Spam is an electronic commercial message that can include email, phone and even online chat platforms.
When done incorrectly it can be easy to create marketing that your audience may categorise as spam.
If you want to avoid this we recommend watching our below video to see our Principal Lawyer, Jeanette Jifkins, explain anti-spam in more detail.
Did you know that all businesses must comply with consumer protection laws?
Do you understand how consumer rights affect your business?
managing testimonials, comments, and reviews
Let’s talk testimonials and no, you can’t make them up.
How do you manage them? Are you allowed to use testimonials for advertising? Can you edit them?
Watch our video to see our Principal Lawyer, Jeanette Jifkins, answer all these questions.
understanding copyright law
Watch the full video on Understanding Copyright Law below.
PRIVACY FOR SMALL BUSINESSES
All business owners must understand their obligations under Australian Privacy Laws.
To ensure your business stays on the right side of the law, watch our video to see our Principal Lawyer, Jeanette Jifkins, explain Privacy Law in Australia in more detail.
TERMS AND CONDITIONS
Terms and conditions help protect you and your consumer. So what do you need to include on your website?
Watch our video to see our Principal Lawyer, Jeanette Jifkins, explain.
website ownership basics
Who owns your website and what does that mean?
Did you know there is a difference between your domain name and what people see on your website?
Watch our video to see our Principal Lawyer, Jeanette Jifkins, discuss website ownership.
How can Onyx Legal help you?
We’re interested in strategies that support you and your business to grow and get stronger. If you receive a nasty letter of demand and want help in figuring out how to respond, contact us to help you map the way forward.
What Does A Standard Signing Clause Look Like and What Does It Apply To?
What does a standard signing clause look like and what does it apply to?
A person will be bound by the terms of an agreement they sign whether or not they have read it, and whether or not they understand its terms. So, a signing clause can be very simple. The main purpose is to prove that a person has agreed to the contract they have signed.
In most cases in business, a person is entitled to reasonably rely upon the signature of the person signing as being authorised to bind the company they work for. This is not always the case. If you are dealing with a very junior person in a business, it is unlikely they have the required authority to sign something that binds the business, but the signature of a senior manager or director should be able to be relied upon.
For the purpose of proof, the best style of basic signing clause should include:
the name of the person signing, in a legible form, which is why signing clause sometimes say ‘print name’ or ‘block print name’;
The reason to include a date is to easily track when the agreement was made. It is very common for signing parties to forget to enter a date on the first page of an agreement (where there is usually a space for the date) and then years later, anyone trying to work out when the document should be dated is trawling through emails and other records to try and figure it out. At least if the person signing has to also date the document, if it is missed on the first page, there will still be an easy reference within the document.
If you’ve been following our recent articles, you would probably know that although not all documents need to be signed to be legally binding, it is always a good idea to use a signature to indicate that an agreement was entered into between the parties. The signature can be a reliable form of proof of agreement.
Different types of documents have different execution requirements. (Execution in this context means the performance of something in a planned way, not the killing by legal punishment meaning.) For example, deeds have different execution requirements than agreements, and we will discuss those differences below. Other documents such as wills, powers of attorney or court documents also have different rules around proper signing.
Having an appropriate signing clause can help ensure that your document is correctly executed and is valid and enforceable.
So, what does a standard signing clause look like? Let’s start by looking at signing clauses for agreements.
Standard signing clause – agreements
A standard signing clause applies to all kinds of agreements (but not deeds). For example, services agreements, licence agreements, contractor agreements, and loan agreements.
The elements of a signing clause would need to be slightly adjusted depending on who is signing.
If you are signing as an individual, nothing more is required than your name and signature.
Although not legally required, it is good practice to have your signature witnessed by a third party. This is good evidence in case a dispute arises as to whether the agreement was properly signed, and particularly if the person signing argues that they did not intend to sign it.
An example signing clause would look like this:
When a signature does not need to be witnessed to be legally binding, then even though there is a section for a witness, the document will still be binding without it.
If someone signs a document without a witness, it is too late for their signature to be witnessed. A person can only witness a signature if they are present and watching as the person signs the document. We sometimes have people ask us to witness their already signed documents, and the answer is always, ‘no, we will have to reprint the page and do it again’.
If it is your company that is executing an agreement, you should comply with the Corporations Act 2001 (Act); in particular, section 127 of the Act.
The signing clause for companies usually contains the words ‘signed on behalf of [company name] in accordance with s 127 of the Corporations Act 2001 (Cth)’.
Signing pursuant to that provision means that a person can rely upon the Corporations Act to state that the document was properly signed, however, if a document is not signed correctly in accordance with that section, it may still be binding on the company.
a) With common seal
If your company has a common seal (which is basically an ink stamp that you can press onto an agreement as the company’s signature), that stamping must be witnessed by:
2 directors of the company;
1 director and 1 company secretary; or
the sole director and secretary of a proprietary company.
The use of a common seal is becoming less common. Most companies execute without a common seal. Companies such as registered training organisations, that provide certificates of completion for students, are the types of companies that still adopt a common seal.
b) Without common seal
Executing without a common seal is a very similar procedure, with the only difference being you do not have to stamp the agreement with a common seal.
It simply requires the signature of:
2 directors of the company;
1 director and 1 company secretary; or
the sole director and secretary of a proprietary company.
These signatures do not need to be witnessed.
A trust is not a legal entity on its own and cannot execute agreements. Trustees are the ones that sign on behalf of the trust.
A trustee can be an individual or a company. The execution method is exactly the same as mentioned above, except that the signing clause would need to specify the signatory is signing in his/her/its capacity as trustee for (ATF) the trust.
If you are an individual trustee (witness is not legally required but is good practice):
If you are a corporate trustee:
If you are in a partnership, you can sign an agreement on behalf of the partnership and bind the entire partnership to it. Ideally you would have a very clear partnership agreement which identifies who is authorised to sign what type of document, rather than every person in a partnership signing without the knowledge of the other parties.
Again, witnesses are not legally required but it is good practice to have your signature witnessed by a third-party.
Signing clause for deeds
Different to an agreement, a deed will take effect from the time it is delivered (not physical delivery but where the executing party intends to be bound – ie. at the time of signing).
This is why the signing clause to a deed would need to contain the words ‘signed, sealed and delivered’.
Other than this, executing a deed is very similar to executing an agreement, with the only exception being if you are signing as an individual, you must have your signature witnessed by a person who is not a party to the deed.
It is important to also note that if you are a partner and want to sign a deed to bind the entire partnership, you must be given authority to do that under a deed (ie. partnership deed). A verbal or other type of written acknowledgement is not sufficient to give you that power. In addition, your signature must be witnessed by a person who is not a party to the deed.
Trade Marks and Copyright: The Difference Explained
Trade marks and copyright: the difference explained
For many businesses, intellectual property is one of their most valuable assets. We often get questions from our clients on how they can best protect their intellectual property, but what we have noticed is that many of them struggle to identify what specifically they are trying to protect.
In Australia, we refer to trade mark in two words, consistent with the legislation. Overseas, it is common to combine the words to ‘trademark’. They each refer to the same thing.
Some of the frequently asked questions we get include ‘What can I trade mark?’, ‘Can I sue someone for using my trade mark?’ or ’How do I protect my copyright?’. In this article, we will answer these questions for you.
Firstly, let’s explore the difference between the two.
Trade marks – protection of your brand
If you have been running your business for some time and have established substantial goodwill and reputation, your business name becomes your brand. Your brand is your trade mark. Two of the fastest growing trade marks in 2020 were TikTok and Zoom. When you hear those names, you can immediately bring to mind the kind of services each platform offers, even if you haven’t used them yourself.
Think of a trade mark as a ‘badge of origin’. It is anything that distinguishes your goods and services from those offered by other traders in the market. It can be your business name, logo, slogan, colour or even a sound, or a smell – although scent marks are very rare.
Your trade mark is a valuable marketing tool. The purchasing decisions of consumers are often influenced by the brand, so the higher your brand recognition, the more you may want to prevent your competitors from using a similar brand to provide similar services and benefit from your hard-earned success.
Think about how people by cars, or shoes. Many people favour a particular brand of motor vehicle because it is either something they have always driven, or it has a brand promise that they believe in or relate to. For example, Toyota is known for reliability, and Ferrari is the world’s most well known racing car. In shoes, people will often favour a brand like Asics, or Adidas, or Nike depending on their preferred sport, or sports stars.
So, how do you gain the exclusive right to use your trade mark and take actions against those who infringe it?
The answer is by registration. We will talk about this further below, first lets look at how copyright is different from trade marks.
Copyright – protection of your original creative works
Copyright has more substance that a trade mark and is more likely to be judged on the amount of creative input required to develop the work to be protected. Where a word can be a trade mark, a word by itself won’t be protected under copyright.
Copyright protects the creation of literary, dramatic, musical, artistic, and certain other types of intellectual works.
When you write a book, you are the copyright owner of that book (unless you have agreed to transfer your copyright to someone else). When you create online education materials, all your materials, including videos or audios, are your copyrighted material.
Just like trade marks, your copyright materials can be extremely valuable to your business. But unlike trade marks, you do not need to register copyright to gain protection. Copyright is generated automatically upon creation of the work.
There is one exception to that rule, and that is the registration of digital works in the United States. If you want to claim protection of a digital representation of your work in the United States, you must first register that work with the Electronic Copyright Office.
To have copyright protection, you must document your ideas and have it in some sort of tangible form. The easiest way would be to write it down. A visual or audio recording is also sufficient. It is important to understand that a mere idea is not protected. This is part of the reason that businesses rely on non-disclosure agreements and confidentiality deeds. Those sorts of agreement can provide you with protection of an idea before it is discussed and before it has been documented or produced in some other form capable of copyright protection.
What protections do you need?
As you can see, trade marks and copyright are two very different types of intellectual property. What you can do to protect them is very different too.
Trade marks – protection by registration
A trade mark can exist without being registered; however registration gives you the exclusive right to use your trade mark and makes it much easier to defend.
What this means is that you will have the legal right to stop others from using your trade mark and when necessary, take legal action against them to defend your rights. Just be aware that it is your responsibility as the trade mark owner to keep an eye on the marketplace and identify any infringement or potential infringement of your trade mark. When you see someone using your brand, or something very similar to your brand, you should tell them promptly, and request that they ‘cease and desist’ the infringement.
From time to time, we have clients who have already contacted someone they believe to be infringing their mark without persuading that person to stop their infringement. Sometimes, this is because our client doesn’t have the rights they thought they did, and sometimes it is because they have stated their rights incorrectly. It is important to check what rights you have first, before making any claims. We have a number of strategies for communicating with infringers to bring about a quick resolution to your concerns.
In Australia, if you do not have a registered trade mark, it can be an offence for you to threaten legal action against someone for using your trade mark. If you do have a registered trade mark, you should be notifying infringers that you do, and asking them to stop infringing your trade mark. This is usually done with a cease and desist letter.
Copyright – protection by documenting your ideas and creating tangible material
Registration is not required to protect copyright. Copyright material is protected as soon as it is created (in tangible form, that is). As the copyright owner, you have the exclusive right to reproduce your work, commercialise it, and be recognised as its creator.
As already mentioned, the one exception is the requirement to register a digital work with the Electronic Copyright Office in the United States if you want to take action against someone in the United States for copyright infringement.
Unlike trade marks, we are not aware of any countries outside the United States that have official registers or databases for copyright, so in most cases, people won’t be able to conduct searches to see if something is an original creation.
Because there is no form of registration and in pursuing someone for infringement you might be required to demonstrate that you are the original creator of the work, it is especially important for you to use one or more of the following strategies to protect your copyright:
keep a record of your evolution of ideas – as evidence of the progression of your work
drafts, sketches, rough recordings, plans etc
insert footprints into your work (eg. deliberate mistakes or hidden data that identify you as the author)
watermark your work
use technology to make it harder to copy your work electronically
provide your contact details so people can ask for permission to use your work
if your work gets used regularly in educational institutions, government or big business, then register your work with the Copyright Agency to receive any royalty payments collected on your behalf
have template cease and desist letters you can send to people you believe to be infringing your work, politely asking them to stop.
What happens if you don’t take steps to protect your interests?
Under both trade mark and copyright law, if you don’t take steps to protect your interests you can lose your rights.
For trade marks, you must use the mark in the form registered, and take steps to stop others using your mark in order to keep the protection that registration provides.
For copyright, if you don’t let people know that they are infringing your copyright, you can make it harder to prove that you created the work in the first place, and if you knowingly let things pass, you may be deemed to have given permission for use.
Consider creating an intellectual property register for your business so that you can keep track of your different types of intellectual property, when they were created, who created them, and what you have done to protect it. Your intellectual property is an asset to your business.
How long do protections last?
Trade marks – 10 years
A trade mark registration lasts for 10 years from when you first file your application. You can renew your trade mark registration by paying renewal fees any time before the expiry of six months after the date your registration is due to lapse.
Copyright – creator’s life plus 70 years
The duration of copyright can vary depending on the type of work and whether the owner is an individual or a company, but generally in Australia, it is the life of the author plus 70 years.
To summarise the differences between trade mark and copyright protection:
your brand and logo are protected as trade marks, upon registration
your content and materials are protected by copyright, upon creation
you can and should take a variety of different steps to protect your intellectual property
If you would like help identifying your valuable intellectual property, creating an intellectual property register and protecting your intellectual property, contact Onyx Legal.