Volume 41 - April 2010

This month: Where to start in an IP action, what to do if your lawyer is ignoring you, or you are being pursued by a IP enforcement agency. 

Brennans are looking for a legal secretary and a tenant. 

Paul Brennan

Editor

info@lawanddisorder.com.au

My lawyer ignores me

Dear John

I recently asked my lawyer to sue someone and almost immediately regretted it.  He always seems so busy.  I hate bothering him.  Even money does not seem to make him any happier. 

How is it best to get his attention?  Should I sue him!

David C.

Sydney

Dear David C.,

All lawyers are busy until they learn the principles of good practice management. 

I give priority to clients who have some sort of run in with say another motorist  or their bank and are content to be told that they have a great case but cannot afford to sue.  This is a comparatively cheap and quick service.  For many it brings closure, so my clients can get on with their lives.

In the more involved case, it is necessary to spend many hours collating documents and preparing a stinging and authoritative letter to the offending party.   This can be tiring but very rewarding for the client.  Often, I decide not to send the letter out.  I do not tell the client that I have not sent it out, so that the client has the satisfaction of savaging their enemy without the upset of a shot being fired in return.  If I do receive an unpleasant letter from the other side I often do not pass it on to the client.  Over the years, I have found that this keeps everybody happy.

If my client happens to find out that the letter has not been received by their enemy then they blame and even consider suing the Post Office.  However, they usually accept my advice that although they have an excellent case, it is not wise to open up a second front and they cannot afford it anyway.    

I imagine the lawyer on the other side may be doing the same. 

Of course, if my practice does slow down, I dig up a few of these old letters and send them off.  This helps to moderate the case flow in my office.  So, unlike your lawyer, I have time to take instructions from my clients and be ready to deal with new matters as they arise.

J.F

Extract from John Fytit’s International Legal Problem Page. (c) Paul Brennan 2009. Now written on the 101 Reasons to Kill All the Lawyers Blog at http://101reasonstokillallthelawyers.com/

John Fytit is the name of the central cartoon charter in Law & Disorder cartoons which started in Hong Kong in 1992. He is from the fictitious Hong Kong firm Fytit & Loos (pronounced “Fight it and Lose”). A very unsuccessful name as people read “Fytit” as “Fit it”. The International Problem Page started in 2005 and was merged into Paul Brennan’s blog. But, not before John Fytit started to receive real legal questions from various parts of the world.

IP actions – where to start

Just like the motorist asking directions from the Irish farmer, in copyright litigation the answer often is “I would not start from here if, I were you”.

Copyright court actions are to be avoided, if possible as nothing seems straight forward.  You must prove that you own the copyright which can be a lot harder than it sounds.   It involves getting assignments or licences from contributors.   

Although, this may appear to give some comfort to anyone being sued for copyright infringement it also means that copyright lawyers can use up a lot of billable hours in producing detailed evidence for which defendants usually pay, if they lose.  Defendants can instruct their own specialist copyright lawyers who may feel compelled to raise academic, technical defences and the costs escalate. 

This is why you must try to rely on trade mark law to protect your IP which means that you must do three things:

• have a registered trade mark;
• make sure it is effective e.g. it is registered in the right class;
• design your product so that if it is copied, the infringer also copies the trademark.

For instance, sell your product with a label, a box or other packaging which bears your trademark.  The infringer may copy the trademark too.  Sometimes inadvertently e.g. photocopying a training manual and sometimes deliberately e.g. the infringer may need to duplicate the packaging to convince a buyer it is genuine.

Therefore, use a trademark to help protect your IP, if possible.    

Of course, without money you cannot launch a court action and then it is even more important to create the impression that you will fight to the death to protect your copyright.  If you can’t fight, get a big hat.

(c) Paul Brennan 2009 is a lawyer practising in on the Sunshne Coast, Queensland and is author of “The Law is an Ass-Make Sure it Doesn’t bite yours!”

 A Bolt from the Blue

You are a successful upstanding business person with high ethical standards.  One day you receive a letter from a copyright enforcement agency saying that you have used an image on your website that belongs to another and claiming $1,000. 

You do have an image on your website and although it did not belong to you, you thought it would be alright to copy it and put it on your site.  You realise now that this may have been wrong.  The problem is that even with your high regard for ethics you do not want to pay $1,000 for a photograph which on reflection you do not even want.

You visit your lawyer and he advises you to remove the image from the internet site, delete it and do nothing.

You do nothing and a second letter arrives.  You call your lawyer and he warns you to say nothing and do nothing without asking him first.

You receive a bill from your lawyer.

A third letter arrives.  You hesitate before calling your lawyer as the claimed amount is starting to look very reasonable when compared with the prospect of paying $1,000 and your lawyer’s bills. 

What happens next is either:

1. The letters eventually stop and you wish you had not called your lawyer, at all.
2. The enforcement agency calls you and tries to get you to admit your wrong doing as part of their evidence gathering.  At that stage it is best to involve your lawyer to negotiate an off the record settlement to try and prevent your name being publicized and minimize the payment.
3. You send a cheque for $1,000 and hope they go away.  This risks adverse publicity.
4. You get sued.  Your lawyer can usually interpret the wording of the letters to determine how near the enforcement agency is getting to taking court action.

Enforcement agencies cannot sue everyone but they can sue you, as an example.  

What is the best way of dealing with an enforcement agency?  Well, it depends if you are feeling lucky.

(c) Paul Brennan 2010 author of soon to be released Easy IP  and other books, eBooks and CDs. 

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Enquiries in confidence to Paul Brennan by email paul.brennan@brennanlaw.com.au or by telephone.

New book: Easy IP

Due: August 2010.  Click here for more information about Easy IP.

Speaking about Easy IP in Noosa

On 28 April 2010 Paul will be speaking at a Rotary dinner, visitors welcome.  For more details see attached flyer.

Disclaimer:

The content of the Law & Disorder eZine is to give you legal basics and in some instances included unashamedly to try and make you laugh.  In law it is sometimes difficult to work out what is serious and what is just for fun.  Therefore, if you plan to do anything legal, rely on your own lawyer’s advice or instruct me to look at the particular facts of your case.  Not only will I deny responsibility for the legal content but also for some of the jokes.

© Paul Brennan 2010.

Editor

Author of the The Law is an Ass...Make Sure it Doesn't Bite Yours!

mailto:info@lawanddisorder.com.au