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The Evil Opportunists: Please Donate Your Personal Details

The Evil Opportunists: Please Donate Your Personal Details The ABC recently revealed that a number of popular Australian not-for-profit charity organisations (NPCO’s) were inadvertently involved in a data leak when a Brisbane based telemarketing company that contacted potential donors was hacked by cyber criminals. The data leak led to the personal information of the charitable benefactors being uploaded to the dark web.[1] Well known charities such as the Cancer Council, Canteen and The Fred Hollows Foundation were confirmed as having donors’ personal data compromised. However, it is understood that more than 70 other Australian charities use the company responsible for the breach to contact potential donors. In light of such data breaches, should Australian NPCO’s place greater priority on measures that safeguard donor data and maintain public trust? Australian Charities Snapshot Australians have a long history of supporting charitable causes with the first Australian private charity dating back to 8 May 1813, when what is now known as the Benevolent Society was formed, which was the first charitable organisation dedicated to meeting the needs of vulnerable groups.[2] Today, the list of NPCO’s in Australia has expanded to include: approximately 60,000 charities, which equates roughly to one charity for every 433 Australians; the employment of 1.42 million Australians, which account for 10.5% of all Australian employees; the collection of $13.4 billion in donations in 2021 alone; holding approximately $31 billion in assets; and the distribution of $9.7 billion annually through grants and donations.[3] These statistics highlight the willingness of Australians to donate, and how prevalent charities are in Australian society. Therefore, given the recent data breach (and how many more have there been that we aren’t aware of), should Australian’s be concerned with the governance, structure and security of NPCO’s? What defines an NPCO? There a very strict compliance rules and obligations for an organisation to be recognised, and operate, as an NPCO in Australia. NPCO’s are governed by the Charities Act 2013 (Cth) (Act), which is administered by the Australian Charities and Not-for-profit Commission (ACNC). The Act states that to be recognised as a charity, an organisation must: be not-for-profit; have only charitable purposes that are for the public benefit; not have a disqualifying purpose (which are engaging in, or promoting activities that are unlawful or contrary to public policy; and promoting or opposing a political party or candidate for political office); and not be an individual, a political party or a government entity. How to create an NPCO Firstly, anyone who wishes to create an NPCO must have the correct legal structure for their specific organisation, as different legal structures create different legal obligations and provide different benefits and drawbacks. When deciding on a legal structure, any potential NPCO must consider (among other things): the charity’s size and how complex its activities will be; whether it will have employees or volunteers; the potential personal liability of members or office holders; and any eligibility for tax concessions. The most common legal structures for an NPCO in Queensland are an [...]

2023-11-30T11:54:19+10:00November 29th, 2023|Not for Profit|

The “Big Jack” Verdict: No Trade Mark Infringement by Hungry Jack’s

The "Big Jack" Verdict: No Trade Mark Infringement by Hungry Jack's Following a 3 year Court battle brought by McDonald's against Hungry Jack's, the Australian Federal Court has ruled that Hungry Jack's did not engage in trade mark infringement. The fast-food industry is highly competitive, with companies constantly vying for the attention of consumers and innovating to stay ahead. The legal beef between the burger giants began when Hungry Jack's released burgers called the "Big Jack" and "Mega Jack". McDonald's alleged that this was an infringement of McDonalds' trade mark over "Big Mac". During the trial, Hungry Jack’s chief marketing officer, Scott Baird, admitted that there was an "element of cheekiness" in the burger name, but maintained that the name was not chosen because of its similarity with McDonalds' burgers. The Court emphasised that for a trade mark to be protected, it must possess a level of distinctiveness that sets it apart in the market. McDonald's asserted that the use of the term "Big" in Hungry Jack's Big Jack was an infringement. However, the Court clarified that trade mark protection is not absolute and does not extend to every use of a common term like "Big." The scope of protection must be reasonably defined. Another critical legal consideration was the examination of how consumers could perceive the products. The Court looked at whether the average consumer would likely be confused between the Big Jack and Big Mac. The Court held that the respective names were not deceptively similar and that consumers would not be confused between which restaurant sold the respective burgers. It wasn't however a total win for Hungry Jack's. McDonald's succeeded in a separate argument that Hungry Jack's had mislead consumers and breached consumer laws by advertising that its Big Jack burger contained "25% more Aussie beef" than the Big Mac burger. Tests conducted by a scientist during the trial showed Hungry Jacks' claim to be incorrect. This case shows that the argument of trade mark infringement can often be a fine line. Such disputes highlight the competitive nature of the market and the lengths companies are willing to go to protect their brand identity. If in doubt about whether your advertising (or that of a competitor) may constitute trade mark infringement, obtaining legal advice is key.  By Luke McKavanagh Luke is part of Salerno Law's commercial law team. His days involve providing advice on a wide variety of commercial issues that arise in operating small to medium businesses, where he assists clients who are growing their business or wanting to protect what they’ve established.

2023-11-20T17:04:23+10:00November 20th, 2023|Copyright & Trademark, Litigation|

Kanye West’s ‘YEWS’ Trademark Application Raises Concerns in Brisbane

Kanye West's 'YEWS' Trademark Application Raises Concerns in Brisbane Introduction Kanye West, the renowned musician and fashion icon, has recently filed a trademark application for the term 'YEWS' with the United States Patent and Trademark Office. The trademark application covers a range of ventures, including fashion and gambling. While this move represents a strategic expansion of West's brand, it has raised concerns for a Brisbane-based tech company, Your Easy Web Solutions (YEWS), which uses the acronym 'YEWS' for its business operations. This article explores the potential ramifications of West's trademark application on YEWS and the associated concerns regarding the controversial views expressed by the rapper. The Trademark Application Kanye West's trademark application for the term 'YEWS' signifies his intention to use this brand for various business activities, notably fashion and gambling. This development indicates West's expansion beyond the music industry into sectors that may overlap with the operations of other companies, such as YEWS. In this regard, various music artists (Beyonce, Taylor Swift, Dr Dre, Jay Z, etc) have enjoyed phenomenal success with business ventures outside their normal music endeavours. Concerns for Your Easy Web Solutions (YEWS) Brisbane's tech company, Your Easy Web Solutions, currently utilizes the acronym 'YEWS' as part of its brand identity. In recent media reports, YEWS’ Managing Director, Alexei Kouleshov, has expressed genuine concerns regarding the potential impact of West's trademark application on YEWS. These primary concerns being as follows: 1. Rebranding Requirement: Should Kanye West's trademark application be approved, it might necessitate that YEWS undergo a significant rebranding effort. This process can be costly and time-consuming, potentially affecting the company's pre-established identity. 2. Reputation and Controversy: A central concern lies in the potential association between the term 'YEWS' and the similarity to the word 'Jews.' Given Kanye West's history of making controversial and his recently reported anti-Semitic comments, this connection may result in reputational damage for the Brisbane-based company for Kanye West using the term ‘YEWS’. Such negative connotations could harm YEWS' image and standing in the market. 3. Neutral Business Orientation: Mr. Kouleshov emphasised that YEWS is a neutral entity when it comes to political and controversial matters. The company having operated for 16 years with a focus on web development and digital marketing. Any unintended association with controversy could adversely affect the company’s position and standing as a reliable and neutral service provider. 4. Legal Action to Protect Brand Identity To safeguard the company's brand identity and reputation, Mr. Kouleshov expressed his commitment to taking all necessary legal actions. This suggests that, if West's trademark application poses a substantial threat to YEWS, the Brisbane-based tech company may explore legal remedies to protect its interests and ensure its continued operation with minimal disruption. The obvious concern being the uphill battle that Mr. Kouleshov may face, as a business owner, taking on someone who has significant financial and legal resources such as Mr. West. Trademark/Copyright Law Do I need to register my trademark? Registering your trademark is not mandatory in Australia, but it is [...]

Cryptocurrency One Step Closer to Traditional Finance in Australia

Cryptocurrencies may have been originally created to operate free from control, but the lack of regulation has been harmful for the sector, innovation, and consumer protection. Only with proper regulation to normalise crypto use, will crypto become a widely accepted component of financial trading, wealth retention and financing. THE WORLD IS REGULATING CRYPTO As can be seen from the below chart, many nations are taking the steps to regulate crypto: Countries like Hong Kong and Singapore are out in front in developing and implementing a regulatory framework around crypto. The United States and Canada are in similar phases of developing and implementing their crypto frameworks. The UK and the EU have implemented legislation to fully regulate Crypto with laws coming into effect in 2024. NOW AUSTRALIA WILL TOO On 16 October 2023, the Australian Federal Treasury issued a Proposal Paper for legislating and regulating cryptocurrency trading, storage and financing in Australia, by regulating digital and crypto asset platforms such as crypto exchanges, that operate in Australia. Submissions on the Proposals can be made before 1 December 2023. Treasury estimates that it will take further consultation on exposure draft legislation in 2014 with a twelve-month transition period following legislation being made law. HOW WILL THE PROPOSED FRAMEWORK OPERATE? The new framework will treat digital and crypto institutions like any other traditional financial institutions by requiring them to meet the same standards as any other financial institutions through the issuance and regulation of Australian Financial Services Licences (“AFSL”): The Australian financial service laws are a time tested and well understood framework to mitigate risks involving businesses holding or utilising client assets. Digital asset platforms will need to meet all general licence obligations, consistent with other licence holders, such as: meeting solvency and cash reserve requirements. keeping and submitting financial records. producing product disclosure statements monitoring for and disrupting market misconduct. providing the financial service efficiently, honestly, and fairly. managing conflicts of interest. having a dispute resolution system CERTAIN DIGITAL ASSET ACTIVITIES WILL HAVE ADDITIONAL OBLIGATIONS The proposal would also apply additional obligations to four specific activities: Trading – the exchange of digital asset platform entitlements between account holders. Staking – the participation in validating transactions on a public network. Tokenisation – the creation and exchange of entitlements backed by tangible and intangible assets. Fundraising – the sale of entitlements to fund the development of products and services. Obligations are targeted to address some of the risks that arise from digital asset platform business models and the nature of the tokens they provide access. IS MICHAEL SAYLOR CORRECT? Michael Saylor, CEO of Microstrategy (a USA listed company that holds over US$4Bn in bitcoin) has stated that three things are needed to have crypto become part of the mainstream financial world: A change to fair value accounting for crypto balance sheet holdings. Increased prevalence of bank custody and collateralized lending. Regulations that make it safe to invest in crypto. The new USA based Financial Accounting Standards Board (FASB) rules effective from 2024 has [...]

2023-11-04T13:56:00+10:00October 19th, 2023|Cryptocurrency, FRONT HOME PAGE|

Flynn Restaurant Group To Bring Wendy’s Company to Australia

Flynn Restaurant Group To Bring Wendy’s Company to Australia According to numerous sources such as Daily Mail Australia, The Wendy’s Company (Wendy’s) is one of the most successful fast-food franchises in the United States of America, where it was founded. The logo of the girl with red hair in pigtails has become recognisable worldwide, even in Australia, where the franchise does not exist - yet. Wendy’s is now looking to grow their success with what their President, and International and Chief Development Officer, calls a move to a strategic growth market with the help of Flynn Restaurant Group. In light of this recent news of Wendy’s partnership with Flynn Restaurant Group to roll out 200 restaurants across Australia from 2025 to 2034, this process requires an Australian presence and franchisees. So, what is a franchise? A franchise is a business structure where the buyer (the franchisee) pays a licensing fee to trade using the branding, trademarks, products, suppliers and systems of an established business (the franchisor). In return, you must strictly follow the franchisor's systems and procedures, which they may change over time. If you are looking to start a business, the franchise model may be a good option for you. It allows you to use a proven business model that you know is successful and that is easy to replicate. Your franchise will be an addition to a striving business network that has established connections, consumer-base and support. How can I bring my international franchise to Australia? If you are based overseas and want to bring your business to Australia as a franchise, you may have a couple options: Your first option is to find and engage a local master franchisee by signing a Master Franchise Agreement. This method would have the master franchisee essentially act as the Australian franchisor, and sell and deal with the smaller single sub-franchise owners or operators. The Master Franchise Agreement would grant the master franchisee the ability to issue franchises in Australia. This allows them to step into what your role would be as the franchisor, whilst you still maintain an element of control from overseas. The other option to bring your franchise to Australia is to remain as the franchisor yourself. To do this, you must comply with the Franchising Code of Conduct (the Code), which is the governing legislation for all things franchising across Australia. You must also comply with the requirements of the Australian Competition and Consumer Commission (ACCC) who act as the regulators of the Code, and are the authority regarding Australian consumer and commercial issues. What are the preliminary steps before the Franchise Agreement? One of the most important requirements as a franchisor when bringing your franchise to Australia is ensuring you have a robust Franchise Agreement and suite of documents that comply with the Code. As per the Code, a Franchise Agreement is a written, oral or implied agreement where the franchisor grants the franchisee the right to carry on business of offering, supplying, or distributing goods [...]

2023-08-31T10:55:22+10:00August 31st, 2023|Commercial & Corporate, Franchising|

Untying the Knot: Navigating Divorce and Separation Amidst Rising Costs

Untying the Knot: Navigating Divorce and Separation Amidst Rising Costs In an era characterized by escalating living costs and housing crises, the financial toll of divorce or separation in Australia has taken on new significance. Couples are grappling with the reality that parting ways might not just cost them emotionally, but financially as well. As a result, a growing trend has emerged: couples who choose to remain living together despite their decision to separate. This article delves into the dynamics of this unique situation and provides guidance on how to mitigate family law costs during divorce or separation. As divorce rates continue to be a significant aspect of contemporary society, understanding the factors that influence the cost of divorce in Australia is crucial. The insights provided by The Guardian's article shed light on the complexities of divorce expenses, ranging from legal fees to court charges and property division. While divorce is undoubtedly an emotionally challenging process, being aware of the financial aspects and potential avenues for cost reduction can help individuals navigate this challenging chapter with greater clarity and preparedness. Whether opting for legal representation or pursuing alternative dispute resolution methods, individuals can approach divorce proceedings with a better understanding of the potential financial implications. Tips to Keep Your Family Law Costs Down Communication and Mediation: Open dialogue and effective communication can lead to better negotiation outcomes, potentially avoiding costly court battles. Mediation provides a platform for couples to collaborate on decisions related to property division, child custody, and financial arrangements. Consulting Professionals: Seeking advice from family law attorneys and financial advisors can help couples understand their legal rights, obligations, and potential financial impacts. Their expertise can lead to more informed decisions, potentially saving both time and money. Alternative Dispute Resolution: Collaborative divorce, arbitration, and other alternative dispute resolution methods can streamline the separation process, reducing legal fees and court expenses. Agreeable Settlements: Striving for mutually acceptable settlements can alleviate the need for protracted legal proceedings. Couples can explore fair compromises that address the interests of both parties. Documentation: Organizing and providing accurate financial documentation, including assets, debts, and income, can expedite the legal process and prevent unnecessary disputes. Balance Sheet of Assets and Debts: Compile a comprehensive list of assets, such as property, vehicles, investments, and debts, including mortgages, loans, and credit card balances. Financial Support: Determine child support and spousal maintenance arrangements in accordance with Australian family law guidelines. Ensuring financial stability for both parties is crucial. Property Division: Evaluate property ownership, mortgages, and equity distribution. Seek legal advice to understand the most equitable approach to dividing marital assets. The most importance part of Property Division is realising and setting both achievable and manageable expectations when it comes to possible divisions of an overall property pool. Parenting Arrangements: Establish clear and practical arrangements for child custody, visitation, and support. Focusing on the children's best interest’s in this respect is paramount. Updating Legal Documents: Revise wills, beneficiary designations, and other legal documents that may require amendments due to [...]

2023-08-24T15:19:40+10:00August 24th, 2023|Family Law|

Australia Supports the Matildas (But just not on Instagram or Facebook)

Australia Supports the Matildas (But just not on Instagram or Facebook)In case you have been living under a rock, you would know that the Matildas and their world cup success are big news right now. You have probably seen it on TV and on news websites and live streaming services. However, you probably haven’t seen it on Instagram or Facebook though. Why is that? The likely reason is that it has been removed by the platform at the request of FIFA: FIFA owns the copyright and the broadcasting rights to every match played in the world cup series. It sells the rights in the copyright to live streaming services and television broadcasters, which is a key revenue stream for FIFA. If FIFA allowed people to attend the matches and film them with their camera phones and post them to Instagram and Facebook then it would not have the ability to sell the exclusive rights in their copyright to Seven Network and Optus Sport, so they enforce it stringently. The legal mechanism is a portfolio of trade marks, and conditions on match tickets purchased that prohibit personal broadcasting. FIFA employs a team of people to monitor social media for breaches of their copyright, which they report to the social media platform as soon as they are detected. The words “World Cup” are trademarked, so if a business in Australia used it, say, as part of a promotion, then it may be pursued for trade mark infringement. Trademarks are covered by Federal law in Australia and depending on the type of offence, may be caught by the Trademarks Act 1995 (Cth) and the Copyright Act 1968 (Cth). The legislation imposes criminal penalties including fines and imprisonment, however, the civil claims for compensation and costs could outweigh the fines imposed. Trademarks, Copyright, Halal Meat and Stripper Poles A clear example of this is the Federal Court case Vertical Leisure Limited & Anor v Skyrunner Pty Ltd & Anor [2014] FCCA 2033 in which it was not possible to assess the financial gain of the respondent, which was selling a X-Pole dancing pole and DVD set online into the Australian market that passed off as the applicant’s product. The Court acknowledged that the conduct of the respondent cannot give rise to separate and additional damages under the Trademarks Act 1995 (Cth) and the Copyright Act 1968 (Cth) and the Australian Consumer Laws, rather the offending must be considered in its totality, and considered in context. The award of damages to compensate for lost profit and reputational harm amounted to $94,800, but additional damages of $300,000 were also awarded to punish the respondent for its flagrant and continued breach, but also to deter others. An example where the fine was higher than the damages award is the case of Halal Certification Authority Pty Limited v Scadilone Pty Limited [2014] FCA 614 which concerned a meat product wholesaler that sold the meat with the “Halal Certified” emblem despite not having the right to use it [...]

Barbie Pink | Tiffany Blue | Post it Note Yellow | Cadbury Purple – Trademarking Colours

What is a Trade Mark? The Barbie movie has dominated the recent 2023 Australian headlines. However, Barbie is making headlines in the UK for a different reason; trade mark infringement. The toy's maker Mattel has lodged Court proceedings not for infringement of their brand name, but for the "Barbie Pink" tone of colour used in its advertising. Can you register a trade mark over a colour in Australia? What is a trade mark? In this article we explore these questions. What is a Trade Mark? Trade marks provide that extra measure of protection over your brand, deterring other people from using it and increasing your rights against those who infringe upon it. A trade mark is a registered symbol or words that are used to distinguish your goods and services from those of others. A trade mark is essential to protect your brand and distinguishes the goods and services that you provide in the eyes of consumers. A successful business is usually intrinsically associated with a valuable trade mark. What can I Trade Mark? You can register a trade mark over the following individual or combination of items: Logo Word Letter Number Phrase Picture Shape Colour Sound Smell Aspect of Packaging The more original or unique a trade mark is, the easier it will be to register. Something that is commonly used or likely for a competitor to use will be more difficult to register, such as a location or a common phrase. It must therefore be sufficiently different from other registered trade marks. It goes without saying that once someone has registered a trade mark, you cannot register a trade mark over that same subject matter. Even if somebody has not registered a trade mark over their brand or logo, but has used that brand and gained a reputation in the market place, you may also be prevented from registering a trade mark over that brand or logo. There are also restrictions for trade marks over flags, emblems, official signs and armorial emblems. For example, there are restrictions on trade marks containing a representation of/or association with the Royal Family. The Selection of Goods or Services When applying for a trade mark, you must select the category or categories of goods and/or services which you want your mark to cover, and provide a specification of each category. There are 45 categories to choose from. A poor description in the specification will not give proper protection. You cannot amend a trade mark description once it is registered, so it is good practice to invest in a professional to get this right in the beginning. You also will not be refunded the application fee if IP Australia refuses to register your trade mark. What does Registration Provide? Registration of a trade mark means it becomes your personal and intellectual property. It gives the owner a legally enforceable right to use the trade mark, licence its use to others or sell it (in the country in which the trade mark is [...]

2023-08-11T14:13:31+10:00August 11th, 2023|Copyright & Trademark, Intellectual Property, Litigation|

Woman Forced to Give Jacktpot to Husband in Divorce

Navigating Lotto Winnings and Divorce: A Comprehensive Guide In a twist of fate, winning the lottery can be both a dream come true and a life-altering event. But what happens when you win the lottery after a divorce or de facto separation? And how are family contributions, windfalls, and lottery gains treated during property settlement proceedings? reports that a woman in California was ordered by the Court to give her ex-husband the entirety of her lottery winnings after failing to disclose the windfall in her property settlement. In 1996, after 25 years of Marriage to Mr Thomas Rossie, Mrs Denise Rossi won $3.1 million US dollars ($4.6 million AUS dollars) the lottery and eleven days later filed for divorce. Denise did not mention the winnings to her ex-husband and failed to disclose the windfall of $3.1 million in their property settlement. Two years following the property settlement, Mr Rossie came to know of his ex-wife’s lottery winnings and obtained a Court ordered injunction. Mr Rossie filed in Court and successfully obtained an order that Denise pay her ex husband the entirely of her winnings back in instalments. In this article, we will explore these questions and provide you with insights on handling lottery winnings during or after divorce. Q: What Happens if I Win the Lottery after Separation from my Spouse or Defacto Partner - How Do Family Law Property Proceedings Actually Work Winning the lottery can be an exhilarating experience, but it may also bring about complications, especially if you are going through a family law property settlement. 1. Do I Have a Duty to Disclose My Lottery Winnings? Similar to the US, parties to a property settlement in Australia have an obligation to make full and frank financial disclosure.[1] This generally includes bank statements, pay slips, tax returns and disclosure of any windfalls. A consequence of non-disclosure during proceedings, the party who fails to disclosure documents may be held guilty of contempt for not disclosing the document and may be ordered to pay the other party’s costs.[2] Further, the Court the Court may stay or dismiss all or part of a party’s case who fails to disclose documents.[3] 2. How are Family Contributions during the Relationship Important? During marital or de facto separation proceedings, Courts will often consider the contributions made by each spouse or partner to the family during the relationship.[4] This includes both financial contributions, such as income earned, as well as non-financial contributions, such as caring for the home or raising children.[5] Timing is of particular importance to a determination of contributions.[6] Contributions made at the beginning are typically given less weight than contributions made towards the end of the relationship.[7] In addition to contributions of parties to the relationship, a Court must also be satisfied that an Order is just and equitable.[8] Q: How are Windfalls, and Lottery Gains treated in Family Law Property Proceedings – What Does It All Mean? 1. Q: What if I Win Big Before Separation? A windfall gain [...]

2023-08-11T12:41:26+10:00August 11th, 2023|Family Law, Litigation, Wills & Estates|
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