Intellectual Property Lawyers and Solicitors

4 July 2008

legal services

 
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TERMS OF BUSINESS

 

On-line instructions

For sales of goods and services via the telephone or internet, the Consumer Protection (Distance Selling) Regulations 2000 apply. However, you will not have any cancellation rights if we have already begun to do your work within the 7 day cancellation period under the regulations.

 

1. Obligations of the firm

Our qualified staff and consultants are either Solicitors or Trade Mark or Patent Attorneys and must comply with their respective codes of professional conduct as well as the firm as a whole being subject to the Solicitors Regulation Authority regulations.

 

Personnel assigned to your matter

All work will be carried out under the supervision of Shireen Smith, Solicitor, with the assistance on trade mark searches, design and non technology patent matters, of Michael Harrison, who is a European and Chartered Patent and Trade Mark Attorney. Technology related patent work is undertaken by Erica Dutton, who is a European and Chartered Patent Attorney. Certain administrative and legal tasks will be delegated to Peter Sykes, trainee Solicitor, or Zoltan Micsinai, Paralegal. More background information about all these people is available on the website. We aim to provide continuity of personnel to deal with your matter, and will advise you in writing of the names and qualifications of any other staff or consultants assigned to your matter, and of any changes thereafter

 

Our liability to you

We will perform the engagement with reasonable skill and care and acknowledge that we will be liable to you for losses, damages, costs or expenses caused by our negligence or willful default up to the limit of our professional indemnity insurance, which is £2,000,000 for any single event or series of connected events worldwide. Details of the policy are available on request. We do not seek to limit our liability for death, personal injury, fraud or reckless disregard of professional obligations. While we will always work to the best of our ability and with the information provided, there can be no guarantees regarding outcomes. Discussions on likely outcomes are based on our experience and professional judgment.

We will not be liable for any delay in performing or failure to perform our services if the delay or failure results from any circumstance beyond our reasonable control (an “event of force majeure”). If any event of force majeure occurs, the date for performance of our services will be postponed for as long as necessitated by the event of force majeure. If any event of force majeure continues for a period of or exceeding 60 days either party may cancel the affected services immediately on written notice to the other party.

You may send any queries to us by telephone, email, fax or letter. If the person having day to day conduct of your matter is unavailable to take a telephone call, they will attempt to return it the next day, but if that is not possible, then within three working days. Emails will generally be acknowledged on the same day and will be responded to in substance either on the same day or if that is not possible within three working days. Other written correspondence will generally be replied to within one week unless further investigation or inability to contact others prevents this, in which case we will notify you how long it is likely to take to be able to respond to your query.

 

Limits on trade mark and patent searches

Searches may be carried out by us, by Patent Offices or by an independent specialist searching firm. Due to the limitations and occasional errors in classifications, computer databases and official records, and also due to incomplete information we may be supplied with prior to a search, no search can be guaranteed for fullness or complete accuracy.  

 

Trade mark searches

Our basic word search and clearance word, as well as our logo search look at the UK/CTM (European) trade mark registers.

The basic word search is a search of the exact and identical same word. It is intended more for preliminary checking of a number of possible names, or to check that someone else has not already registered the same name as a trade mark. It is not as effective as a clearance search in reducing the chances of a failed trade mark application.

The clearance search covers the exact and identical same word, as well as the more typical similar sounding names, or words having strong elements in common. Clearance searching helps reduce the risk of a failed trade mark application, and the danger of choosing a business name that is someone else’s trade mark. A logo search aims to find out whether there are conflicting logos registered as trade marks for your proposed classification areas. No guarantees are given that names or logos searched will be problem free during the trade mark registration process, and you should satisfy yourself that the searches you have requested are adequate for your purposes. In particular as neither search includes a comprehensive common law search, you should do your own research to establish whether any competitors are using similar marks to yours.

Our CTM search does not include a search of each of the 27 individual country registers. If you require a search of any individual country’s trade mark registers, this will need to be requested and paid for separately. Similarly, if you require a common law search of a word in the UK or elsewhere this will need to be requested and paid for separately. If you require a logo search then the price indicated on the website is an indicative one only covering the UK and CTM trade mark registers. As the price of logo searches varies considerably depending on your logo, we will contact you before doing the search if the price for your logo is likely to exceed the price indicated on the website.

 

Trade mark refunds

If after doing your trade mark search we find an existing trade mark which makes it inadvisable to file a trade mark application in the intended name. or if in the light of the risks highlighted in our trade mark search results you decide against filing a trade mark application, then we will send you a refund of your trade mark filing monies less the following sums which represents our charges for doing an individual search which is not part of a trade mark filing package:

Trade mark word search in up to 3 classes £250

Trade mark logo search in up to 3 classes £320

 

Professional obligations and confidentiality

We will practice competently, and objectively, putting the interests of our clients foremost while observing the law and our duty to any Court or Tribunal, and also to avoid any conflict of interest. Solicitors are under a professional and legal obligation to keep the affairs of their clients confidential. This obligation, however, is subject to a statutory exception: recent legislation on money laundering and terrorist financing has placed solicitors under a legal duty in certain circumstances to disclose information to the National Criminal Intelligence Service. Where a solicitor knows or suspects that a transaction on behalf of a client involves money laundering, the solicitor may be required to make a money laundering disclosure. If this happens, we may not be able to inform you that a disclosure has been made or of the reasons for it because the law prohibits ‘tipping off.’

 

Confidentiality and outsourcing of services

We are under a strict professional duty of confidentiality to you, and although we reserve the right to use subcontractors or external agencies for call answering, typing, legal drafting, legal expertise, technology, data filing and back up services, book keeping, research, photocopying, printing, searches, and such like we will take care when selecting these persons or agencies to ensure that your confidential information is safeguarded at all times. We hold data electronically and destroy originals of all documents within a month of an electronic copy having been made. Should you require your documents in future, then we reserve the right to make a reasonable charge for preparing physical copies for you.

 

Other obligations to you

You agree that we are authorised to disclose that you are a client of the firm or that we have acted for you on a particular matter.

We are committed to promoting equality and diversity in all of our dealings with clients, third parties and employees.

 

Quality standards

We are working towards the Lexcel quality standard of the Solicitors regulation authority. As a result of this we are or may become subject to periodic checks by outside assessors. This could mean that your file is selected for checking, in which case we would need your consent for inspection to occur. All inspections are, of course, conducted in confidence. If you prefer to withhold consent, work on your file will not be affected in any way. Since very few of our clients do object to this we propose to assume that we do have your consent unless you notify us to the contrary. We will also assume, unless you indicate otherwise, that consent on this occasion will extend to future matters which we conduct on your behalf.

As part of our quality standards, following the initial contact regarding a new matter, we will confirm with you by letter the scope of the work. This letter should give you a clear understanding of what is being undertaken. We welcome any questions or concerns so as to avoid any future misunderstandings.

 

2. Instructions

 

Identity of the client

It is important that we are able to identify who is our client. Therefore, unless otherwise indicated, we are entitled to assume that the person (including an individual, firm or company) providing us with the initial instructions in relation to a matter is our client. So, if for example, we accept instructions from lawyers (whether in the UK or abroad) they, and not the persons for whom they act, will be our client and responsible for settlement of all our invoices and for reimbursement of all our costs and expenses incurred in carrying out their instructions. If the client wishes us to make invoices out to and accept payment from another person, then we shall be pleased to do this. However, the responsibility for settling such invoice remains with our client.

 

New clients and start ups

We welcome instructions from new clients and start up companies. For all new clients we have a policy of requesting funds on account before carrying out any work. Also, for newly formed limited companies we expect the directors to be personally responsible for our reasonable charges and costs in connection with instructions made on behalf of the company. We may ask the directors to formally acknowledge an undertaking to this effect in our favor. Any extra time it takes us to obtain verification of joint instructions will be charged to the client in full.

 

Joint instructions

Where we are instructed by joint clients, or by a director or partner of a company on a matter that requires the consent of the other directors or partners, then we are entitled to only proceed with a given course of action once we are satisfied that it accords with the wishes of the other joint client, director or partner as the case may be.

 

3. Estimates, fees and expenses

We will give you an estimate of likely costs at the outset, and wherever possible this will include fixed fees for known elements of the work. Our current fixed price packages and what they include are indicated below:

 

Trade Mark Packages – UK and Europe

Where we are instructed on line via the internet our UK trade mark package costs £525, while the European CTM trade mark package comes to £775. Both are exclusive of VAT, government fees and the unexpected (see below) and include:

• A word clearance search in up to 3 classes and full report • Filing your word or logo trade mark (or combined mark) in up to 3 classes • Registration of your mark on successful conclusion, and posting of Trade Mark Certificate

Government fees are extra. They come to £200-£300 for UK trade marks, or 750 Euros (about £600) to apply for a CTM trade mark, with a further 850 Euros (about £700) to register. VAT is added to all fees except government fees which are VAT exempt

This is a fixed price for the known, unopposed costs of a search and trade mark registration. As it is unpredictable whether any work would arise to progress your application through to registration, our fixed prices exclude unpredictable costs. Examples of these include trade mark registry points on your application, or third party objections or oppositions to it. If there is further work to prosecute your trade mark application we charge £190-£260 per hour depending on the work involved and the skills required to deal with it. Costs to prosecute your application are discussed with you and budgets set. They are invoiced at the end of the month in which the work is done.

After we file your application, it takes approximately 6-9 months for a UK trade mark to be granted, while a CTM takes approximately 12-18 months. For straightforward applications, we anticipate writing you just 4 letters over that period: once to report the search results, a second to inform you we have filed your application, a third to inform you the trade mark registry has examined your application, and finally to send your Trade Mark Certificate.

 

Hourly rate billing and scope of fixed prices

Our fixed price packages and estimates assume you will provide us with the instructions we require in the form in which we request it. We also assume you will review documentation we send you and complete any questionnaires giving us further instructions and insight about your wider objectives.
If instead of using us within the scope of our fixed price offering you require a more individual personal service, entailing telephone calls, email queries, or meetings which are not included in the fixed price service, then there will be extra charges in line with on the extra amount of time, skill or work we spend on your matter. Similarly, there will be an extra charge if your matter becomes urgent or if we need to chase you.
Similarly any estimates we give may increase if it becomes obvious that the value or nature of the work to be undertaken differs from that originally envisaged, or if it is to be expedited. Where possible we will advise you of the appropriate increase as soon as we know.
Our estimates and fixed prices are principally by reference to the time involved, although our fees also reflect what is fair and reasonable to both you and us, having regard to all the circumstances, in particular to (i) the complexity, difficulty or novelty of the questions raised; (ii) the skill, labour, and specialised knowledge and responsibility involved; (iii) the number and importance of the documents prepared or reviewed; (iv) the place where and the circumstances in which the business is transacted; (v) the amount or value of any money or property involved; and (vi) the urgency of the matter. Our hourly rates depend on the nature of the work and the seniority of the person doing the work. These rates are reviewed periodically to reflect increases in overhead costs and inflation. The following are our current ranges of hourly rates for different level of staff: Consultants, lawyers and patent/trade mark attorneys £180-£350 Trainee solicitor £100-£160 Paralegal £80-£100 Time spent on your matter includes reading and working on your papers, emails and other correspondence, writing up notes of meetings and conversations, obtaining quotes for you from agents abroad and preparation of any detailed costs calculations, and time spent traveling away from the office when necessary. In common with other professional firms we charge in 6 minute units for email and telephone conversations, so for example, for an hourly charge out rate of £180, a telephone call of up to 6 minutes would cost £18, while an email exchange would also cost £18. Where the time spent is more than 6 minutes it will be charged as two units. Our charges for a short standard letter will be £50.

 

If you are litigating

If we are involved in litigation on your behalf and you are successful against an opposing party, you may be able to recover a proportion of your costs from the other party. Costs orders are in the discretion of the court and you should bear in mind that even if you win, your opponent may not be ordered to pay all of your costs and indeed may not be capable of paying those costs. If your opponent is legally aided it is unlikely that you will recover your costs even if you are successful, due to the nature of Legal Aid Orders. Where we are representing you in court proceedings, you are responsible for payment of our fees irrespective of the amount of any costs that may be awarded by the court or recovered from the other party.

We will charge for our work in seeking to quantify any costs which the other side is ordered to pay, including work in the preparation of the bill and other papers. The cost of this work is often not recoverable from the other side whatever the outcome.

If you lose the case it is probable that you will be ordered to pay all or some of your opponent’s costs as well as your own. We will also charge for our work in seeking to minimise any costs that may be payable to the other side.

 

Disbursements

In addition there may be other costs and expenses (‘disbursements’) that will be payable during the course of your matter. Your acceptance of these terms constitutes your agreement for us to incur the expenses which in our judgment may be necessary. Where possible we will advise you of these in advance. Please note that third parties (such as trade mark search agencies) may alter their fees, and it may not always prove possible to alert you to any changes or further expenses in advance of incurring them on your behalf. All disbursements are itemised separately as disbursements on our invoices, and may include courier charges, traveling expenses, or telephone, fax, copying and postage. Where appropriate these will have VAT added at the prevailing rate in force.

 

Invoicing

For certain matters we take a payment on account of costs from you. We reserve the right to render interim bills, and to defer work on your matter until payment is received.
In general once we have done the work, or (if it is a matter that requires work spanning over more than one month) at the end of the month, we issue a final or interim invoice, and use the amount held on account towards settlement of the invoice. We then account to you for the monies held, and either request a further payment, or reimburse surplus funds, if any (should the work be at an end).
For fixed price work, we either take payment on-line, raising a separate invoice later for any government fees, or we take a payment on account, and then later issue an interim invoice for the fixed price work, settling the invoice out of funds held for you in our client account.
For ongoing work, or if ad hoc work arises while we are doing other work for you, unless otherwise agreed we invoice you monthly at the end of each month for work done in that month. Invoices should be settled within 14 days, otherwise interest will be charged at 4% over the prevailing Barclays base rate. Whenever we are holding monies on account of costs for you, then we are entitled to transfer the monies into our office account once we issue an invoice for the work in question.

 

4. Your obligations

You agree to comply with the money laundering obligations in clause 5. You accept that we will communicate with you electronically via email and the internet, and this includes communications or records that we may otherwise be required under applicable law to provide to you in written paper form. You agree that we may provide such communications or records by means of electronic communications, and if you are concerned about the fact that the internet is neither secure nor private you will inform us in writing of your concerns so that we may discuss with you alternative ways of communicating. Unless we receive your written objection to use of email, you accept that we cannot guarantee correct message routing or promptness of delivery. You undertake to provide us with all information, assistance and materials that we may request from time to time to facilitate our proper and timely performance of our services, and you warrant that all such information provided to us will be complete and accurate. We ask you to give us timely written instructions. Patent and Trade Mark offices often impose time limits and we accept no liability if you do not provide clear and complete instructions early enough for us to act within those time limits. We will normally advise you of time limits, and of actions or instructions that are required, but we do not undertake to give reminders. If we receive late instructions, we may not be able to implement them in time. In the event of late instructions or late payment to us, urgency charges may be incurred, which will be passed on to you.

 

Change of address

It is important that you inform us of any change of address, email, telephone, and fax numbers and of any change in ownership of your patent or other relevant IP rights. Many such changes have to be officially registered. Obtaining patents, trade marks and design rights can take many months or years. No responsibility can be accepted for any loss of rights in any case where you have failed to inform us of such changes.

 

Indemnity for threat of infringement proceedings

We ask you to indemnify us against the risks of our being sued for making an unjustified threat of infringement proceedings, in the event that you need us to send any warning on your behalf to a third party. The aim of this request is to maintain our objectivity in contentious matters, which would diminish if we were to become a party to any proceedings. We may refuse to act for clients who do not provide the requested indemnity.

 

Copyright in materials we produce

You acknowledge that documents which we generate for you are protected by copyrights, which belong to us. The fee you pay for our work gives you an implied licence to make use of the documents for the purposes for which they were obtained and for all reasonably associated purposes; subject to your taking such copy protection measures as we may require for certain assignments where the product is to be uploaded onto your website.

 

Overall limit on the scope of our services

You acknowledge we are intellectual property and general commercial lawyers qualified to provide advice on intellectual property and business law matters. For advice on other legal or non-legal matters, such as financial or tax, you should consult other professionals, such as tax lawyers or accountants, as appropriate.

 

Instructions of third parties or introductions to other professionals

As part of carrying out your instructions, it may be necessary for us to instruct third parties such as foreign lawyers or patent agents, to act on your behalf. Whether we instruct the third party directly, or ask you to sign a power of attorney to engage them directly, or simply introduce you to a supplier of services you require, we will not be liable for any losses, liabilities, costs or expenses arising as a result of any default or negligence on the part of any such third parties. Whilst we endeavour to select third parties or introduce you to professionals whose performance and expertise we regard as of good quality, we may sometimes have limited knowledge of their work, so we welcome feedback from you, so that we know more about the quality of third parties we refer.

 

5. Money laundering

The law requires solicitors as well as banks, building societies and others, to obtain satisfactory evidence of the identity of their clients. To enable us to satisfy our obligations under the Money Laundering legislation, we reserve the right to check your identity at any time through credit reference agency checks, including asking you to supply appropriate proof of identity before we are able to act or continue to act for you or for any principal whom you may represent. We will also not be able to receive any funds from, or pay any funds to you or on your behalf unless all necessary identification and other procedures have been satisfied for the purposes of the Regulations. Please also see further provisions relating to these matters in the section entitled ‘Professional obligations and confidentiality’.

For individuals and partnerships, the proof of identity we will require will usually be a current valid passport, photo card driving licence showing your current address, recognised identity card or equivalent showing your name, date of birth and photograph, together with a current utility bill, recent council tax demand or equivalent confirming your address. For companies, we may require a copy certificate of incorporation or copy audited statutory accounts together with personal identification in respect of the company’s officers.

In the light of the Regulations and for insurance reasons we do not normally accept cash payments from or on behalf of clients and then only in special circumstances and for limited amounts of no more than £500. If you circumvent this policy by depositing cash direct with our bank we reserve the right to charge for the time it takes us to deal with the administrative and other implications of your actions on us as a regulated body.

 

6. Complaints

We expect to enjoy a good professional relationship but in the event that you feel you have cause for complaint, then initially please contact the principal of the firm, Shireen Smith. If she is unable to resolve the problem to your satisfaction we will refer your complaint to Ruth Gladwin Solicitor. If you are unhappy with the outcome then you have 6 months in which to ask us to request that the Legal Complaints Service intervene in the matter. We appreciate and act on feedback from clients. Any comments that you may have to improve our service should be directed to Shireen Smith.

 

7. Termination of retainer

We are bound by the Solicitors Regulation Authority’s Code of Conduct and in some instances may not be able to act for you or may have to terminate the retainer for good reasons, and reserve the right to terminate the retainer if you withdraw consent to receive electronic communications from us. Other good reasons will include conflict of interest, failure to give instructions, misrepresentation of critical facts, withholding relevant information or acting contrary to our advice. We will try to identify any issues in advance and discuss these with you before informing you of our decision to stop acting for you.

 

8. General

English law shall apply to the construction and interpretation of our contract with you and the English courts shall have exclusive jurisdiction to resolve any disputes arising under it. It is not intended that any terms of our engagement with you shall be enforceable by a third party, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

 

Acceptance of terms of business

By engaging our services you are deemed to accept these our terms of business even if you do not sign them, unless you tell us otherwise within 7 days of instructing us. If you are acting on behalf of a company or partnership, you warrant that you are authorised to contract on behalf of that company or partnership. Furthermore, if you are acting on behalf of a newly formed limited company you agree to be personally responsible for our reasonable charges and costs in connection with instructions made on behalf of the company, and will confirm your personal liability to us in writing on request.

 

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