Watch This – It Will Make You SMILE…..

October 28, 2014

At Virtuoso Legal we’re not afraid to try new things – sometimes they work and sometimes they don’t. However, to remain static in business is to regress.

At the moment we’re busy completing our new website, which will be packed with lots of really useful information about all things IP. In the meantime, here is our new website video. It is only 1 minute long and we encourage you to watch it.

We hope you find it amusing. If you like it then tell your friends – it is also on YouTube too. If you don’t like it, then please give us some feedback. After all we don’t know unless you tell us what you think!

What did you think?  Let us know on Twitter or Facebook!

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Social Media – it doesn’t work for my business does it?…..

October 28, 2014

If you haven’t already seen this there’s a small indie film being launched across the UK this Friday called Northern Soul. I admit I’ve already tried to get tickets, but it is sold out!

So you may ask why has this film, which has been made by a generally unknown director, with young unknown actors and enthusiastic but amateur dancers been such a rip roaring success? Especially when the film industry is so firmly controlled by the big studios and distribution channels.

Well its success is largely down to massive traction for the project on various social media platforms including Facebook!

Making a film is an expensive business. It is a niche industry and in most cases it is vital to get significant backing from investors before getting the film made. The UK has some very generous tax incentives for investors, and so the “punt” is worth it for some already wealthy people.

However, in the case of Northern Soul the director (Elaine Constantine) couldn’t get the finance she required, so her and her husband sold their house to pay for it. Using Facebook, Elaine also gathered together keen dancers, and let them practice at various venues over a few months with a view to them being extras in the film in due course. After a few months the Facebook page had 30,000 fans, many of them buying the music they’d danced to. The film sound track is now available via Amazon.

As the film was made Constantine used young up and coming actors for key roles; although the film does have some notable performances with Lisa Stansfield and Steve Coogan. Once the film was made and ready to launch at a handful of cinemas, another on-line platform weighed in with its consumer power. Ourscreen is an on-line platform a bit like the Kickstarter type platform in which users tell cinemas what they want to see. That’s a big move away from the big movie distributors telling the public what THEY think they should see, and controlling the distribution and viewing of films. Northern Soul soon became an in demand film and before they knew it the film makers found mass demand nationwide.

The film is being shown in around 125 cinemas from this Friday. I understand that it will almost immediately follow on DVD for those of us who can’t get to see it.

So you see social media can work in all kinds of ways. Trip Advisor, Crowd Funding Facebook, Ourscreen, Twitter, Instagram, and others have transformed the way business is done. Social media does make the customer king of buying decisions. Good or bad reviews on social media can make or ruin some businesses.

So the question is, how will you use social media in your business to make a difference?


Overseas Supplier? Prevention Better Than Cure!

October 28, 2014

I was reminded last week when I met some clients I haven’t seen in ages, how easy it is for many businesses to find that their products are easily ripped off by overseas manufacturers, especially where their products are made overseas in China or third world countries. Sadly all too often people have done the right thing by registering their trade marks and patents in the countries which make products, but are somewhat powerless to stop knock off copies being sold out of the back door. Even worse arises where the manufacturer simply assumes all the rights of the rights holder (as in the case of my friends!).

Intellectual property theft can have devastating effects not just on profit, but on loss of reputation, health and safety concerns and liability risks. So I thought it would be useful to look at what the big companies do to protect themselves and see if we can all benefit from their best practices.

IT Systems and Encryption

The Chinese in particular are notoriously good at accessing IT systems. However, it is possible to build in some general security measures into data transfer such as limited access to core trade secrets; making data and confidential material available on a need to know basis. Electronic documents can be made available for limited amounts of time, accessed by a particular code and coded so that they can’t be printed, forwarded or saved.

Contracts To Manufacture

As a matter of course large companies use professionally drafted manufacturing contracts containing audit clauses. There are lots of clever ways of auditing a manufacturer. By way of example some companies control or at least monitor and check key components going into goods. They also use their own accountants to check the figures, books and manufacturing processes to monitor and detect illicit trade. It is also good practice to award compliant suppliers a continuing contract to make and supply and to educate the staff as to the risks of IP theft.

 

Key Contacts

Many companies have staff or agents who monitor production and do quality assessments. This often works well where the agent is also an unconnected third party seller. However, sometimes those contacts or staff can be bribed or involved in illicit trade so you have to find someone you can trust. Several of my clients have come unstuck using this process.

Supplier Score Cards

Some companies such as Microsoft and others have suffered significant losses in the past when manufacturers have inserted counterfeit product into boxes of genuine product so that the two sit side by side and are indistinguishable. Big companies now use sophisticated score cards to judge how likely and possible it is for a manufacturer to copy product. Score cards vary according to the nature of the goods made.

 

IP Strategy

Big companies such as Siemens use an IP Strategy and a department that coordinates IP right accross the supply chain.  This means their own executives are specifically responsible for monitoring IP infringement and investigating suspicious activity.

 

 

In summary, there are a variety of measures that can be deployed, and if all else fails it is possible to take action overseas. However, I do firmly believe that many manufacturers rush off to countries like China without considering the merits of getting things made in the UK or Europe.

My own view is that there should be much more support of manufacturing in the UK. We’re good at many things and at least it is easier to control infringement if and when it arises.

Elizabeth Ward

Unashamedly patriotic!


When Is A Cornish Pasty Not A Cornish Pasty?

October 28, 2014

Answer: As of July this year when the pasty isn’t made in Cornwall!

We’re all too well aware of the legal protection for growers in the Champagne region or that Roquefort cheese can only come from a specific part of France, but English producers are now cottoning on not just to the advantage of having designations of origin, but also a registered trade mark to protect their brand. Many people confuse the two, but in fact the distinction is quite clear. A designation of origin means that only goods made in certain geographic regions can be labelled as such. So for example, Melton Mowbray pork pies can only come from Melton Mowbray, whereas a really decent pork pie can come from any number of locations, and may be a number of different brands.

A trade mark is quite different. Companies who rely on selling really excellent products such as Fyffe’s bananas or Jaffa oranges use trade marks to protect their reputation as importers of high quality goods. The produce often comes from a variety of locations but all of it will be reliably ripe and of higher value because of the brand values associated with their name. Growers are now taking this one step further with trade names such as Pink Lady ® and Tenderstem ® taking brand values and standards for these products one step further.

Pink Lady® can only be called as such when the grower has met certain licensing conditions specified by the brand owner.

Pink Lady ® is owned by Australian company Apple and Pear Australia Limited, and the apple must have at least 13% sugar content and exposed to 200 days of sunshine to qualify to use the trade mark. This means that although an English grower may grow a Pink Cripps apple variety (the Pink Lady by another name); it can only be called a Pink Lady® if it is part of the licensed scheme and is grown in places like South Africa, Australia or the south of France. It is strange isn’t it that whilst the UK is considered a great place to grow apples, in fact we’ve lost out with that particular brand which now commands around 10% of the apple market.

Tenderstem ® broccoli however denotes a variety of broccoli and can be grown in the UK. The brand is owned by Marks and Spencer’s but the variety is widely grown and is sold by other supermarkets commanding a premium price. It is available from UK sources between June and November and from other countries year round. Growing a variety known as Clemengold ® oranges is again only done as part of a licensed scheme ensuring consistency of produce and high standards of quality. Licensees of Clemengold ® oranges must produce fruit of a minimum sweetness but as for the Pink Lady® the rewards of selling the brand mean those growers can demand premium prices and enhanced profits in return.

There’s a lesson here from the food suppliers for many businesses. The question to ask yourself is this: what is my brand and what values do my products need to have to elevate their desirability? You then need to ask yourself how you can set up a licensing scheme that is of interest and value to consumers and can be used by your suppliers to command a premium price.

Whilst it may be true that as Shakespeare put it “a rose by any other name would smell as sweet” it appears that the public don’t feel that way any longer and are quite happy to pay more for certain varieties of rose that can be guaranteed to smell sweet every time.


Important Things You Should Know If You Use Direct Marketing…

October 28, 2014

I don’t know about you but at home I’m registered with the Telephone Preference Service or TPS. Registration is free and is supposed to stop unsolicited calls. That is the kind of call I haven’t asked for asking me if I want to claim my PPI back etc. Until now its effects appear to have been very limited. Finally the ICO has acted fining Reactiv Media Limited £50,000 for breaches of the Privacy and Electronic Communications Regulations. However, what is also important is that the ICO is working hard to enforce their powers against more companies. Marketers beware!

So the question is – what DO you need to do or know if you are sending out emails or direct marketing to potential clients as part of your business?

Here is a quick and easy guide. Sorry it’s so long but with so much direct marketing these days the ICO guidance is long winded.  However, I hope you enjoy the nuggets we’ve pulled out and find them useful!

The DPA also applies to social networking such as Facebook, although interpretation of how that works is far from clear. However, blanket marketing such as leaflets to an area or adverts on a website are NOT caught by the DPA.

 

The Data Protection Act 1998 (DPA) and the Privacy and Electronic Communications Regulations 2003 (PECR) both restrict the way any business uses unsolicited direct marketing techniques. Marketing communication is heavily regulated in the EU.

 

Charities and political parties as well as normal businesses are covered by the DPA. The SNP fell foul of the DPA with its automated telephone canvassing a few years ago.

 

To be compliant, consent must be given knowingly, and be clear and specific. In other words potential clients must have a choice of opting in or out; be informed about what they consent to; and the consent must be specific; i.e. not just a generic “I agree to you sending me anything you like!” type of consent. In addition your potential client must be positive about their consent, and you must keep records of their consent.

 

The PECR applies more broadly than the DPA and covers electronic communications with anyone, even if the marketer doesn’t know their name.

 

 

Direct marketing masquerading as market research MAY be caught by the DPA – especially where follow up calls are for the purposes of selling and marketing. Proper market research firms will always screen calls against the TPS.

 

It is possible in some circumstances to imply consent. In other words if your customers conduct implies that they consent to further marketing material, then this MAY be OK. If you want further information on what an opt-in / opt out box should say to comply with implied consent then email Kim and we shall send you some wording – no charge.

 

Marketing calls must be screened against the TPS. This area is highly regulated and special care must be taken when calling the elderly or vulnerable. Marketers need to avoid antisocial hours and redialling of unanswered numbers. Automated dialling can lead to silent calls and these are very unpopular and discouraged by the DPA.

There are no restrictions on sending marketing material that has been requested by someone.

 

The TPS can be used by businesses to opt out of unsolicited calls.
The DPA allows individuals to tell the sender of material that they don’t want it, i.e. allow them to unsubscribe. It is good practice to acknowledge any such request.

However, the DPA gives the marketer some time to adjust their records and mailing lists – it isn’t instant.

 

Persistently ignoring the TPS and cold calling consumers at home or the standards set under the DPA may expose your business to some serious financial penalties. Enforcement action is also highly likely for those who sell a marketing list without getting consent from the people on that list.

 

Inducing company employees to leak customer’s lists, phishing scams and the like are clear breaches of the DPA and can be caught by criminal provisions under the DPA.

 

 

Consent doesn’t last forever! There is no absolute cut off but a 5 year old consent is probably out of date as far as the DPA and PECR are concerned – but it depends on the context of the consent.

 

The issue of requesting marketing material does not itself permit the further sending of material. So if someone asks for a quote, then further contact about products may be unsolicited mail. Note that even if a customer has opted in to receive marketing, the marketing must be relevant to the quote or subject matter originally requested. So it would be a breach of the PECR to send further material to any individual on offers unconnected to the quote or original inquiry. HARSH BUT TRUE and largely honoured in the breach.

 

Generating leads from subscriptions offers and elsewhere is covered by the DPA. However, there is an obligation to use the information gathered in a fair and lawful way. If your business uses such a method then your website should contain a privacy policy that contains a notice which clearly explains that the data will be used by the company for marketing.

Bought in mailing lists can’t always be used for text, email or automated messages – this is because the PECR are tighter than the DPA as electronic messages are seen as more intrusive by the ICO. Genuine bought in databases should already have obtained consent from customers and the big database suppliers know of their obligations.

 

If you collect callers numbers for future marketing purposes, then you should tell them so and offer them an opt out.

 

If you are buying in a database from a broker, make sure that the people on those lists have consented to the type of marketing you will be offering. If you want a list of questions to ask a database provider, then let Kim know and we can provide you with one. If you require further information then the ICO website at www.ico.gov.uk is a great source of advice and help.