WE JUST WANT TO SAY THANK YOU

Since launching The Legal Stop in 2010, we’ve met some great people and watched the most incredible community come together; also we’ve been inspired every moment along the way.

This is just the beginning, soon we’ll be introducing some exciting new services so stay tuned.

A huge thank you to all of our customers, without you this would not have been possible

 

SALE OF GOODS AND SERVICES THROUGH A WEBSITE

This article provides a brief outline of the legal background when selling goods and services through a website.

When selling through a website it is important to have terms and conditions in place. The relevant terms must be set out in writing as an online contract will be as enforceable as any other type of contract.

If you sell goods to consumers through a website, it is important to be aware of the following regulations:

The Sale of Goods Act 1979   This Act states that goods that are sold must be as described and of satisfactory quality.

If consumers discover that products do not meet these requirements they can reject them and ask for their money back providing they do so quickly. Alternatively, they can request a repair or replacement or claim compensation.

The Sale of Goods Act has been amended by the Sale and Supply of Goods to Consumers Regulations 2002.

The Consumer Protection (Distance Selling) Regulations 2000 Distance Selling Regulations give protection to consumers who shop by phone, mail order, via the Internet or digital TV. The protection includes:

  • The right to receive clear information about goods and services (including information about the arrangements for delivery of the product and information about the seller) before deciding to buy;
  • Confirmation of this information in writing;
  • A cooling off period of seven working days in which the consumer can withdraw from the contract;
  • Protection from credit card fraud.

The Unfair Terms in Consumer Contracts Regulations 1999 prevents sellers from enforcing terms in a contract which are contrary to the requirement of good faith and which causes a significant imbalance in the rights and obligations of the parties to the detriment of the consumer. Sellers must also ensure that they use clear and plain language when drafting because transparency is an important part of fairness.

These regulations provide significant protection to consumers and so must be adhered to very carefully by sellers. If a term is unfair, it will not be binding on the consumer. If an unfair term excludes or limits liability for unsatisfactory goods or poor workmanship, the consumer can sue for compensation regardless of it. If an unfair term is unenforceable, the rest of the contract may still be valid (unless it is unworkable without the unfair term).

Assessment of fairness takes into account the nature of the goods or services, all the circumstances relating to the conclusion of the contract and the effect of other terms in the contract or another dependent contract. This means that a term considered fair in one agreement is not necessarily fair in another.

Consumers should have the opportunity to read all the terms and conditions before agreeing to the contract. Therefore, you should ensure that the terms and conditions are clearly accessible on the website.

The Data Protection Act 1998 The purpose of the Act is to protect the rights of the individual about whom data is obtained, stored, processed or supplied rather than those of the people or organisations who control and use personal data. The Act applies to both computerised and paper records depending on the type of filing system.

If you wish to pass on individuals’ details to other organisations or wish to contact them about promotions in the future, you must obtain their consent to this. Provisions of this kind may be acceptable where there is a free choice to agree to them or not, for instance, via an option separate from the rest of the contract. But note that fairness is much more likely if consumers have positively to “opt in”. A chance to “opt out” in small print may be missed or misunderstood. In any case the chances of fairness will be increased if the significance of the choice is indicated and drawn to the consumer’s attention.

The Act requires that appropriate security measures will be taken against unauthorised access to, or alteration, disclosure or destruction of personal data and against accidental loss or destruction of personal data. It is important to ensure that your terms and conditions contain an appropriately worded privacy policy.

The Electronic Commerce Regulations 2002 states that when selling online, information must be given in a clear and ambiguous manner about the technical steps to complete a contract, prices must be clearly stated, details must be given about the supplier (in particular, the name and address and registered office address if this is different, e-mail address, the company’s registration number, any Trade or Professional Association memberships and the company’s VAT number) the fact that any orders must be acknowledged without undue delay and there must be available to the user of the site the ability to identify and correct any errors prior to the placing of their order.

Excluding liability

It is not advisable to exclude liability when dealing with consumers. You are never able to exclude liability for faulty goods or death and personal injury. If a consumer makes a mistake when entering details online, s/he should be given a reasonable opportunity to correct the error before they place their order. If you fail to do so, consumers will be entitled to rescind the contract.

LAW ON TRADEMARKS

What is a trade mark?

A trade mark is a mark, brand or sign used by traders to differentiate their goods from those of other traders. Trademarks can be registered or unregistered.

Under the Trade Marks Act 1994, any sign which can be represented graphically and which is capable of distinguishing the goods or services of one business from those of another is in principle registrable as a trademark (subject to the absolute and relative grounds for refusal (see below)). Examples of trademarks are: labels, logos, names (including domain names), packaging, smells, sounds, business style and business presentation. Therefore, a trade mark can extend beyond the name of a product or its logo to the colour and shape of the goods. For example, Marmite jar, Coca Cola bottle and colour combinations for drug capsules.

The name of a person with a possible endorsement right can also be a trademark. However, the name and the image of an individual has to be distinctly linked with the origin of the goods or services in question. For example, Tiger Woods with golf equipment. Therefore, the application to register the image of Diana as a trade mark in connection with various goods such as tea towels failed, likewise so did the application to register Elvis Presley as a trade mark on beauty products.

In relation to geographical names, it has recently been held that, in general, they cannot be registered as trademarks. However, where a geographical name has come through use to identify the product as being made by a particular undertaking, then the geographical name gains a new significance and can be registered e.g. Waterford crystal.

Internet domain names (for example: www.thelegalstop.co.uk ) can be registered as a trademark provided they are distinctive. Further, it is possible for infringement to occur where the domain address used utilises an already established trademark.

Exploitation of trade marks

There are various ways in which a trademark can be exploited:

  • A business may sell its trade mark, for example if it wishes to withdraw from a specific product market.

  • A business may wish to spread the financial return through licensing. Competition law may apply to trademark licensing to control the extent to which a licence holder can be protected from competition from the licensor or its other licence holders.

UK Registration of trademarks

Application for registration is made to The Intellectual Property Office (IPO). The application must be accompanied by payment of a fee. Renewal is necessary every 10 years, when a further fee will be required. Alternatively, an application may be made at the European Trade Marks Office.

An application is filed for goods or services in one or more of the relevant classes of the International Classification. Each class represents a certain type of goods or services. There are 45 different classes for goods and services. Often, it would be advantageous to file in a number of different classes in order to cover the variety of goods or services in which the business proposes to deal. The classes tend to be rather broad and it will normally be necessary to limit the application to specified goods within that class.

Steps to be taken for registration

  1. File application. You should receive a receipt within 1 week.
  2. Examination and search by the Trade Mark Registry. You should receive a report within 4 weeks, and this may contain the Intellectual Property Office’s objections. If this is the case, you may wish to respond.
  3. Advertisement of the application in the Trade Mark Journal.
  4. Opposition to the trademark would need to be made within 2 months, with the possibility of a 1 month extension.Registration if no opposition is made or if opposition proceedings are decided in favour of the applicant.
  5. Date of registration is back-dated for priority purposes to the date of first filing.If the examiner rejects the application to register the trademark, there is a right of appeal to the High Court.

Grounds for refusal of registration

There are 2 types of grounds on which an application to register a trademark can be refused. These are absolute grounds and relative grounds.

Absolute grounds

Absolute grounds apply where the sign is, for example, purely descriptive, not distinctive and should otherwise remain available in the public domain. The trademark would be refused registration on the following grounds:

  1. The trade mark lacks distinctive character. That is, if the mark applied for merely describes the goods and services applied for. For example ‘Froot Loops’ was refused on the basis that the name described the product.
  2. The trade mark consists exclusively of signs or indications which are used to describe a particular feature of the goods. The following categories would therefore be considered descriptive:
  • Kind. For example, personal (for computers).
  • Quality. For example, best.
  • Intended purpose.
  • Value. For example, worth their weight in gold.
  • Geographical origin.
  • Time of production or of rendering of services. For example, 24 hour service, eight till late.
  • Other characteristics of the relevant goods or services.
  • Phonetics: misspellings of words that would otherwise be refused will require evidence that the trademark is distinctive.

3. The trademark consists of signs or indications which are customary in the current language or the established practices of the trade.

A trade mark should not be refused registration in relation to any of the above grounds, if, before the date of application to register, it has in fact acquired a distinctive character as a result of the use made of it by the applicant.

4. The trademark consists exclusively of the shape if the shape: results from the nature of the goods themselves; or is necessary to obtain a technical result; or gives substantial value to the goods.

Goods or packaging created in a specific shape may be registered.

5. The trademark is contrary to public policy or accepted principles and morality.

6. The trademark is likely to mislead or deceive the public (for instance, as to the nature, quality or geographical origin of the goods or service). For example, an application to register ‘Swiss Miss’, the name of a chocolate, failed on the ground that it was not made in Switzerland and was not in anyway connected with Switzerland.

7. The trade mark is prohibited under UK or EC law.

8. The trade mark is a specially protected emblem e.g. the Olympic symbol.

9. The application is made in bad faith.

Relative grounds

Relative grounds for refusal are concerned with protecting the prior conflicting rights and interests of other trademark owners and the interest of the public in not having similar marks used in relation to the same or similar goods or services. The earlier mark will be protected whether they are registered or not and different rules apply to each situation.

Where the earlier trade mark is registered

An application will be refused where there already exists an identical or similar trademark that relates to identical or similar goods and services AND where members of the public are likely to be confused. An application may also be refused on the grounds that, although the goods or services are not similar, the trademark has an established reputation and an applicant for a similar or identical trademark would be taking unfair advantage of, or causing detriment to, that reputation.

Where the earlier trade mark is not registered

Even where the earlier trademark is not registered, registration may be refused if it benefits from the reputation of that existing trademark.

Infringement of a trademark

Infringement occurs when the trademark is ‘used’ by a person or business other than the owner without their agreement or where the use is based on the above absolute and relative grounds. Therefore, an applicant who tries to register such a trade mark will not only be refused registration but through its use may be sued for infringement. ‘Use’ of a trade mark includes: putting it on goods or packaging; offering, marketing or stocking goods or services under the mark; importing or exporting under the mark; putting it on business papers or advertising material.

Infringement can also be non-visual such as ‘smell’ or ‘sound’ trademarks.

Suppliers of the infringing material, such as printers, may be joined in proceedings. For such an action to succeed, the supplier must have known or have reason to believe that use of the mark was not authorised by the owner.

International Implications

There are 3 ways of registering trademarks. All applications can be made through the UK Intellectual Property Office (IPO).

  1. Application in the UK for a UK trade mark registration will protect the trademark in the UK ONLY. Conversely, trademarks registered outside the UK will not be protected by that registration in the UK, in the absence of any international agreements to the contrary.Application for a Community trade mark (CTM). This is a unitary right applying in the EU.
  2. Application for a CMT may be made either at the IPO or directly to the Office for the Harmonisation of the Internal Market based in Spain. There is an additional handling charge for CTM applications dealt with by the IPO. Registration will extend to all EU countries and is cheaper than applying for national rights in every country. It is important to note that CTM regulations do not replace national trademark laws, but offer an alternative system of registration. Registration is renewable every 10 years. The main disadvantage of a CTM is that if it is successfully opposed in one of the EU countries, the application will fail in all. The only way around this will then be to convert it to individual trademark applications in each country, which means additional fees to be paid, on top of the CTM registration fees already paid.
  3. Application for an international trademark registration, under the Madrid Agreement. It introduces a single international application, which permits the registration of a mark in more than one country, as if the application was made to each individual country.

An application can be made by an owner of a trade mark (application or registration) in one of the member countries of the Madrid Protocol, who is also one of the following:

  • a national of a member country of the Protocol;
  • a resident of a member country of the Protocol; or
  • a person or organisation with business premises (legally, ‘a real and effective industrial or commercial establishment’) in one of the member countries of the Protocol.

Because the UK is a member of only the Madrid Protocol (and not the Madrid Agreement), you can protect your mark only in countries which are also members of the Protocol.

The application is made to the IPO, who then present the application to the International Bureau of the World Intellectual Property Office (WIPO) in Geneva, which in turn notifies each designated Contracting Party. Each notified country has between 12 to 18 months to oppose registration, after which registration will automatically take effect, and the mark will be protected as if the mark had been registered as a national trade mark (Madrid Protocol, Art.4(1)(a)). The initial duration is for 10 years, renewable for 10 years thereafter.

What should I do if I believe that a domain name which I have registered as a trademark has been infringed?

Nominet UK is the Registry for .uk Internet domain names, and provides a dispute resolution service for .uk domain names.

The majority of disputes relating to domain names are brought under Uniform Dispute Resolution Policy (UDRP). The UDRP is used widely to deal with what is known as cybersquatting (deliberate, bad faith, abusive registration of domain names in violation of others’ rights – particularly trademarks). The complaints are usually brought by the holder of a registered trademark which is identical or very similar to the domain name in question. Generally the complainant must prove the following to succeed in a complaint:

  • that the domain name is identical or confusingly similar to a trademark in which the complainant has rights;t
  • he respondent holder has no rights or legitimate interests in respect of the domain name; and
  • the domain name has been registered and is being used in bad faith.

Under the policy, complaints are examined by independent panels and if the panel concludes that the complaint satisfies the requirements specified in the policy, it directs that the domain name should be cancelled or transferred to the complainant. If not, the complaint is rejected.

Remedies

There are various remedies available to the owner of a trademark where a trademark right has been infringed. Sometimes, commercial advantage can be gained by the owner on selling or licensing the trademark to the infringer. Where such agreement between the parties is not possible, the following remedies are typically available:

  • Injunction (a restraining order to immediately stop the infringing act).
  • Damages (a monetary claim for financial compensation).
  • Account of profits (this allows the injured party to claim the profits made by the party who is in breach).
  • Delivery up and destruction (the right to both seize goods and have handed over the infringing material or goods).
  • A declaration that the trade mark is valid and has been infringed.
  • Criminal penalties (enforcement being carried out by the Office of Fair Trading with the maximum penalties being 10 years imprisonment and/or a fine).

The usual way to begin would be for solicitors to draft a letter on behalf of the client demanding an undertaking that infringement cease immediately, threatening legal action, usually by way of injunction, and claiming damages or account of profits. However, such a letter should be carefully drafted as the law does provide that where the threat of litigation is groundless, the aggrieved person may be able to bring a civil action for damages on the basis of the groundless threat. A threat would be groundless where the acts concerned would not in fact be an infringement of a valid right.

 

The Difference between Templates and Bespoke Document Drafting

In today’s internet driven world many people find their legal document needs online. There are a range of options, including the fixed price fees we offer, that allow you to protect yourself and your business quickly.

One area that has risen in popularity over recent times is the templates for legal documents. These can be downloaded in seconds and paid for in an instant, leaving you with a legally binding piece of literature that should protect you as soon as it’s signed and witnessed.

Legal document templates are obviously cheaper and faster than bespoke document drafting as one template is constructed to fit all. They can be ideal for general insurances, small legal areas, such as tenancy agreements and partnerships yet as the requirement grows, they may not cover all.

The Benefits of Templates

  1. Tried and Tested Used by Many
  2. Easy to download
  3. Accessible within minutes
  4. Instant protection
  5. Customisable as long as the jargon stays in place
  6. The cheapest way to protect you and your business

It’s important to note though that templates are very general and if you are held under scrutiny, a law enforcer may find holes that you should have included to ensure the document was bespoke to your business.

Drafted Documents

Many people believe that bespoke drafted legal documents are very expensive. That they cost thousands of pounds and are only affordable by bigger businesses. In fact with our fixed priced fees drafted documents can save you a lot of expense in the future. Recently the news reported that the well-known celebrity Tommy Lee lost over £10 million pounds in a legal battle as the wording wasn’t quite right in the document.

Online Business

We recommend drafted documents for terms and conditions and privacy policies. By their nature these are lengthy as they must cover you for all eventualities. It’s sad but true that a disgruntled user will exploit the T and C’s, they will look for loopholes and they will have no hesitation in starting a lawsuit if they think you’ve missed something. Templates will cover the general use of your site yet they won’t be specific to your stock, services, delivery criteria and so on.

Also online people worry about their privacy being exploited. This is why a good privacy policy needs to be in place. A template will cover the generalisations such as the use of cookies but you may need it adapting to your own case. For example, you may send out newsletters via Mailchimp but the privacy policy via the template states you will not disclose email addresses to third parties. Although you’ve only given the addresses to your own Mailchimp account, a disgruntled customer could sue you for sharing information when they were led to believe you wouldn’t.

Quite simply they may take a little longer and they may be more expensive but you can’t get better protection than a drafted document.

Could Bespoke Document Drafting Pay for Itself?

Legal document templates are on the rise with people downloading these in an instant online. For as little as a few pounds you can have the protection you or your business needs within seconds. With these advantages is there still a place for bespoke document drafting? Shouldn’t everyone simply use templates and just hope for the best?

Unfortunately, although templates cover generalisations, they may be useful if you’ve less than five employees or they could be helpful for a short hold tenancy agreement, if you want to be bulletproof they’re unlikely to give you the full protection you crave.

You can of course adapt a template to suit your own needs but this is unadvisable without the help of a solicitor as if you make a mistake you risk making the whole document null and void. Hiring a solicitor to adapt a template is quite insulting. It’s embarrassing for you and in the end you will have paid the same amount as if you’d drafted a document from the start.

The Loopy Loopholes

In business drafted documents are essential. It’s a sad but true fact that the USA suing culture has hit Britain. Ten years ago we wouldn’t have dreamed of suing a box over a simple fall but today we all know that “where there’s blame there’s a claim”. This means businesses and individuals must be stringent with legally binding documents as the lawyers that promise the “no win no fee” service have an incredible knack for sniffing out loopholes you won’t even have noticed yourself.

Case Example: Let’s say you sell ice cream. You have a health and safety policy template that covers you for accidental spills. Now an employee slips on ice cream and you face a lawsuit. You may have detailed that any injury caused by accidental spills is the responsibility of the employee (as they should follow legislation of mopping, drying and placing a sign to warn others) but your no win no fee lawyer sees a loophole. Ice cream in its solid form can’t spill. Therefore your template doesn’t apply to trips and falls from the product you sell.

Many have lost thousands if not millions of pounds trying to save money with templates and in some cases they are enough but if you’re at risk of being sued, such as for health and safety, for privacy policies or terms and conditions, you need to ensure your documents are watertight.

The Lengthy T and C’s

Pop over to any well-known brand and have a flick through their terms and conditions. You’ll see how lengthy they are. They not only protect against big lawsuits they protect against the everyday almost absolving a company of all responsibility.

Claims such as “we will not be held responsible for…” “We reserve the right to…” “Our refund policy clearly states that…” These statements although innocent looking when you scan through the T and Cs and tick the box to say you agree stop the company been taken to court instantly.

With a drafted document you’ll be able to explore every angle to use the knowledge of a solicitor and tap into his expertise. Your solicitor will present you with worst case scenarios you hadn’t thought of but were thankful he or she brought them up.

In any area of law where you need to be protected it’s worth calculating how much you could lose should your legal document be challenged and then fail to stand up in court. Then see if the investment in bespoke document drafting is worth it.

Fixed Fee Bespoke Document Drafting by The Legal Stop – Customer Testimonial

The Legal Stop is a straightforward online business using information technology for the public good. We aim to make the law and provision of legal services more accessible and transparent to people and businesses alike.

For a one-off affordable and transparent fixed fee we draft a contract specifically tailored to meet your legal and business requirements.

For more info please visit: www.thelegalstop.co.uk

Financial Rules On Non-EU Spouses Slammed By Parliamentary Group

A group of MPs and peers announced that the financial restrictions on who is permitted to bring a non-EU spouse and who is not usually destroy families.

Due to the new rules if a British citizen wants to sponsor a visa for a spouse from outside of the EU, they need to prove that their annual income is minimum £18,600. This can be done by using legal documents proving it.

In case the same guy wants to sponsor a visa for a child the amount increases to £22,400 and another £2,400 on top of that for each additional child.

However, the All-Party Parliamentary Group on Migration asked for cancellation of these rules as many families suffer because of them mentioning the fact that there are British children who are not able to see their non-UK parents.

The people who think the policy is not that bad say that tax payers have to receive a reduction to the cost.

“If you are bringing someone into the country, then you should be expected to support that person without recourse to public expense,” said Mark Reckless, a Conservative MP who sits on the home affairs select committee. “Over time, it might be possible that the regulations could be adjusted. There will be hard cases and we learn in light of those experiences.”

Those on the opposite opinion said the restrictions were too cruel and pointed some evidence showing that around 47% of the working population of the UK would not meet the new requirements.

The figures that the government published show that the number of citizens unable to comply with the requirements is 18,000. Despite this fact it declared that the changes were necessary.

New Fixed Fee Legal Services

The Legal Stop is a straightforward online business using information technology for the public good. We aim to make the law and provision of legal services more affordable and transparent to people and businesses alike.

We provide fixed fee legal services and legal and business document templates for all types and sizes of businesses. Our services include:
• Legal and Business Document Templates
• Request a Template Service
• Fixed Fee Legal Advice
• Fixed Fee Bespoke Document Drafting
• Free Legal Documents and Information

For more information visit: www.thelegalstop.co.uk