How to Deal with Threatening Legal Letters

How to Deal with Threatening Legal Letters

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, contact us to help you map the way forward.

Get your contracts checked by a lawyer!

Get your contracts checked by a lawyer!

Get your contracts checked by a lawyer!

Why getting a contract checked by a lawyer can save you thousands!

Today I wanted to share a quick thing with you about checking your contracts.

We’ve got a client selling an aspect of their business. They’re selling it for $230,000. So what they’re selling is not their company, they’re selling the assets of the company. Now, they came to us and said, “Is this something I should get checked by a lawyer?”

Well, it’s worth $230,000 to you. Do you want to keep that money? Do you want to protect it? Do you want to make sure the transaction goes through and you get the money? It’s going to cost them around $1,500 to get us to review the contract, check that it’s all right, suggest changes, highlight risks and protect their interests.

Do you reckon that’s worth $230,000? 

How can Onyx Legal help you?

For any agreement you want to go into that involves more money than you can afford to lose, contact us so we can prepare or run through the contract for you to help you to protect your interests and hang on to your hard earned money.
How to set up effective ‘terms of service’

How to set up effective ‘terms of service’

How to set up effective ‘terms of service’

 betteDo you have terms of service that help you manage client work?

One of the topics that came up at an Angel Investor and Entrepreneur breakfastwas terms of service.

One of the people I was speaking to is in the website and marketing design and development space, and the challenge that they’ve got is clients who don’t give them material they’ve asked for, like images or written content.

The problem is they have no service contract that says “if you don’t give us material in 7 days, then we can continue as if there’s no changes or we can go on and get the work done“.

The challenge for the designer is that they have a workflow they’re trying to work with and a work stream and they have staff allocated to certain projects and if you can’t move forward in a project, it messes up the whole business. You end up with staff who have nothing to do and other staff who are overwhelmed because clients simply don’t respond with the required information.

One of the things you can use terms of service for is to manage the relationship with your clients and to get them to give you information that you need from them in order for you to complete the work you need to get the job done.

You might like to do business with a handshake, but written contracts aren’t a bad thing. The reason you put them in writing is to better manage expectations and manage relationships. 

How can Onyx Legal help you?

If you would like to have a service agreement or terms of service prepared to fit your business, in a way that supports how you would like to run your buisness, let us help you. We usually start by requesting a copy of your typical work proposal and any details of any issues you’ve had in the past that you’d like to avoid in the future.  

How to Deal with Unfair Contract Terms

How to Deal with Unfair Contract Terms

How to Deal with Unfair Contract Terms

Rules Against Unfair Contract Terms Apply to B2B Transactions

As you can see, I’m on the road today visiting some clients and business meetings, and that is a plane I can hear in the background.

One thing I wanted to talk to you about today is we’ve got a client who has been involved in a business-to-business relationship. The relationship started early in 2017, so after the changes to Australian Consumer Law in November 2016, and some of the provisions in the contract that our client has entered into are unfair contract terms.

Under Australian Consumer Law, unfair contract terms are terms that, for example, will give one party the right to do something but not the other party. So for example, only one party being able to end the agreement.

In this particular instance, our client was signed up to do a certain thing for a certain period of time. The other party didn’t deliver, so they cancelled and they exited. But the person they signed up with is still trying to charge them money. It’s just not going to be enforceable under the changes to Australian Consumer Law, unfair business terms because it matches all the indicators that would enable the court to determine the provision void and unenforceable. As a business owner, you should be aware that unfair contract terms now apply in business-to-business transactions involving small business. 

How can Onyx Legal help you?

Contact us to review your contracts and bring them up to date for ease of understanding and legal compliance. If you worried that your contracts include unfair terms that affect you, or affect your customers, we can let you know your available options. 

Is the Law Black and White?

Is the Law Black and White?

Is the Law Black and White?

No, the law is not black and white

I’m on the road today in between meetings and just thought I’d share something with you. I’ve heard again this morning that law is very black and white.

Actually, it’s not. If it was black and white we wouldn’t need lawyers, we wouldn’t need courts to argue over what something means.

There’s a joke going around that if you give a sentence to six lawyers and ask them to tell you what it means, you’ll get six different meanings. It’s true. So, don’t assume that law is black and white.

Yes, we try and get clear, concise decisions by putting together contracts, and agreements, and stuff like that, but if things weren’t subject to interpretation, we wouldn’t have courts and we wouldn’t have a whole bunch of lawyers that we do today. So, no, law is not black and white. It’s all shades of grey and it is subject to interpretation.

One thing I say to people is, if you’re going to get into a dispute, if you think court is the answer, you have never got better than a 50/50 chance of winning.

I’ve been involved in cases which we thought we were dead set going to win, and we’ve lost. I’ve been involved in cases where we just thought we were going to lose and we’ve won.

There’s so many things that it’s subject to on the day, or on the days of court, that you can’t predict what the decision is going to be. So don’t think law and courts are the only way, and you’re going to get justice or it’s going to turn out your way.

You can’t make those assumptions. You’ve got to look at the cost, and the time, and everything else involved. So, please keep that in mind. 

How can Onyx Legal help you?

If you’d like to resolve a dispute without having to go to court and need a hand with your negotiation, contact us to find out how we can best support you in getting to a result you can live with now, so that you can get on with business.

Should you Register a Trade Mark?

Should you Register a Trade Mark?

Should you Register a Trade Mark?

Knowing When to Register a Trade Mark 

I’ve just been at a Angel Investor and Entrepreneur breakfast. One of the things we were talking about this morning was branding and looking at how to use your branding and how you might leverage your business and change the direction of your business in the future. So, whether or not you actually want to register trade marks now, what trade marks are worth registering? All of those sorts of questions came up.

One of the considerations that you can give before making a decision to register a trade mark or not is:

Where is the value in my business?

So, if the value is in the trade mark, then it’s worth registering. If the value is in some other aspect of the business, maybe you want to invest your money more in that first before you register a trade mark. Just something to think about.

Also, remember that not all things are capable of being registered as trade marks.

General descriptions and place names can’t be registered. We had a client once who said, “Hey, I want to register this trademark and it’s just been rejected by the trademark office. Can you tell me why?” The reason their application was rejected was because they wanted to register something like “Auto Sales, Brisbane“. It’s too generic. There’s no way you’re going to get that registered as a trade mark, because too many people in the same industry need to be able to use those words in that kind of order.

So just remember that not everything is capable of being registered as a trade mark and trade mark registration, although important, may not be your top priority right now.

How can Onyx Legal help you?

We can help you get your trade mark registered. We will help you identify the right classes and descriptions to protect your business and manage the process until your registration certificate comes through.