What You Can and Cannot Trade Mark in the UK

It is the secret terror of every new and existing business — getting sued! Even if you have expert legal counsel by your side and win any ensuing legal battles, the costs of lengthy litigation can be crippling for startups. Recouping those costs as a result of a victory does nothing for your business if it went under meanwhile because of dried-up cashflow and the inability to borrow more money. Iron-clad contracts and legal documents are an absolute must for new and existing businesses. Hiring lawyers to put these together has, historically, been a costly affair. But it is now possible to purchase standard legal document templates which take care of most of your legal requirements, needing only minor touch-ups to adapt them to your business. Below is a list of some of the legal documents your business might need in order to avoid expensive litigation. Such documents don’t guarantee that someone won’t try and take legal action against you for any perceived wrong. But they do guarantee that all agreements are written down and agreed to by all parties, either making litigation futile or quickly resolved. Let’s take a look at some of the legal business document templates that you will need in your startup. (We must mention that none of the following can be taken as legal advice. Please consult with a professional for any specific advice related to your company and situation.) Non-Disclosure Agreements (NDAs) Recently a hot topic in the news, NDAs are a mainstay of the business. Non-Disclosure Agreements are typically used to protect company secrets which could cause damage to the company if disclosed. There are different degrees of NDAs, and the wording for each depends on what degree of strictness each party wishes to apply to confidential information. Some NDAs specify that anything with the word “confidential” on it should be treated confidentially. These are fairly loose in their rigour. Others, however, delineate that any and every exchange between the parties involved must be kept in strictest confidence, even going so far as to specify the minimum degree of financial damage and liability that revealing such information might lead to. NDAs tend to be difficult to enforce, and there are people who simply refuse to sign them. Utilising an NDA really depends on the nature of your business and whether the loss of information might cripple it. Our advice is to use NDAs only when essential. Consultancy Agreements If you work with freelancers and contractors who are not employees at your company, it might be a good idea to utilise consultancy agreements. A consultancy agreement specifies the terms of the relationship between your business and the contractor or freelancer. It is imperative that contractors not be treated as employees; otherwise, both you and the contractor might end up suffering. Being “inside IR35” means the contractor will walk away with less money and that you will need to pay taxes on the work the contractor does for you. Red lights that might make HMRC consider a contractor to be inside IR35 include: A consultancy agreement should clearly delineate a contractor’s responsibilities, what is expected of them, a payment schedule and invoicing terms. A fixed working schedule An email address for the contractor which works off your company’s domain A desk or fixed place the contractor is entitled to use at your office.   Employment Contract Employment contracts are vital to protect both the employee as well as the employer. An employment contract states very clearly what the legal relationship between employer and employee is, expected duties, wages, non-competition clauses, non-solicitation agreements and sometimes even a confidentiality agreement. Another important thing to include in employment contracts is a time-off policy. This should include information on paid vacation days and whether or not these accrue; sick days, family emergencies, maternity and paternity leave, etc. In a post-COVID world, it is advisable to include information regarding what is expected of an employee in case they show symptoms of illness. Also, a work-from-home or flexi-hours policy should be well defined and delineated. There are other elements that can be included in an employment contract, but the above cover the essentials. Fire Risk Assessment Forms Often overlooked, fire assessment forms are crucial to show that you, as the employer, are taking sufficient precautions to ensure your employees are not put in any danger. It is the responsibility of an employer to carry out a Fire Risk Assessment on the premises and to regularly review it. The findings of such an assessment would then be noted in a Fire Risk Assessment Form. Fire Safety Evacuation Procedure Document As the person responsible for ensuring that employees are not endangered at work, it is incumbent upon the employer to provide a proper fire safety evacuation procedure document that all employees can view and understand. The document — usually hung up on a wall where it is prominent to see — must show clearly where the escape routes are, the emergency doors that are easy to open, a secure meeting point for staff, etc. Invoices An invoice is often overlooked as a legal document. Failures to comply with the basic requirements of what goes on an invoice might result in unforeseen liabilities such as unpaid bills or additional taxes. By law, an invoice in the UK must include: Your company’s name, address and contact info A clear description of the item being charged for The date The amount being charged A unique number The company name of the company being charged The address of the company being charged The supply date of the goods or services If applicable, the VAT amount The total amount which is due. Sole traders must include their name as well as the business name they are using. The invoice must also include an address where legal documents can be delivered. The business name of a Limited Liability Company must be the full name, as it appears on the company’s certificate of incorporation. VAT invoices require even more information to be included, depending on whether you are issuing a “full VAT invoice” or a “simplified VAT invoice”. Service Agreements/Service Contracts Service Agreements are crucial elements of business in order to delineate very clearly what is expected of a service provider. These service agreements are sometimes also called Service Contracts. These agreements delineate the full terms of the service which is about to be undertaken, specifically: The extent of the service The expected final product of the service Amount to be paid Expected payment date As well as any other detail which is pertinent. Service Agreements can save a tremendous amount of hassle if the relationship goes south and a disagreement ensues. It is always best, in business, to try to take the high road and avoid unnecessary scuffles with clients. But these things can happen despite one’s best efforts to prevent them. When they do happen, it is essential to have a Service Agreement in place in order to have a valid claim for any funds owed. Service Agreements can be written specifically for B2B or B2C services., Supply of Goods Agreement When a supplier enters into an agreement with you to supply goods, a “Supply of Goods Agreement” (or “Contract”) is necessary to ensure that the terms of supply, payment and details of the goods themselves are properly laid out. These agreements can be worded in such a way that they are more favourable to the supplier, to the purchaser or to both. Whichever method you use, it is vital to have all information down in writing and signed and agreed to by all parties. The larger the purchase, the more crucial it is to have these conditions set down in writing so as to prevent loss of income in case the supply of goods does not match the order. Such a contract is, ideally, begun with clear definitions of the meanings of terms and words used throughout it so as to avoid ambiguity. Privacy Policy In this world of Data Privacy Regulations, privacy policies are vital to ensure your business is not slapped with heavy fines for violations. If you service any clients from the EU or retain any data of EU citizens, it is vital that you adhere to all General Data Protection Regulation (GDPR) mandates regarding how that data is stored and handled. Additionally, you are required by law to inform customers clearly regarding how this data is stored and processed, in your Privacy Policy. You are also required to provide the name and details of any “Data Controllers” in the privacy policy, as well as a way for customers to contact you regarding their privacy concerns. Europe is not the only jurisdiction with strict privacy regulations in place. California has the newly enacted California Consumer Privacy Act (CCPA) which came into force in 2018 and was updated in 2020. It has been compared in severity to Europe’s GDPR. Australia does not legislate specifically regarding online privacy, but it does have several privacy laws in place that must be adhered to when conducting business online. No-doubt, further laws will be enacted, requiring that businesses provide clear, easy-to-understand and thorough privacy policies on their websites. Not doing so can be unnecessarily costly. Advisor Agreements Sometimes a business mentor will charge for their services. Professional advisors and coaches who make their living from advising other businesses, certainly do. Just like any other agreement with suppliers and service providers, it is imperative to delineate the details (including deliverables, expected remuneration and payment terms) in an advisor agreement. Sometimes, the remuneration is in terms of equity or a share of the company’s profits. At other times, it is a fixed fee. In either case, how the advisor is going to be paid, and when, should be spelt out in unambiguous language in order to prevent potential legal difficulties down the line. As with all matters in business, things can be rosy and optimistic in the beginning. But, once the honeymoon is over and the “long haul” begins, one only has contractual terms and written agreements to fall back on. Make sure all those agreements and contracts are solid. Website Disclaimer People often mistake website disclaimers, terms and conditions (or “Terms of Use” or “User Agreement”) and privacy policies. They are each different things. In a nutshell, the purpose of a website disclaimer is to limit the liability of the website owner(s) for any information presented or services and features provided through the website. Sometimes, terms and conditions contain a disclaimer clause. As with all legal documents, there is no “one-size-fits-all” option for disclaimers, although many follow a similar template. The best disclaimer is one that fits the needs of your business perfectly. Disclaimers can contain language intended to dissuade people from copying content on your website and using it without attribution. A disclaimer can also be used to inform users on the limits of your knowledge (e.g. something to the effect of: “You understand that the information on this website is not written by experts but merely offers an opinion of matters and should not be considered as professional advice.”) If you have third parties involved in your website (e.g. advertisers or guest bloggers), it is important to disclaim any liability on their part as well. You can also add disclaimers on your website that apply to your social media accounts. Terms of Service/Terms and Conditions/Terms of Use/User Agreement The Terms of Service (“TOS”), Terms and Conditions (“T&C”) or User Agreement specifies the agreement a user automatically contracts into by using your website. Terms of Use are essentially a legal contract that can be enforced by law. T&Cs will often be worded in such a way as to indicate agreement to the contract “by continued use of this website”, but it’s important to know that enforcing such “contracts” is unlikely to be very successful. Legally binding contracts require an explicit agreement between the parties involved. Enforcing T&Cs and User Agreements becomes much easier when people take some action on your website, which requires them to give their name and then to explicitly agree to the terms, such as: Purchasing a product (such as on an eCommerce website) Registering an account on the website. These T&Cs are absolutely enforceable, and this then becomes one of the most vital legal documents that you must have in place if you provide an online service or product. Health and Safety Policy Businesses in the UK are required to have a Health and Safety policy. If your company has five employees or more, then this policy needs to be written down. Your business’s Health and Safety Policy needs to assure employees that you are committed to their health and safety. Specifically, it must let employees know who is responsible for health and/or safety in the workplace and what plans you have to make the workplace 100 per cent secure and safe for employees. Such a policy has become even more vital in these post-COVID times. The policy should lay out precisely what actions you are taking, which will eliminate any health and safety hazards and risks in the workplace. By “hazard” and “risk” are meant anything which can cause harm to people. This could be in the form of dangerous chemicals, electrical hazards, industry-specific risks (such as in construction sites), etc. Part of eliminating these hazards can include training staff, hanging up signs in the workplace that indicate hazardous areas or which inform employees of anything related to keeping the workplace conducive to health and security. In a post-COVID world, such signage might include signs to remind employees to wash their hands or to observe social distancing. GDPR — Due Diligence Checklist The legal documentation required to comply with GDPR (“General Data Protection Regulation”) is quite staggering. We won’t cover all the documents here, but rest assured that our Legal Document Templates package contains all the GDPR documentation you need to ensure your company is in compliance with GDPR laws. GDPR violations can lead to stunning fines. This fact has been used by many unscrupulous individuals to scare businesses into buying their products which purportedly make that business “more GDPR compliant”. But it’s important to understand that the most severe penalties would apply to companies that are in egregious violation of GDPR policies. One of the factors that courts take into account in reviewing GDPR cases is how much due diligence was taken by the company to protect private user data. We live in a world where, unfortunately, the theft of online data has become rather commonplace. Even companies that take the utmost care to protect user data are still at risk from ever-advancing technology and methods to pilfer digitised information. To this end, it is imperative that you show the courts that you’ve done everything in your power to ensure that user data was kept and maintained securely by you. Enter: The Due Diligence Checklist. Such a checklist takes the guesswork out of ensuring your business is GDPR-compliant. By simply following each point of it, you will be moving your business closer and closer to compliance. And you will also be able to show the courts — in the event of any litigation — that your business takes privacy seriously. This can go a long way in mitigating penalties ensuing from data breaches. Other GDPR Documents Some of the other GDPR legal documents you need are: GDPR and Data Privacy Strategy document Data Security Policy Information Audit Document General Data Protection Notice Data Classification Policy Controller Processing Activities Document Retention and Erasure Policy Privacy Notice and Consent Document Due Diligence Checklist Subject Access Request Form Data Breach Policy Document Lawful Basis for Processing Document Employee Consent Document About author Julia Richards Our head of content, Julia has spent the past 20 years assisting entrepreneurs with all aspects of business launch and growth strategies in various industries around the globe.

Too many startups underestimate the importance of having professional legal support in their business. Legal support is one of the two services that every startup absolutely must-have when it is starting out. Unfortunately, lawyers tend to be pricey creatures, sometimes charging several hundred pounds an hour for the simplest of services. This article lays out some cost-effective options for obtaining legal advice for your startup or new business. But first, some basics: Why legal support is essential for business success Running a business is probably 40 per cent accounting, 40 per cent legal, and 20 per cent everything else. Sure, you need to market and conduct sales to get in business. But what if the sales you got in are not adequately described in an iron-clad business contract? What if that incredible marketing campaign you just planned happens to infringe on someone’s trademark? Or what if the marketing action requires certain permissions, as in the case of flyer distribution, and you didn’t know about these restrictions? Having a lawyer to hand to ask for advice on each of these matters is crucial. It is also imperative to be well stocked up on multiple legal business documents so that you don’t have to go to a lawyer for every single new client you get on board. The plethora of things that can go wrong for failing to stay up-to-scratch on your business’s legal needs can include: Tax non-compliance Failing to meet contractual obligations (this could occur in any department of the business) Failure to comply with employee-related laws, especially laws on discrimination Failure to comply with any newly enacted laws Cost-effective legal solutions for a business Fortunately, there are alternatives out there. Just as the medical profession is now changing to a telemedicine and telehealth model where you can visit multiple practitioners simply by using the video camera on your phone, so is the world of legal services adapting to meet the needs of a more tech-savvy generation. Free online legal advice The first option available is, of course, the internet in general. The internet is loaded with articles and how-tos and videos offering legal advice. Many of these articles come with bold disclaimers on them, explaining that their advice should be double-checked by a professional. Our recommendation is to use such freely available information with due caution. Cross-reference everything you read and verify that the information really is correct. Even so, such a method of seeking legal “advice” should only be reserved for the most mundane and general of subjects, never for active litigation where the advice of a legal professional is crucial. Hunting out the internet for business legal advice has other flaws: It can be terribly time-consuming. Often, much of the information found applies to a different country, especially the USA. Legal terminology makes understanding such information difficult. Many of these articles are written in “legal-speak” (unlike our own legal help articles here at Start My business, where we try to give legal advice in plain English). Government Website The UK government’s website is a fantastic place for legal advice relating to businesses based in the UK. The main pro about this website is that it is guaranteed to be accurate. The website is, however, a little complex to navigate and read. The website doesn’t seem to make too much of an effort to offer advice in “plain English”, either. Legal advice from banks Some banks offer legal advice or some kind of package that covers your legal fees. Barclays, for instance, offers legal insurance for a variety of legal costs. (Although there is no pricing on their webpage as of this writing for such insurance, which is always a red flag when it comes to looking for something affordable.) Some banks have a page of information dedicated to legal tips. Again, such info is usually reliable, but the legalese can be difficult to wade through. Legal clinics Legal clinics are a way for law students to gain experience in working with real-life cases. These clinics often require you to make an appointment and then to drive to their offices to have a face-to-face meeting. Different clinics specialise in different aspects of the law (business, family, child, etc.) so you might need to do some hunting to find a clinic near you that offers you the business advice you need. Of course, in this world of fast-paced services, waiting for an available appointment can be frustrating if your legal issue is urgent. Legal clinics tend to specialise in pro bono work. Legal advice helpline The world has gone digital. Also, with new restrictions in place as a result of needing to curtail the spread of disease, meeting in person is now more cumbersome. A legal advice helpline is the ideal solution for businesses who are seeking legal advice, provided the helpline matches the following criteria: It is affordable. You can speak to an accredited solicitor. It is available 24/7. The main problem with many of the aforementioned services is that they do not put you in touch with  an accredited, professional and experienced lawyer. The second problem is that they can be slow if you need to wait for an available appointment. This can often also be true of making an appointment with law firms. The Start My Business legal advice hotline is available 24/7 and will put you in touch instantly with a legal professional who is qualified to give you legal advice instantly. About author Julia Richards Our head of content, Julia has spent the past 20 years assisting entrepreneurs with all aspects of business launch and growth strategies in various industries around the globe.

One of the first questions we hear from people starting a business in the UK is whether or not they should trademark their business name. Well, you can’t. But you can trademark a product or service. Trademarks are complicated beasts, and successfully registering a trademark only protects in you the country in which that trademark is registered. If you plan on running an international business, then you might need to register your trademark in multiple other jurisdictions. This is especially true in China, where trademark theft is rife, and the legal system offers little protection. What is a trademark? A trademark is any mark that uniquely distinguishes one business’s products or goods from another’s. The mark can be a word, symbol, colour or combination of colours, sound, etc. Each jurisdiction has its own rules for what precisely can be trademarked and what cannot. For example, in the USA and Australia, it is possible to trademark a unique scent. (The scent must be able to be described using words, though.) Some jurisdictions even allow you to trademark plants. In Australia, a particular style of jumping is trademarked by Toyota — it is called a motion trade mark. Yes, it’s a bit of a crazy world. But that doesn’t change the law and your rights within that law. What can you trademark in the UK? The UK is fairly limited in what one can trademark compared to other, more liberal jurisdictions such as Australia and the USA. In the UK, one can trademark: Words Sounds (e.g. this sound from Intel) Logos Colours (Castrol has registered its special shades of green and red. Cadbury tried to register its special shade of purple, but this was contested quite forcefully by Nestlé who eventually won the case at the highest levels.) A combination of any of the above   Can you trademark a domain name in the UK? A company name and domain name cannot be registered as a trademark. Owning a trade mark doesn’t automatically entitle you to that particular domain name. This matter has been the source of many lawsuits over the decades (especially on the part of Microsoft). And, of course, if you register a domain name with an accredited domain name registrar, that doesn’t automatically give you the right to trade using that name. The only way to obtain the rights for your trademark is to properly register that trademark in the UK as well as in any other jurisdiction in which you plan to sell your goods. What can you not trademark in the UK? In addition to domain names and company names, the UK’s Intellectual Property Office (IPO) specifies the following items as taboo for trademark purposes: Protected emblems and symbols such as: Flags Hallmarks Other State emblems# Official signs Armorial bearings (coats of arms) What is the procedure for registering a trademark in the UK? Most countries have a fairly similar procedure for registering trademarks. The UK’s specific procedure is: Search existing databases to see if the mark is already trademarked. Determine the class for the mark. (The UK, like most jurisdictions, uses the Nice classification system). File the application. The IPO can then raise objections on the basis of deficiencies in the filing. These are replied to by the filer or their representative. The time frame for the above: About one month. IPO raises official objections if any. Filer furnishes arguments against the objection. If the arguments succeed, the filing continues. Time frame: About 3 – 5 months. The registration is published. This is followed by a two-month period (extendible to three months) in which any opponents may file an opposition to the trademark (as happened between Nestlé and Cadbury when the latter tried to register its special shade of purple). If there is no opposition (or the opposition fails), then the mark is formally registered. Once a mark is formally registered by the IPO, the owner has full legal rights to defend against its use and abuse by others. First-to-file vs first-to-use The UK uses a first-to-file policy with regards to trademarks which means that rights are conferred only on successful registration and not on previous use. This is in contrast to the USA, which uses the first-to-use policy. That means that the first person to use the mark has a right to object to it being registered even if they have not filed for registration previously. There are pros and cons to both systems. First-to-file systems can lead to abuse and the loss of rights simply for failing to register a mark that one has been using for years. Whereas as first-to-use policies can lead to frustration (and lawsuits) as a result of marks being unknown until much later because there is no central database to search for marks. About author Julia Richards Our head of content, Julia has spent the past 20 years assisting entrepreneurs with all aspects of business launch and growth strategies in various industries around the globe.

Unfortunately, the world of “legalese” tends to close out understanding from people who do not work in the legal profession. Here at Start My Business, we operate on the philosophy that everyone should be able to understand and take care of their business’s legal issues without the need to call in an expert lawyer. In this article, we will explain the often misunderstood concepts of: Patent Inventorship Patent Ownership Authorship What is a patent? Firstly, what is a patent? The Oxford Dictionary defines a patent as: “A government authority or licence conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention.” There’s an important word in that definition above which is key to understanding these concepts. That word is invention. A patent is, basically, a license or authoritative document from a government which gives an entity the sole right to make, use or sell an invention. When a legal entity files for a patent and gets it approved, that gives that entity (a person or corporation) the right to take legal action against any other person or corporation that is trying to make, use or sell that specific invention. What is Patent Inventorship? Who invented the item or process being patented? This is a matter to be determined before — and sometimes during — the patent application. One thing is certain: The inventor of a product or process is always a natural person. The inventor is never a corporation or a company. Thomas Edison was an inventor. Nikola Tesla was an inventor. Benjamin Franklin was an inventor. All these inventors were people, not organisations. A good example of an inventor who did not immediately gain the right to commercialise and protect his invention is Shane Chen, the inventor of the hoverboard. What is authorship? Authorship applies specifically to artistic works, more specifically to written works — journals, essays, books, etc. Authorship is a subject dealt with under copyright law. Inventorship is a subject dealt with under patent law. Here are some important concepts to understand: Authorship relates to authored works. Inventorship relates to inventions. Establishing who the inventors of a process or product are can often be a fairly subjective and complicated process. Establishing who the author of a publication is, is not. Either someone wrote something that was published, or they didn’t. The biggest problem with not naming the correct inventor in a patent is that it can make the patent unenforceable if litigation ever ensues. It is quite common that parties attempt to invalidate a patent by challenging the validity of its stated inventorship. If a party does manage to prove that the inventor (or inventors) named in a patent are not the true inventors, the patent can be rendered null and, therefore, unenforceable. Work for Hire It’s important to understand the concept of “Work for Hire”. Often, an author or inventor transfers their rights to their invention or authored works because they have specifically signed a contract doing so. An author who creates work “for hire” automatically transfers the copyright for that work to the entity which has hired them. In the case of an inventor, nothing can ever change the inventorship of something, not even a contractual clause, but contracts almost always transfer ownership to the hiring entity for anything invented. Again, it’s important to appreciate the difference between copyright law and patent law. “Ownership” is tightly coupled with copyright. In patent law, the creator and owner are separated. The copyright owner is also the “owner” of the work. An investor can transfer ownership but will always remain the inventor. What is patent ownership? We’ve touched on this already above, but let’s summarise. An inventor has no right to monetise an invention which they do not own. Ownership of an invention can be transferred by contractual clauses, or in a patent. The owner of a patent can litigate in an attempt to prevent anyone else from using or manufacturing an invented product, including the inventor themself. Ownership is, essentially, a proprietary right. So, can anyone claim ownership for a patent? No, definitely not. And that’s why it’s so important to specify the inventor in any patent application. Only the inventor or the person claiming proprietary ownership ov er the invention can file for a patent. This is why Work for Hire is such an important concept.  If the inventor has signed away their right to ownership of an invention, then the rightful owner can file for a patent on that invention. Being an inventor is something that can never be taken away from a person, and it looks great in someone’s CV! But it doesn’t automatically confer ownership. Simplifying the patent application process We hope the above clarifies the patent application process, as well as the differences between ownership, authorship and inventorship. Applying for a patent is crucial if you wish to protect your or your employees’ inventions. It’s important to understand the patent application process as well as the basic terminology of patent law to ensure a smooth and successful application in the end. About author Julia Richards Our head of content, Julia has spent the past 20 years assisting entrepreneurs with all aspects of business launch and growth strategies in various industries around the globe.