Simple Fixes for Common Legal Mistakes with Riz McDonald

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Simple Fixes for Common Legal Mistakes with Riz McDonald | Episode 26

Too many businesses learn the hard way that they should have taken the simple steps to protect themselves with a few legal must-haves, rather than going through the pain of being ripped off, taken advantage of, or in a dispute with a customer or competing business.

If you have a business name and a website, and you haven’t already put in place measures to protect yourself, your customers and your business, then this episode is for you.

Stay tuned as I talk with lawyer Riz McDonald from Foundd Legal, to learn about the simple fixes for the most common legal mistakes businesses make.

In this episode you’ll hear:

  • Simple fixes for common legal mistakes
  • Developing the must-have legal documents for your website
  • Why trademarking is so important
  • How to obtain a trademark for your business
  • Legal actions for international based companies

Guest: Riz McDonald, Foundd Legal

Riz McDonald is a lawyer with over 16 year experience and an entrepreneur who runs the innovative business, Foundd Legal. She is passionate about all things creative and loves helping like minded self starters set up and scale their own legally legit business.

Connect with Riz

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Resources

Australia Consumer Law 
IP Australia 
ASIC 
European GDPR Information
Foundd Legal Contract Templates and Packages 
Foundd Legal Free Resources 

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Transcript

Nicci O'Mara

Too many businesses learned the hard way that they should have taken the simple steps to protect themselves with a few legal must haves, rather than going through the pain of being ripped off, taken advantage of, or in a dispute with a customer or competing business. And I'm not just talking about those businesses with online stores. If you have a website, whether it's brand new, or 10 years old, whether it's five pages or 50 pages, and you haven't already put in place measures to protect yourself, your customers and your business, then this episode is for you.

The Simply Standout Marketing Podcast is for you, the small business owner wanting to supercharge your marketing with simple actionable strategies and inspiration, so you can smash your goals and grow your business. Now it's your turn to discover what actions to take to make your business truly stand out and succeed. Let's get started.

Today I'm excited to welcome to the show Riz McDonald, a lawyer with over 16 years experience and an entrepreneur who runs the innovative business, Foundd legal. Stay tuned to learn about the simple fixes for the most common legal mistakes businesses make including: developing must have legal documents for your website and trademarking. So you can build your business without making costly legal mistakes. Hello, Riz and welcome to the Simply Standout Marketing Podcast.

Riz McDonald

Thank you for having me, Nicci, thank you.

Nicci O'Mara

Oh, it's so wonderful. Now look Riz, reading someone's bio gives us a tiny insight into you know who they are. But I always like to dig a little deeper so that everyone listening can better understand, you know, the amazing guests that I actually have on the podcast and why they're so good at what they do. So can you tell us a little bit about yourself and what it is that you do?

Riz McDonald

Of course. So I'm a bit of an entrepreneur/lawyer. And I've been a lawyer for more than 16 years now. But I've also been a business owner as well, I started being an entrepreneur,

I think when I was about eight years old, selling dolls, repurposing them and selling them for a profit. And I've always loved the idea of business. And when I got into law, I wanted to do something special, incorporating those entrepreneurial skills with my legal knowledge and experience.

And that's kind of how Foundd came about. And I started Foundd, it'll be two years tomorrow. So it's, it's been a bit of a roller coaster, but an amazing journey. I love what I do. And I don't know if you need to know more sort of personal aspects. But I'm from Wales originally, but I've got Scottish accent. So I studied my law degree in Scotland. And I have two wonderful children, a 10 year old and a 12 year old. And as I was saying to you before, they're both going on 21 I think. And yeah, that's me, I guess in a nutshell.

Nicci O'Mara

Yes, and Happy Birthday to found legal. So a lot of businesses don't get to that two year mark. Well, they don't even get to the one year mark off.

Riz McDonald

That's right. And I'm hoping to change that.

Nicci O'Mara

Yes. And look, I think it's such a wonderful thing, because I know, so many, especially small businesses, entrepreneurs, you know, solo operators, they, you know, venturing into the legal side of business is a hard thing to do.

And it's a very expensive thing to do. So I think there's definitely a need for, you know, businesses, you know, people like yourselves who are willing to help them. And they don't have to go to some of the big, big, big legal firms for some of that day to day, you know, legal things that we need. So I think it's fantastic that you've started your business.

Riz McDonald

Thank you. Thank you.

Nicci O'Mara

Now look, I write and develop a lot of websites. And the one thing that I see over and over again, is that rarely do small businesses have the legal required, the legal documents, you know, on their website, that is obviously before we start working with them.

And I find that often because they don't deal with, you know, a lot of the legal requirements, or they don't know about them, so can you actually tell us what legal documents should they have? You know, what type of businesses require them and why they really need them?

Riz McDonald

Sure, I'll certainly do my best but so basically, if you have a website, you should seriously think about having terms and conditions on your website, along with a privacy policy. They're the two sort of core documents if you like. On why you should have them, well, you know, a couple of reasons.

One is potentially it's a legal requirement. If you are collecting personal information on your website of your potential clients. If you want to set some sort of, I guess, boundaries and or clarity around how you provide your services, then they should be in your terms and conditions.

So that the customer has that clarity as well. And going into that a wee bit deeper, you know, Google and Facebook, etc, they all require you to have privacy policies and/or terms and conditions as well. And they both protect you and your client. And then from a non legal perspective, if you think about it, you know, would you shop from a website that doesn't have that kind of information? I know I wouldn't. If somebody doesn't have,

if you're going to hand over personal information, but you don't know what that person is going to do with that information, do you really want to hand it over? And if you're buying something, so whether it's an e commerce business that sells physical products, or whether it's a services business that sells maybe digital products, you're going to want to know, well, how soon am I going to receive that product? What's the return or refund policy? For example, what am I allowed to do with that digital product?

For example, as the owner of the website, you're gonna want to be clear that you own the copyright in any digital content on your website, or any content on your website, so that the end user knows what the rules are around using that content. So there's things that are going to protect you, the business owner, as well as give clarity and comfort to the user of your website services or products as well.

Nicci O'Mara

Yeah. And even those people just collecting email addresses so that they can email them. I always tell my clients, it's so important that they have that information. Because as you say, people are so much more savvy when it comes to knowing, you know, wanting to protect their information, and going well, Are these people going to rip me off? Are they going to sell my email address on the on the dark web? Ah, goodness knows what people do with them these days.

Riz McDonald

Yeah, absolutely. And secondary to that as well is if you're planning to market to your potential customers who hand over their email, you can't just send them marketing material because they bought something from you, they need to have consented to being marketed to as well. So that's an important element. So that kind of brings in, I'm going to be a little bit boring here and legalese, but the spam act, so you're not allowed to send you know, emails about your latest offers, if that person hasn't consented to receiving those kinds of emails.

So for example, if you have a pop up box on your website that offers 10% off on a purchase from your website, or from your services or something like that, then you need to have provisions in there, some language in there, that allows the customer to tick to say, Yes, I would like to receive future marketing from you, you know, for signing up, as well. So you don't just, you know, take the email, because they purchase from you and then start sending them marketing emails.

Nicci O'Mara

Yeah. Oh, absolutely. And I also find that it's not only a legal requirement, but it's a user experience requirement. Because if people don't want to receive your emails, and you send them something, or they are sitting on the fence, then they're just going to hate you and block you and report you as spam. Which is just the worst thing that could happen.

Riz McDonald

Yes, yes. And with these things, these documents we've spoken about, and these consents, we're talking about, it's a combination of legal as well as user experience.

Nicci O’Mara

Yes, yes. And I think a lot of the time, it just gets put into the too hard baskets, or people just don't understand that they actually need these type of documents. And I often get told by clients and friends that, the old web developer, they didn't tell me that, you know, we needed these things and what needed to be in there.

Yeah, I mean, obviously, the best person to write legal documents is going to be a lawyer, but not everyone can afford to pay a lawyer to write their website policies for them. What are the options that they've got there? And, and also, why shouldn't they copy from other businesses? Because I see that happen a lot.

Riz McDonald

Well, copying is wrong for two reasons. One, you know, you're breaching somebody else's copyrights. So you're breaking the law. The other is when you're copying somebody else's, you know, website terms and conditions or privacy policy. It might not be reflective of how you do things in your business.

So you might be copying over things that just don't apply to you or are completely wrong. So that's happened. And also sometimes people when they're copying, they forgot to change the business names or URLs as well. So that's a bit embarrassing as well.

Yeah. So illegal, you know, that's not good. Karma will come and bite you with forgetting to take a URL out. And also, you might end up copying things that just don't apply to you.

Nicci O'Mara

Oh, absolutely. What are their options? You know, if they're not going to copy from someone else?

Riz McDonald

Well, there are a few options. Look websites, like if you're an e commerce business, and you use a platform like Shopify, for example, they will have basic terms and conditions and basic privacy policy, okay.

But you need to make sure that that basic is enough, or whether it needs added to in some way or customised to suit what you do. Okay. So that's a fairly good starting point. Or you can pay for templates as well. I sell templates, and I try to put them together to be industry specific. And I'm, you know, working on creating more as and when I get requests.

But you know, I'm not the only person out this offering legal templates. So there's more of a choice these days around purchasing legal templates that are done for you. Or, you DIY, rather. And whether they're industry specific, that's one thing you need to check though, when you are using say, Shopify, or bigcommerce, or whichever platform you're using. And if they do offer those kind of basic templates, you need to make sure you go through them to ensure the align with what you're doing.

Nicci O'Mara

Yes, absolutely. And also, one thing to mention would also be that they're specific to your country or your state even because, you know, privacy policies and terms and conditions and the law that you are governed by, is obviously not the same around the world.

Riz McDonald

Correct. And that's another thing to Yes, be careful of, when you're buying your templates. You know, if you're an Australian based business, you shouldn't be buying from a US company, for example, and vice versa.

So you need to be making sure that you're purchasing website terms or conditions and privacy policies that are applicable to the, you know, the state or territory you're based in. So if you're based in Australia, it should be Australian law that governs.

Nicci O'Mara

And what about things along the line, see, as an Australian myself, you know, we talk about the Australian privacy policy, but being able to work internationally, which so many can now, we're affected by, you know, the European GDPR, there's the Californian, can't remember what it's called in regards to privacy. Do the privacy policies that we use today need to reflect, you know, those very, very strict privacy policies in other countries?

Riz McDonald

Well, in terms of the California one, I can't really comment on that one, I don't know as much about that as yet. But in terms of GDPR,

I do know that it's not where your based, it's where your clients based, and so you do need to be compliant with GDPR. So, you know, so you do need to be mindful of the requirements, and they are slightly stricter than Australian laws. And I do believe that Australian Rules are in the process of getting updated to align more with GDPR. And to be honest,

if you're operating in countries like Australia, or the US or UK, etc, then the privacy laws are, for the most part, fairly similar. But you shouldn't take that for granted, that is going to be the same as Australian law. And you need to be mindful that there may be additional requirements. So for example, you may have seen on some websites that operate, you know, in Europe, having a cookie pop up and acceptance of the cookie policies, you know, there's little nuances that are different to what are required and, you know, each law there may be different requirements, so you need to be mindful of those as well. And it does get tricky. I appreciate that.

Nicci O'Mara

It does it does. I just updated the cookie policy on my website, and yeah,all of these things do make your mind boggle some days, I've got to say

Riz McDonald

And also to be honest, you know, I also think what is good practice and what's a good customer user experience, and I think things being transparent, telling them that you use cookies and giving them the ability to opt out if they don't want to, you know, doing all those things, being mindful of that user experience as well, goes a long way. Because if you look at GDPR, there's a lot of those kind of requirements. And it's all about putting the power back in the users hands, so to speak.

So that they know exactly what's happening to their data, how it's going to be managed, and you know how they're going to be treated with this particular service provider. So, you know, when you do those things, it's a, it's a good thing, it can be a painful thing to kind of get your head around, but it's a good thing to do.

Nicci O'Mara

And also, it's very important for building trust and building your own credibility. Because at the end of the day, if you want to keep doing business, you need to have your customers or clients trust in you and your business.

Riz McDonald

Absolutely, yes.

Nicci O’Mara

Now what troubles can businesses get themselves into from a legal perspective by not having these docs documents?

Riz McDonald

Well, like I said, you know, if you are taking personal information, and not ensuring that there's a privacy policy on your website, then potentially you're breaching the law. Also, you know, when you offer goods for sale, not having clarity, and having terms and conditions that comply with Australian Consumer Law, details around you know, your refund, or your return policy, etc, then you're going to be in trouble there as well and breaking the law, potentially,

if you don't have the right terms and conditions that clarify those things, and comply with the Australian Consumer Law as well. There's other things though, as well. And it's a two way street here. And that is, if you offer a business, and provide services where you have a website with your original content on there, and you sell digital content, for example, then you're going to want to make sure you're protecting your intellectual property from being copied, and then commercialised as well.

So your terms and conditions can help with that. You know, as well and sets clear boundaries around what a person purchasing that digital product from you can and cannot do with that digital product. Or if they're reading a blog, an original blog, content on your website. You know, it's for reading only, personal use only, not for you to go and copy and paste it and present it as your own blog on your website. If you see what I mean.

Nicci O'Mara

Yes, yeah. And look, I'm amazed at how often that happens. And I was actually just talking to someone yesterday about it because they were questioning, I think we're talking about a in the terms and conditions policy, having that clause in there excluding competitors from downloading information from their website, and they said, Oh, is it really necessary?

And I said, Well, actually, I think yes, because the amount of individuals and businesses that are copying other people's, whether it be images or texts, the intellectual property, is huge, and it's really quite damaging, or can be damaging.

Riz McDonald

Absolutely And it acts as a precaution as well. And, you know, ignorance is not bliss. Okay. And if you have those elements on your website, it's an extra bit of Arsenal in your back pocket, should anything go wrong. To say, well, actually, you know, these are our terms and conditions. And you've, you know, when you're building up your case to prove, you know, there's been copyright infringement, for example, then those things will help you.

Nicci O’Mara

Yes, yeah. And do you know, you know, to put you on the spot, Can you think of any instances where things like your privacy policy and the copyright and all the rest of it have been used in a dispute? Or, you know, where businesses found themselves unprotected because they didn't have them on their website?

Riz McDonald

Absolutely. So my role is to be proactive, but I have had clients who've come to me because they weren't and they've had to be reactive. And there's been situations where somebody bought digital product from my client, and then on sold that product as an original piece of work to some other unsuspecting client. And because the terms and conditions weren't clear enough, there were a lot of problems in terms of trying to recover in that scenario.

So there's also been situations where you know, where you licence your goods and don't have clarity around your terms and conditions as to what are the limitations on that licence as well.

Nicci O'Mara

Wow, yeah, that's something that you never really want to see happen to your business.

Riz McDonald

Absolutely. And you know, you can't, like I said, with regards to personal information, it's not just whether you're breaking the law it's also a reputational thing as well, it impacts your brand reputation. If somebody, or more than one somebody, starts complaining that you're spamming them, or you're sending them emails, or you've used their personal information without their permission, in a way that they hadn't granted permission. So having those things in place protects you as much as it improves the customer or user experience as well.

Nicci O'Mara

Yes, and I think, so I've done a lot of crisis communication work over the years. And I find, you know, a lot of this stuff falls into trying to protect businesses, you know, being proactive, rather than reactive, as you say, because there is so much that can go wrong, that businesses, a lot of business owners go,

Oh, well, we've got insurance. Unfortunately, with things along those these lines, you know, insurance isn't going to ever protect your reputation, or your credibility or trust. So that's why I'm a firm believer in having privacy policies and terms and conditions and even Terms of Use policies on on websites on every website.

Riz McDonald

Yes, absolutely. And, you know, like we've said already a few times here, that it's, when you have all of those things in place, they're kinda like setting boundaries and expectations with the user as well. And it's a two way street.

In terms of what you put out there, you're protecting your own content. And you're also giving comfort to the user, that, hey, this is a legitimate website, and they're going to, you know, they're going to do the right thing by me if there's a issue with return or a refund, or, you know, my personal information, you know, all those things that will give them comfort as well. Yeah.

Nicci O'Mara

Do you know, how many people actually, you know, look at the privacy policy and terms and conditions? I would think it wouldn't be terribly many,

Riz Mcdonald

I don't think it would be terribly many, to be honest. But it's nice to see that, you know, when you go onto somebodies website, and you see their footers, and they've got these things that legitimises them along with those security icons, you know, indicating that you have secure SSL, for example, or, you know, there's a contact option to be able to contact you. And all of those things.

Riz McDonald

Yes, yes, absolutely. And look, I agree. And as you said before, Google, the likes of Google and Facebook, actually require you to have these documents on your website. So absolutely,

Riz Mcdonald

I know, when I set up my Facebook page and linked it to the things I needed to link it to, I need to also link my privacy policy, as well. Yeah.

Nicci O'Mara

So I think that's a very important thing to remember. Now, sometimes conditions policies have clauses about needing to be over the age of 18, to purchase, what type you know, Is that something you put in your policies? Or what types of businesses would you recommend have these?

Riz McDonald

So I tend to include it in all terms and conditions, to be honest, because you can't really contract with somebody under age, you would need a parent or guardian to you know, consent to that. So and to be honest, well, there's that aspect. But also if you run a website that requires somebody you know, who's uh, you know, considered to be an adult to purchase from you, whether that's alcohol, for example, or other similar things, then it becomes a real requirement ther. Obviously, you know, you've got scenarios where children have cards, and handle purchase as well.

But as long as you've done your best with your terms and conditions to say, hey, you have to be 18 or over. And then, you know, you can't police every single person. But you certainly set you know, your intent that this website and the purchases are for anyone over the age of 18. And I'm like I said, you know, if there is a problem with the terms and conditions, you're gonna have problems enforcing that against a minor.

Nicci O'Mara

Yes, yes. So, that's that's good to know. Because I know, there are some websites that are designed for kids I suppose at the end of the day, it is the purchasing behaviour of over 18's. Rather than yeah, you're not talking about them just looking at it.

Riz McDonald

Correct. And also, you know, typically, when you think about this, some wonderful websites out there now offering, for example, entrepreneurial lessons for children as an example. Well, they still require the parent to sign up on behalf of the child, you know, or there's those educational, other educational websites, you know that if you want to do extra math, tuition or whatever it might be, it requires the parent to sign up on behalf of the child, even though the child will be using the service.

Nicci O'Mara

Yes, I think that's some that's a very good thing to know and to clear up and make sure that it actually is in everyone's privacy or not privacy policies, terms and conditions. So that's really good. Now, is there anything else people should know about their website, legal documents, before we move on to talking about trademarks?

Riz Mcdonald

I'm just trying to think. As long as you have them, as long as you have clarity and make sure, the other thing you can do is anything that's kind of a frequently asked question, have an FAQ page and drop that extra FAQ's in there as and when you can.

Make sure you have a clear return refund policy, depending on the nature of the service or products that you sell, you know, be clear on all those things.

Put yourselves in the shoes of the consumer, and what's that experience going to look like? You know, for them, and make sure that it boils down to be in transparent, setting expectations, and boundaries between you and that end user.

Nicci O'Mara

Well, that's all very good advice. And I think people will have, be good for them to actually go and have a look at their websites and review them and see where they can improve.

Because at the end of the day, we can always improve everything we're doing, I feel. Okay, so let's talk trademarks, there is this assumption out there that registering a business name should legally protect that name from being used by others. So why should business owners spend the time and the money securing a trademark do you think?

Riz McDonald

Okay, so, when you register a business name through ASIC, it does not give you exclusive rights to that name, the only way you can really get exclusive rights is to register a trademark. And, you know, small businesses, you know, need to start thinking big, not small, if that makes sense. Because with with a registered trademark, you're building a brand.

Look at all the famous trademarks out there, like Tiffany and CO, Coca Cola, you know, to name just two, or Nike or Adidas, etc. They all started some way. And in order to protect that name, that brand, and protect yourself from competitors using the same name, for example, it's important to register a trademark to protect your exclusive rights to that name. And that's the only way you can do it is to registering a trademark. Yeah.

Nicci O'Mara

And is that something that from, say, from an Australian point of view, would you register it in Australia as well as overseas?

Riz McDonald

So if you plan to go international, and wish to build an international presence, then you need to consider registering your trademark, not just in Australia, but in those countries where you wish to have a presence as well. But certainly your starting point should be a three year first before you consider other countries like like say the US. And you know, the trademarks more than just, you know your business name, it's your brand. It's an asset, should you ever decide you want to sell the business, if you want to licence your name.

So for example, if you want to set up a franchise, and how people use your business name, you licence the use of that name. As one example, it can be used as a marketing tool, you know, when there's so many competing businesses in the marketplace, and it might be hard for your business to stand out. And like I said, it gives you legal rights, giving you exclusive rights to that name as well. And there's lots of other things, but I could be here all day talking about it.

Nicci O’Mara

Look, I find these days it's so much harder to actually find a unique business name, like setting up businesses for people. Because there are so many more businesses now than there was say 10 years ago or even five years ago. And it includes all those failed businesses as well. I know quite a few instances of businesses with the difference in their business names is so close.

It is just not funny and they might be in the same town or, you know, they might operate in the same town or be nearby. But the problem is, if one of them's very reputable and been around forever, and there's a new one that comes along, and they're not so good, it's very easy for people to get confused and for, for the other one to actually damage your reputation without that trademark,

Riz McDonald

Correct. And look, you know, you can rely on a common law called passing off, I won't go into a lot of detail around there. But if you've been around long enough, you can potentially rely on that and argue that, you know, the other businesses being misleading and deceptive and trading off your goodwill.

But it's a harder proposition. And a more expensive one than if you'd already had a registered trademark that you can rely on. And look, having a registered trademark, there's many benefits, both legal and non legal, when you registrate you're providing your business, like I said, with a key marketing tool that helps build that brand identity, that value in your business. And it gives you those legal rights to authorise others to use. So giving you an example of Disney; Disney is in the field of making movies, cartoons, not dolls, and blankets, and, you know, and all those other wonderful things. So they licence that use to others and make a lot of money doing that.

And like I said, you could potentially prevent competitors from copying and using your trademark to their advantage as well. So yeah, so there's so many benefits rather than negatives, and it becomes part of the asset of your business. So if you were to want to sell it one day, you know, it's a valuable asset.

Nicci O'Mara

Oh, absolutely. And what about, talking about sort of the cost side of things, how much does it cost? I know, there'll probably be a very big variation. But say, in Australia, how much does it cost to actually register a trademark,

Riz McDonald

It can cost a couple of $1,000. It depends on whether you're DIYing it, or whether you're going to get a trademark attorney/lawyer to assist you. And the the pricing varies.

So you've got the government fees, as well. And then on top of that, you would have legal fees as well, or you can DIY it, but you would have to spend a fair bit of time making sure you understand what the requirements are in order to make sure you know, is your name unique enough?

Have you chosen and selected the right classes of goods and services that apply to what you plan to do? So there's a number of moving parts to registering a trademark. So if you feel confident, to do it yourself, yes, you can save on legal fees, but you still have to pay the government fees regardless. Alternatively, you can seek the assistance of a trademark attorney or a lawyer who you know, registers trademarks to help support you in doing that.

Nicci O’Mara

Yeah. Am I correct in saying that, I think in the US it's cheaper to register a trademark there or did I just read that somewhere?

Riz McDonald

I don't know. I don't know. But I can't vouch for that. I don't believe that's the case. And I also understand they have their own fees as well government fees separate to any legal fees. And I doubt that that is the case.

To register a trademark in Australia yourself, so the costs can start up couple of hundreds so say $250-300 for just one class of goods and services to a couple of thousand depending on how many classes of goods and services you need together with if you utilise the services of a lawyer.

Nicci O'Mara

Oh wow. Now how should a small business or an entrepreneur decide on whether or not it's worth registering a trademark?

Riz McDonald

Uh huh that's a tricky question because how long is a piece of string it depends on each individual. It depends on what the plans are for their business, their strategy for their business and whether they, you know, want to make sure they have exclusive rights to that business name as well. You know, there's some wonderful brands out there, Aussie ones as well when you think about it, you know, that go to skincare Frank, is it Frankie, Frank body or Frankie body,

I can never remember which way around it is. Yeah, so there's lots of skincare brands out there that you know, have protected their name through trademark registration to make sure nobody else then copies them.

So if those businesses have waited until they were super successful, they would be spending a lot of money trying to get that trademark, and that's not saying that they would be successful either. So it becomes more expensive to be reactive than it is to be proactive. But the question would be, it might not be right for every single business out there to register their trademark straight away, it's going to depend on the individual circumstances, what their plans are for that business, whether they want to retain exclusive rights and have a head start with their business and grow that brand and business.

Nicci O'Mara

There seems to be if you go and actually have a look at the IP Australia website. So I know when we are coming up with business names for new businesses, you always go and you always go and have a look at what has been registered, what is trademarked to make sure you're not infringing on anyone else's trademark. But there seems to be a lot that actually get rejected. Do you think do most get rejected? Do you think or?

Riz McDonald

It depends on, you know, whether you've done a proper due diligence, as I call it, so have you checked, you know, social media handles, have you checked domain URLs, have you checked the asset register, done a Google search, have you, you know, gone to IP Australia and done a trademark search to make sure that the name you've come up with is unique enough, and you don't want a name but then you can't get the domain or the social handles, you want all of them, you know, so the more chances of success is if you have a rather unique name, you'll have more chances of success than a generic name. And you need to, you know, obviously check out IP Australia's, they've got some wonderful resources. It's definitely worth checking out my website, I've got lots of blog articles and checklists, etc.

All free resources there as well. But if you're thinking of a name, you know, when you come across it, you love the name before you spend the money. And before you announce it to the world, do all your due diligence first. And, you know, Google searches, social media searches, like I said, domain URL searches, go to net registry or crazy domains or whatever and type in the URL, make sure it's available. Facebook pages, if you want that Facebook page name to match up with everything else. You do all of those searches, as well as the IP Australia register search.

Nicci O'Mara

And it doesn't take long at all to actually find out that information that might take you an hour to do all of that.

Riz McDonald

It'll take a bit of take. But yes, you need to make sure you know, also, you might want to think about spelling variations as well.

Nicci O'Mara
Yes, very true. And what about with trademark applications themselves? Is there any other things that are common problems or common things that people don't do or do wrong that actually gets their application rejected?

Riz McDonald

Well, typically, if they have done that due diligence around the name, and made sure that nobody else has it, and also the classifications and what classification they've used as well, because there's 45 different classes of goods and services, and you can't register them all. A, it's expensive, and B, you would be rejected, because if you don't use it, you lose it. If you see what I mean, IP Australia will take back any classes you registered for that you've never used.

Nicci O'Mara

Ah, okay. Yep. That's very interesting to know.

Riz McDonald

Somebody can put in an application, if they see you've got, say, five classes of goods and services, and somebody comes along and thinks, well, I want to operate in this class in this business, they do a little bit of digging around and discover you've never used it. They can file an application to IP Australia and have that removed from you. So be mindful. This is why I always talk to my clients and say to them, hey, what's your business strategy?

What your plans for your business? You know, what kind of goods and services do you have in mind? How did you see your business growing? And what you know, I asked them all these questions as well as you know, talk about the name and are they truly wedded to it if it's already registered and what, you know, what's the strategy and try not to spend too much money on the logo before you've done all of that.

Nicci O'Mara

Yes, very, very good advice there. So, now you did talk about a few tools and resources that would be helpful for the trademarking as well as for your privacy policies and legal documents. Have you got any other direct favourites that you that you'd love to use that you think would be helpful to to the listeners,

Riz McDonald

So IP Australia is a good resource, there’s some resources, like is said, on my website. There’s also a copywriting website that has some great resources and information to educate your clients on as well that I’m happy to share, I’ll have to send it to you. So if you do those things before you're wedded to your name, then that’s a great starting point.

Nicci O’Mara

Fantastic. I’ll put those website links and all of your links in the show notes on my website.

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