The Law is an App.

At least, trade mark law now is…

Three days ago, we launched our first mobile application for iPhone and Blackberry:  NameSearch TM Legal.

If you are reading this on an iPhone or BB, you can download the App free from the above link.

You can also read the review in the AppStore.

NameSearch TM Legal helps you protect your trade marks, business names, product names, logos and brands and is designed as a resource tool for brand consultants, creative agencies, designers, NPD specialists, marketing executives and entrepreneurs.

In addition to a constantly-updated feed on what’s happening in the world of brands and marks, you can also request free trade mark search reports on the legal availability of business and product names and free legal advice on names, logos, trade marks and brands from the IP Team at Silverman Sherliker LLP.

You also have the full text of the UK Trade Marks Act 1994 at your fingertips.

The journey from the dawn of the initial idea to its eventual launch in the Appstore has been a long and formative one and, like most journeys, it has taught me quite a lot.

This is what I have learned.

Lesson 1: When you want to generate a new idea …go large.

There are a lot of iPhone applications about trade marks and ‘matters legal’ but a lot of them just replicate legal statutes and provide very limited functionality. They are stuffy. They are basically just adverts.

I wanted to create a really useful tool for anyone involved in branding, trade marks, name creation, design, NPD or business start-ups. Something that would enable busy creatives and entrepreneurs to clarify the legal availablity of new trade marks, brands and designs ‘on the hoof’, as it were …in a taxi, at the water-cooler, from the white-hot centre of the brain-storming session. In short, I wanted it to deliver  something of real value for the creative and entrepreneurial community.

So what about an app that enables anyone in the world to request a free trade mark search and get an initial professional assessment of the results from their iPhone or Blackberry?

Okay. That’s not bad.

But what if people could also request free legal advice on branding and trade marks as well and request a fee quote for the registration of their chosen mark at the same time?

Better.

What about logos, graphics and designs? Could people take a quick snap of the logo or graphic with the iPhone camera and upload it from the app into our CRM database for immediate legal evaluation? ……er, yes….

So I think this is the most important part of the process.

Get excited. Ask yourself what would be the best thing you could possibly create…and then keep adding stuff.

Be demanding of yourself …and keep demanding.

Keep on asking yourself …. ‘Why not?’ …and ‘What if?’

So could we have improved on the first version of the app that we submitted to Apple?

Yes, we most definitely could. In fact, it was the initial and disappointing rebuff from Apple (more below) that drove us on to produce what we now think is a really fantastic application.

We hope that you will agree.

Lesson 2: Choose a good, professional iPhone App developer

Come on, guys! …We are lawyers, not tekkies!

Don’t skimp on the choice of a good developer.

Don’t just settle for the cheapest offer on eLance from Timbuktoo.

It makes much more sense, in my opinion, to pay the premium for having a good local developer who you can brief face-to-face and who is reasonably near to home when a few home-truths need to be shared. They will have a better understanding of your business and what you are trying to do if you can discuss the project with them across a table and they will probably come up with a much better look-and-feel for the new application as a result.

Include them in the conversation right from the beginning. What seems impossible and expensive to a work-a-day lawyer suddenly appears to be do-able.

I can whole-heartedly recommend my friends Ankush and Jason at PolydiamInfosoft. They are extremely dedicated and client-centric folk and showed great patience and fortitude in bringing this new app into being.

Great guys.

Lesson 3: (the big one) Never Give Up.

My Twitter friends know that this is a recurring Churchillian theme of mine and will forgive me. But there will be bumps in the road in any project. Sometimes they are big bumps that throw you off the road completely. We ended up in the proverbial ditch in March on this one:

The gestation period of this app has been 6 long months rather than the intended 2 months. The idea was conceived early one morning in December 2009, whilst shaving. I get a lot of good ideas whilst shaving. Developers were appointed and briefed in late December and we anticipated a launch in February. In fact, it was March 2010 before we were first in a position to submit the fledgling app to Apple Inc for assessment for inclusion in the AppStore.

Now, Apple Inc became very skittish in March 2010 for some unknown reason and suddenly started rejecting perfectly good applications on the flimsiest of pretexts, at least this is what I have managed to glean from various sources.

In short, our application was rejected because it, and I quote, ‘did not make full use of the available iPhone functionality’.

Well, stuff you, Duckie!

We found ourselves in the proverbial ditch.

So we went back to the drawing board with our developers, who were as frustrated as were we, and we started to build an even better application.

We incorporated the full text of the UK Trade Marks Act 1994.

We built in an RSS blog feed so that we could now offer bloggers on branding and design a further outlet for their blog-posts. We included a Twitterfeed.

We refined the back-end CRM databases to enable us to communicate with our enquirers by email and by SMS.

We upgraded the graphics and revisited the screen designs and the copy.

We resubmitted on June 9th and were notified of the inclusion of Namesearch TM Legal in the AppStore on June 15th….and great was the celebration.

In its first 3 days, and without any advertising apart from a few tentative tweets on Twitter, we have scored 164 downloads of our new application worldwide.

Interestingly, many of the initial enquiries are from Canada and the US so we will immediately be setting up a  referral conduit to our trade mark affiliates in those countries to handle those enquiries effectively.

NB: Don’t Miss Your Blog Opportunity

We are also looking for relevant blogs on marketing, branding and design to include in the application’s RSS feed so if you would like your blog included please do get in touch with me as soon as possible and we can help get you an increasing, targetted readership for all of your blog-posts.

Just email me at cjs@silvermansherliker.co.uk. We can include your blog in the Namesearch application within a few seconds and would be delighted to extend this courtesy to you. Don’t be shy!

May all your ideas be big ones.

I look forward to meeting you in the ditch.

Chris Sherliker

@London_Law_Firm
cjs@silvermansherliker.co.uk
Tel:  +44  (0)20 7749 2700

Silverman Sherliker LLP, 7 Bath Place, London EC2A 3DR

This is a non-exhaustive 50 point checklist designed to help you avoid some very common legal pitfalls and maximise the legal security of your business.

1. Make sure that legal ownership assets used in the business are actually owned by the business.
2. Get written copyright assignments from designers, authors, software and web developers and appropriate warranties of originality.
3. Check the terms and conditions of third party suppliers of services to ensure you legally own any deliverables they create.
4. Do not rely on a terminable licence for key business assets; take an assignment or a perpetual royalty-free licence.
5. Always negotiate when taking or granting a licence (term, option to renew, notice period, warranties, conditions etc).
6. Make sure new shareholders assign the assets that they are bringing to the party to the business as a condition of the issue of their shares.
7. Check every name, trademark, slogan and design you use to ensure it does not infringe any third-party rights.
8. Do not use a name, slogan or logo without filing a registered trademark application.
9. Check the patentability of your inventions before disclosure or marketing.
10. Patent your novel inventions if patentable.
11. Register your designs as UK or EU Registered Designs.
12. Insist on non-disclosure agreements as prelude to deal negotiations.
13. When buying, consider milestone payments and a retention.
14. When buying, obtain contractual warranties and indemnities from sellers.
15. When buying, carry out as much due diligence as is possible.
16. When selling, get deferred payments guaranteed or secured.
17. Agree terms of ’soft’ loan capital up-front to avoid sudden repayment demands by investors.
18. Consider weighted voting rights for business founders who go below 50%.
19. Ensure shareholders, employees and consultants agree non-compete obligations.
20. Ensure post-termination non-competes are reasonable and enforceable.
21. Protect customer-base and goodwill by including non-solicitation obligations in employee contracts.
22. Protect investment in staff by including non-poaching obligations in employee contracts.
23. Impose strict confidentiality obligations on people involved in the business.
24. Ensure confidentiality obligations continue after termination of involvement.
25. Draw up an appropriate Shareholders Agreement for multiple shareholders.
26. Consider list of ‘reserved issues’ requiring unanimous shareholder consent to implement.
27. Do business under your own clearly-drafted standard terms and conditions of business.
28. Bring your terms and conditions to the attention of customers before they commit to buy.
29. Make share ownership by partners and staff subject to performance criteria.
30. Provide that employee shares vest over a reasonable period of time.
31. Make employee shares subject to sell-back obligation if they leave for any reason.
32. Provide a procedure for the fair valuation of shares of leaving employee.
33. Encourage employee loyalty by providing for nil value on share buy-back in first 2-3 years.
34. Consider discounted (or nil) value for shareholder employees dismissed for breach or wrongdoing.
35. Control the ability to sell the business by imposing ‘drag-along’ terms on minority shareholders.
36. Consider share purchase assurance to buy back shares of deceased shareholder from the estate.
37. Consider a contractual dispute resolution procedure to avoid dead-lock or formal proceedings.
38. Build business value by obtaining written contracts with customers and clients.
39. Consider minimum term commitments from customers and clients and long notice period.
40. Register under the Data Protection Act if applicable.
41. Negotiate favourable written agreements with all suppliers.
42. In supplier contracts, seek exclusivity, initial minimum term, renewal rights and long notice period.
43. When granting exclusivity ensure minimum performance criteria as a condition of such exclusivity.
44. Consider legal expenses insurance and After the Event Insurance when engaging in legal proceedings.
45. Ensure your business operates within its industry standards and applicable statutory framework.
46. Agree an appropriate Grievance and Disciplinary Procedure and stick to it.
47. Do not terminate any contract of employment without taking legal advice.
48. Never rely on a calculation or valuation carried out by accountants that are being instructed or paid by someone else.
49. Always seek a personal guarantee of payment or performance from principals of an SME business.
50. When dealing with a group of companies, seek guarantee of payment or performance by holding company.

              …..and never give anyone a signed, blank cheque.

 Email to discuss any of this: cjs@silvermansherliker.co.uk

The High Court in London willingly concludes that UK legal proceedings can validly be served….by Tweet!

Already dubbed the Blaney Blarney Order, a UK Court held yesterday that an injunction restraining a Twitter imposter posing as an established Twitter blogger and right-wing political commentator could be served on the impostor using Twitter. Seasoned Tweeters like @London_Law_Firm will just shrug and say “So? …Why not! Perfectly sensible”.

After all, legal proceedings may be served by email and by fax.

It is amusing that a social web medium with such an inconsequential name as ‘Twitter’ should so quickly become a recognised part of the social and legal fabric of society and enshirined as such By Order of the Court!

If you do ever get served with legal proceedings by Tweet …just think what fun you will be able to have by RT’ing them and inviting comment and support on the Twitterfeed….and will such publicity and public comment prejudice any future hearing in the matter?

Web 2.0 has not quite got its head around the ’sub judice’ rule, its seems.

Was the possibility of ‘Trial by Tweet’ actually considered in this case?

We feel another legal Twecedent is begging to be set!

At Silverman Sherliker, we specialise in giving good, timely, business legal advice. Entrepreneurship is in the DNA of the firm. Our clients like that approach.

Getting good business legal advice is easy but you do need to ask for it and, most importantly, you need to ask for it EARLY. So whether it is a new start-up, a commercial investment or a new collaborative initiative -get yourself over here as early on in your project as you reasonably can.

As practising business lawyers, we enjoy helping clients in this way, right at the beginning of a new business venture – and we usually find that we can add significant value for the client at this point. A short review meeting with us right at the beginning of the project is time very rarely wasted and can very often help avoid some very expensive and avoidable mistakes. Don’t wait until a legal problem heaves into sight….take some early legal advice and avoid the legal problem arising in the first place! After years of seeing what can often go wrong in business, we can usually, very quickly, identify the key areas of legal risk and the most likely legal problems down the line.

Most importantly, we can also usually suggest some very simple things that can easily be done to avoid these risks and difficulties. So set up an early review meeting and come along and pitch the project to us. Ask us some open questions. Ask us some general questions.

For example, your question might be: “I am thinking of getting together with some people I know to set up a new online business. What do you think?”

Get ready for some questions in reply:

• Who will be developing the web-site?
• Who is putting the money in?
• Are any of you currently in a competing business?
• Are any of you currently employed?
• Who will have management control of the business?
• How will you protect minority directors?
• How will you get your initial investment out?
• What will happen if you have an irreconcilable difference of opinion?
• What happens if one of you quits the business or dies?
• What if one of you wants to sell out?

A proper contract with the web developer with sensible payment milestones and acceptance procedures can help avoid delays and points of subjective interpretation that are inherent in web development contracts. It will also ensure that the copyright in the web deliverables are properly assigned and not just subject to a licence from the developer that can be terminated. Will the web rights be assigned straight into the company or held outside the company and licensed to the company to protect the main asset in any future insolvency situation? It would probably also be a good idea to put the developer under a support obligation and prevent the developer building a competitive site for a couple of years or so.

A basic shareholders agreement will prevent any of the participants holding the business to ransom down the line and ensure minority rights are protected by veto on major business issues. A simple mechanism to deal with share purchase and valuation on exit and dispute resolution would also probably avoid much future contention and uncertainty.

You begin to get the general idea. These are the kinds of simple legal issues that are often over-looked but can easily and inexpensively be addressed at the outset, saving untold problems later.

Good business legal advice is about identifying and avoiding legal problems…not being a slave to them down the line when you should be enjoying the fruits of your success!

So the moral is…for good business legal advice…discuss the likely legal issues with us early on before you make any irreversible commitments…ask open questions…ask general questions…come and pick our brains…what’s left of them!

Call or email me to arrange a meeting.

Chris Sherliker

cjs@silvermansherliker.co.uk

Tel +44(0)20 7749 2700

I’ve acted for various clients recently who have sold their businesses and companies, some for many millions of pounds, and I have been astounded by the extremely high levels of risk, often personal risk, that some sellers seem quite content to take on board when they sell.

The terms that some sellers are currently prepared to accept are nothing short of suicidal in some cases.

Some sellers are indeed rushing to sell their businesses like lemmings and are seemingly quite prepared to do so on terms that, quite frankly, verge on the lunatic.

From the point of view of a solicitor giving advice to a client on selling a business, the challenge is to get the seller to appreciate the likely (and often potentially disastrous) consequences of selling on the terms first offered and then to negotiate sensible terms, even if this means that the deal is delayed and even in the face of the possibility that the deal could go abortive. The maxim ‘caveat vendor’ has few adherents. Let’s just flog it and the devil take the hindmost.

In my experience, and, particularly, in my recent experience, sellers are far too trusting of buyers who are promising a fat cheque for the business, especially when that fat cheque is not paid in cash on completion but is deferred and, even perhaps, conditional on future profits or other uncertain conditions, which conditions are usually not within the control of the seller at all.

It requires quite a lot of nerve to sell a business and a considerable amount of patience. I always tell clients that selling a business is a process rather than just a matter of pitching up and signing an agreement. And good legal advice on selling a business is difficult to find so, if, after having read this, you would like a ‘no obligation’ chat with me about any aspect of selling your business, just call me or ping me an email (contact details below) and I will be very pleased to spend an hour with you to talk through the issues. It will only cost you your time and it will probably save you a lot of anxiety and ultimately even a lot of money.

Please feel free to download the FREE Guide with our compliments.

Chris Sherliker – 020 7749 2700

cjs@silvermansherliker.co.uk