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Following a review of their official fees, IP Australia has introduced a new official fee structure from 10 October 2016.

Most significantly, under the new regime applicants now pay a higher fee of $130 per class when applying to register a trade mark.  If the trade mark complies with all the necessary requirements of registration, it will be advertised as accepted and be subject to the usual two month opposition period.  If no opposition is recorded, the trade mark will automatically be registered without the applicant having to pay the old $300 per class registration fee.

In a nutshell, the effect of these changes combined reduces the total application and registration fees for a trade mark from $500 per class to $330 per class – a saving of $170 per class!

Perhaps to help offset this, the fees for renewing a registered trade mark (only due every 10 years) have increased from $300 to $400 per class.

Overall, the changes make the registration of trade marks more affordable than ever.  Given that registration lasts for 10 years before renewal is due, and in view of the protection that trade mark registration affords a brand name or logo, the cost v benefit of registering your trade marks is simply amazing.  There really is no excuse for not registering your trade marks.

Want to know more or need some help?  Call me on 02 8313 7151 or 0401 225 253.

The ACCC has commenced proceedings in the Federal Court against the franchisor of Western Australian pasta restaurant chain, Pastacup, and the company’s former director, Mr Stuart Bernstein, alleging breaches of the Franchising Code of Conduct.

What makes these proceedings significant is that they are the first in which the ACCC has sought penalties for breaches of the Franchising Code.  Revisions to the Code that were introduced at the beginning of 2015 provide for the Court to impose penalties for serious breaches.

The revised Franchising Code requires franchisors to provide increased disclosure to new or potential franchisees.  In these proceedings, the ACCC alleges Pastacup’s mandatory disclosure document did not disclose that Mr Bernstein had previously been director of two other Pastacup franchisor companies that became insolvent. The ACCC believes that the current franchisor, Morild Pty Ltd, should have disclosed this information to franchisees.

The ACCC seeks penalties of up to $54,000 against Morild Pty Ltd and Mr Bernstein, which will ultimately be determined by the Court.

The ACCC also has power to issue infringement notices where it has reasonable grounds to believe that a penalty provision of the Franchising Code has been breached. The fines that may be issued under an infringement notice can be up to $9,000 for body corporates or $1,800 for individuals, per breach.

The ACCC’s action in the Federal Court is a reminder to franchisors to be vigilant in ensuring their disclosure document and other franchise documentation complies with the Franchising Code.  The ACCC has made it clear that the Franchising Code is one of its enforcement priorities.

In the meantime, we will have to wait to see whether the ACCC successfully boils pasta in the Federal Court.

Want to know more or need some help?  Call me on 02 8313 7151 or 0401 225 253.

12 November 2016 will mark the commencement of a new law designed to protect small businesses from unfair terms in standard form contracts.  The law will apply to a standard form contract entered into or renewed on or after 12 November 2016, where:

• it is for the supply of goods or services or the sale or grant of an interest in land;
• at least one of the parties is a small business (employs less than 20 people, including casual employees employed on a regular and systematic basis);
• the “upfront price payable” under the contract is no more than $300 000 or $1 million if the contract is for more than 12 months.

Also, if a contract is varied on or after 12 November 2016, the law will apply to the varied terms.

Under this new B2B unfair contracts legislation, a standard form contract is considered to be one that has been prepared by one party to the contract and where the other party has little or no opportunity to negotiate the terms – in other words, it is offered on a ‘take it or leave it’ basis.

For companies using standard forms contracts, the risks of having a term in your standard form contract found as “unfair” can be significant.  If a court or tribunal finds that a term is ‘unfair’, the term will be void, meaning it is not binding on the parties. While the rest of the contract will continue to bind the parties to the extent it is capable of operating without the unfair term, having a term (or several terms) found to be unfair could complicate things.

Time is fast running out for businesses that use standard form contracts to think about whether the new law applies to them, and to review their contracts accordingly.

Want to know more or need some help?  Call me on 02 8313 7151 or 0401 225 253.

I am excited and proud to announce the start of Nigel Smith Legal, a new solo legal practice founded by me, Nigel Smith.

Nigel Smith Legal will deliver smart, pragmatic, flexible and affordable legal services to business of all shapes and sizes – business law that is personalised!

My experience and expertise across business and commercial law, and uniquely with GC insights, will help me to deliver practical and pragmatic legal solutions for businesses.

Business is competitive, and I enjoy helping enable businesses to compete.  My experience working inside business helps me see business problems in a wider context, rather than just “legal”.

I also offer outsourced in-house counsel services to corporations, and freelance / contract lawyering services to law firms.

I utilise the latest technology to deliver legal services in an innovative and flexible way.  Service is personalised and pricing is affordable.

In terms of fees and charges, I prefer to charge fixed fees, worked out up front so clients know what the cost will be and can budget accordingly.

If clients prefer time charged billing I will oblige, but not before chatting to them about why I think a fixed fee might be better for them.

An initial discussion with me will always be free.

Want to know more?  Call me on 02 8313 7151 or 0401 225 253.