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Unfair Contract Terms – B2B Contracts Under Investigation

Unfair Contract Terms – B2B Contracts Under Investigation

by | Apr 17, 2019 | Consumer Law, Contracts, Law for Online Business, Legal, Service Agreements

Unfair Contract Terms – B2B Contracts Under Investigation

Is your business in line for an ACCC investigation?

From November 2016, business to business transactions came within the coverage of some provisions of the Australian Consumer Law. The big change was the application of unfair contract terms to business to business contracts involving small businesses, with the intention of helping small business. 

Although the law doesn’t currently make the inclusion of unfair contract terms in a contract illegal, the ACCC is pushing for updates in the law to specify that unfair contract terms are illegal, and to empower the ACCC to issue penalty notices. Until those changes are introduced, either the ACCC or a small business suffering loss, must apply to the court to seek to have the unfair contract term declared void and unenforceable – a slow and cumbersome process. 

Not every B2B contract is covered. The core elements are:

  • the contract is for goods, services or the sale or grant of interest in land
  • one party will be a small business with less than 20 employees
  • the value of the contract involved will be less than $300,000 or, if for more than 12 months duration, have an up front price of less than $1,000,000
  • the contract is a standard form contract rather than something specifically negotiated between the parties.  

Clauses highlighted as potentially unfair include:

  • the ability to end or cancel an agreement unilaterally
  • broad indemnities or excessive limitations of liability
  • unilateral right to change contract terms, including pricing
  • limits on a small businesses ability to exit a contract, including penalties for early termination
  • extended payment terms which may be of detriment to the recipient 

The ACCC has investigated the standard contracts adopted by companies in industries such as car hire, waste removal, telecommunications and agriculture and a number of businesses have agreed to change their contract terms as a result.

This is possibly also the reason for Coles and other large retailers announcing in 2017 that they would start paying small suppliers within 14 days, a big change from the 30-90 days or more some suppliers had experienced.

At present, only a court or tribunal (not the ACCC) can decide that a term is unfair. As at early 2020, the legislation was under review.  ACCC can ask for enforceable undertakings and start court action if it investigates the contract terms of a business and forms an opinion that those terms are unfair. If a court or tribunal does find a term ‘unfair’, the term will be void – this means it is not binding on the parties. The rest of the contract will continue to bind the parties to the extent it is capable of operating without the unfair term.

The ACCC sets annual priorities for investigation and successfully took action against Ashley & Martin Hair Studios and Mitolo Group potato traders in 2019. Don’t let your business become that example.

The ACCC website includes updates of recent prosecutions and enforceable agreements when made. 

How can Onyx Legal help you?

If your standard form contract hasn’t been reviewed in a few years, call us to arrange a fixed price review and update of those terms. If your standard form contracts are very old (they might still refer to the Trade Practices Act 1974 or retention of title) then we might suggest a whole new contract, starting from scratch. Either way, we can provide you a fixed price before we get started.

Make an Appointment

Internet Piracy Laws Australia

Internet Piracy Laws Australia

by | Feb 7, 2019 | Law for Online Business, Legal

Internet Piracy Laws Australia

How do Australian anti-piracy laws work?

As a small or medium business, stopping internet piracy of your content involves a claim under Copyright Law, after you have asked someone to ‘cease and desist’ stealing your material.

Since mid-2015, Australian ISPs (internet service providers) have become vulnerable to claims by big music and film publishers in an effort to reduce illegal downloading in Australia.

The first cases have now made their way through the Federal Court system, resulting in site blocking of PirateBay, KickAssTorrents and a variety of other websites.

the first step

A copyright holder applies to the Federal Court for an order under section 115A of the Australian Copyright Act, introduced in June 2015. The biggest film and music publishers in the world are typical applicants. 

The applicant has to show that the ISP enables access to online content outside Australia that has the main purpose of making it possible for people to infringe copyright. So the two key provisions are:

  • the infringing website has to be located outside Australia (domain names, hosting and ISPs were all considered)
  • the website has the main purpose of making it possible for people to infringe copyright.

Everyone comes to the party when an anti-piracy claim is made.

In Universal Music Australia Pty Limited v TPG Internet Pty Ltd there were 5 applicant companies and 34 respondent companies.

In Roadshow Films Pty Ltd v Telstra Corporation Ltd there were 15 applicants and 50 respondents.

With the consistency in orders, it is possible that the respondents won’t always participate in future court matters (Foxtel filed a new claim in May 2017) and will simply sit back and wait for the orders.

online piracy Australia, internet piracy laws Australia, anti-piracy laws Australia

What does an Australian ISP have to do to stop online piracy?

The recent court decisions give ISPs 15 days to disable access to the domain names identified in the orders. Only the mirror sites identified in the orders have to be blocked. Given that there is often more than six months delay in a claim being filed and a decision coming down from the court, pirate sites will have ample time between the start of proceedings and the issuing of orders to create new mirror sites. The Court has kept the right to review claims of mirror sites under a new application before additional orders can be made. ISPs have to take reasonable steps, and the orders remain in effect for 3 years.

The site blocking provisions don’t affect end users, so experienced down-loaders will no doubt find the alternative offerings without delay.

Downloading from pirate sites is illegal, and people who download that material can be sued, as shown with the 4000 people sued in the Dallas Buyers Club court case (since abandoned). It is unlikely to be a cost effective exercise for music or film publishers in Australia to sue individuals because the courts have already determined that damages will be assessed at around the retail value of a new release DVD.

Anyone trying to access a blocked site will be redirected to a message “Access to the website has been disabled because this Court has determined that it infringes or facilitates the infringement of copyright.”

We would ask if you’ve seen that message yet, but don’t want you to incriminate yourself.

How can Onyx Legal help you?

If you would like to understand more about how to protect the copyright in your online materials, or stop someone else from copying it, Make an appointment to talk to us.

Make an Appointment

Transition from Onyx Online Law to Onyx Legal

Transition from Onyx Online Law to Onyx Legal

by | Dec 17, 2018 | Law for Online Business, Legal

Transition from Onyx Online Law to Onyx Legal

Transition From Onyx Online Law to Onyx Legal

We have a new name!

From the beginning of 2019 we will be transitioning from Onyx Online Law to Onyx Legal.

Why? Well, as a forward looking business we give strategic consideration each year to where we are headed, and revisit what we have achieved toward the end of the year. As part of that process we consider the feedback we have received from our clients and the very kind people who refer our services to others.

One piece of feedback we have been receiving is that the whole ‘online’ reference confuses people and that based on our name, some people think we are either only helping people ‘online’, or don’t provide full services in the corporate and commercial legal space.

So, to clear up any confusion, we thought we’d review our name. We wanted to stick with Onyx, it represents who we are and how we help people really well. So it we just had to work out what went with it, and made sense to our clients and potential clients.

In growing into the new Onyx Legal brand, we have to say that the availability of the new top level domain name .legal did have a little bit to do with it. We thought it would be cool to have a .legal domain name.

So, that’s how we got here. Over the next year you will see our rebranding come out and a new website.

Thank you for your support and we look forward to continuing to work with you into the future!

The Onyx Legal Team

GDPR for business outside Europe

GDPR for business outside Europe

by | May 7, 2018 | Law for Online Business, Legal, Privacy

GDPR for business outside Europe

If your business is not in Europe, should you be worried about GDPR?

GDPR has the potential to impact any business that might be doing business with a European resident, whether the business is online or not. This article covers some of the most frequently asked questions we have received from clients, to help you decide what level of action you need to take to protect your business, and how soon.

For those of you who haven’t heard anything about it yet, GDPR is the General Data Protection Regulation introduced by the European Parliament back in April 2016, and came into effect on 25 May 2018.

What is GDPR?

GDPR is the General Data Protection Regulation (GDPR) is an European Union law which came into effect on 25 May 2018 across all European Union nations including the UK. The GDPR is designed to strengthen privacy rules and requirements around how information relating to individuals can be collected and used and updates and unifies data protection laws across Europe.

How does GDPR apply to Australian business?

Australian businesses may need to comply with the GDPR if:

  • they have an office in the EU (regardless of where they actually process personal data); or
  • they offer goods or services to individuals of the EU (these services can be free or for money); or
  • they monitor the behaviour of individuals in the EU.

A business will be considered to offer goods or services if they have actual clients or members who live in the EU or if their business could be used by and is intended to be used by individuals in the EU eg. you sell goods online and have a shopping cart that displays as an option the purchase amount in Euros.

How is GDPR different from current Australian Privacy Laws?

The good news is that both the Australian Privacy Act 1988 (Cth) and the GDPR have similar requirements. This means many businesses will have already started the process required to be GDPR compliant. The GDPR does however have additional requirements. It introduces higher standards for the manner and basis on which data is collected and gives more rights to an individual to control their data.

We have European customers, does GDPR affect us?

Short answer – yes. The intent of the legislation is to protect personal data of data subjects in the European Union. If you already have that data, you should comply.

On the other hand, if you don’t already have that data, the legislation appears to consider your intent about collecting it.

Does your business ‘envisage offering services’ to people in Europe?

If you have random purchases from European residents, or surprise inquiries from European residents, then you might not actually have planned to do business in Europe, it could merely be coincidental. The recitals for GDPR (the 173 introductory paragraphs before the Regulation provisions) talk about whether a business ‘envisages offering services’ to people in Europe and infers that there must be an intent to do business in Europe, not merely happenstance.

Just because people in Europe can find your website, or contact details, that is not enough to demonstrate that you plan to do business in Europe. On the other hand, if you’ve designed your business so that it can be translated, or has pages in languages most commonly used in Europe, enables people to pay with Euros and is otherwise targetting European customers in some way, you are demonstrating an intent to do business with EU residents and must comply with GDPR. 

It is all very up in the air at the moment as to what some of the regulations actually mean, and there will be a period of settling in, as well as prosecutions of non-compliant companies, before we have a clear idea about how GDPR will be enforced. 

EXAMPLE:

Australian business not affected by GDPR

You have a website that displays pretty pictures about growing fruit in Queensland, Australia. When individuals go onto your site, cookies collect information about them and google advertising gets this information and uses it to target advertising to that individual about fruit trees.

In this example it is not clear if a goods or services are being offered as there is no actual connection between individuals viewing the site and the site owner. Potentially there is a service of information being offered but really it is not clear. Then you would go and use the next part of the article to determine if in fact the site owner does envisage offering goods or services in EU – you would look at the text languages on offer, currency (although not selling anything) and would conclude, no, they are not providing goods or services to individuals in EU.

example:

Non-European business affected by GDPR

An accountant in the United States does tax work for a client in the United Kingdom for money and keeps personal information of the client on file. Does the accountant offer goods or services to an individual in the EU – yes. We don’t think you then have to look any further at the business intentions etc. to decide if GDPR applies.

To avoid HAVING TO BE GDPR COMPLIANT, should I go through my client list and just delete anyone who is in Europe?

GDPR is certainly an opportunity to clear out those old email lists. I know of one person who never deletes their unsubscribed people and then ends up with them back on his list every time he changes auto-responder systems. Really annoying! Not to mention completely disrespectful of the people who’s information he holds. This is part of the reason for GDPR – encouraging business to be more aware of the value of the personal data they have collected, and giving individuals greater control over what happens to it. 

There are lots of businesses that are taking action delete EU residents from their lists, and block EU access to their websites. If Europe isn’t your target market and you don’t want another regulatory burden, this is certainly an option. If other countries decide to adopt any of the GDPR provisions however, you may still face greater compliance burdens in future. 

How do we let people know we don’t want personal information from people in Europe?

If you really don’t want to deal with European residents, one option is to include a notice in your privacy policy, which could read something like this:
EU – GDPR
We do not promote our business in the European Union and aim not to collect personal information about EU residents. We have not taken action to comply with the General Data Protection Regulation (GDPR). We have taken reasonable action to block access to our services from EU residents.

Who is GDPR intended to protect?

Although the GDPR will have worldwide impact on business, it is only designed to protect the use of personal information for people in the EU. 

There is no time limit on how long a person has to be in Europe for their collected data to be protected. The GDPR cover information collected about natural persons in The European Union, or their behaviour in the EU.

If you think about travelers to Europe, local business that they collect personal data will have to comply with the protection of information about anyone in Europe, however temporarily. The collection must relate to the offer of goods or services to data subjects. So a tour operator who takes you name and passport number for a one day stopover will have to comply with GDPR.

What is a ‘data subject’ under GDPR?

A data subject for GDPR is a natural person whose personal information has been collected.

A tourist coming through any European Union airport or seaport who is captured on surveillance video, even if they only transit through Europe, will be a ‘data subject’ because their personal information (image) has been captured on the way through.

For business, a data subject is any natural person whose personal information you have collected, however briefly.

What data does GDPR cover? What data does GDPR not cover?

GDPR covers personal data about natural persons. Personal data is any information relating to a natural person that identifies that person, or can be used to identify that person. Some examples are set out under the next question below.

You don’t have to worry about the birthday diary you keep (for those who don’t rely on social media reminders), because information collected by a natural person for purely personal or household activity is specifically excluded.

What is Personal Data for GDPR?

Personal data is , in general, any information relating to an individual. It can identify the person either directly (eg their name) or indirectly, in combination with other data (eg a location marker in combination with other information known about the individual may identify them).

Personal data includes obvious information such as an individual’s name, address and contact details however it also includes things such as online identifications like IP addresses and location data.

There is a special category of Sensitive Personal Data that includes information on racial or ethnic background, political opinions, religious or philosophical beliefs, trade union membership, genetic or biometric data, physical or mental health and sexuality or sexual orientation. The rules regarding Sensitive Personal Data are much stricter.

Should I keep personal data about European Union residents separate from data about my customers in other parts of the world? 

You could put in place systems to separate the information you hold about people in different countries, but consider which is the highest cost and most difficult for your business – having one set of policies you comply with, with different systems, or multiple policies and systems?

What are the GDPR principles?

There are 6 key principles. Data must be:

  • Processed lawfully, fairly and transparently.
  • Collected for specific and allowable purposes and only used for these purposes.
  • Adequate, relevant and limited to what is necessary.
  • Accurate and kept up to date.
  • Only kept for as long as necessary for the purpose it was obtained.
  • Processed in a manner which ensures appropriate security.

What does processing of personal data mean?

Processing is anything that is done with personal information whether by electronic means or otherwise. The term is very wide and includes everything from collection through to storage, use, manipulation and destruction.

What is the difference between a data controller and a data processor?

Basically, the data controller is the person or entity that determines the purpose and means of the processing ie. they control why the information is collected and what it is used for.

The data processor stores or manipulates the data at the request of the controller.

Both the controller and the processor have significant obligations under the GDPR and your business may be a data controller, a data processor or both.

What are some examples of personal data under GDPR?

Some personal information typically collected by businesses are:

• name and contact details – phone, email, social media profile link
• role or title, school, occupation, employer, qualifications
• age, date of birth, gender, ethnicity
• residential address, business address, postal address, location
• photograph, likeness, identification number
• allergies, health conditions, dietary requirements
• finger print, facial recognition, DNA scan
• opinions and beliefs collected via surveys and questionnaires

What risk to my business if I don’t apply an EU geo-blocker to my website?

It’s not worth me being in breach of the GDPR

If you have a small business, located outside Europe, that is not intentionally aimed at European residents, your risk of prosecution under GDPR is likely to be very low.

It is likely that the EU regulators have already identified target companies for audit and potential prosecution to test the enforce-ability of their new provisions. As with all government regulators, they will only have limited funding available and will be looking to make an impact that gets picked up and shared in popular media. As with any new laws, there is usually a settling in period while everyone gets used to the new regime. Lots of regulators look for cooperation rather than prosecution, simply because it is cheaper and less time consuming. 

On what basis can I collect personal data under GDPR?

The allowable reasons that data may be collected/processed are:

  • By consent of the individual giving the data
  • Because it is necessary to take steps to enter into a contract with the individual or for the performance of a contract with the individual.
  • It is necessary for compliance with a legal obligation.
  • It is necessary to protect the vital interests of the individual or another person (eg. in an emergency you access a data base you wouldn’t otherwise have access to, to check for allergies and call 000/ 411/ 911 or the applicable emergency number to save the individual’s life)
  • It is necessary for the performance of a task carried out in the public interest or in the exercise of an official authority.
  • It is necessary for the legitimate interest of the controller (so long as this doesn’t harm the interests, rights or freedoms of the individual)

The allowable reasons for Sensitive Personal Data are even narrower and are quite specific. 

how does GDPR affect google analytics?

If you use Google Analytics you should have received an email recently suggesting you check and update your account settings. If you don’t your historical data will disappear. It is worth reading through the email from Google to better understand the impact on your account. 

Do I need to collect consent from my database again for GDPR?

There are competing schools of thought here.

There are a bunch of Articles (commentary to the GDPR) that absolve you of liability if you have consent, so for the risk averse, consent is what you want. However, there are also a bunch of Articles that say provisions don’t apply if…

One of the ‘ifs’ is if the processing of information is necessary for the performance of a contract the individual is party to, which is what a lot of organisations appear to be relying on to avoid seeking consent. You already have an existing contract for services in place, and to be able to continue to provide those services, you do so under contract. If you are happy to ‘hang your hat’ on that provision, then you can do what a lot of other organisations are doing and just give notice of update.

The benefit of recording consent again is you then have a record of it…

Some businesses are actually including in their policy update notices that users can change their settings and opt out at any time, rather than asking for renewed consent.

Does GDPR mean websites must first ask for consent before placing cookies?

The GDPR is set out in the Articles (rather than the recitals), which make no mention of cookies.

GDPR doesn’t actually address cookie usage it deals only with personal information. Most cookies don’t collect personal information – session cookies and those used to remember login details are likely to collect personal information. GDPR works alongside cookie legislation.

What is and is not consent is discussed in the recitals rather than the articles. For example recital 42 refers to ‘For consent to be informed, the data subject should be aware at least of the identity of the controller and the purposes of the processing for which the personal data are intended. Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment.’

That is not dealing with cookies necessarily, but addresses the use of personal information. So, if a person wants to have their login details remembered for next time, they need to be asked if they want them remembered (which is already what usually happens) rather than the details automatically being retained without their knowledge. 

Should I appoint a Data Protection Officer?

No! Well, not unless you have to.

The GDPR is very specific on the qualifications and experience required of a data protection officer and you are only required to appoint one as a government entity or if you are processing sensitive personal data on a large scale.

However, you can opt-in and it is easy to do so. If you call someone in your business a Data Protection Officer, you opt-in. The trouble there is that you then have to meet all the obligations around the qualifications and experience that person must have and can be in breach of the Regulation if you don’t. You can appoint someone external who is qualified and these businesses are now popping up around the world. 

How can Onyx Legal help you?

If you are not sure whether you have to comply with GDPR, or know you do, and need your policies brought up to appropriate compliance standards.

Make an Appointment

Are you Cryptomining?

Are you Cryptomining?

by | Oct 30, 2017 | Consumer Law, Law for Online Business, Legal

Are you Cryptomining?

  is crypto mining illegal?

Do you remember the old Lemmings computer game? It came out in around the early nineties. Lots of tiny blue and green figures with pick-axes trying to work their way through tunnels and mounds without falling off cliffs.

That’s the picture I get when talking about crypto mining, but its a long way from what really happens. The details are quite complicated, and my background is not technical, so we’ll stick with the basics.

Crypto mining basics

Lifewire are ahead of Wikipedia on this one. Their explanation – “crypto mining is providing bookkeeping services for cryptocurrency, for which you get paid a fraction of each coin“.

A lot of computational power (processing power and speed) is needed to verify cryptocurrency transactions. The why is quite technical and to do with blockchain tech, so I leave you to check that out yourselves.

If you started crypto mining early, you might have made a little money. If you’d invested in cryptocurrency (different to crypto mining) early, you would have made more.

Because crypto mining requires a lot of computational power, there are miners out there now adding little bits of code to unsuspecting websites to harvest computing power. It doesn’t just use the website where the code sits, but also grabs power from visitors to your website.

It has been reported that currently available cryptocurrencies use more energy than Iceland, Syria and Jordan.

This can be done in two ways – legitimately with permission, secretly, without permission.

Cryptomining as Malware

It is the “secretly, without permission” group that is a problem here. Providers like CoinHive and Authedmine enable website owners to embed code onto a website that can access the computer power of visitors to that website for crypto mining. CoinHive does promote full notice to website visitors and opt-in use. This is legitimate.

However, Wordfence have recently reported that some enterprising hackers are already using vulnerabilities in WordPress websites to add code to sites without the website owners knowledge. The code then accesses the computing power of visitors. This can slow down the loading time and user experience of the website affected, and also increase the power used by the visitor’s computer – increasing their costs. Payments for crypto mining go to the hacker, not the website owner and no one is any the wiser, unless they are checking CPU usage.

Cryptomining as Revenue

Apart from website access, there are people around the world who have set up hardware systems to supply processing power for bitcoin. One popular marketplace for connecting sellers of computer power for crypto mining is NiceHash.

cryptomining

In addition, websites with high visitor numbers and decreasing adWords revenue can now use coding to provide their visitors with the option of paying for access, or allowing crypto mining using the visitor‘s computer power for using the website. By way of example, some sites add a button or image that provides visitors with the option of donating computing power to you instead of recieving advertising.

One site I have seen calls it a crypto mining donation, with the explanation “As long as you keep this page open you will support my efforts by donating your computer’s idle time“; although I’m not sure whether it is only idle time that would be used. That would depend upon what code was applied.

Check out this post from Authority Hacker to learn more about the legality and morality of monetising crypto mining.

What does this mean for you?

Firstly – Understand whether crypto mining makes any sense in the context of your business or services. If it does, consider providing visitors with the choice of supporting your business with computing power, and what that means for them. You can do this with FAQs, a disclaimer and or terms and conditions. 

Secondly – check your website for crypto mining code that might have been put there without your knowledge. Get a professional to help you clean it off.

Thirdly – If crypto mining has no part of your business, leave it alone.

How can Onyx Legal help you?

If you’d like to add cryptomining to your website and encourage visitors to use it, then you need help with terms of use and appropriate FAQs.

Make an Appointment

How to Deal with Threatening Legal Letters

How to Deal with Threatening Legal Letters

by | Aug 22, 2017 | Dispute Resolution, Law for Online Business, Trademark, Video

How to Deal with Threatening Legal Letters

Want to know how to handle nasty legal demands?

I’m on the road in between meetings today and just thought I’d share a story with you. I was speaking to a friend earlier and they said, “Oh, that’s such a great story. More people should know it.” So I thought I’d share it with you today.

We had a client who received one of those nasty letters of demand in the mail saying, “You’re in breach of our trade mark. Hand over your domain name, hand over your website. If you don’t do it in 24 hours or seven days or something ridiculous, then we’re going to take you to court and see you for a whole bunch of money.“

Now the client came to us and said, “Can you represent me in court proceedings?” I responded, “Hey, let’s stop and look at this in the moment and see if that is your only option.“

Court is not the only option

When we looked at the value in the client’s business, it was not in the trade mark. This is a client who had been selling a product that they imported from the UK and the company in the UK had registered the trade mark in the UK. There was a competing company in the US and they had registered the trade mark in the US. The American company came to Australia. They registered the trade mark in Australia. They waited a couple of years and then they wrote this nasty letter to our client saying, “You’re in breach of our trademark.” Our client had been trading in Australia before they started trading in Australia.

There are a whole lot of legal, technical arguments involved. We could’ve gone to court. We could have argued prior use and all sorts of things, but court proceedings take time and cost money. So the prospect of our client going to court was just not attractive. We were looking at maybe three years, $150,000 and no guarantee of a favourable result. We would have a result one way or the other, but we couldn’t guarantee it would help our client.

Looking at the business and knowing that the revenue wasn’t in the trade mark, we spoke to the supplier in the UK. They were happy to re-brand or they were already in the process of re-branding some of their products. So they said, “Okay, what we’ll do is we will assist you in re-branding.” They registered a domain name with the new brand. They registered the new brand as a trade mark here in Australia. Our client put together a 90 day plan, or at least we helped our client put together a 90 day plan to re-brand their business and to shift everything across to the new brand.

Because it was a 90 day plan and we made some promises to the American company about the process we were going to go through, they gave us that time because 90 days is a hell of a lot better than going through court, and there are certain requirements and rules around proper negotiation and all that sort of thing and trying to reach a commercial resolution. So the American company just had to wait.

Is there a better strategy?

In that 90 days, our client shifted his entire business onto the new brand. Now the value was in his database, so through a series of communications with the database, the whole database was shifted across to the new brand.

Our client did have to spend money on re-branding and shifting that database across, but he didn’t lose any revenue and most importantly didn’t lose any business. So once that process was complete, our client had a new website up. He had the entire database marketing to them and was changing them over to the new brand. We’ve got an agreement with the American company to say that we could sell out the end of the branded supply and not stock any new supply with that trade mark.

In the end, the American company bought our client’s domain name. Now, the reason behind that was the domain name was .com which means it can be used internationally, so my client still had the right to use that domain name in jurisdictions other than where there was a registered trade mark, or where he had permission. So he could still use it in the UK where they had the mark registered or his supplier had the registered trade mark and was happy for him to use it. In order for the American company to get hold of that domain, they had to buy it.

Instead of three years and $150,000 in court with no certain result, what we did is introduced a strategy enabling our client to re-brand in 90 days, shift his business across, not lose any money, and because the domain name was bought, his legal fees were effectively halved. So great, great result for the client, and just a really good example of the fact that there are options. Our client walked away with a stronger business and a protected brand.

  • Don’t think just because you get a letter of demand that you have no choice but to go to court.
  • Don’t think that you might not have an argument because there’s a whole lot of technical issues involved in legal cases, and sometimes it’s not all against you and sometimes there’s not all in your favour.
  • There are options and it’s worth investigating what those options are before you go and get started. 

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, Make a time to talk with one of our team so we can help you map the way forward.

Make an Appointment