Q&A with Barbara from Jamieson Law

What's the difference between a copyright and a trademark?

Copyright and trademarks are 2 of what I like to call ‘The Triplets of Intellectual Property’ (patents being the other, but they’re super specialist).

Copyright protection in the UK exists as soon as you create a piece of ‘copyrightable work’ meaning you don’t need to register it. So that could be a video, an article, a PowerPoint, a song, a photograph, software coding.

You very likely have copyrighted works in your business already, but there is a catch – you need to tell the world about it, to make sure you’re fully protected. This comes down to putting copyright disclaimers in your contracts, on your website, in your marketing material etc. You don’t want to accidentally sign your copyright over to someone else accidentally right?!

Trademarking is different. This protects the branding of your business, for example your business or brand name, your logo or a slogan. Here, protection doesn’t exist straight away – you need to register your trademark where you want protection, like in the UK or the US.

The trademark process takes a few months, so you want to start as soon as possible. If you don’t register your trademark, you leave yourself open to tremendous risk! Think business copycats and being forced into a pricey rebrand.

Trademarking has a bunch of benefits – ownership of your mark, protection from business imitators, recourse if someone does copy you, strong reputation building and brand recognition AND it saves you money in the long run.

2. When you should do either? At the outset or does it depend on your product/brand?

So like I said copyright protection exists as soon as you create a piece of copyrightable work. However, you’ll want to ‘tell the world’ as soon as possible. Add disclaimers into your contracts and marketing material at the very beginning of your growth journey, to save any issues down the line. If you don’t have these in place already, do it now!

With trademarking, I often say that setting up a business without protecting your brand is like going out to dinner and eating your dessert first. Ideally you’d do this before growing your business, meaning you’re growing and scaling on steady, protected foundations. However I know that isn’t always possible, my advice is to do so as soon as you can, closing that gap of risk.

It does of course depend on your specific brand too. From a trademarking perspective, I’d usually prioritise registering your business / brand name first. However, I use Nike as an analogy here, if you have an iconic logo like Nike that you wouldn’t want anyone using, protect this too.

3. If you come across another brand/person that you believe has copied you in some way, what is the first action you should take?

Your first step is to try not to panic! I know this is a really stressful situation to be in, but stay calm – a sound mind and rationality is what you need here.

Depending on what has been copied, use this as a time to make sure your legals are in place to fully protect your content or your brand. It may be that it’s time for a strengthen up.

And before doing anything, create a folder of ‘evidence’ Take screenshots of everything that the copier has done (posting on socials, trading with your business name etc). Just because they take the content down doesn’t mean the issue necessarily completely goes away. You want proof.

If you want to find out the full process, download a copy of our ‘Cut Out the Copycats’ guide!

https://jamiesonlaw.legal/cut-out-copycats/

4. If you sell wholesale and you have been waiting for a payment for much longer than the payment terms, what should you do next to pursue the payment?

You want to have a sound follow up process in place. Firstly, make sure the payment clause in your contract is super strong. Outline what the payment terms are, when payment is due and what happens if you won’t be paid on time (i.e., the ability to stop providing your service, allowing you to charge interest etc).

You’ll want to have a reminder system in place, if you use an accountancy software like Xero, that can do the work for you. I’d recommend having 3 automatic reminders.

If you still don’t have any payment, I’d follow up with 2 personal emails. It doesn’t need to be overly formal, in the second email (if you still haven’t had any response), mention having to resort to more formal action.

If you’ve still got no luck, you’ve got 2 options:

1)    Set up a relationship with a debt collection agency (that fits you and your business well). They can cost a bit and will likely take a % of the price you’re looking to obtain, so bear this in mind!

2)    Filing a County Court Judgement against them. This is your more ‘serious’, last resort option. Doing this will register a ‘black mark’ against them / their business.

5. What are the legal requirements for returns/refunds?

When it comes to returns and refunds, the first thing you want to think about is ‘consumer rights’ (if you’re B2C). So if you’re an e-com brand or a product seller in general, pay attention!

No matter the goods you sell, whether it’s a dress, tiara, or shoes, to be compliant with the Consumer Rights Act 2015 (I know…legal jargon👎🏻) the goods need to be 3 things:

1)     Of satisfactory quality

2)     Fit for purpose

3)     As described

If the product doesn’t meet those 3 things, the customer is legally entitled to a full refund or return. On the flip side, if the customer doesn’t use the product for the purpose intended, the same rules don’t apply and thy aren’t entitled to a refund or return!

If a customer changes their mind and they no longer want your product (for whatever reason), you have to abide by the 14-day ‘cooling off period’, meaning they have 14 days from the date of purchase or receiving the goods (whichever is later) to change their minds. They are entitled to a refund in this case, but they MUST return the goods in the same condition they were sold.

As a side note, you can choose to increase the cooling off period beyond statutory minimum of 14-days if you want, but that’s entirely up to you.

There are a couple of exceptions to the 14-day cooling off period – if your product is bespoke / made to measure / tailored, you sell perishables or digital products, it doesn’t apply.

The most important thing you want to have in place here to protect you is, you guessed it, your contract!

Whether it’s a contract they sign, or terms and conditions they agree to, you want to it to be crystal clear what the customers refund rights are (to remove any room for confusion and kickback).

6. Are there any T&C's that you should 100% include as an ecom brand?

As an e-com brand, there are a few T&Cs / contracts you absolutely, 100%, without a doubt want to have in place.

1)    Your client contract / T&Cs (these are pretty much the same thing, you can have a contract clients sign or T&Cs they agree too, e-com brands will likely have T&Cs you agree to when purchasing a product) – as a base level you’ll want to cover the goods you’re providing, your payment terms (what you charge and what happens if they don’t pay), intellectual property protection, consumer rights (for B2C), client responsibilities, liability and governing law.

2)    Website T&Cs – outline what can and can’t be done on your website, protect your intellectual property protection etc. As an e-com brand, you can combine your client terms with this or keep it separate (it’s totally up to you).

3)    A privacy and cookies policy – even if you only sell through the likes of Amazon or Etsy, you’ll want your own privacy and cookies policy. It outlines what personal data you collect, what to do with it, why you need it, what cookies you use etc.

Contracts are personal to each business, so remember to do a bit of research to make sure you’re covering all the bases.

And one extra top tip – make sure your contracts are written in your tone of voice! There’s a total misconception that contracts need to be long, drawn out, boring, technical documents…I promise, they don’t need to be. Think of them as an extension to your marketing, get them drafted or write them on your own just like you would a post on Instagram. Portray your businesses tone and vibe! ✨