Category Archives: law firms

Update – Tweeting Legals Event 17 January

In advance of the next Tweetinglegals tweet up on 17 Jan here are a few pieces of information that might interest those attending.

The venue Old Bank of England, is mid way between Chancery Lane and Bell’s Yard in Fleet Street. As you walk into the grand pub room bear right towards the bar, and then left past the bar and then turn right. We have the two adjoining downstairs rooms on the left.  They’re right by the bar area.  So, there will be more space to mingle than last time we held the tweet up in that pub as we only had one room then.

Lilia will be sitting at the entrance by the rooms till about 8.30 or 9.00 pm. Please give her £5 per person to cover the cost of food/use of the space. She will have labels so you can write out your name, and she’ll have the list of attendees so please tick off your name. This is so we can mention you in the write up of the tweetup.

In feedback report last time we held the tweet up at that venue one person said they thought £5 should cover food and a drink.  I’m afraid £5 does not go that far these days, especially in a venue like the Old Bank of England!  So, you’ll have to also buy your own drinks.

Earlier in the evening there’ll be some crisps, but otherwise no food until 7.45 pm. I’ll try and keep an eye out and make sure nobody goes without food if they arrive later on.  However, if I don’t notice that there’s no food and you’re there without anything to eat, do let me know. We’ll assess the finances and if there’s a surplus we’ll order more food, and/or a few bottles of wine later on.

Although the time given for the tweet up is 6.30-9pm, I fully expect many of you will stick around much longer than that. The organised part of the evening ends at 9pm, and personally I’ll probably leave around then as I have a busy day on 18th.  So if you’re hungry after 9pm, please understand that if there’s no food it’s because the party has officially ended…

If you haven’t responded yet please let us know whether you will be attending or if your plans have changed and you are unable to make it, please update your status: RSVP.  We are still in the process of arranging the catering for attendees, and so it would be much appreciated if you could help keep our numbers accurate.

I look forward to seeing you all on the 17th!

Does Lack of Professional Advice Lead to Unnecessary Trade Mark Registration?

Cubes forming the word Rrade MarkWhen a key player in the Government’s plans to strengthen the IP framework, encourages business owners to file their own trade marks, explaining this is to help them afford trade mark registration, I wonder what’s going on.

Many lawyers educate the public about the value of taking legal advice.  So, it is somewhat surprising for a Government funded entity to communicate the message that legal advice may be dispensed with.  For example, on the IPO website it says “some applications may benefit from professional advice” implying not all of them do.

What is really going on here?   IP law is not a straightforward topic, and in my experience all business owners benefit from professional advice.  So why does the IPO put this in doubt?

The IPO offers a wealth of information on its site www.ipo.gov.uk.  As a firm we suggest clients use the resources available for preliminary information, so that their time with us can add maximum value.  But when it comes to drafting, searching, or making informed decisions about trade marks and broader IP issues, we absolutely recommend taking professional advice as does every other IP lawyer I know.

As far as government organisations go, the IPO is fantastically helpful.  They are quick to respond, thorough, and staff are an absolute pleasure to deal with, so it saddens me to find myself levelling criticism in  their direction.  But as a solicitor who advises SMEs on Internet, and IP matters, including trade mark filings, I am absolutely sure that encouraging SMES to file their own trade marks often doesn’t do them any favours.

Some downsides of DIY trade marks

Some people who file their own applications are unsuccessful in securing a registration.  Take a look at the refused marks.  Many either have  fundamental errors which could not be resolved, or if they could be resolved, the business owners didn’t know how to do so or lacked time to deal with it.  Often applications fail because the mark is descriptive and incapable of functioning as a trade mark.

I’m even more worried about those who succeed in securing registration because the scope of the applications is often inadequate to cover the activities of their business.  What is a serious issue is that these entrepreneurs’ success gives them a false sense of security.  Some even go on to file their own Madrid applications via the WIPO website. Filing more widely on the basis of what is often an inadequate UK base application compounds the problem. If their applications are drafted by professionals there may be some recourse if they turn out to be unsuitable, but if they themselves drafted the form as laymen, they have no come back if their business suffers as a result.  Certainly they would not be able to complain that it was the IPO’s fault as the IPO is careful to avoid liability.  It will not review people’s application forms before they file.

Possible clue

The courts don’t suggest parties adopt a DIY approach to advocacy, and the DVLA don’t recommend that you pop the bonnet on your car at home to prepare for your MOT.  Although its heart is in the right place, and there is no disputing that any effort to inform the public about trade marks is worthwhile, the overall approach of the IPO does not seem to be in the best interests of the applicants themselves.  If the IPO’s motivation is really to help start ups then why not give them a discount on official fees instead?

The fact is that it is in the IPO’s interests to encourage SMEs to file trade mark applications.  A couple of years ago the IPO made 100 redundancies due to the reduced number of filings in the recession. So, on the face of it the IPO does have a conflict of interest.  If it  encourages taking advice then people would go to advisers who may not necessarily recommend trade mark registration.

Ants working on their trademark and brandIn pushing trade mark registration as it undoubtedly does, the IPO is not helping start ups.  It’s adding to their costs and depriving them of the opportunity to consult lawyers who might suggest that they need not apply for a trade mark at the beginning unless they have a name they want to own (and which is capable of being owned).

Indeed, many start ups choose descriptive names and these are just fine for getting the business off the ground.  The name tells potential customers what the business does, and as it’s descriptive, nobody else will be able to register it.  Later, if the business succeeds, it should brand itself with a good name and have it professionally registered.

You don’t need to register a trade mark

I doubt the IPO is making it clear to start ups that they don’t need to register a trade mark.  Indeed judging from the below case, the IPO is likely helping businesses with descriptive names to find ways to register whatever they can, quite regardless of whether it’s an important brand element for them to register.

When would the IPO suggest taking professional advice then?

One business I know well, chatted to an IPO representative at a business start up fair, and then proceeded to file two trade mark applications for marks they felt would succeed through the registration process.  These were not much used as trade marks within the business, and therefore low priorities for registration.  The names the business did use for its products and services were too descriptive to register as trade marks.  So, these other names were seized on for no better reason than that they might succeed in being registered.

Unbeknown to the business, they have a serious problem on their hands in not having a distinctive brand name they can trade mark.

The business was so successful it had already licensed its format in a couple of countries and was set to expand more widely internationally.  The business simply did not appreciate what it means to not have a name it can own.  Any professional would advise a rebranding in light of the business’ intention to licence globally.  Otherwise, it would be missing out on owning a valuable IP asset.

Independence is key

The fact that this business spoke to an IPO representative and walked away none the wiser about the importance of consulting a professional and instead engaged in wasteful trivial trade mark registrations speaks volumes about the undesirable consequences the IPO’s current policy is having.  Unless the IPO distances itself from helping applicants to file their own marks, it is reducing the quality of its IP awareness raising activities.

This particular business is successful and could easily afford to pay a legal representative for advice.

Cutting costs

So the current IPO policy is not helping entrepreneurs to see there is more value to be obtained from taking advice than just securing a trade mark registration.  For many, registering a trade mark is not essential initially, but, where trade marks are important (for example, for a fashion label applying its brand to clothes) then getting it right is crucial.  Such businesses should be encouraged to get legal help because a professionally drafted trade mark will be better than one they can produce themselves, and it’s an investment they are making in their business.  If they need to cut costs, then let the business itself decide what to cut.  It is not necessarily a smart move to cut out professional legal costs.

And if 80% of businesses fold in year one, then let them decide in consultation with their professional advisers whether a trade mark registration is appropriate for them.  If they don’t even have a suitable name, I’d suggest they cut out expensive branding and websites too until they’re more established.  Starting out cost effectively and thinking carefully about what you spend money on is a sensible approach.  An example of a business that adopted this strategy is Distilled.  It was known by a different name in its first 18 months and rebranded when it knew the business would be viable.

The IPO – A Competitor

Personally I now see the IPO as my competitor.  Sometimes I think: Surely there must be competition rules to protect us against unfair competition from a government funded entity?  An entity that influences businesses not to consult lawyers except in rare cases, and advises them that when they do want to consult someone: “Professionals who belong to the Institute of Trade Mark Attorneys and the Chartered Institute of Patent Attorneys are especially useful in helping you obtain and understand your IP rights”. How does the IPO justify making such a statement.  I would love it if the Law Society took this up with them.

Surely it depends what sort of IP need a business has.  In our knowledge economy where intangible assets are signficant to most businesses, not just to inventors or creatives, it’s likely that many start ups are in need of other types of IP advice.  Those setting up web based businesses (and websites are a bundle of IP rights) have copyright issues and need appropriate contracts and lawyers who understand the internet.  IP Solicitors such as my firm, are probably more able to help them with their typical IP needs than other types of IP professional.  But by directing everyone in need of trade mark or other IP help to ITMA and CIPA the IPO is not necessarily helping people to find the best person for the job.

Solicitors are skilled and experienced professionals.  The IPO does not need to protect the public against them.  The IPO should instead focus its energies on helping the public to distinguish between regulated professionals who are insured and are answerable to professional bodies from others who prey on inventors and creatives with their various IP services.

The UKIPO has a huge responsibility in this area, and should take care when making recommendations that they don’t unintentionally mark out one group of professionals as being more useful than another when they have not offered sufficient explanation to allow readers to choose what is right for them.  So, in my view the IPO needs to make some changes. It should encourage SMEs to take professional advice, and should avoid favouring one profession over another.  This is particularly important in light of the IPO’s impending consultation reported in IPKAT to identify how lower cost IP legal and commercial advice can be provided to SMEs

Legal Tweet up – 7 June 2011

Tweet ups are when we take our online relationships offline and meet the faces behind the avatars.

There is an appetite for more regular tweet ups so, later in this blog, I’ll mention some ideas for a trial run of regular London tweet ups.

@Legalaware who was very quick off the mark reporting the recent #Twegalstweetup provided photos here and here are some I took.

When I arrived at the venue, the Yorkshire Grey, @mikejulietbravo was already sat talking to @IkenCEO who I had the pleasure of meeting at the previous tweet up. It was a lovely sunny evening, and so the pub was fuller than I would have wanted.

A few others were either already there or arrived soon afterwards, including @andrewneligan and @ljanstis.

It was great to renew contact with @LBCWiseCounsel @NewLeafLaw @ClareRodway @DavidAllenGreen @Colmmu @jonathanlea @legaltwo @michaelscutt @Filemot and @GavWard.

Thanks to @conscioussol’s generosity, much needed food was brought out for the party as it had been at the previous tweet up.  It’s surprising how quickly you can feel you know certain people, and @conscioussol is one of those people for me.

Inevitably some tweeps who had said they would be there didn’t show up while others who were not expected did turn up.

Just as I was thinking @Brianinkster might be one of the no shows, he appeared. His presence was very welcome.  Both he and @GavWard manage to be more present at London events than many Londoners.  Does it say something about the Scots sociability I wonder?  Certainly they are both very central figures in the Twitter legal community.

Others I met for the first time were: @Copyrightgirl @danhlawreporter @taxingwork @AjeetMinhasGTB @anyapalmer @BLPLaw @Bureauista @cyberpixie @Ed_Smith_83 @iptax@JaneClemetson @JaneTHoye @jeanyvesgilg @jezhop @kevinpoulter @susansperber @keithhardie @lawbore @LilWizz @netlawmedia @oohsonia @penny05Jones @polinkin @taffydavies @janpotentio

More than 55 Twegals were expected, though I’m not sure if that many came. There were quite a few there who I did not get to meet.  Next time perhaps.

Towards the end of the evening, when there were just a few of us left, a new surge of energy was provided by some late arrivals – @_millymoo, @craigwebster and @ChristianUncut.

If I have overlooked anyone let me know to add your name, and if you’ve written any blog posts about the tweet up I’d like to mention it in this post if you let me know about it.

The results of the feedback from the event are displayed below and may be of interest to the organisers of the North Tweet up @vicmoffatt and @motoringlawyer:

Did you attend the event?

How would you rate the venue?

How would you rate the organizers?

How was your overall experience? Any comments / suggestions?

Would have been better if we’d a separate space so it wasn’t so noisy but I understand the venue double booked so wasn’t possible. Otherwise totally worthwhile/fun evening – wish I’d been able to get there earlier.

Great night. Good to meet those I met last time and new people. It would be great if this became a regular event.

Due to the rise in attendees, would suggest larger venue or to have venue with ability to have flexibility in upsizing.

Great networking and look forward to next one.

Needs a quieter environment to be noisy in :-)

Might be worth suggesting people bring stickers/badges with their name/twitter name on next time!

Great – thanks for organising.

need a pub where the staff aren’t in such a hurry to get you out at closing time

Very good event. Good central location. A bit crowded and noisy but not a major problem. Thanks to Shireen for organising it.

Well-organised and thoroughly enjoyable. Thank you and well done !

- I think we were supposed to have a room, but it was double booked, so a bit noisy again.

- defo should have Twitter handle name badges for next time (with real names in very small letters). I’d be happy to take this job on.

Regs….David.

Enjoyed it and appreciate people taking the time to organise. My main feedback was that it would have really helped if people had badges with their twitter names on. Particularly for those with no photo as their avatar, it was quite difficult to work out who was who.

Thank you. A dedicated function room would be great another time

Excellent.

Have blogged about it full on my blog http://legal-aware.org

Really inspiring use of Twitter by education, reporters and the professional legal services. Reassuringly nice bunch of people!

The host, Shireen, was a real joy to talk with, totally unassuming and uninterfering!

It’s clear that people really do like to know who they’re talking to online, and participating in these networking events facilitates this, and provides a way to increase your transparency, and deepen your relationships.

Clearly people would welcome a dedicated room or space. One problem I foresee with venues where the separate room is tucked away at the top of the building, while the bar is downstairs is this: people go to buy drinks, get engrossed in conversation, and stay downstairs so that eventually half the group end up downstairs, and a tiny number are left in a sparsely filled room upstairs. So, the separate space needs to be of a type that avoids splitting the group.

The next major tweet up is to be organised by @Colmmu and @BLPLaw and is likely to be a super event given the involvement of organisations like the College of Law and Berwin Leighton.  It’s likely to be in the Autumn, possibly in October.  In the meantime, in view of the demand for a regular tweet up I’m going to trial monthly tweet ups for the London area.

However, we won’t host the monthly tweet up in any month when someone else is organising a major legal tweet up, such as the proposed one in October.

This time as we know there is to be a Northern Tweet up in July, we’re also going to avoid July, by hosting the first monthly tweet up in August.

We’ve identified a few venues which could provide a separate room without charge if we unexpectedly get large numbers, while also being suitable if only a small number attend. I’m going to take a look at them before finalising the venue for August. If anyone has a venue to propose then please let me know on here

Also as people so welcome food at these tweet ups but find it difficult when they’re busy networking to go buy food and start tucking in, it may make sense to have a charge to cover the purchase of some food.  To keep things simple, and give people the flexibility they like to have, I suggest everyone throw in a fiver for food when they turn up on the night.

Here is a link for the monthly Tweet up. The hashtag used for these regular monthly events will be #TweetingLegals

Twegals Tweet Up – June 7th 2011

Twitter is a great medium for stimulating debate, and an excellent forum for meeting new and like minded people.

In terms of relationships,  Twitter is essentially a forum for meeting others.  You have to take that virtual meeting off line if you want to begin to create a real relationship.  As they say on Twitter you need to meet IRL (in real life).

Tweet Up

A Tweet up is a great opportunity to meet other tweeps IRL so is well worth making the effort to attend if it doesn’t clash with your other engagements.

The Lex 2011 Tweetup, organised by Brian Inkster (@BrianInkster) and Linda Cheung (@LindaCheungUK), was popular – perhaps the only complaint I have about it would be that there wasn’t enough time to meet all the Twegals that attended!

That is why I volunteered to host the next one, along with Steve Williams (@motoringlawyer).

Steve organised a poll to find out where the next meet should be held.  We found there was popular demand for a June event in London, closely followed by a June event in the North.

So that’s how it’s come about that I am hosting the Tweet up on June 7th in London.  If you haven’t yet given your RSPV on Twtvite here is a link to the Twegals Tweetup

And, look out for more news from Steve on the North Tweet up.

What to Expect

If you want a flavour of what to expect, Brian Inkster’s piece points towards write ups of the Lex 2011 Tweetup by a number of attendees, and includes a host of comments as to what people did and didn’t like.

Reading the comments, I decided it would be impossible to please everyone.  So I’ve gone with what was practicable to achieve, given the constraints of a busy life and limited time in which to organise and chase people.

I had hosted an event at the Yorkshire Grey a few years ago, so decided it would be a good venue.  Unfortunately, things have changed because the management wanted a £500 deposit to hold the function room.  This would be repayable once the pub achieved £500 in food and drink sales.

I provisionally booked the room and set up a donation facility so those attending could donate.  I quickly decided against this when only 2 people donated and it was clear we would not have anywhere near the required deposit by the deadline the pub had given.  So, I let the room go, hoping no-one would book it for a Tuesday night.  Also I remembered the bar area downstairs was a good size.

In the meantime, I emailed a few businesses I happen to know are interested in the legal market to see if they were interested in sponsoring the Tweet up.  I didn’t follow up on these because someone else booked the function room in the meantime.

So when you turn up on the night, expect to buy your own food and drink.  The pub is generally very quiet on a Tuesday evening, and hopefully we should have most of the room to ourselves .

I will be writing a post script afterwards, and if you have comments or suggestions before or after the Tweet up do please leave them here.

Benefits of attending

A Tweet up is a great time saver because you can meet lots of tweeps in one go.

If the people you meet are tweeps you’ve already come across on Twitter all the better, but if not a Tweet up presents opportunities for discovering new tweeps you may want to follow in future.

When you’re not restricted to 140 character conversations, and get to meet face to face you are more likely to identify who you want to spend more time with, perhaps over coffee or lunch.  For any of us who are time starved this is a real boon.

Niche Firms for Legal Process Outsourcing and White Labelling

Last week Azrights announced the launch of its trademark registration white labelling solution for law firms.  It is the first comprehensive trademark white labelling service for UK law firms.

UK Regulatory considerations

The impetus behind it was the Solicitors’ Code of Conduct Rules 8 and 9 which prohibit fee sharing with non lawyers, and regulate referral fees.  These rules complicate solicitors’ ability to benefit from trademark registration work which they are often in a position to refer to others.

To run an effective trade mark registration service requires investment in IT, and other resources.  Many law firms offering such services have difficulty doing it cost effectively, and price competitively.  Their high charge out rates, and culture of invoicing larger sums generated from litigation, make it difficult for them to make money from the relatively modest amounts invoiced for trademarks.

Azrights introduced its white labelling service for two types of firm.  The first currently do not do their own registrations.  A virtual department would generate an additional income stream for them without an accompanying increase in overhead costs.

The second type of firm offers trademark registration services and may be looking to outsource the work in order to  focus its resources on more profitable, higher skilled work.  Legal Process Outsourcing is a much bandied about concept nowadays because law firms are under increasing pressures to reduce their costs.  So, it’s worth considering what is the difference between Legal Process Outsourcing (LPO) and White Labelling.

White labelling and Legal Process Outsourcing (LPO)

According to Wikipaedia a white label product “….enables a successful brand to offer a service without having to invest in creating the technology and infrastructure itself”.

The FSA defines white labelling as arrangements where a product or service is offered under the brand of one company (the distributor) while a separate company (the producer) actually makes the product or provides the service……. “White labeling allows producers access to a wider market than they would otherwise reach, and allows distributors to offer a wider range of own-branded products or services”.

According to wiki LPO is the practice of a law firm or corporation obtaining legal support services from an outside law firm or legal support services company.  When the outsourced entity is based in another country the practice is sometimes called Offshoring.

So white labelling might be a more complete solution, while LPO may just involve a discrete aspect of legal work being outsourced to the LPO provider.  Taking trade mark registration as an example, white labelling will deal with every aspect of the work, from beginning to end, while LPO may cover just specific aspects of operations, such as renewal of trademarks.

The continuing pressure on legal fees, the scope of SRA regulations, and consequent search by firms to find more cost effective solutions, points to law firms looking at solutions right on their own doorstep.

Why use a niche UK law firm for LPO or white labelling?

It is preferable for UK law firms to look to niche law firms in the UK when searching for the cost reductions that LPO can offer.  Lora Bentley, across the pond, expresses a similar opinion in her post Need to Outsource Legal Work? Try Boutique Firms in U.S. First

For example, by using the Azright white labelled trademark registration service UK law firms benefit from the investment in technology, and expertise that Azrights has built up over a number of years.  They get access to highly skilled help without the concerns that LPO as such entails.

Given they’re outsourcing the work to a regulated law firm in the same jurisdiction, few  concerns about quality and reputation that are usually associated with LPO arise.

Legal work requires a specific education, and training, and is regulated.  So, why send the work to other professionals whose rules are dissimilar to those of solicitors, let alone to overseas lawyers who are not educated in English law?

Often offshore LPO providers use as a selling point the fact that they have highly qualified lawyers whose hourly rates are a fraction – one tenth – that of a solicitor.  However, if paralegals in this country are well managed and supervised, and work in a process supported by effective technology and senior lawyers, they are, in my view, better able to offer the quality required by a UK law firm.

It is a mistake therefore to compare the hourly rate of an attorney in India or other offshore location with that of a UK solicitor in determining the savings that may be made by a successful outsourcing LPO provider.  If the work being outsourced is relatively low level and repetitive, or is administratively intensive, then it does not need highly skilled lawyers.

Indeed is it beneficial to use the services of highly skilled lawyers who may be over qualified for low level tasks?  I would worry they would get bored and prove less efficient.

On many types of work that are outsourced it may therefore be more appropriate to compare rates with paralegals in this country.  A very affordable service can be provided in the UK by a law firm that knows how to use IT, and different skill levels within an efficient process.  Access to IT and use of good management and supervision are key to LPO success.

A niche firm within the same jurisdiction has the specialist skills and experience to run an efficient operation much more cost effectively than non specialist firms or larger law firms.  Being subject to the same regulations it is therefore a safer place to entrust compliance with regulatory obligations by outsourcing law firm.

In the UK we currently have a surplus of well qualified law graduates, motivated to get experience.  Could it be that Richard Susskind’s End of Lawyers? is wrong in its assumption that LPO will go offshore, leaving a dearth of training opportunities for future lawyers in this country?  Perhaps Richard Susskind would have benefited by taking a closer look at smaller law firms, and the quality of personnel available to them due to the oversupply of law graduates seeking to train as solicitors.

Find out more about outsourcing, and our whitelabelling service on our website:

Whitelabelling for solicitors
Outsourcing

Legal Services and The Latent Legal Market, Signs of Change?

Yesterday in our November newsletter we mentioned the Legal Services Act (sign up to receive future editions using the form on the right), and how from October 2011 the Act will allow non-law businesses to own a stake in law firms.  This is expected to signal the full entry into the legal services market of companies like Barclays, the Co-op, and AA.

So, it was interesting to read on Neil Rosen’s Legal Futures blog about the announcement by AA and Saga of the range of legal services on offer to their members.  Members who have taken out legal expenses cover will have access to some legal documents including wills and prenuptials, and to a certain amount of legal review.  These consumer-focused services are just the tip of the iceberg, and when the Act takes effect I would expect a push by a wide range of large brands into the market for small businesses too.

There are an ever growing number of start-ups due to the decline in the number of full-time salaried positions.  Many start ups and small businesses are either unable or unwilling to pay the fees law firms would need to charge to do their legal work.  So, boot strapping start ups are invariably looking for cheaper solutions.

Currently, a start up’s options are to engage a law firm to do their legal work – which is too costly for many – or to buy contract templates (not ideal), or to cobble together documents by copying those of competitors (definitely not recommended!).  This latent legal market represents potential work that many solicitors and others would like to attract, and so we, like a lot of other firms are experimenting as to whether we can develop innovative business models to meet this unmet need for lower cost legal services.  At Azrights we have come up with a solution, a unique membership site for online business, called OBIS.

OBIS not only provides guidance to businesses hoping to carry out some of their own legal work, for example by offering instructions on how to file their own trade marks, but also allows members to submit documents for review by legal professionals who have the knowledge and experience to identify errors.

The philosophy behind OBIS is to provide a way for an online business to more effectively manage its risks, and to give those businesses access to searchable resources representing years of accumulated knowledge and experience.  This will hopefully allow them to better understand the opportunities available online, and the minefield of risks that can be the downfall of ill-prepared businesses.  Using OBIS will give businesses a much greater chance of succeeding.  OBIS will launch in December.

To find out more register for my teleseminar on November 30th here.

End of Lawyers and the Legal Services Act

In previous posts I have commented both on the ‘End of Lawyers?’- a book by Richard Susskind and also on the Legal Services Act, which are two commonly discussed items by those interested in the UK law business landscape.

In the ‘End of Lawyers? The Legal Hybrid is already here‘  my message was I already see the need for some of the changes Richard Susskind predicts, such as for lawyers to become deeply multidisciplinary.  While in the Legal Services Act 2007 post  I mentioned that the Act is expected to  mark the beginning of a sea change in the legal services market, with more innovative solutions likely to materialise.

Naturally, these issues are occupying the minds of many of us who run law firms.  One such issue I have been thinking about a lot, concerns what Richard Susskind calls the latent legal market – that is those circumstances in which non-lawyers are generally unable to benefit from the legal input they require because conventional legal service is too expensive or impractical.  To quote from Richard Susskind’s first book ‘The Future of Law’ (p.27):

“In conventional, reactive legal service, when a legal risk has been perceived and a lawyer instructed, there is an expectation that some optimum disposal of the matter will be achieved.  In contrast, legal risk management techniques are often brought to bear in respect of legal risks that would otherwise not be managed at all or would be addressed too late.  And in this context, in the latent legal market, it may be entirely tolerable (commercially and as a matter of practicality) that any solution reached may be well short of the optimum position.  The point is that the legal risk is being  managed.  Without such techniques, such risks would not have been managed at all or may not have been manageable.  Thus there can be improvement if not perfection”.

Stephen Mayson in a speech ‘Legal Services Reforms: Catalyst, Cataclysm or Catastrophe‘ alluded to a similar matter – namely that one of the ways of reducing the cost of legal services may be to deliver less technically perfect and comprehensive advice sometimes.  It is not always necessary, in other words, to have the same ‘deliverable’.   For example, many SMEs often prefer us to draft a brief legal agreement for them, rather than to serve up the traditional 15 pages or so that the precedents appear as.  As long the SME understands the downsides and upsides of this approach, then why not provide the business with something more user friendly?

I am finding that the cost of legal services is increasingly unaffordable to many start ups and small businesses.  Either the size of the latent market is growing – for example, in society generally more people  have to set up their own businesses as the number of full-time salaried positions declines – or people are simply unwilling to pay the level of fees lawyers need to charge for their services (possibly because there are cheaper, alternatives available thanks to IT).  For this reason we have introduced a new system to provide affordable access to risk management and to our expertise.   Our press release here gives more details.

Trade Marks and Branding, a World Apart?

In their article earlier this year, the Ipkat drew attention to the fact that there is a marked separation between the worlds of trade marks and branding.

More often than not the two are not addressed collectively, but are rather dealt with by completely separate teams, or even distinct organisations.  A creative team might deal with the branding side, whilst the legal department would deal with the trademark considerations.

On the whole this seems acceptable because the teams have different aims.  Whilst trademarks are intellectual property rights for protecting a brand, brands themselves are the consumer facing aspect of a business, laden with social and cultural meaning.

However, in my view this divorce between the two disciplines is undesirable, and if someone were to be in possession of deep knowledge about both trade marks and branding, I suspect they would do a far better job for the client.

Trade Mark Searching

The crucial first step, once the client has an idea of the kind of name or logo that he wants to use for his brand, is to carry out a thorough trade mark search.  Without this step, which a number of smaller branding agencies avoid, the rights of a trade mark owner may be infringed, giving rise to potential disputes and in extreme cases the need to re-brand.

However, clients’ choices before they talk to us are often driven by an eagerness to get the ball rolling, by visiting branding agencies or web developers.  In fact it is generally far more sensible for them to sort out the specification for their website and their brand name first, ensuring that the money they spend on creative branding is not wasted on material that, in the end, they are unable to use.

When people rush off to branding companies and get logos designed, they often do not realise that existing rights to the name are sometimes only looked at incidentally if at all by smaller branding companies.  Many of these have no background in IP, and lack an understanding of the significance of correct name selection and searching.

Boundaries of the Creative Process

One way to understand this is to consider that creatives work within particular boundaries.  Some of these are set by practical considerations such as funding, or the medium used – for example if a logo is being developed for use on mobile devices with a 2 colour display, this will impose constraints on the designer.  These boundaries are also affected by the objectives of a particular client, for example they might want to target children and so the use of profanity, alchohol, sex and complex language will not be appropriate.

Increasingly important and often overlooked are the limits imposed on the creative process by the law, and the existence of prior rights.  To ignore the implications of these can be devastating to a brand.  To properly understand the limits within which they are to operate, creative professionals must be informed not only of the business objectives and practical considerations relevant to their work, but also the consequences of legislation and the registration of prior rights.

Hybrid lawyers

In Richard Susskind’s book The End of Lawyers, (please see blog here) he discusses how the legal profession is undergoing a fundamental change.  One type of lawyer who he predicts will emerge in the future will have knowledge of more than one field.  No longer will lawyers specialise only in law, they will have to develop multidisciplinary expertise.

In my view the current separation between branding and trade marks will have to be addressed by practitioners more comfortable with the traditional approach.  A deep understanding of branding and related issues will be necessary in future for lawyers to stay competitive, and offer clients a more rounded perspective and better quality advice.

Both branding and trade marking are focused on the need to stand out, to be distinctive and unique.  However, if those developing the brand do not understand what this involves in a legal sense, then they risk subjecting their clients to infringement proceedings further down the line.  The two fields are interlinked, and should be recognized as such .

What do Early Stage Businesses want from their Lawyers?

Before considering what start ups require from their lawyers, it’s worth remembering that many businesses tend to change radically in the early years.  A few years after starting up, they may look nothing like their initial manifestation.

This is because it’s common for new businesses to not know what it is exactly that they do, and who they do it for.  Even professionals, like lawyers and web designers, who you would think know pretty clearly what they do, struggle with this.

Start ups therefore take time to find their feet.  As a business gradually achieves clarity about the demand for its goods and services, and figures out which services will generate revenue, and responds to the market, its offering and initial focus changes.

Early phase legal work

Early phase legal work can therefore often be of temporary benefit only.

Yet what happens in practice when a start up chooses lawyers is that a price is set for the various documents or services the lawyer considers the business needs.  This might include a trade mark, terms of business, a website development agreement, documentation for the website, and anything else that is particularly appropriate for a given type of business.

This effectively relegates solicitors to a role of providing documents or advising on specific transactions.  How did this state of affairs come about?  Why lawyers have transformed from their traditional role of trusted business advisers to becoming providers of documents is a subject I will explore another day.  For now what I want to focus on is that if the value a lawyer offers to start ups is the mere provision of documentation or a particular legal service, then is it any surprise they are increasingly perceived to be a commodity?

Many start ups forego the costs of these documents altogether.  Many more of them turn to unqualified advisers or template stores or simply do their own drafting in order to implement the necessary documents for their business.

In response to this state of affairs, some lawyers in these recessionary times have dropped their prices to ridiculously low levels.  What few of them have done is to reassess their offering altogether.  I have.

Pricing model

In my view the fundamental flaw is with the business model of law firms.  Whether we charge for our services using hourly rates or fixed fees, this transaction based focus is what reduces our role to a marginalised one.

What start ups would benefit from far more would be to retain lawyers on an ongoing basis.  Lawyers may lack an obvious reason like the accountant’s annual audit to justify ongoing involvement, but actually have a huge contribution to make to their clients’ business success by remaining   involved and in regular touch on a one to one basis.

Terms of business need constant review

Instead of offering transaction or document based advice to start ups, a lawyer could help them budget, and identify how best to manage the risks, in order to get maximum value from their resources and budget for legal spend.

I have developed a pricing model and legal solution so Azrights can offer real value to clients, by playing a bigger role in their businesses from the outset – not just when they have grown successful enough to warrant an in house style legal service.

By supporting clients in their dream and helping them get what they want we lawyers can make a far greater contribution than by focusing primarily on the legal ‘deliverables’ clients may need.  For example, do they really need a highly technical legal agreement, or could something else written in plain English be quite adequate?  Our new pricing model will provide clients with regular access to our know-how, guidance and business insights.  Clients will be able to run ideas by us, brainstorm before entertaining a new deal – and have legal documents reviewed before they sign them – all while getting budgetary certainty.

Being in business myself means I understand the emotional, financial, and creative investment clients make in their own future.  With my insight into legal risk, I am well placed to offer them something quite different – that is, real help to manage and prioritise their legal budget so as to keep them out of trouble.  Making decisions without legal assistance exposes entrepreneurs to the risk of litigation and other problems, and can be quite scary.  I will also bring objectivity to help them reach great decisions for the growth of their business.

Start ups coming to us will, if they are suitable potential clients, receive an in depth evaluation of their needs, so that we can offer them a monthly retainer fee plan based on their diverse and varied needs.

This approach reflects my insights and experience.  For example, I know that the terms of business a start up begins with will likely need complete overhaul on a continuing basis to keep up with the changing business.  Using our services a start up will not get a false sense of security from having consulted a lawyer in the early days of the business and had terms drafted.  What often happens to start ups is that they don’t budget to have their terms kept up to date so they are likely to be inadequately protected despite having spent a lot of money on legal services when first starting up.  Using us includes a plan for maintaining the terms up to date and relevant.

In conclusion the traditional approach to charging for legal work often results in a poor deal for both client and lawyer.  What we are all about at Azrights is providing cost effective and appropriate legal risk management as well as help to grow the business on solid foundations.

What Next?

Register for the Free Teleconference to find out about our new system for assisting online businesses to access legal help at prices all SMEs can afford.

This post is part of a series, to view all of the posts in this series, please click here.

NinjaVideo.net, TVShack.net and other Domains Seized

Last week nine websites that allowed people to download or stream TV programmes and films for free were closed down (see here), their domains seized by the US federal government.  These sites included tvshack.net, Movies-Links.tv, FilesPump.com, Now-Movies.coms along with five others.

These sites were  targeted as part of a new initiative, aimed at combating Internet counterfeiting and piracy, and were selected because they allowed visitors access to films such as Toy Story 3 and Prince of Persia: The Sands of Time, which have only recently been released in the cinema.

Many of these sites allowed viewers to watch films taped by camcorder in the back of cinemas, in poor quality and often with audio tracks out of sync with the video.  It is argued that websites like these cause considerable damage to the film industry, as people who might otherwise pay to see films in the cinema, are able to watch them for free online.

John Morton, the assistant secretary from the U.S. Immigration and Customs Enforcement (I.C.E.) explained the new initiative, saying, “We are dedicated to protecting the jobs, the income and the tax revenue that disappear when organized criminals traffic in stolen movies for their own profit”.  Kevin Suh, Vice President of Content Protection for the Motion Picture Association of America, called this action the “largest takedown of illegal movie and television websites in a single action by the federal government” (See here) The government has decided to  severely crackdown on all websites that show pirated American movies, and is prosecuting the owners of these sites. They say that if any of these sites resurface, they will again take action. The US government is primarily targeting websites distributing cinematic content, but may also begin to target sites enabling illegal game downloads.

A major difficulty associated with these efforts is that the nature of the Internet makes it very difficult to control what the public access. Whilst the U.S. Government may have taken control of these domains, the websites can just pop up  at a different location using a different domain name. In fact, TVshack.net have already moved their website to another domain, TVshack.cc. So, while this move is effective to some extent, it is unlikely to be successful in eliminating online copyright infringement by itself.

In trying to control access to content on the Internet, the US Government seems to be fighting a losing battle. As with many similar efforts against the distribution of drugs, and unlawful music downloads, trying to stop illegal movie downloading is proving to be a near impossible task.

Copyright infringement is clearly a problem that everybody is trying to find the best way of tackling.  In the UK Ofcom is currently consulting on how to give effect to measures introduced in the Digital Economy Act 2010 aimed at reducing online copyright infringement.  It’s new draft code proposes that copyright holders could require Internet Service Providers (ISPs) to write to subscribers telling them their accounts have been associated with copyright infringement.  ISPs will need to keep lists, and provide lists of repeat infringers in anonymised form to right holders on request.  Personal details can then be obtained from the ISPs using a Norwich Pharmacal order.  The consultation is open till 30 July.