Archives for May 2013

Unregulated Will writing services

There has been widespread dismay amongst consumer groups at the Justice Secretary Chris Grayling’s rejection of the recommendation by the Legal Services Board that Will writing should be regulated – see our earlier article for what that means.  The LSB had recommended regulation in a report submitted in February 2013 because of concerns about the quality, sustainability and lack of consumer protection. Grayling accepted the need for improvements but is quoted as having said “further efforts should be made to see if measures can be made more effective before resorting to reservation”. In contrast one commentator who campaigns for access to justice wrote that he had “not only ignored overwhelming evidence of significant consumer detriment but cocked an almighty snook in the direction of the broad consensus calling for regulation.”

The consumer group Which? says on its website: “Will writers are an alternative to solicitors, but unlike solicitors they don’t have to be qualified or regulated.” and “The main benefit of going to a solicitor is that you can discuss face to face what you want the will to achieve.” In addition, solicitors are qualified and regulated so “If something goes wrong, you or your dependants have access to redress through the relevant body’s complaints service and compensation fund.” The Citizen’s Advice Bureau also says “It is generally advisable to use a solicitor or to have a solicitor check a will you have drawn up to make sure it will have the effect you want. This is because it is easy to make mistakes and, if there are errors in the will, this can cause problems after your death. Sorting out misunderstandings and disputes after your death may result in considerable legal costs, which will reduce the amount of money in the estate.”

Unregulated Will writers may be incompetent, untrained and uninsured. An article in the Guardian “Writing a will – the right way”  in February 2013 said: “Alternatively, you could hire a low-cost will writing service. But be careful if you do, because unregulated will writers have been accused of ripping off consumers”. The same article comments “Using a qualified solicitor may be cheaper than you think.” Some Will writers advertise headline cut price offers, but may charge for additional services and end up being more expensive than solicitors.

Lawyers at Harris & Harris are not just qualified and regulated, they have years of specialist experience, and are members of specialist bodies like STEP.

Contact  Annemarie Swainson or Joshua Eva

Rough for the smoothie; or not so Innocent ?

When advising on Intellectual Property Rights (IPRs) the one thing we always emphasise is to set out and document agreements from the start.  Anything else is a recipe for disaster either for the designer or the business commissioning the work. You might expect businesses with a high profile as innovative and efficient to get it right but here’s an object lesson in how to get it wrong.

Everyone knows the wunder-brand Innocent and their iconic logo of the sketched apple face and halo.  This was created in 1998 in a eureka moment of “back of the envelope” genius during a brainstorming session involving the designer and the three friends who founded Innocent.  The company owned by the designer (Deepend) and Innocent (Fresh Trading) had drawn up heads of terms by which design services would be provided in return for shares in Innocent.  So far so good, but then it all went wrong.

The parties couldn’t agree whether the heads of terms were ever agreed and neither could produce a signed document.  Then Deepend went into liquidation.  Innocent never allocated any shares nor paid anything.  Not so good, and about to get worse.

Innocent did quite well; they obtained a Community Trade Marks (CTM) for the logo.  In 2007 the liquidator of Deepend assigned the copyright in the “halo” logo to a Mr Andrew Chappell, who assigned it to a company which applied to cancel the CTMs on the grounds that it had the copyright in the original “halo” design.

The tribunal which determined CTM disputes (OHIM) concluded that copyright subsisted in the original “halo” logo, as it was a commission Deepend were the owners of the copyright, in the absence of any written assignment Deepend, Innocent’s CTM infringed the “halo” design, so were cancelled.

OHIM also rejected arguments that in these circumstances, where the business had used the logo without complaint for a decade, that it had acquired all rights by an equitable assignment, or that there was an implied term requiring assignment of the copyright to give commercial effect to the agreement.  Such arguments have succeeded in the English courts, but Innocent have a difficulty that even if there was an agreement they didn’t comply with their side of it – in short, they never paid.

This isn’t the end of the case and you won’t see the Innocent logo disappear from the shelves soon. Innocent (now owned by Coke) has made enough money to pay lawyers to appeal.  However, even if it succeeds it won’t recover most of those costs, management time will have been diverted and business planning disrupted.  Usually big share sales include warranties about the ownership of IPRs.  If the founders gave such warranties that could be costly for them.

Posted 8th May 2013

For advice on Intellectual Property contact Neil Howlett