trademark lawyer

What does a trademark lawyer do?

Choosing a good trademark can be one of the best business decisions you will ever make. So when you start looking into branding as a startup, it should definitely be something you turn your mind to, and a trademark lawyer can help you.

Most startups register their business name and domain name, some social handles and stop there. Of course these registrations are necessary, particularly your business name, (which should be registered with ASIC if it is not your own name) but these registrations do not stop other businesses in the market using the same or a similar name to you. By taking one extra step and registering your trademark, you will get exclusive rights to use your mark. This means you can stop other businesses using the same or a similar mark to you. When you have the exclusive rights to use your brand it also means you can license it, and sell it; it therefore becomes a very valuable asset on your balance sheet.

A trademark lawyer doesn’t just help you to protect your own brand, but also helps ensure you don’t infringe on other brands. They can make sure that you are not investing  $$$ in branding only to find out that your brand infringes on someone else’s. In this case you could end up having a very costly rebrand to do. A trademark lawyer can also help you to understand what makes a good trademark, and what the likelihood of a successful registration is. They will work out the best classes and descriptors to use for your trademark so that you are adequately protected, but do not spend money unnecessarily on registrations you don’t need.

Here are a couple of matters that a trademark lawyer will look at when determining whether your trademark is one that will result in a successful registration.

  1. Is it distinctive?

In order to get a successful trademark registration, your mark needs to distinguish your goods or services from another business’s goods or services. The best trademarks tend to be words that are arbitrary or invented,  like “Google” or “Canva”, or words which are evocative like “LinkedIn” or “Facebook”. These words then become common over time as customers associate your products and services with the brand. Whilst words that describe your business are great for a business name, they may not result in a successful trademark registration. For example, Baby Photographer would not be able to be registered.

Your mark really can’t be something that is too descriptive or too generic, and so something that other businesses will want to use. Everyday words like “smooth and delicious” for chocolate would result in an unsuccessful registration. However, it may be able to be registered in relation to something that seems odd, like legal services! Similarly, apple could not be registered in relation to food, but it very well could and has been registered in relation to computers!

  1. Does it conflict with existing marks?

Another basic trademark requirement is that your proposed mark cannot conflict with something that already exists on the Trademarks Register. To determine whether it conflicts with existing marks, various searches are required to be conducted. A trademarks lawyer knows the types of searches that need to be performed to ensure that there are no conflicting marks, or if there are existing similar marks, what the likelihood of success of your registration is going to be. If you are intending on expanding to international markets, then additional searches may need to be performed to see if you could register in other countries too. There may also be circumstances where even though there is a mark that conflicts with yours on the Trademarks Register, you are able to be successful in your registration, perhaps because you used the mark prior to them, or concurrently with them. These are nuanced areas that trademarks lawyers are expert at dealing with.

A trademark lawyer will also look at the big picture.

You might also be surprised to know that you can actually trademark things other than words, and logos. You can trademark aspects of packaging, shapes, colours, sounds or even scents. For example, and the shape of the Ferrero kinder surprise, and the Cadbury purple is trademarked. Yes, we are obsessed with chocolate here! (It was how I got through my first year of mothering!) A trademarks lawyer can look at the big picture, and explore the whole of your business to see what potential trademarks you have; there may be some you never even considered.

If you’d like the help of a trademark lawyer, please contact us, or book in for a free introductory consultation here. 

online law firm

Why the online law firm?

Before Covid-19 online law firms were often viewed with intrigue, but not taken seriously.

“That model would never suit us” – “Our clients are different, they would only ever meet us in person”- “We couldn’t possibly have all our appointments online”.

And “the cloud?! Oh well, that’s not secure”.

Then, almost overnight, there was little other choice.

Lawyers who wanted to continue to serve had to adapt, and quickly.

Suddenly lawyers were asking – what’s that technology you use? You have an online law firm don’t you? How do I start? What do I do?

Lawyers started using video conferencing software for appointments, and then realised that if they could do appointments and emails online, and they had an online client portal for documents then, was there any necessity for a bricks and mortar space again or at all?? If staff can work remotely and online, and clients can be served that way too, well…

Online law firms began over 10 years ago. In 2015 there were less than 50 virtual law firms worldwide. In 2020 I can only guess; perhaps there is a new one set up every week, every day now even. Some have hundreds of lawyers behind the scenes whilst others (like me so far) are a one woman band. Some have full service offerings, whilst others specialise in particular areas.

The benefits of online law firms are obvious – less overhead costs, computers, printers, filing, IT, maintenance, and the elephant in the room, that expensive real estate. The ability to engage lawyers with skills that suit your firm who literally live anywhere, and can work from anywhere and may even already have a broad client base has got to be invaluable. A flexible, lean machine that allows for more profitability.

As more employees have tasted the flexibility that is remote working, they will demand change from employers. The ability to create a better work-life balance, has been high on the agenda for many employees for years; Mums in particular who need flexibility over further financial reward. And the attraction of fancy real estate and fancy dinners is pretty hard to sell  to young new recruits in a lock down. What’s more, being virtual means that small businesses can compete for these recruits, particularly as they often let the lawyers keep a high proportion of their costs.

The benefits to clients of online law firms are less immediately apparent, but they are numerous. More affordable solutions, a better quality of service, quicker service, and the ability to compare prices and skills easily. Fixed cost, flexible and valuable online legal solutions. The online law firm is by nature customer centric. It focusses on the client experience. It tweaks and tweaks and seeks feedback consistently.

As much as 2020 has been a horror, it has forced change in the legal profession, and ensured that law firms adopt technology so that they can best serve their clients changing needs. It has also meant questioning a business model of hourly billing and time sheets where many clients fail to see value and many lawyers burn out with unrealistic targets.

In the last 10 years the online law firm has gone from unicorn, to mainstream. It is hard to know how exactly brick and mortar law firms are going to compete. The legal profession is not immune to tech trends although in many respects it has acted as much.

Perhaps this is not the beginning of the end of bricks and mortar law firms, there is certainly still a place for face to face. It helps us to feel valued, and communication, trust and understanding are enhanced. There is group morale of gathering in person in a community, and there is beautiful learning through osmosis where young lawyers get to hang out with the wise. But we are able to encourage this in other settings. There is the flexibility for lawyers without a particular office space to still meet each other and clients face to face in co-working spaces, conference rooms, cafes or even more familiar settings like homes.

Now it’s in the hands of clients to decide what legal services they value. What do clients consider to be legal expertise? How do clients prefer their legal services to be delivered? And what results do clients want?  It is our clients that will determine what direction the legal profession goes, and online law firms are best positioned to cater for their needs.

Of course, now that you know I run an online law firm, if you’d like to find out more, please contact me here or keep exploring our website.

e-commerce lawyer

So what does an e-commerce lawyer actually do?

E-commerce? Well, we all know what commerce is… the buying and selling of goods and services.

It’s been around for a while… well, almost as long as human kind has! It began with prehistoric people bartering, and became monetary based in the ancient world.

So why all the fuss about “e-commerce”? Is it a e-volution?  What is e-commerce anyway?

Adding an “e” really just means it’s the buying or selling of goods and services over the internet.

It was in the late 70s when e-commerce began. The first e-commerce transaction was the selling of cannabis between students at Stanford, a dubious start no doubt.

But then a secure online transaction processor was built and an online store shopping system was developed. In the 80s further development happened, and by 1995 Amazon and eBay had launched; even though we were still doing most of our buying and selling in actual stores.

By the 2000s, billions of dollars were being generated by global e-commerce transactions, and now, over $30 trillion…

That’s huge.

And since Covid-19, undoubtedly that number has increased.

So what does an e-commerce lawyer actually do? An e-commerce lawyer helps limit the legal risk of businesses that buy and sell over the internet.

And those risks are quite different to buying and selling in person.

In person we can see colours with our own eyes. We can try clothes on. We can touch and feel products. We can see things in their actual size. We can suss out the quality. We can even taste food samples. And, we can take our products home straight away.

In person we can meet our service provider, we can talk to them. We can ask them questions we might not have the courage to ask online. They can literally hold our hands. And, we can really read people by seeing their body language and facial expressions.

So of course there are more risks to a consumer when buying from an online store. The colours aren’t always the same, what looks good on a model doesn’t work on my hips, the texture of the wool isn’t as soft as I expected and communication and tone gets lost.

So, as a business owner it helps to set out really clear terms and conditions with your customers or client for your online store that help limit your legal risks. But unfortunately the risks don’t end with  dissatisfied customers. There are the things that can be done easily online that can’t be done in person. Photos of products can be copied, website descriptions can be easily stolen,  viruses can be spread – the online kind, and websites can be hacked.

A good e-commerce lawyer understands all these risks and can help you limit them. They will often have a background in intellectual property law, consumer law and privacy law.

Intellectual property (IP) law becomes particularly important, because many online businesses operate solely via an online store and often do not have any employees or a lease. Often their most valuable asset is their IP, including their brand, product names, photos, copy, e-books, podcasts. These assets can be protected using intellectual property laws; most often under copyright legislation and trademarking. Some businesses may also have trade secrets eg recipes, design rights or an invention or patent. Of course, they need to be protected too.

Consumer law is crucial in e-commerce, because the Australian Consumer Law regulates online businesses, and you need to comply with the law; particularly in relation to online advertising, warranties and refunds. Advertising for your online store cannot be misleading or deceptive. And knowing when you have to and don’t have to give refunds is vital to the successful operation of your business.

Privacy is also important, and becoming more-so with the amount of data that is collected from consumers online. Businesses that collect email addresses should have privacy policies that comply with the Australian Privacy Principles. And businesses that collect email addresses of people who are EU citizens also have to comply with the General Data Protection Regulations, so an e-commerce lawyer needs to be across these issues. And e-commerce lawyers often know about IT law because they may have to draft agreements with web, app or other software developers.

So what is being an e-commerce lawyer like?

Exciting! As an e-commerce lawyer I get to talk to people setting up their businesses online every day. I get to draft terms and conditions for their online stores, for selling online courses, or setting up marketplaces. I also get to help them comply with Australian Consumer Law and Privacy Laws. And I get to help protect new brands. I get to see ideas planted and watch them grow, and nothing is more satisfying than that.

If you’d like the assistance of an e-commerce lawyer please book in for a free introductory consultation here. https://mumlawyer.com.au/product/book-us-now/

woman lawyer

We shouldn’t be losing intelligent, courageous, ambitious women lawyers

Being a woman and a lawyer has not always been easy. At law school in the early ’00s there were already more women than men studying law. But at the firm where I began working, first as a secretary, and then as a paralegal, I couldn’t help but notice that although there were similar numbers of male and female lawyers, there was only one female partner for the ten males. In fact all the senior positions were dominated by men, and I was one of many women who dominated the support staff.

But the natural progression seemed to be self-evident; eventually, as all of us became more senior, there would logically be more women lawyers as senior associates and then more women partners.

Right now, I’m looking at a recent AFR article, and women still only make up 27% of partners. Why is that? We’re losing intelligent, courageous, ambitious young women.

In 2020, this is absurd. Women law graduates now outnumber male graduates 2 to 1. And there have been around equal numbers of women graduating as men for the last 2 decades.

So why are there only 27% women partners? Because there is an unconscious bias that works against women lawyers every day when they go to work.  And it generally doesn’t rear its ugly head until…

Pregnancy…

Pregnancy changes everything.

It just does.

But so does fatherhood.

And so it should.

Having the responsibility to raise a child or children is huge. But why is it that in 2020, when a female lawyer announces she is having a child the response is still so very different to that of a male lawyer announcing he is having a child?

Few men complain that they are not taken seriously at work after they become fathers.

All pregnancy does is produce a child.

But what happens after that child is born is a matter for the parents combined.

Whether they choose to be two part time workers, two full time workers, or one part time one full time, or one stay at home and one working. These should not be gendered questions.  Particularly not after the first year. Its a conversation that should keep happening. If the couple believe it is right for the mother to stay at home for the first year, this doesn’t mean that this should be the same for the second year or thereafter. It’s a family decision.

But an unconscious bias permeates through most law firms. Preconceived ideas of child rearing responsibilities and domestic duty divisions. Ideals of equality and visions that might have been articulated by men and women about gender equality early on in their careers fall by the wayside. Falling pregnant and going on maternity leave seems still to affect the potential of a female lawyer to make partner in a law firm. In fact, the “advice”  – today mostly unsaid – but still there, seems to be make partner, then fall pregnant, or just don’t fall pregnant at all.

Hardly encouragement for women in an advanced society.

Being a lawyer is hard, I get it.

But so is being a parent.

And now that WFH is ok, and flexible working is ok, it’s clear that there is no one size fits all.

Pregnancy is not an illness.

It is not a sign of weakness.

In fact, it’s stimulation for more conversation and even better client relationships and networking. A child gives adults the opportunity to reflect, to learn, to empathise. It gives parents the opportunity to become expert time managers, negotiators, event organisers. It enhances productivity, and  demands parents see things differently…  hardly skills that can be pushed aside and ignored on the recruiting table today, when EQ and innovation are vital to success.

Having a child is not something that should detract from the ambitions of young women lawyers.

Pregnancy doesn’t mean that a woman is not looking to progress her career.

The two are not mutually exclusive.

Pregnancy should be celebrated, not just personally, but also in the context of a working woman’s life.

Then metrics should be used to determine if there are pay difference and differences in performance ratings within an organisation. Do these metrics differ by gender, or parents returning from leave? And is there any bias in recruitment or culture fit? Hiring based on someone you want to share a beer with after work results in a biased outcome. I look forward to the day when women make up 50% of law firm partners.

Only in this self-reflective way will there be a real culture change and compassion for all the intelligent, courageous, ambitious young women. In the words of Michelle Obama, “the measure of any society is the way it treats it’s women and girls.”

If you’d like to talk with a woman lawyer, particularly in relation to your business, feel free to contact us here. 

legal questions

The 3 most burning questions you want to ask a lawyer, but wont…

Over the years we have heard – through the grapevine –  questions that people desperately want to ask lawyers, but usually don’t have the courage to. If you’re thinking lawyers are expensive, full of jargon, or you can do the job yourself, this blog post is for you…

  1. Why do lawyers talk in a language I can hardly understand?

Lawyers can be forgiven for using jargon in the courtroom.  They might have to refer to a particular point in a particular case which can end up sounding rather foreign. Or they might have to refer to a particular section in particular legislation, which can end up sounding very formal. There are “affidavits,” “plaintiffs,” “claims,” and “exhibits”.  There’s even “my learned friend” and other wry and intimidating expressions.

But outside of the court room, there is really no need.

Affidavits can be statements, plaintiffs can be the person who is suing. The “gift of the gab” that may serve well in the courtroom, can quickly transform into arrogance and aloofness when talking with you, the client.

If you can’t understand what a lawyer is telling you, remind them that they, as a child used to have their bum wiped too. And, very likely by a strong, compassionate and intelligent woman who would not at all be impressed by them using big, fancy words. Get them to explain it to you in plain English. Plain English? Simple, easy to understand words in the English language.

Perhaps you could even go as far as to quote Einstein when he said “if you can’t explain it simply, you don’t understand it well enough”.  Certainly, one of the best ways to make sure you understand something is to try and explain it to someone else, and if your lawyer can’t do that, then well, perhaps they don’t understand it well enough.

You should also go so far as to ask your lawyer to use plain English when drafting your contracts. Sometimes there will be words that have a well known, tried and trusted legal meaning. That’s ok. But your lawyer should still be able to explain to you what they mean. Just like a doctor wouldn’t tell you that you have “squamous cell carcinoma” and leave it at that, a lawyer shouldn’t tell you you have “to give an indemnity and release” and leave you lost in thought.  (By the way, that’s tongue cancer).

  1. Why do they charge so much?

Lawyers bills are high. No doubt.

It is expensive to maintain a professional certificate to practice and to pay for continuing professional development. It is also expensive to maintain insurance and up to date technology. And it takes many years of experience to be able to quickly identify legal risks, advise on them, and find solutions which are tailored specifically to you. Of course, these expenses and experience come with a price tag.

There are also many, many factors that are out of control of the lawyer. It can be very hard to predict exactly how much work is needed to resolve a dispute or negotiate a deal. It depends on many, many factors, some which are totally out of your lawyer’s control. Whether an offer is accepted or not by the other party, or whether or not an appeal will happen are things that the lawyer cannot control. Even the most brilliant lawyer cannot control the outcome (whatever the cost). So billing clients by the hour, and an expensive hour at that, has been the traditional way.

But there is an alternative.

It’s good to look at the matters that are within a law firm’s control. For example, where will the lawyer lease premises? In the heart of the CBD, out of town, or not at all? And how do they value their lawyers? Will they be promoted because they bill more hours or because they perform quality work?

Look to value.

It’s good to look at whether your interests and values align. Whatever your values, you should look to a lawyer or law firm that marries up with those values. For example, it would be silly to use a law firm that has the expense of inner city rents if sitting in their nice office space is not something you value. If you’re just as happy to have an online conference, then look for an online lawyer. And high office rent does not necessarily equate to high quality work.

Look to fixed costs.

There are many new firms that are offering fixed costs.  This means they will not bill you by the hour, but rather give you a fixed price for the work they are going to do. Fixed costs will help you budget properly, so that you can be sure about what it will cost you; and there are no nasty surprises. When you are a start-up or just want to maintain control over your expenses this is a huge advantage.

Look to being proactive.

Being fined for non-compliance, or battling out a dispute in court is expensive. Even when you are getting good value for money, it is hugely expensive. But if you are proactive, and get your legals in order before things go wrong with well drafted, customised legal agreements you can minimise the likelihood of a fine or a dispute.

  1. Why should I use a lawyer when I can just copy my friends contract, or download a template, do it myself…?

Whoooo, ohhhhh, now we’re talking!

Downloading templates is fine, but templates don’t understand your industry or the specific way you run your business.

We often find people who have used templates that are drafted by overseas lawyers, or that are outdated, or entirely unsuitable. They sometimes mean that opportunities are left on the table, or business owners are making promises and obligations they really shouldn’t be making. A template is like prescription glasses, what is right for someone else may not be right for you.

Copying a friend’s contract is also fraught with danger.

Your friend may have used a template, or had their contract drafted for their business. Since every business is unique, it is very unlikely that everything that applies to their business will apply to you. Again, you could be making promises you shouldn’t be, or forgoing great opportunities.

Do it yourself?

We often see people DIY, then getting stuck and coming to us for help. Save yourself the initial trouble. There are good reasons why a lawyer drafts legal documents, a medical professional drafts medical documents, and a marketer drafts marketing material.

Want proactive, fixed cost, online legal solutions in plain English? Book your free introductory consultation here.

partnership or company women

Partnership or Company? Deciding difficult start-up questions…

When you start growing your business, or even right at the idea stage, you might consider setting up a partnership or company, rather than going it alone. Often two heads are better than one, and it’s easier to attract investors and creditors with these structures rather than as a sole trader. But a partnership relationship is not a relationship to be taken lightly… would you marry them?? A general partnership can be much like a marriage in that each partner is liable for the debts of the partnership. It will mean that you share equal rights and responsibilities surrounding the business operations and management, but also have unlimited personal liability for the actions and debts of the other partners and business. (This is most like a marriage!).

One of the best ways to make sure you protect yourself and make the relationship clear is to have a partnership agreement drafted. This will set out your relationship with each other, and really get to the nuts and bolts how it will work. For example, what amount of money is your partner allowed to spend on the business without telling you? And what amount of time and effort are each of you devoting to the business. When you go through the process of asking these questions it really highlights whether you are on the same page. It’s no fun being in a lopsided partnership where you feel like you’re doing all the work, and getting little back. Particularly at the beginning when the business hasn’t got a consistent cash flow. If things get tense, it’s much easier to go back to a written agreement to make sure your partner is holding up their side of the bargain. Having said that, many marriages would also be more successful with a written agreement where each other’s obligations are clear. “ I will cook 3 nights a week, and you will cook for 3, and we will go out to eat on the other night! “ etc. “Each person is responsible for their own laundry!” “Whoever undertakes the bathroom cleaning is entitled to a foot massage”. Ahhhhh!

A partnership is a cheaper and easier structure than a company to set up, and it has fewer legal requirements, and less regulation. However, a general partnership doesn’t come with the benefit of limited liability. So, if the partnership is in debt or is sued, all the partners are liable and may have to pay the rogue partner’s share. It also dissolves if a partner dies, unlike a company structure which remains.*

When deciding whether to set up a general partnership or company, usually people will set up a company because of its main benefit; the limited liability structure. Limited liability means that shareholders are generally not responsible for the company debts, and can limit their personal liability. This is especially useful if you have personal assets such as a family home or investment property.

A company is like another person; it is a separate legal entity to you as an individual. This in effect means that it can incur debt, and sue and be sued. You can set up a company to run your business so that your business is somewhat removed from you as an individual. Companies are set up with ASIC, and the laws that govern companies are set out in the Corporations Act 2001. These laws are extensive, and complex, so it is important that if you are unsure of any matters relating to your company set up or obligations you do see a lawyer.

A company structure generally involves directors who take control of the management and financials of the company, and shareholders who own the company. A director doesn’t’ need to be a shareholder and vice versa.  Some factors to consider if you decide to set up a company rather than partnership are the costs of set up, and the ongoing expenses for compliance and company tax returns.

You also need to consider what your obligations are as a director of the company. As a director some general duties include the obligation to exercise your powers in the best interests of the company. The primary duty is to the shareholders here. Then, there is the duty to ensure you can pay your debts as and when they become due. And you need to ensure you are properly informed about the financial position of the company and keep proper financial records.

The shareholders of your company will also have various obligations, including to pay any unpaid amounts on shares, and to comply with any obligations in the company constitution and shareholders agreement.  And they have various rights including the right to vote on key issues at shareholder meetings.

If you need assistance on deciding between a partnership or company structure; formalising a partnership, setting up a company, or drafting a shareholders agreement, please contact us.

*Note that there are other types of partnership, not just a general partnership.

online shopping laws

When do I have to give customers refunds for products they bought online shopping?

The Australian Consumer Law is the law that you need to comply with when customers ask for a refund for online shopping. The law gives consumers rights or guarantees in relation to your products. These include that each product must be of an acceptable quality, that it matches the description you provide, and if you give any additional warranties they will be honoured, amongst other matters*. It’s important to know your obligations under the Australian Consumer Law, because the ACCC can issue fines for not complying.

Products of acceptable quality

The law tells us that the products you sell must be of acceptable quality, which means that the products do the things a customer would expect them to do. For example, if you sell women’s clothing online it must be wearable! And the garment must be free from faults (zippers and buttons must work), safe (not highly flammable) and durable (can’t fall apart after the first couple of wears). If there are potential issues that you see, make sure you inform the customer accordingly. Say you sell distressed jeans (ie purposefully ripped) you should make sure your description matches the garment, so it is clear that the rips, or any intentional fading are not a fault or defect in the garment. Customers are more vulnerable when online shopping because they cannot directly see, touch and feel the product, so they rely on you to make sure they are of acceptable quality.

Description match

It’s pretty simple to make sure the products you sell match the description you provide, but you do need to take some added precautions when selling online. For example, if the picture you give is of a blue shirt, you can’t deliver a pink one, and if you say with your baby carrier that “no insert is required”, then the product should be suitable for a baby without using an insert. If you try to be as accurate as you can in your descriptions, you should be able to comply with this easily. However, if your product does not match the description you provide when a customer is online shopping, you will need to give a refund. This is particularly important when you run an online shop, because customers cannot feel and touch the products, so they rely entirely on your product description to assess the product.

Suitable for the purpose a customer tells you

If a customer tells you that they need a product for a particular purpose and you say it is suitable for the purpose, then it must be suitable or they are entitled to a refund. For example, if a customer tells you they need a wheel for their pram, and you tell them that the wheel you sells works with that particular pram, they are entitled to a refund if it doesn’t work. When a customer is online shopping and purchases a product that is not suitable (provided they told you their requirements), then the customer is entitled to a refund.

Samples and demonstration match

The law requires that where you offer any samples or demonstrations of products to a customer, the actual product must match. So, if you give a potential customer a sample of makeup or lotions to use, the products you supply must be the same. Or if you show a potential customer what some cleaning cloths can do, the products you sell should be able to clean in the same way. Where you have a bricks and mortar store in addition to online, if a customer sees a product in store, and orders the same when online shopping, be extra careful to ensure you provide them with the matching product.

Extra guarantees

Sometimes you may offer express warranties, such as that some wellington boots are “guaranteed to be waterproof.” It really is common sense, but if they are not waterproof, then you will have to give the customer a refund. Be careful when giving extra guarantees. Guarantees like a “happiness guarantee” can be very vague, and you may end up giving more refunds for unhappy customers than you intended. It’s tempting to offer customers extra guarantees for online shopping, particularly where the trend for e-commerce is growing quickly, so offer them with care.

Terms and conditions

The best way to ensure compliance with the Australian Consumer Law for your online shop is to make sure you have terms and conditions of sale that include clauses that comply with the law. That way you can refer back to the terms whenever someone asks for a refund.

Just as it is important to know when you need to give a refund, it is just as important to know when you don’t need to give a refund, and your terms of sale will help define when you don’t give refunds. For example, where a customer changes their mind, then you do not have to give a refund. And if a customer sees a cheaper product elsewhere, you do not have to give a refund.

Where a customer damages the goods by using them in a way that was abnormal, where they have misused them, not followed instructions, or not taken reasonable care you also do not have to provide a refund. You can also require a proof of purchase before giving a refund, however you cannot demand that a customer return it in the original packaging.

Where all these matters are clearly set out in your terms and conditions you have a rulebook you can refer the customer to, and help with the smooth running of your business. Your customers can enjoy their online shopping experience knowing that you are compliant with the law.

If you need assistance in drafting your terms and conditions to ensure compliance with the Australian Consumer Law, please book a free 20min consult here.

*There are also some obvious guarantees relating to title – that you the business has the right to sell the goods, and that no one will try to repossess them, and there are no security interests in them. And some additional guarantees such as those for manufacturers who need to be able to guarantee the availability of repairs and spare parts.

coronavirus legal

Pivoting your shop online – legal considerations

With coronavirus, you may have decided to set up an online store, or are considering doing so, but you need to know how selling online differs to selling in a bricks and mortar shop. Pivoting your shop online raises various legal matters you need to be aware of. You’ll be engaging in e-commerce, and this blog will give you a brief overview of the main legal considerations.

Product descriptions for your online store

Customers cannot physically touch your goods of course. So the product descriptions, and any images of your products on your website become an essential part of your customer’s experience. Where you upload pictures of your products, you may find that the pictures of the products are not the same as the actual product, and the pictures themselves will also differ on your screen to those seen on the screens of your customers. This is why it is a good idea to state the colour of the product. Keep in mind that customers also cannot feel the texture of the products now, so you may want to also describe their texture. But it is really important to ensure that any descriptions you write on your website are as accurate as possible, and the images you post are also as accurate as possible. In fact, the Australian Consumer Law states that descriptions of your products cannot be misleading to customers, so you must at all times describe your products as they are.

Setting prices in your online shop

When pivoting your shop online you should can use the same prices that you have already been using in your bricks and mortar store. However, if your goods are in high demand because they are vital to the health and safety of customers during the pandemic, it maybe unconscionable to set a high price. There have been laws passed in relation to excessive pricing of face masks, hand sanitiser and similar items, so make sure you are compliant in this regard. Any prices you post should also be accurate to comply with the Australian Consumer Law. Pivoting your shop online involves some work, but you may find that with so many customers online at present you may even have an increase in sales. And, the benefits of e-commerce may help you not just during the pandemic but long into the future.

Online store orders and payment

Of course customers can’t just pick up their item and take it to the checkout;  they will need to place an order online. When you are selling in your shop, it is usually obvious to your customers if you have run out of stock, but a customer cannot see this online. So, it is often a good idea to alert them to products that are low in number. If a customer pays for an item and you run out of stock you will need to refund them in full. You also cannot publish that you have more stock when you don’t or limited stock when you don’t as this would also be misleading your customers. When organising a way for your customers to pay for goods, you should ensure that you have a secure gateway. There are many secure options available today, but have a look at the fees, and ensure there are anti-fraud features built into the option you choose. E-commerce needs to be safe and secure for your customers.

Delivery from your store

When you sell products in your physical shop, a customer walks away with it. There are usually no issues as to receipt of the product. However, online shopping by its nature involves delivery, and in many respects the delivery is outside your control (unless you choose to deliver yourself). Whilst you should publish accurate delivery times and charges as much as possible, you will not have control over any late, lost or stolen deliveries. Having properly written terms and conditions including disclaimers will ensure you are not liable for any delivery issues. These terms and conditions should state that delivery matters need to be resolved with the courier company (usually Australia Post). For more expensive products you may want to give customers the option to purchase insurance for the delivery, or offer registered post.  This is even more important right now, as we are hearing that there have been many products go missing in the post during the pandemic.

Refund considerations for e-commerce purchases

The Australian Consumer Law applies equally to sales that are made online as they are to sales that are made within your physical shop. This means that your products come with automatic consumer guarantees such as that they are not faulty and match the description provided. If a product breaches a consumer guarantee you will need to provide a refund. Where you have sent the product to the customer wrapped in beautiful packaging, they do not need to return it to you in that packaging to be entitled to a refund. You can, however, request proof of purchase. Your website should have terms and conditions for your online store on it so that customers know how orders, cancellations, delivery and refunds work. This is important because in many situations when pivoting your shop online, you will not be able to offer the same level of customer service that you can in person. Perhaps also consider some additional methods of communication, such as online chats for your e-commerce store.

 Important legal documents for your online store

When you start selling online you should make sure you have 3 main legal documents. Firstly, you should have some general website terms to help protect your brand, trademarks, copy and images, and protect you if there are errors or viruses in your website.  Secondly, you should also have some “terms of sale, or “online store/shop terms and conditions” which set out various rules for how your shop will work; how orders, payment, delivery and refunds work.  These terms should help you comply with the Australian Consumer Law, and also limit your liability. Thirdly, you should also have a privacy policy because when customers are dealing with your store, you will likely be collecting their personal information. You can take a look at our online store package which includes these important three legal documents here. 

If you need any legal assistance setting up your store online, or want to speak with an e-commerce lawyer please feel free to book in a free 20min consultation.

coronavirus legal

Legals for Small Business during Coronavirus

To say these are difficult times for many small businesses is an understatement. They are “unprecedented” times, and lawyers of course like precedents. However, we are always encouraging small businesses to be proactive. We are also always encouraging you to develop strong business relationships to minimize the likelihood of disputes.

With some courts closing temporarily or being restricted in their ability to deal with disputes, strong business relationships are now more important than ever. So if you are not already, get talking.

There are many legal issues that arise from coronavirus. How for example can we maintain a safe workplace at this time? Who determines what is safe, when everyone has the same predicament?

There are also new laws being passed now faster than ever. And we wont attempt to go through them. However, we have drafted this article, legals for small businesses during coronavirus, to help you in a simple way get through the coming weeks and months. Being proactive will help enhance your chance of business survival, which in turn will help your community.

DEALING WITH SUPPLIERS

What are your legal obligations under contracts with your suppliers? For example, do you have requirements to make minimum orders? And are you able to keep complying with them? If so, for how long? If you need to change things, contact your suppliers now and start communicating with them. Ideally get a lawyer to draft any variations, but at least get any changes to your contracts in writing.

What about the suppliers’ obligations to you? Can they continue to perform their obligations? Will your supply chain be interrupted? Or has it already? Are there other sources of supply? Start communicating with your suppliers now to see how they are affected by a coronavirus, and again get any changes to contracts in writing.

Some businesses have already pivoted and sought new supplies, like the many restaurants now offering takeaway, and health practitioners delivering online. And others, have amazing stories, like fashion brands now retooling to manufacture surgical facemasks and gowns, and car manufacturers making ventilators. We know what the problem is right now, work out ways you can be part of the solution.

DEALING WITH CLIENTS/ CUSTOMERS

What are your legal obligations under your contracts with customers and clients? Can you continue to deliver your products and services as they are? If so, for how long? If you can’t deliver, or need to change your products and services somewhat eg online classes or limited stock, notify your clients and customers of the changes asap. Talk to them. If you are still open for business, tell them, and if your products and services are changing, tell them. As small business owners we are all entrepreneurs; now is the time to be creative and innovative.

Do you know your obligations in relation to refunds and cancellations? If not, have a look at the ACCC website for more information. They are constantly updating their information for small businesses and consumers during this time. Be kind, but also be wary; giving refunds when you don’t have to may not help the survival of your business. If something is canceled because of government restrictions, this impacts business and consumer rights under the Australian Consumer Law.

DEALING WITH BANKS, FINANCIERS, AND LANDLORDS

There have now been some relieving announcements; including that banks will defer loan repayments for 98% of businesses affected by coronavirus for 6 months. Nonetheless, you should still assess if you can keep making your repayments and if not discuss it with your bank. If you agree on any changes ensure that all the changes are in writing. You can stay up to date here so you know what’s going on.

There has also been an announcement that there is a moratorium on evictions for businesses impacted by rental distress due to coronavirus. You can have a look here for more information.

And there are some temporary changes of bankruptcy and insolvency laws which you may like to keep up to date with and you can find more information here.

DEALING WITH INDEPENDENT CONTRACTORS AND EMPLOYEES

If you have independent contractors or are outsourcing, have you rearranged your staffing levels? Start talking with your contractors now about whether they are needed or not, and if they are, for how long?

And perhaps the elephant in the room, are you protecting your workers from coronavirus?

You have an obligation to keep a healthy workplace during this time, and you need to ensure you can do so. This involves encouraging people to following guidelines from World Health Organisation on infection control, including cleaning hands, covering mouth and nose, and avoiding close contact with anyone with fever or cough. You also need to ensure any employees notify you of potential contraction and seek medical attention urgently; that they stay away. You can require them to provide medical certificates and medical clearances. You should do a daily risk assessment of your business operations during this time, and of course anyone that can work from home, should. There is also some great information on the Safework NSW website here. 

If the government orders your business to fully shut down due to COVID-19, and your employees can’t usefully be employed, you may be able to stand them down without pay. BUT this area of law is complex. You need to be very careful and seek legal advice.

A lawyer will look at the modern award, enterprise agreement or contract of employment, and they will establish if coronavirus is the real reason for the stoppage. They will consider whether there other opportunities for the employee(s) to be useful.

If there is a slowdown, and you want to shut, you will need to keep paying your employees, but you can discuss if they will use their leave, reduce their hours, or offer redundancy. Keep in mind that paying your employees is your obligation. But there have been some innovative measures in place such as where one CEO of a company discussed what he should do with each individual employee, and they came to a solution together.

DEALING WITH THE COMMUNITY – HEALTH INFORMATION AND GIVING HEALTH ADVICE

Unfortunately the importance of collecting and disclosing personal information properly and in compliance with the Australian Privacy Principles is often overlooked at times like these. If you are in the health industry or are collecting information on people’s health you still need to comply with the Australian Privacy Principles. There is some great information about the continued privacy obligations of businesses issued by OAIC here. 

And if you are providing health advice on coronavirus, perhaps on a website, or via email or socials or elsewhere, you should ensure you have adequate disclaimers in place. In many ways it is unchartered territory; you don’t want to find people relying on that advice, and making a claim against you because of it.

We all need to comply with privacy obligations in terms of collecting and disclosing personal and health information during this time.

SOME SANITY CHECKS

This is really a high level list of legals for small business during coronavirus, and the laws are changing rapidly. So please, make sure you get some current legal advice which is specific to your situation. Getting up to date legal advice is more important now than ever.

There are also some sanity checks you can do…

  1. Subscribe to keep updated with the government stimulus packages and any additional offers you can find (such as Facebook marketing). If it is not automatically forthcoming, make sure you make the required applications.
  2. Check your contracts to see if they have envisaged the scenario of a pandemic. This is usually in the form of a “Force Majeure” clause. If you can, get a lawyer to review your contracts and vary them asap, and certainly any new contracts should be written with consideration of the changed world we now find ourselves in. (Whilst the doctrine of frustration may also be applicable in some scenarios, we strongly suggest you seek legal advice).

We provide contract drafting and review services and you can read more here.  Or book in for a free 20 minute consultation here.

Stay healthy, stay safe.

The Mumpreneur Lawyer

A Personal Welcome!!

We made it!! And you made it here!!

I’m so pleased to be able to introduce you to our new website. I think you’ll find that there are some rather useful legal resources for you in the way of legal guides which will gradually be released. They are for online stores, VAs, life and business coaches, marketers, social media managers, and more.

It’s certainly been a big project, but I think it showcases our services, and our online packages well. There is so much value to be had on our website visitors, and if you are unsure of what you need my team and I are always here to answer.

Have a look around, and if you haven’t signed up already please make sure you do to keep in touch.

Davina Borrow-Jones
The Mumpreneur Lawyer