non-profits in receipt of government funding must not only be aware of their fiduciary duties (including duty of care and duty of loyalty, but also to avoid conflict of interest), there are laws for the jurisdiction or the funding body that carry civil or criminal penalties.

Thirdly in some jurisdictions your personal credit history/score includes an evaluation of the companies where you are a director. This happened to me when I agreed to attempt a turnaround that did not succeed. The company was liquidated and I still have to explain I was a non-executive director (sometimes banks even listen).

Insurance policies can be void in the event of fraud or malfeasance.

As a result of my experience I only serve on boards that I am passionate about. It also means I am more conservative in my board role than I am with my own money.

As for suing directors for breach of duty? If there is fraud or malfeasance then let the ambulance chasers loose. Sadly all other cases highlight the move of the Common Law world from one of responsibility to a world of blame and entitlement. An unfortunate by-product of the oversupply of lawyers.

Email Confidentiality Notices

Many emails coming to me have default confidentiality or commercial-in-confidence signatures. I think privacy aware individuals or organisations see them and adopt them without thinking through the issues.

Firstly if I haven’t specifically solicited a confidential email why should it be binding on me. Here is an interesting point from the abuse.net database:

IF YOUR MESSAGE CONTAINED A NON-DISCLOSURE OR CONFIDENTIALITY NOTICE: We do not solicit or accept confidential information for the contact database since the contents of the database are available to the public. Confidentiality notices are legally meaningless in the United States, where abuse.net is located, so such notices are ignored. If you accidentally sent something that you do consider confidential, tell us nicely and we’ll consider deleting it.

So think twice about blindly grabbing someone’s signature file and using it in your organisation.

That also applies to Privacy Policies and Terms of Trade. The number of businesses I’ve seen that have obviously borrowed their terms of trade from another supplier without thinking it through. Terms of Trade has implications for accounts receivable, collections and insolvency. At least get an advisor’s opinion.

Writing Affidavits

I pride myself in being an internet power user. I think I can research most things on the net very well. I’ve had to draft an Affidavit for the succession wars and so I thought “surely this is something I can discover on the net”

Ha!

I found definitions and some general (albeit useful) guidelines. But you’d think there would be an accessability site somewhere dedicated to enabling citizens to take control of their legal affairs. While I don’t think it is a conspiracy by the legal profession to protect their monopoly, the complexity and formality of the legal process is unjust and disenfranchises citizens.

Democracies should embrace accessability and root out practices and procedures that create obstacles to ordinary citizens participating in social, political and legal action.

Now that I’ve made such a high faluting statement, I don’t know how to simplify the process so typical high-school educated citizens can participate. I recall when selling books to prison libraries, the most requested subject was a criminal law textbook for a 4th grade reading age. Prisoners did not lack intelligence; they lacked education, vocabulary and articulation.

So back to writing affidavits, if it takes five years of university education, a law degree and two or three years experience in a legal practice to lay out evidence in a civil matter, something is broken.

Plain english law is the first step. What’s the next?