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ATKINSON VINDEN
Lawyers
Firm News Day Dockrill Join Us
Intellectual Property Protecting your Intellectual Property
Employment Law Handling Redundancies
In this issue:
Welcome to this edition of Law Talk, the
Business Newsletter of Atkinson Vinden.
In this edition we are pleased to welcome Bill Dockrill and his staff following the merger of their
firm with Atkinson Vinden.
We have an article by Jessica Lobow on “Protecting your Intellectual Property”. This
www.atkinvin.com.au B2-12LawTalk
is an important issue for all businesses.
Rod Berry provides some timely advice for employers on handling redundancies.
Finally, we update you on some changes and improvements within the firm.
We trust that the information in Law Talk is of value and relevance to you.
Warm regards, Sheena Joshi.
We are excited to welcome Bill Dockrill and his staff who joined us on 1 July.
Day Dockrill have operated at Neutral Bay for many years and Bill is supported by Allison Paten, Karen Zhang and Janelle Boutros as solicitors and by Rachel Perry in a support role.
It is fitting that Day Dockrill has joined Atkinson Vinden given the similarity in a number of practice areas. The prime focus of Bill and his team will be on continuing to provide excellent client service in the Property, Leasing and Estate Planning areas.
For those accustomed to meeting with Day Dockrill at Neutral Bay, this arrangement can continue in order to meet the needs of clients.
A particular welcome to each and every Day Dockrill client! We look forward to meeting each of you as the opportunity arises over coming weeks and months.
Welcome to Day Dockrill!
www.atkinvin.com.au B2-12LawTalk
Some clients when they first start up their business, or create a successful product, are under the misconception that they should immediately register trade marks for protection of their brand, not realising that failure to use the trade mark for the registered goods or services can result in the trade mark affording little protection.
Protection of intellectual property is determined by the actual nature of the business and analysis should be undertaken at the outset to determine what transactions give rise to the need to protect your goodwill and your brand.
It is becoming more and more evident that many companies are facing the threat of infringement of their intellectual property, whether registered or unregistered. Do not become complacent in respect to your brand. If you fail to adequately monitor and use your registered intellectual property, you can lose rights to this intellectual property and the impact is just as serious as failing to register your intellectual property.
What is Intellectual Property?Intellectual property is a broadly used term to define the creation or idea of something original and inventive; it can be literary, artistic, film, drama, goodwill, inventions, trade secrets, trade marks and designs.
Every business is unique. One business may determine that it only requires a registered trade mark whereas other businesses may require a combination of intellectual property such as copyright and trade marks.
The purpose of intellectual property is to entitle the owner of the intellectual property to do certain things to the exclusion of all others, and it is the intellectual property (registered, where applicable) which affords the owner this protection.
How can you protect your intellectual property for your business?Protecting the intellectual property of your business is not merely a task that can be checked off a “to do” list. It is important that as a business owner you are constantly monitoring your intellectual property, that you understand the rights in respect to your business and that you seek to protect the intellectual property.
IP Australia is the governing body for registration of your intellectual property, however, it is an incorrect assumption by many small business owners that IP Australia will notify them when their intellectual property is at risk and is being infringed.
It is your responsibility as a business owner to monitor and protect your intellectual property and this includes monitoring the habits of your competitors as to whether they are possibly infringing your intellectual property. It is not uncommon for competitors to use components of your intellectual property in forms of advertising which can damage your brand and if you are not aware of your competitors or other businesses then this conduct, whilst unnoticed, may
benefit your competitor.
Develop a strategyThe following are some common methods used by businesses in relation to their intellectual property:
• Licensing intellectual property to third parties. This arrangement would be documented in a licensing agreement; the most common industry that documents such arrangements is the IT industry, in particular software developers licensing their source code to different entities.
• Franchising intellectual property, by licensing out the corporate brand, image and slogans etc. A Franchise Agreement would document the permissions granted by the Franchisor to the Franchisee for the use of the intellectual property as part of running and promoting the Franchise.
• Using intellectual property as finance collateral, in particular to secure finance for your business. This is where a security interest may be registered over the intellectual property on the Personal Property Securities register, to secure an interest by a Lender.
• Selling intellectual property outright to a third party.
• Manufacturing products utilising the intellectual property. This is where a design or idea which should be patented is used to create an end product.
• Contributing intellectual property for research and development projects or for joint venture developments. This is common, however it must be clearly documented as to who has the rights to the intellectual property to avoid infringement in the future.
Most importantly we recommend that you obtain independent financial and legal advice to ensure that you understand how to protect your most important assets.
Please call us on (02) 9411 4466 to discuss any of these issues.
Protecting Your Intellectual Property
Intellectual PropertyJessica Lobow
Free Boardroom Breakfast BriefingProtecting your Intellectual PropertyPresented by Sheena Joshi and Jessica Lobow
Date: Tuesday 11 September 2012Time: 7.30am – 9am A light breakfast will be providedCost: ComplimentaryVenue: Level 8, 10 Help Street, ChatswoodRSVP: Please RSVP names of attendees by 31 August 2012 (places limited!)Telephone: Janice on 9411 4466Email: [email protected]: 9412 3657
www.atkinvin.com.au B2-12LawTalk
All businesses go through downturns. Finding savings with wages usually means one thing: redundancies. In this article we explore some of the traps and tricks in dealing with staff redundancies.
A redundancy arises when an employment position is surplus to the needs of a business. It does not necessarily carry any negative inference regarding the employee’s performance. Such a situation often follows the loss of work from a major client of a business, or where economic decline causes a drop in business activity. Wages usually form one of the major expenses of a business. Though always unfortunate, it may sometimes be necessary to shed staff for a business to restore a positive cash-flow.
The Fair Work Act exempts genuine redundancies from the unfair dismissal regime in recognition that sometimes staffing needs fall through no fault of the employer. Beware, however, because if challenged, the onus will be on the employer to demonstrate the legitimacy of the redundancy. There may also be a careful examination of who was selected for redundancy, as there tends to be a natural suspicion that redundancies are used as a cloak to shed underperforming staff.
Here are 5 strategies to manage the redundancy process as cleanly as possible:
• Consult with the staff that may be facing redundancy before a final decision is made. By involving staff in the process, and positioning the issue as a problem faced by “all of us”, any redundancies that follow are more likely to be accepted. Consultation is mandated in most awards, and a lack of consultation is often used as the first plank of any claim challenging the legitimacy of a redundancy.
• Once a decision is made, it should be put into effect without delay. Most employees who have had their positions declared redundant feel aggrieved, and will tend to be a negative influence in the workplace. They
Handling Redundancies: A How to Guide
Employment LawRod Berry
may be tempted to sabotage the company’s affairs, or take confidential information with a view to future competition. The Fair Work Act recognizes that an employer may pay the employee an amount in lieu of notice, so that the employee can be released immediately, rather than requiring the employee to serve the notice period.
• The Fair Work Act requires that notice of termination be given in writing. Provide the employee with a letter of termination that confirms the date of termination, and any applicable notice period or payment in lieu of notice. Also provide the employee with a Separation Certificate so that they can apply for Centrelink benefits as soon as practicable.
• Have an exit meeting with the employee in which you control the return of company equipment such as laptops, phones (including sim cards), keys, thumb drives and so on. Failure to manage this process can lead to serious security risks for the business.
• Be careful to pay the correct entitlements. Employers should consult the applicable contract of employment or letter of offer, any award or other industrial provision that may apply to the position, as well as complying with sections 117 (notice) and 119 (redundancy) of the Fair Work Act. Note that employees who did not have redundancy entitlements before 1 January 2010 are only entitled to count service from 1 January 2010 for the purposes of calculating the section 119 entitlement. Being aware of this distinction has saved some of our clients tens of thousands of dollars.
Often a lot of grief at the end of the employment relationship can be spared by properly setting up the engagement from its inception. For example, it is crucial that a person’s role is properly articulated from the outset through a detailed job description. Otherwise, there may be a dispute about what a person’s role is, and therefore whether their position is genuinely redundant.
If you would like to learn more in this important area of law, you are invited to attend our next Boardroom Breakfast Briefing on Tuesday 11 September 2012, when Rod Berry will be presenting on the topic of “Hiring and Firing Staff”.
Date: Tuesday 11 September 2012Time: 7.30am – 9am A light breakfast will be providedCost: ComplimentaryVenue: Level 8, 10 Help Street, ChatswoodRSVP: Please RSVP names of attendees by 31 August 2012 (places limited!)Telephone: Janice on 9411 4466Email: [email protected]: 9412 3657
Free Seminar
ATKINSON VINDEN
Lawyers
Keeping in Touch COMMERCIAL & BUSINESS
Sheena Joshi – [email protected] Goodrick –[email protected]
DISPUTE RESOLUTION & LITIGATION
Rod Berry – [email protected] Dodaro – [email protected]
EMPLOYMENT & INDUSTRIAL
Rod Berry – [email protected] Howard – [email protected]
ESTATE PLANNING & WILLS
David Atkinson – [email protected] Windeyer – [email protected]
FAMILY LAW
Annabel Murray – [email protected] Dodaro – [email protected]
INFORMATION & COMMUNICATION TECHNOLOGY
Rod Berry – [email protected] Joshi – [email protected]
PROPERTY
Sue Falkner – [email protected] McClure – [email protected] Dockrill – [email protected]
RETIREMENT VILLAGES
Guy Vinden – [email protected] Shohmelian – [email protected]
TELEPHONE: (02) 9411 4466
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In the Cloud
Atkinson Vinden has had a major IT upgrade this year, taking its data storage to “the Cloud”, updating our software, and adopting an entirely new operating platform based on the Lexis Nexis product Affinity. You may have already observed some changes flowing from the upgrade, such as differences in the font and presentation of our documents. However, the significance of the changes is far greater than this.
The new technology will bring many benefits to our clients. Our staff can now access and work on important documents whilst visiting clients and while at court, and we are in the process of implementing a range of new precedent documents which will improve quality and shorten delivery times for our clients. Very importantly, data security has been considerably enhanced. We are now using arguably the best data centre in the southern hemisphere, with excellent firewall security and a state of the art disaster recovery capacity if ever required.
Atkinson Vinden is now one of the most technologically advanced law firms that we know of. You are now using leading edge technologies.
Jo Di Meglio, Managing Director of Global Technology Solutions
