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	<title>News &amp; Updates</title>
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<item>
<link>https://www.bowltlawyers.com.au/news/c19-legal-tips-and-traps-111s48</link>
<title><![CDATA[C19 Legal Tips and Traps ]]></title>
<description><![CDATA[There is a lot of information available about the Federal and state financial assistance available to businesses, but you may not be aware of various legal issues which are specific to our current circumstances.
]]></description>
<content><![CDATA[There is a lot of information available about the Federal and state financial assistance available to businesses, but you may not be aware of various legal issues which are specific to our current circumstances.

Changes to insolvency laws and directors&rsquo; duties.

Insolvency laws have been relaxed temporarily regarding directors allowing a company to trade while insolvent (i.e. being unable to pay its debts when they fall due). However, directors should be careful to ensure they have a proper basis for continuing to incur debt and are not just turning a blind eye to the potential or actual financial difficulties faced by the company. The changes are not there to allow unnecessarily risky or poor financial decisions.

Directors should also be aware of their overarching obligations in terms of sections 180 to 183 of the Corporations Act, which require them to act with care and diligence and good faith and not misuse their position or information while handling company affairs. Essentially, they must act in the best interests of the company and avoid conflicts of interest between their personal interests and the company&rsquo;s interests. It&rsquo;s important to remember that company assets don&rsquo;t belong to the directors and should not be used as if they are personal assets.

Termination of contracts due to the C 19 crisis.

We have been asked several times whether it is possible to terminate contracts due to &ldquo;force majeure&rdquo; events during the C 19 crisis. A &ldquo;force majeure&rdquo; event is an unforeseen event, which is outside the reasonable control of the affected party.

That depends on several issues, namely:


	Whether the definition of force majeure in the contract includes an &ldquo;epidemic, pandemic, disease&rdquo; or similar language. The more specific the language the better.
	Has C 19 actually resulted in you being unable to comply with the contract and is the inability to comply temporary or permanent?
	Have you made reasonable attempts to mitigate any losses and comply with the contract, and
	Have you complied with any notice requirements to the other party?


Those are the main issues that need to be considered, but the devil is in the detail and you shouldn&rsquo;t consider such action without proper legal advice.

Negotiating rent relief for commercial leases

On 1 May the Victorian government passed regulations to enable landlords and tenants to negotiate rent reductions, where the tenant can show that its turnover has reduced by 30% or more. The turnover must be less than $50 million per year.

Essentially, if your business qualifies for the JobKeeper subsidies, then you can negotiate with the landlord for a rent reduction, which should be equivalent to the reduction in turnover. At least half of the reduction must be a complete waiver, while the balance is treated as a deferral of rent for a minimum period of two years or the balance of the lease period, whichever is longer. Landlords are entitled to reasonable proof of reduction in turnover, but must negotiate reasonably and in good faith. Landlords may not terminate leases to which the regulations apply or increase the rent.

Feedback we have received suggest that most landlords are being reasonable regarding rent reductions, even before the regulations were introduced, but larger corporate landlords, perhaps predictably, are being less co-operative.

Contact us today if you need further assistance
]]></content>
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<pubDate>12 May 2020 06:04:00 GMT</pubDate>
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<link>https://www.bowltlawyers.com.au/news/acl-changes-and-we-are-not-talking-about-your-knee-111s39</link>
<title><![CDATA[ACL CHANGES-AND WE ARE NOT TALKING ABOUT YOUR KNEE!]]></title>
<description><![CDATA[In June last year changes were made to the Competition and Consumer Regulations (2010) which come into effect on 9 June 2019.

Since 2011 the regulations have required businesses to supply warranties against defects for the supply of goods, but mandatory wording is now being extended to relate to both goods and services, or a combination of the two.
]]></description>
<content><![CDATA[In June last year changes were made to the Competition and Consumer Regulations (2010) which come into effect on 9 June 2019.

Since 2011 the regulations have required businesses to supply warranties against defects for the supply of goods, but mandatory wording is now being extended to relate to both goods and services, or a combination of the two. An example of goods and services being provided together would be the sale of a TV together with installation services.

The Australian Consumer Law (ACL) is part of the Competition and Consumer Act and stipulates that most goods or services offered to consumers come with automatic guarantees as to those goods and services, which, if the goods or services are defective include the right:


	to a repair or replacement of goods,
	to have the service provided again, or a problem with the service to be rectified, or
	compensation or a refund.


The ACL applies to goods or services sold, hired or leased to consumers for:


	under $40,000, or
	Over $40,000, where the goods or services are normally used for personal or household use.


The mandatory wording is as follows:

For the Supply of Goods (wording remains the same)

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

For The Supply of Services

Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:


	to cancel your service contract with us; and
	To a refund for the unused portion, or to compensation for its reduced value.


You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.

For the Supply of Goods and Services

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:


	to cancel your service contract with us; and
	To a refund for the unused portion, or to compensation for its reduced value.


You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

There are some exceptions where the mandatory wording is not required, namely in relation to a contract of insurance, certain types of services set out in the regulations and certain gas, electricity and telecommunication services.

There are fairly significant penalties for failure to comply with the regulations - $50,000 for a company or other incorporated business and $10,000 for sole traders, so this is a change to the law which can&rsquo;t be ignored.

What to do next?


	Review your documentation if you provide services, or services in conjunction with goods and
	Insert the relevant wording where necessary, or
	Get professional help to assist you with reviewing your documentation and implementing the changes.

]]></content>
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<pubDate>01 Jun 2019 01:34:00 GMT</pubDate>
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<link>https://www.bowltlawyers.com.au/news/the-not-so-ho-ho-ho-side-of-christmas-111s38</link>
<title><![CDATA[The not so &quot;Ho, Ho, Ho&quot; side of Christmas ]]></title>
<description><![CDATA[Most of us enjoy a bit of tipple over the Christmas season, but for some reason that strange animal known as the &ldquo;Work Christmas Party&rdquo; can bring out the worst in some people, possibly because when you mix the evils of drink with workplace politics or rivalries, it can be an unhealthy mix.
]]></description>
<content><![CDATA[Most of us enjoy a bit of tipple over the Christmas season, but for some reason that strange animal known as the &ldquo;Work Christmas Party&rdquo; can bring out the worst in some people, possibly because when you mix the evils of drink with workplace politics or rivalries, it can be an unhealthy mix.

Employers also need to be aware of the fact that they can be held liable for injuries sustained by employees at work functions if they are not properly managed. Injuries can be the result of uncoordinated exuberance or even assaults, but bullying and sexual harassment are not uncommon and inappropriate use of social media also needs to be controlled, particularly because something that may seem innocuous in a photo may have unforeseen consequences. A couple of mates in a semi-drunk pose is all good fun, but inadvertently catching someone kissing someone they shouldn&rsquo;t be in the background could have more serious consequences. Photos are like elephants -they never forget!

So here are a few hints for employers to keep things safe, while still having some fun:


	Make sure you have social media and bullying/harassment policies in place and remind employees of their obligations in terms of those policies before the event.
	Consider hiring a private venue for the function and make sure it&rsquo;s close to public transport or possibly even arrange transport for employees. Arranging for several responsible employees to provide shared transport is another option.
	Appoint a couple of more senior employees to stay sober and monitor and deal promptly and appropriately with any incidents which may arise. Senior management need to earn their higher salaries, while the people who do the real work let their hair down.
	Control the amount of liquor available at the function (within reason of course).
	Make the start and finish times of the event clear to employees and ensure they understand that the after party doesn&rsquo;t fall within the ambit of the main function.


Apart from those sobering thoughts (excuse the pun) best wishes for the festive season and may you and your loved ones have a prosperous and fulfilling 2019.
]]></content>
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<pubDate>04 Dec 2018 00:27:00 GMT</pubDate>
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<link>https://www.bowltlawyers.com.au/news/long-service-leave-changes-in-victoria-111s37</link>
<title><![CDATA[Long Service Leave Changes in Victoria]]></title>
<description><![CDATA[The Long Service Leave Act 2018 (Vic) came into effect on 1 November 2018 and has made some fairly significant changes to the law relating to long service leave in the state. It has expanded employees&rsquo; rights, particularly for women, parents and carersThe Long Service Leave Act 2018 (Vic) came into effect on 1 November 2018 and has made some fairly significant changes to the law relating to long service leave in the state. It has expanded employees&rsquo; rights, particularly for women, parents and carers.
]]></description>
<content><![CDATA[The Long Service Leave Act 2018 (Vic) came into effect on 1 November 2018 and has made some fairly significant changes to the law relating to long service leave in the state. It has expanded employees&rsquo; rights, particularly for women, parents and carers and includes the following changes:  


	Allowing employees to take long service leave after seven years of continuous employment. Previously employees could only actually take long service leave after ten years, although they could be paid out on termination of employment after seven years of continuous employment.
	Employees can now request long service leave for a period of no less than one day and the employer must grant the request, unless it has reasonable business grounds for refusing it. Previously it had to be taken in one period, unless there was agreement between the employer and employee.
	Unpaid parental leave of up to 52 weeks is now included in the calculation of an employee&rsquo;s continuous service-previously parental leave was excluded altogether.
	Employment is considered to be continuous if the employee is re-employed by the employer within 12 weeks of an employee&rsquo;s resignation or termination by the employer. Previously this was not applicable where the employee resigned from employment.
	Powers of authorised officers to issue a notice requiring the production of information or documents have been broadened. Previously they could only do so where they were investigating an alleged breach under the long service leave legislation and couldn&rsquo;t enforce compliance with the request.
	There is a new method of calculating leave where hours of work have changed in the last 24 months, previously only the last 12 month period was taken into account.
	The definition of continuous employment has been broadened in relation to a transfer of business assets. It now includes employees who perform duties in relation to intangible assets, for example goodwill or intellectual property, where previously the definition only applied to tangible assets such as plant and equipment and land.


Employers and employees alike should be aware that the Long Service Benefits Portability Bill 2018 (Vic) was also passed by the Victorian Parliament in September. This will provide long service leave entitlements to employees in the contract cleaning, community services and security industries, provided they work in essentially the same role for a minimum of seven years. This portability scheme will apply regardless of how many employers the employee works for during that seven-year period. The proposed commencement date of this legislation is 1 July 2019.  

The changes should promote fairer access to long service leave for all employees.
]]></content>
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<pubDate>05 Nov 2018 02:02:00 GMT</pubDate>
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<link>https://www.bowltlawyers.com.au/news/much-bigger-penalties-to-keep-the-shysters-honest-111s36</link>
<title><![CDATA[(Much) Bigger Penalties to Keep the Shysters Honest]]></title>
<description><![CDATA[Federal Parliament has just passed legislation to significantly increase the penalties for breaches of the Australian Consumer Law (ACL) and about time too.
]]></description>
<content><![CDATA[Federal Parliament has just passed legislation to significantly increase the penalties for breaches of the Australian Consumer Law (ACL) and about time too.

Previously the maximum penalty for companies used to be $1.1 million per breach, but it will now be the highest of:


	$10 million,
	Three times the benefit the company received from its contravention (if the court is able to calculate that amount), or
	If the court cannot calculate the benefit, 10% of the annual turnover of the company (that sounds like fun for a company which may have a turnover of several billion dollars).


Penalties for breaches of the ACL have also increased from $220,000 to $500,000 for individuals.

So gone are the days when big companies can expect to make tens of millions of dollars out of breaching the ACL and get a relative slap on the wrist of a few million dollars, which to them is really just the cost of doing business. The only way to really protect consumers is to make sure those seeking to mislead them actually feel the financial pain of doing so. Hopefully we can look forward to seeing courts impose penalties similar to those seen overseas, where they can run into tens of or even hundreds of millions of dollars.

Presumably, those companies that have been getting away with it for years will be more wary of indulging in misleading or deceptive conduct, other unconscionable conduct and in particular misleading advertising. Some industries have been particularly bad about this and we can expect to see the ACCC going after the pharmaceutical industry in particular.

In general, one has no problem with companies earning an honest dollar, but there seems something particularly distasteful about taking advantage of vulnerable consumers (i.e. people wanting to stay healthy or treat medical conditions), or am I just old-fashioned?

Hopefully we are entering a new era of consumer protection-Watch This Space!
]]></content>
<guid isPermaLink="true">https://www.bowltlawyers.com.au/news/much-bigger-penalties-to-keep-the-shysters-honest-111s36</guid>
<pubDate>31 Aug 2018 01:22:00 GMT</pubDate>
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<link>https://www.bowltlawyers.com.au/news/copyright-confusion-111s35</link>
<title><![CDATA[Copyright Confusion?]]></title>
<description><![CDATA[Most people have a reasonable idea of the concept of a trade mark or patent, but copyright can be really confusing. Simply put, copyright is a bundle of exclusive rights that an owner can exercise in relation to defined categories of &ldquo;copyright works&rdquo;, the most common of which are &ldquo;artistic works&rdquo; such as photographs or graphic designs, or &ldquo;literary works&rdquo; such as magazine articles or books.
]]></description>
<content><![CDATA[Most people have a reasonable idea of the concept of a trade mark or patent, but copyright can be really confusing. Simply put, copyright is a bundle of exclusive rights that an owner can exercise in relation to defined categories of &ldquo;copyright works&rdquo;, the most common of which are &ldquo;artistic works&rdquo; such as photographs or graphic designs, or &ldquo;literary works&rdquo; such as magazine articles or books. Probably the most important right of the copyright owner is the right to reproduce their work and prevent someone else from doing so without their consent.

Issues involving copyright are common in business, for example designing the logo/brand for your business, or putting together promotional documentation, and because you want to protect your place in the marketplace, you need to protect your intellectual property in those works. Keep in mind that when developing a brand there are likely to be both copyright and trade mark issues involved.

Let&rsquo;s consider a straightforward example. You commission a graphic designer to develop a logo for your business, which you intend to register as a trade mark with IP Australia. In most cases you will be provided with an image, usually in .PNG or.JPG format, which you can then use for promotional media, such as your website, brochures and business cards. However, that image cannot be readily changed and modified, because the designer has retained what is known as the &ldquo;RAW&rdquo; files (not an acronym by the way!). These are files which form the basis for the end product, which enable the designer to edit, change and modify their design, unlike the image file which is provided to the client, which cannot be easily modified, apart from changing its orientation and size.

This is where the confusion about copyright can arise. On the one hand the client, not surprisingly, thinks that they will own all rights in the design, because they paid for it and should be able to change it in whatever manner they think fit, whereas the legal and commercial reality is that unless the copyright in the image has been clearly transferred to the client, then the copyright in the design  in most cases belongs to the graphic designer, who in turn grants a limited licence to the client to use the design for the envisaged purpose.

On the other hand, the reason why most graphic designers want to retain control and ownership of their RAW files is to prevent the design being drastically changed by the client or another designer, which could result in a competitor modifying the design and the possibility of reputational damage to the original designer, if the second designer makes a hash of it.

So what&rsquo;s the solution?  If you are a graphic designer, make it abundantly clear in your terms and conditions what rights are actually being transferred to the client and perhaps charge a premium if RAW files are being transferred. If you are a client, then clearly understand what you intend to use the design for and make that clear to the designer, and if you envisage needing the RAW files, then ensure that they are transferred to you (preferably without paying a premium for them!)

Either way, if you have any problems, please contact us for further advice.
]]></content>
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<pubDate>25 Jul 2018 00:19:00 GMT</pubDate>
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<link>https://www.bowltlawyers.com.au/news/simpler-awards-in-sight-111s34</link>
<title><![CDATA[Simpler Awards in Sight?]]></title>
<description><![CDATA[Various industries have been in the spotlight in the last couple of years for underpaying workers and it&rsquo;s easy to blame the employers, but in general are small business employers intentionally flouting the law?
]]></description>
<content><![CDATA[Various industries have been in the spotlight in the last couple of years for underpaying workers and it&rsquo;s easy to blame the employers, but in general are small business employers intentionally flouting the law?

Clearly there are some bad operators out there, but the President of the Fair Work Commission, Iain Ross, believes that most small business operators want to comply with the law and he agrees with many small businesses who say the award system is too complicated to understand and implement.

There is research to support this view. In 2014 the Fair Work Commission engaged Sweeney Research to look into the award system and they found that small business operators described awards as &ldquo;convoluted, complex, ambiguous and of questionable relevance&rdquo;, which are &ldquo;written by lawyers as a legal document, which neither the employee or the employer or the manager can interpret&rdquo;.

Before we get too critical, we need to look at the evolution of the award system. Back in 2009 many business operators would have been relieved to hear that the hugely complex system was being reduced from several thousand awards down to 122 &ldquo;modern&rdquo; awards, which adopt a broader approach for specific industries, for example the hundreds of manufacturing awards have now been condensed into just one.

However, as a practitioner who is required to interpret awards, I can vouch for the fact that they could be a lot clearer and have challenges even for someone who has been trained to interpret legal documents. As Justice Ross points out they should also be more logically structured, for example similar provisions should be grouped together and termination of employment should be at the end and not the beginning of the award.

So it&rsquo;s good to hear that Justice Ross says business owners can expect to see revised awards by the first quarter of next year, which will address many of the concerns raised in the research by Sweeney Research. Watch this space!
]]></content>
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<pubDate>21 Jun 2018 07:24:00 GMT</pubDate>
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<link>https://www.bowltlawyers.com.au/news/franchising-reforms-on-the-horizon-111s33</link>
<title><![CDATA[Franchising Reforms on the Horizon?]]></title>
<description><![CDATA[In Australia we have one of the most advanced franchising systems in the world, but the franchising industry has been criticised recently, because of numerous complaints by franchisees regarding several high-profile businesses where the viability and structure of their business models were questioned.
]]></description>
<content><![CDATA[In Australia we have one of the most advanced franchising systems in the world, but the franchising industry has been criticised recently, because of numerous complaints by franchisees regarding several high-profile businesses where the viability and structure of their business models were questioned.

This resulted in a parliamentary inquiry into the operation and effectiveness of the Franchising Code of Conduct and on 11 May 2018, the ACCC released its submission to the inquiry, which included:


	Increased disclosure requirements for franchisors. Currently a franchisor has to provide a comprehensive disclosure document to a potential franchisee, which includes the establishment costs of the franchised business, as well as anticipated recurring and one-off costs to the franchisee. As franchisors are able to provide a range of those costs, in practice the cost disclosure in many disclosure documents is almost meaningless. It was recommended that more &ldquo;meaningful information&rdquo; be provided. The submission also recommended that information regarding profitability be provided where an existing or previously franchised business is being purchased.
	Prohibition on recovering franchisors legal costs. Many franchisors require franchisees to reimburse franchisors for the cost of preparing a franchise agreement. The ACCC believes this may discourage potential franchisees from taking legal advice or trying to negotiate amendments to franchise agreements and have recommended that the practice be prohibited.
	Penalties for non-compliance with the ACCC&rsquo;s audit power. Section 51ADD of the Code enables the ACCC to call upon a franchisor to give information to produce a document that the franchisor is required to keep, generate or publish under an applicable industry code. However, the only current remedy for non-compliance is to approach a court and to avoid this expensive and inefficient process, the ACCC has recommended that the Competition and Consumer Act be amended to allow for civil pecuniary penalties to be applied.
	Penalties for including unfair terms in standard form contracts. The ACCC has recommended that not only should unfair terms be prohibited in standard form contracts, but civil pecuniary penalties and infringement notices be available to deal with such breaches.
	Increased penalties for all breaches of the Code. Perhaps the most significant recommendation is that civil pecuniary penalties and infringement notices be applicable for all breaches of the Code, and that the amount of such penalties be increased significantly. Currently, the maximum penalty available is 300 penalty units (presently $63,000) and the ACCC has recommended that civil pecuniary penalties should be increased to the same penalties as under the Australian Consumer Law. The maximum penalty is currently $1.1 million for companies breaching a civil penalty provision, but a bill is currently before Parliament which would increase this to the greater of $10 million, three times the value of the benefit obtained from the offence, or if the court cannot determine the benefit, 10% of the annual turnover of the business.


It will be interesting to see the extent to which the Joint Parliamentary Committee follows the ACCC&rsquo;s recommendations when it issues its report on 30 September 2018 and whether the government then adopts its recommendations. In the meantime, franchisors should be aware of the potential changes and in particular review their standard form contracts to ensure that any unfair contract terms are removed.
]]></content>
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<pubDate>21 May 2018 07:19:00 GMT</pubDate>
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<link>https://www.bowltlawyers.com.au/news/a-quotpainfulquot-case-of-misleading-or-deceptive-conduct-111s32</link>
<title><![CDATA[A &quot;Painful&quot; Case of Misleading or Deceptive Conduct]]></title>
<description><![CDATA[Section 18 (1) of the Australian Consumer Law (which is part of the federal Competition and Consumer Act) simply states that:

 &ldquo;A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive&rdquo;.
]]></description>
<content><![CDATA[Section 18 (1) of the Australian Consumer Law (which is part of the federal Competition and Consumer Act) simply states that:

 &ldquo;A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive&rdquo;.

This is a very powerful piece of consumer protection legislation, in part because it is so general and has a very broad application. The misleading or deceptive conduct also does not have to be intentional and all that has to be proven is that it is &ldquo;likely&rdquo; to mislead or deceive. It&rsquo;s regularly used by litigation lawyers and the national consumer watchdog, the Australian Competition and Consumer Commission (ACCC), including in the recent case of ACCC v Reckitt Benckiser (Australia) Pty Ltd (the pharmaceutical giant).

The case has been followed with interest, because it appeared to be a classic case of misleading or deceptive conduct and there was speculation as to what penalties might be imposed by the court.

Briefly, the facts were that between 2011 and 2015 Reckitt Benckiser (RB) made representations on its website and product packaging that Nurofen Specific Pain Products were each formulated to specifically treat a particular type of pain. In fact, the products were effectively all the same.  The company was also charging consumers significantly more for some of the specific pain products than others. Evidence in the subsequent case indicated that RB profited by approximately $25 million as a result of the misrepresentations.

In the initial case, the Federal Court imposed a penalty of $1.7 million for making the misleading representations. Predictably, the ACCC appealed the decision and sought a much higher penalty. On appeal, in December 2016 the full Federal Court ordered RB to pay a revised penalty of $6 million. The court based this on its finding that the public had effectively been misled &ldquo;each and every time a consumer saw the packaging&rdquo;. It&rsquo;s an interesting question whether even a $6 million penalty is enough, given the profit earned by the company as a result of the misrepresentations.

But that&rsquo;s not the end of it for a suitably chastised pharmaceutical company. A consumer class action has been launched against RB, with the first hearing due on 8 February 2017- so watch this space.

If your business needs advice about consumer protection issues or other risks in business, contact Bowlt Commercial Lawyers today.
]]></content>
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<pubDate>02 Feb 2017 15:58:00 GMT</pubDate>
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<link>https://www.bowltlawyers.com.au/news/trade-mark-fees-reduced-111s31</link>
<title><![CDATA[Trade Mark Fees Reduced!]]></title>
<description><![CDATA[IP Australia has reduced its official fees for trade mark applications with effect from 10 October 2016. 

Previously the fees were $200 per class of goods or services in which the trade mark was registered, plus an additional $300 per class for the final registration fee-a total of $500 per class.
]]></description>
<content><![CDATA[IP Australia has reduced its official fees for trade mark applications with effect from 10 October 2016. 

Previously the fees were $200 per class of goods or services in which the trade mark was registered, plus an additional $300 per class for the final registration fee-a total of $500 per class.

A registration fee no longer applies and a fee of $330 per class of goods or services will be charged at the initial application stage. This is a significant reduction in the fees charged by IP Australia, as many trade marks are registered in multiple classes.

Many people labour under the misapprehension that if they have a registered business name or company name, then their brand is protected. Not so, as business names are predominantly used so the public at large can ascertain the trading entity behind a business name, and both business names and company names give minimal IP protection. 

Now is a good time to reconsider applying for a formal registration of your potentially valuable unregistered trade mark and obtain proper enforceable protection for your brand, so contact us if you would like further advice regarding a trade mark registration. 
]]></content>
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<pubDate>14 Nov 2016 15:40:00 GMT</pubDate>
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<link>https://www.bowltlawyers.com.au/news/franchise-agreements-might-they-be-unfair-111s30</link>
<title><![CDATA[Franchise Agreements - Might they be unfair?]]></title>
<description><![CDATA[As I mentioned in my article of 13 September 2016 (&ldquo;New Law about Unfair Contract Terms&rdquo;), the new legislation relating to unfair contract terms in small business standard form contracts was due to come into effect on 12 November 2016 and relates only to contracts entered into, renewed or varied after that date. 
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<content><![CDATA[As I mentioned in my article of 13 September 2016 (&ldquo;New Law about Unfair Contract Terms&rdquo;), the new legislation relating to unfair contract terms in small business standard form contracts was due to come into effect on 12 November 2016 and relates only to contracts entered into, renewed or varied after that date. 

A standard form contract is one that has been prepared by one party to the contract and where the other party has little or no opportunity to negotiate the terms &ndash; in other words its offered on a &lsquo;take it or leave it&rsquo; basis . A small business contract is a contract which must include all of the following :


	It is for the supply of a financial product, or the supply of goods or services, or the sale or grant of an interest in land
	At least one of the parties is a small business (employs less than 20 people, including casual employees)
	The upfront price payable under the contract is no more than $300 000, or $1 million if the contract is for more than 12 months.


The question arises whether a franchise agreement is a standard form contract, and as such whether such agreements may be affected by the new legislation. As franchise agreements are generally only negotiable to a very limited extent, because the franchisor predictably wants uniformity among all franchisees, it&rsquo;s certainly arguable that a franchise agreement that is effectively offered in a &ldquo;take it or leave it&rdquo; basis could be a standard form contract and include unfair contract terms that are biased in favour of one party, in this case the franchisor. 

So if you are thinking of entering into a franchise agreement, it&rsquo;s crucial that you have it checked by a lawyer beforehand, not only to see whether it contains unfair terms, but also to ensure that you know what you&rsquo;re getting yourself into, even if the agreement is essentially not negotiable. 

For advice on franchises, please contact us.
]]></content>
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<pubDate>14 Nov 2016 15:34:00 GMT</pubDate>
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<link>https://www.bowltlawyers.com.au/news/new-law-about-unfair-contract-terms-111s29</link>
<title><![CDATA[New Law about Unfair Contract Terms]]></title>
<description><![CDATA[From 12 November 2016, a new law will protect small businesses from unfair terms in small business standard form contracts.

 
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<content><![CDATA[From 12 November 2016, a new law will protect small businesses from unfair terms in small business standard form contracts.

What contracts are covered?

The law will apply to a small business standard form contract entered into, renewed or varied on or after 12 November 2016. A standard form contract is one that has been prepared by one party to the contract and where the other party has little or no opportunity to negotiate the terms &ndash; in other words its offered on a &lsquo;take it or leave it&rsquo; basis. A small business contract is a contract which must include all of the following :


	it is for the supply of a financial product, or the supply of goods or services or the sale or grant of an interest in land
	at least one of the parties is a small business (employs less than 20 people, including casual employees)
	the upfront price payable under the contract is no more than $300 000, or $1 million if the contract is for more than 12 months.


Types of terms that may be unfair

These include:


	terms that enable only one party to avoid or limit their obligations under the contract
	terms that enable only one party to terminate the contract
	terms that penalise only one party for breaching or terminating the contract
	terms that enable only one party to vary the terms of the contract.


Only a court or tribunal can decide that a term is unfair, meaning that it is void and not binding on the parties. However, the rest of the contract will be binding, to the extent it is capable of operating without the unfair term.

Some terms are excluded 


	Terms that define the main subject matter of the contract
	Terms that set the upfront price payable
	Terms that are required or expressly permitted by another Commonwealth, state or territory law (e.g. permitted under the Franchising Code or another prescribed industry code).


For advice on whether terms may be unfair, please contact us. 
]]></content>
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<pubDate>13 Sep 2016 13:29:00 GMT</pubDate>
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