Intellectual property may now be your business most valuable asset

Intellectual property increasingly forms the backbone of your business and it’s most valuable asset.

Understanding the value, legalities and best way to commercially take advantage of and protect intellectual property can be difficult and confusing, especially for start up or early stage businesses.

Intellectual property can be protected and exploited in many ways, according to Catherine Gannon who is a solicitor specialising in intellectual property.

Identify and protecting your intellectual property –IP audits are highly successful in identifying assets, potential risks and clarifying ownership. IP assets do not just include inventions or trademarks but include critical databases, website IP, social media accounts, brand protection and know how. IP legal advice includes maximising the business potential of your assets (perhaps including tax advice and the right structure to ringfence those assets) and the actions required to either prevent or stop infringement. For many businesses, it is important to set immediate, medium term and long term priorities and to plan and establish budgets, including legal spend. Audits identify the most important issues and those that can wait if necessary.

Once assets have been identified, it’s worth taking advice on the possibilities for commercial exploitation, such as licence or distribution agreements, joint venture or negotiating with affiliates or joint venture contracts. It is important to take steps to protect assets both from internal and external threats. Unfortunately, it is all too common for information and assets to be at risk from internal sources just as much as from competitors. Protections should be built into employment agreements, consultancy agreements, commercial documentation and even shareholders agreements.

Administrative issues – businesses are frequently too busy to deal with the administrative tasks involved in protection of intellectual property which creates vulnerability. Keeping a register of your assets and monitoring for possible breach, such as counterfeit checks on Ebay and other websites as one example, are also important. If you are considering talks with outsiders on confidential matters relating to your business a non-disclosure agreement can protect your position before the information is disclosed

Stopping intellectual property infringement – In many cases, quick and decisive action is vital, especially with confidential information such as a database, software, invention or design. Irreparable damage can be caused within days in these situations without decisive action being taken and this can include international legal intervention bearing in mind that information often gets dissipated rapidly. In these situations, it is imperative to collect evidence quickly and where necessary use injunction applications to minimise damage and prevent ongoing loss.

Not all use of intellectual property without your permission will amount to infringement. However, it is important to know when it is. For example, intellectual property can be licensed for use by another.

Useful IP resources

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How should finances be dealt with in a divorce ?

Divorce proceedings can be a particularly difficult time for all parties concerned. Divorce finances is an area that often causes much debate . In the majority of divorce cases the parties will have a number of assets, such as properties, bank accounts, shares, jewellery and other investments and financial policies. The assets are likely to be a mixture of those owned jointly between the parties and those owned separately by them as individuals. Other assets include pensions which have the intention of providing benefit at retirement. Courts have broad ranging power with regard to reallocation of the assets and use these powers in an attempt to ensure that the assets are divided fairly and justly, regardless of who actually owns the asset.

Ancillary Relief

In most divorce cases, the parties attempt to agree how the assets are to be divided amicably and without the need for further court decisions or scrutiny. In such cases, the agreement may be confirmed by a court consent order which is a legally binding document that both parties must adhere to. This process and in all divorce or separation cases the parties should attempt to a similarly amicable situation. In certain cases, a separation agreement may be used instead, and this will also be legally binding. However, there are certain situations where the relationship between the parties will be strained and in such situations the court will need to look at the specific facts and come to a decision regarding application. In such cases, one of the involved parties will make an application for ancillary relief after which the courts will be required to use their powers to distribute the assets as they see suitable.

Matrimonial Causes Act (1973)

When having to decide how the assets are to be distributed, there are a number of factors that should be taken into consideration. These are listed in section 25 of the Matrimonial Causes Act (1973) and include the amount of time of the relationship, the ages of the concerned individuals, the assets, their incomes and their earning potential. The legislation also explains that in exercising its power the court will consider the living standards prior to the breakdown of the relationship, the contributions made by both parties and any disabilities of those involved.

Case law

It is important to note that the factors cannot be applied in a strict and mechanical manner as each divorce case will have a number of unique facts and therefore will not always be relevant to the particular legislation. This is a particularly contentious area of law with a lot at stake. Case law and decisions that have been made previously may provide help to the courts when it comes to dealing with certain circumstances. However, case law is only used to a certain extent and the particular facts at the time will dictate the findings of the court. The result of this is that it may prove difficult to get a definitive answer or guidance with regard to the division of the assets. However, the fact that the court has so much flexibility in its decision means that all facts can be considered and therefore in most cases the findings should be fair as they are based on the actual scenario and not incorrectly applied rigid legislation. However, this often needs to unpredictable results which would not previously have been considered.

Reform

There has been much debate regarding possible reform of the above provisions. In September 2012 a consultation that sought opinion on possible reform to section 25 of the above mentioned Act. The main area considered was what can be done to ensure that results were more consistent and an attempt to resolve what is a clearly subjective area with contradictory case law. Other areas that were discussed included clearer guidance with regard to certain types of assets and what matters should remain discretionary and therefore under the power of the court. Although there has not yet been any reform, this is a possibility in the future as many are of the opinion that there is not enough clarity and consistency when dealing with financial issues in divorce proceedings.

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Today is big bang day for personal injury

April 1st is that day – we all know it is April fool’s day, so many might think what follows is our attempt at an April fool, except it’s not.

From today, the radical new personal injury reforms come into effect, which will hugely impact on the 100% compensation which has been so successful for personal injury claims.

Many may say the reforms are a good thing as they will certainly hugely reduce the massive number of whiplash claims where there has certainly been a lot of fraud and exaggeration. The problem is that the reforms are in effect taking a hammer to the proverbial nutshell in that they will also make it much more difficult for the thousands of legitimately injured and innocent victims of negligence to make claims.

The reason this will happen is that a huge number of smaller personal injury claims, by value, will now be small claims matters and in the small claims court, neither side will be able to recover costs, so any damages that are received will have to be used to pay out lawyers fees. It si entirely possible if not probable that insurers will increase a tactic they are already adept at, delaying and racking up costs on the other side to force a settlement.

Insurers are even lobbying for lawyers to be cut out of the picture altogether, arguing that they (the insurers) offer reasonable amounts in any event for accident claims and it’s the lawyers who create the problem by advising clients to push for more money for their own self interested reasons. Those who have dealt with insurers in any kind of claim would probably agree that in many cases, insurers do look to pay out the minimum only, if anything and cannot be relied upon to be fair and reasonable since, after all, they are in business to make money.

Other impacts of the reforms will undoubtedly be (and this has already started to happen) a significant number of persona injury forms shutting down and a lot of consolidation in the sector. It has always been, compared to other ;aw firm work, fairly “dog eat dog” but budgets for advertising will now be even more important, and most firms will change strategy, looking for the higher value work which will not be small claims, such as claims for medical negligence and perhaps niche but growing areas such as compensation claims for cosmetic surgery.

All in all interesting times, and just in case you still think we may be attempting an April fool, you can read more about the reforms here.

 

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Personal injury services best delivered for local community

We all see and hear the regular personal injury marketing pitch on tv and radio, offering guaranteed compensation from experienced injury lawyers, and as with all kinds of marketing, the exposure derived from this type of marketing and advertising seeps into our consciousness and quite obviously, money talks and these national injury companies have been doing very well.

But does this mean that there isn’t a place or a need for local legal advice ? The way the national advertising comes across is as though injury claims are simple, you just need to instruct a lawyer and hey presto, you get paid out. well, for some types of claims that may hold true, particularly for whiplash type claims, which are often fairly straightforward.

However, when it comes to more complex cases and serious injuries, such as for example industrial accidents or serious car crash injuries or even accidents abroad, cases are seldom straightforward and it’s important to have the right advice, from an experienced solicitor you can trust. The essence of relationship between solicitor and client is based on trust, and it’s never ideal to deal with a firm somewhere else in the country with your case dealt with by a faceless solicitor you have bever and will never meet.

One law firm which certainly believes there is a market locally are Lloyd Green solicitors, who are based in Essex and have just launched a locally based campaign to promote their new website, http://www.forthepeople.co.uk. The idea behind this is local services for local people and a personal injury firm where you get to see who you are dealing with on the website and will in all probability get to meet. the firm also stresses it;s local links by supporting local charities.

What do you think about local services for local people and in particular whether it’s important or helpful to have advice form a local supplier ?

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A community without trust – is there such a thing ?

Social media has become a valuable source of news, public opinion and debate. The ordinary man is able to put his view across to the public at the touch of a button. We are now able to get an accurate picture about how a group of people feel about policies, decisions or situations. It is a great source of information. A recent survey conducted using social media has returned rather troubling results. It has emerged that 77% of the subjects no longer trust the United Kingdom and its institutions.

The economy

Most disgruntlement, somewhat unsurprisingly, revolved around the economy. More than eight in ten people displayed mistrust in the county’s economy, with most blame and hostility, predictably and tediously, being directed toward bankers. The mistrust was rooted in the decisions of banks over the past few years and the amount of money those who work for them receive, especially in bonuses.

The UK as a whole

Only 23% of those taking part in the survey trusted the country as a whole. What that means exactly is far from clear but whatever it does mean it cannot be good. Trust in something is surely essential in order to feel able to contribute to it. Without a population contributing to their nation true potential will never be achieved.

The government

78% of people expressed mistrust in the government. In any democracy there is bound to be a significant section of society that are opposed to a government and hence mistrust them. However, where nearly eight out of every ten people feel that way something must be wrong. These are, of course, times of austerity where governmental policies are portrayed as necessary for the long term good of the economy. It is shocking to think that only 22% back the government in their plight to rid the nation of a recession whilst monitoring education, foreign policy, environmental issues and other important tasks.

The legal system

71% expressed mistrust in the legal system. The UK strives for a system of open justice where justice is not only done but seen to be done. Ken Clarke’s latest move is to propose the introduction of television cameras inside courts to show judges summing up and sentencing in cases of public interest. It is upsetting to think that in a country that prides itself on a long history of civil liberties and open justice the majority of its population expresses mistrust in that system. Might it have something to do with the government’s ruthless slashing of Legal Aid in most areas of law? Quite possibly. Mistrust in the legal system is a very scary epidemic that simply must be remedied; it is a fear in the very system that is in place to protect the public.

The media

Only 7 % of conversations focused on the media. One would have thought that mistrust in the media is at an all-time high. The media scandals currently in the public eye are countless. However, maybe the times they are a changing. The very source of this survey is illustrative of the changing face of the media. Recent uprisings in Tunisia, Egypt and Libya have highlighted the effectiveness of social media in today’s world. In a way mistrust in media is not a viable concept where a free press exists. All sources of media are fallible, but if that is borne in mind when browsing news then one cannot be stung. We can all contribute to the media and that must be a good thing.

Hopefully more trust will develop in the UK and its institutions and more people will contribute to its growth and success. Until that happens maybe the government can use social media themselves to connect with those who feel so utterly mistrusting.

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Personal injury incentives – cashback or IPAD ?

We’ll give you an iPad if you make a Personal Injury Claim

Law firms are using a different tack in drumming up trade these days by offering accident victims Debenhams vouchers and iPads in exchange for making a claim for personal injury.

In fact these law firms are so keen to get business that they are even giving away shopping vouchers to individuals who introduce car crash victims to their firm.

You may think that there’s nothing wrong with a little incentive and the Solicitors Regulation Authority or SRA think it’s within their rules but it is always worth checking whether the gift is genuine or how it may impact on most personal injury solicitors promise that the client gets 100% of the compensation. Otherwise it would be literally a case of adding insult to injury !

Hampson Hughes, a law firm based in Liverpool, is giving their prospective clients a choice. Claimants can choose between an iPad 2 or, if they don’t fancy the iPad, they can have a cash advance of £1,000.00. Personally, we don’t think this is a good approach, otherwise where will it end ? It will just become a case of a price or gift war.

The Paul Rooney Partnership, another Liverpool based law firm, are the company responsible for dishing out shopping vouchers to the value of £400.00 in return for introduction to accident victims. However, in a recent interview a spokesperson for the Paul Rooney Partnership said the firm sees the incentive packages as more of a thank you for using their services than an enticement.

What about those who are paid incentives to refer friends ? In theory, although unlikely, this could be seen as  some form of bribery, which has been significantly tightened up, with possible criminal liability under the Bribery Act. Gifts are included as part of unacceptable incentives under that Act.

Chairman of the Transport Select Committee and Labour MP, Louise Ellman, admitted how surprised she was that such incentives were permitted or even legal and stated how this behaviour just proves the need for a tightening up of the entire referral fees system.

A ban on referral fees across the board has been called for by The Law Society, the acting spokesman for all solicitors in England and Wales.

One question which no-one seems to have asked is, have law firms not considered that offering such lavish gifts could well attract a much higher percentage of fraudulent claimants and does the metaphor ‘like moths to a flame’ not spring to mind?

With bogus claims on the increase and many insurance companies working so hard to try and eliminate these fraudulent claims is this action not simply undoing all their hard work or, at the very least, making their job a darn sight harder?

It will be interesting to see what happens with regard to these incentive packages in the not too distant future but until then it’s simply a case of ‘watch this space’.

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Social media – be careful what you say

How much can you really say on Twitter?

How do you know where to draw the line when posting comments on Twitter?

Well, ideally, if you don’t know where to draw the line then don’t post the comment at all but, if we are being honest, then the majority of us are guilty of retaliating with a caustic remark or bitching about our work colleagues through social networking sites at some time or another.

However, when the remark turns discriminatory it becomes prosecutable just as it would if the remark was screamed at the intended recipient across the street or written in a letter. Tweeting a discriminatory comment is no different in fact, due to public access to posts, can actually be far more detrimental.

So how far is too far?

Recently we have seen plenty of news coverage on the case of Liam Stacey, the student found guilty of posting racially offensive comments about critically ill footballer Fabrice Muamba on Twitter.

Liam, who was under the influence of alcohol at the time, sent a barrage of racial tweets referring to the Bolton footballer just minutes after he collapsed on the pitch.

Stacey was charged with writing the racially aggravated tweets under the Crime and Disorder Act and sentenced to 56 days in prison.

Just last week Joshua Cryer, a 21 year old, was charged with sending the grossly offensive messages under section 127 of the Communications Act and given a 2 year community order after sending the former footballer, Stan Collymore, a catalogue of racially offensive tweets with the aim of trying to provoke a reaction out of Mr. Collymore.

And, not forgetting last month when Peter Copeland, a Sunderland fan, took it upon himself to post a series of racist comments directed at Newcastle United fans.

Copeland received a 4 month suspended sentence under the Malicious Communications Act.

What these individuals omitted to take into account was, that by the direct result of their actions, they would, quite literally, be handing the authorities the evidence written in stone.

Messages of a Menacing Character

However, it isn’t just making racially abusive comments that can land you in hot water. Paul Chambers was fined £385 and order to pay £600 in costs after being convicted under the 2003 Communications Act of sending messages of a menacing character.

27 year old Chambers of Doncaster realised he had made a bad judgement call when he sent a tweet which read “Robin Hood Airport is closed. You’ve got a week and a bit… otherwise I’m blowing the airport sky high!”

The offending tweet sparked the campaign “I am Spartacus” which was supported by famous comedians including Stephen Fry and Al Murray.

It appears that a vast number of social networking site users have little idea of the civil and criminal consequences of posting offensive material online and one solicitor felt it would make good sense for people to be made fully aware of what constitutes a criminal offence before signing up to social networking sites such as Twitter and Facebook.

Contempt of Court

The Contempt of Court Act states that when an individual is either arrested or charged the public should not make any comments about that individual which could be detrimental to the trial.

Although Joey Barton made comments about the trial of footballer John Terry to 1.3 million other Twitter users it was decided that his tweets would not have resulted in prejudicing the trial.

However, literally hundreds of Twitter users were theoretically guilty of contempt of court by naming footballer Ryan Giggs, who went by the alias CTB on Twitter, when he asked Twitter for the details of the individuals who had broken the injunction by revealing his identity.

If the Twitter users had been charged they may have been liable for an unlimited fine or even a prison sentence of two years.

I Predict a Riot

Perry Sutcliffe-Keenan and Jordan Blackshaw, both in their early twenties, were jailed for four years recently for posting invites on social networking sites requesting other members to join them in last summer’s riots.

Sutcliffe-Keenan was from the Warrington area and Blackshaw lived in Norwich and, although neither area suffered any riotous activity, their actions were deemed serious enough for the authorities to press charges.

Both individuals pleaded guilty to the intentional encouragement of another to assist in a serious offence under sections 44 and 46 of the Serious Crimes Act.

Their tweets and posts may well have resulted in nothing but the intention to cause harm was still there.

Libel Cases

Chris Cairns, New Zealand’s former cricket captain, sued former chairman of IPL Lalit Modi over the allegations made that he had an involvement in match-fixing.

Cairns was awarded £90,000 in damages in what was to be the first ever Twitter libel case.

In 2011 a councillor from Caerphilly in Wales posted libellous comments regarding a rival politician and was ordered to pay £3,000 with costs to his nemesis.

Proving that, when posting on a social networking site, it’s far better to keep it zipped than to be loose lipped!

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Before the event insurance legal policies

Before the event insurance

We are always surprised that few companies and individuals even know what Before the Event legal insurance is. Subject to the usual small print, caveat and exclusions in insurance policies, bearing in mind the cost and risk of legal issues, insurance against those costs, subject to the cost must be a good idea ?

One controversial aspect of these before the event policies, which has always gone against the legal principle and professional conduct requirement that a client must be able to choose their own lawyer, is that the insurers for these policies make this freedom of choice very difficult. From the insurers point of view, particularly when it comes to personal injury claims or employment law issues they want to retain control of the case and to have specialist lawyers involved that they trust. The other view is that they want to use firms who they can negotiate bulk fees with who will assist them in influencing insureds to perhaps accept a settlement of a dispute which is less than the best they would obtain.

Anyway, a court case has now ruled that it is unlawful for insurers to refuse to pay if a policyholder’s insists on choosing their own solicitor. The rationale for the decision made in the case of  Webster Dixon v Equity Syndicate was not about freedom of choice for the insured as such but instead that the insurers attempts to force solicitors independently chosen by the insured to accept low hourly charge rates breaches European regulations.

There can also be confusion with litigation insurance between before the event and after the event policies. With before the event policies, as with almost all insurance policies, it is important to be wary about what the policy actually covers and the fact that the insurer will generally have a big say in how a claim proceeds, resulting ins  situation where the insurer may be able to effectively force a settlement. After the event policies cover the situation where there is already a dispute. the insurer or investor in a case can then make a more informed judgment and these types of policies, according to litigation specialists J E Baring Solicitors, are becoming more commonplace, especially in higher value cases or where funding for litigation may not be readily available. A good example of the latter would be for insolvency related litigation, where a Liquidator may inherit a potentially high value claim but may not have the assets to pursue litigation on behalf  of the creditors.

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Rights to school records & bullying

Here is a simply excellent blog post on rights to school records if you believe your child is being bullied at school and you are trying to avoid negligence litigation. The post is extremely clear and also deals with the excuses that schools may use to seek to refuse access and the underlying legal ways they may be able to avoid giving you the file, and the timescales involved. Simply excellent, well done !

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Anarchy ?

Is it just me or is the world in danger of descending into anarchy ?

There seems to be almost a “perfect storm” – we have the arab spring, a seismic shift in economic power away from the West and on a micro level, unrest, anger and discontent seem to be just below the surface.

In addition to this, the writer can only vouch for the UK but in the last decade there seems to be a tangible erosion of moral values and respect for the law. On the lowest level this equates to widespread lying on mortgage applications, a general increase in fraud and greed in society. Just last night there were riots in Tottenham in London, events not seen for some 30 years. There are allegations of corruption at the highest level of society and Western Governments seem to be playing a dangerous game of “pass the parcel” in terms of the huge debts and deficits faced by Western economies.

There is much discussion on the press about “uncertain times”. This is certainly true but I would go further, I think we are moving from uncertain times to dangerous times.

What do you think ?

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