The term ‘Legal Tech’ can mean different things to different people. To the creators of the comic book hero Judge Dredd, now the leading character in some entertaining movies, legal tech in a post-apocalyptic future means empowering judges by equipping them with body armour, powerful guns and high-speed motorcycles so that they can roam cities to dispense quick and, where necessary, brutal justice. There is a core similarity between Judge Dredd the fictional, futuristic character and what legal tech means to most lawyers working in today’s pre-apocalyptic world: improving efficiency.
In many cases, legal tech simply means the adoption by lawyers of generally available technology and tools to make themselves more productive, such as word processing. While word processing may have been a great leap forward for all people who write letters, it is an even more fantastic tool for people who draft contracts that have multi-layered structures of headings, paragraphs and sub-paragraphs. When those documents were prepared on typewriters, inserting an additional paragraph into a long contract could mean hours of extra work for a typist if the insertion caused the pagination to change. This is an example of a technology that has helped everyone, including lawyers, but which has been especially helpful for lawyers.
The legal issues that are raised by branding, under Australian law, don’t fall neatly into one category. (Similar issues probably exist in other countries. This post focuses on Australia.)
Here are some of the issues:
- If goods and services are sold under a registered trade mark, then the trade mark is protected under the Trade Marks Act, and action can be taken under that law against people using the trade mark without the authorisation of the owner. But, if a trade mark is not registered, that doesn’t mean there is nothing that can be done to stop other people using it. Remedies may be available under the law of torts (e.g. an action for passing off), and competition law, the Australian Consumer Law, to stop misleading and deceptive conduct. Indeed, these remedies are probably also available against most abusers of registered trade marks, but may not be implemented because the Trade Marks Act provides a straight-forward enforcement method. Trademark registration is an important way to protect product and service branding.
It’s often the case, when someone starts a business, that they don’t have a lot of money. There are always a lot of things to buy, like equipment, and if the business has moved into rented premises then there is the cost of a new lease, which can be high. Among the many things on the to-do list may be to hire a lawyer to get a standard client agreement drawn up, or terms and conditions for product sales, or licensing IP, or a shareholders (or partnership) agreement, and so on. Then the startup owner(s) find out that legal advice can be expensive, and they decide to skip the legal advice or professionally drafted documents for the time being, and make do with downloaded documents (sometimes from a different country) or documents a friend has given them.
Everyone has a budget, and if you can’t afford a lawyer then that is your reality. But startup business owners who decide, for whatever reason, to skip obtaining legal advice should be careful. It is worth keeping the following things in mind, in this situation.
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