Make Sure Your International Trademarks Are Still Protected

Posted on by Mary G. Griffith

New Regulations to the Community Trademark Law came into force on 23 March 2016. Besides Community trademarks now being referred to as “European Union trademarks” the amendments do not only apply to new applications, but can also have a considerable impact on the scope of protection for already existing Community trademarks. Owners of Community trademarks that were filed prior to 22 June 2012 can be required to update the specification of goods and services by 24 September 2016, in order to avoid limitations to their scope of protection.

The goods/services on which a Community trademark is based are classified into 45 classes. Each class has a class heading which is meant to indicate which goods/services fall within the respective class.

Until June 2012, any person could assume that a trademark covers all goods/services of a class whenever the application was filed for the entire class heading. For example, an application that was filed in class 25 for “clothing, footwear, headgear” also covered “belts”, even if “belts” are not necessarily considered “clothing”. Individual goods and services (for example, “belts”) on which a Community trademark was based did not need to be specified. In June 2012, however, the European Court of Justice ruled that even if the specification of goods/services of a Community trademark covers the entire class heading, one cannot assume that, automatically, all goods/services of that class are covered. To the contrary, only those goods and services should be covered which by their literal meaning fall under the terms indicated in the class heading.

So, there is now a risk that Community trademarks do not afford protection to goods/services that do not fall under the literal meaning of the term of the class heading. In other words: There is the risk that there is no trademark protection even though one thought there existed one under previous Regulations. This also includes the risk that if a third party has filed a trademark for exactly these goods/services you may not be in a position to proceed against such an application on the basis of your prior trademark.

A transitional regulation was implemented while amending the Community Trademark Law which, until 24 September 2016, will allow existing Community trademark owners, under certain circumstances, to specify the goods/services which they had intended to seek protection for, but which are not covered by the meaning of the heading of that class.

This means owners of Community trademarks should have them reviewed to determine if they are affected by the new Regulations and whether steps are required to maintain the trademarks’ protection.

The Beauty of Trade Associations

Posted on by Gordon B. Greenwood

In a world where we are being legislated and regulated into ignorance on a daily basis, and globally, a good trade association can be an inexpensive and reliable way of keeping up with a rapidly changing landscape. It can also be a great source of advanced knowledge of impending problems; you will be forewarned and can prepare yourself accordingly.

Sadly, I have heard a member of the Competition Bureau say that she could not think of a single reason why a trade association would exist other than for anti-competitive reasons. I trust this opinion is not shared by the Federal Trade Commission in the U.S. overseeing anti-trust matters. A position such as this shows a startling lack of knowledge of the benefits a proper trade association can provide. Fortunately the Bureau’s position is somewhat mollified as can be seen in their 2015 pamphlet “Trade Associations and the Competition Act”.

In complete contrast to the position taken by the Competition Bureau representative, trade associations provide a tremendous resource for small and medium businesses. Since the title of this blog is “The Beauty of Trade Associations,” I will use cosmetic trade associations as an example.

Industry data, trends, regulatory actions, scientific research, global information, international interaction, webinars, advocacy, trade shows, networking, mentoring and the availability of a multitude of group benefits are but some of the assistance provided to trade association members.

In the cosmetic industry where special interest groups seem to have the ear of the media, where every cosmetic ingredient is being touted as toxic and where it is easier for a journalist to be alarmist than to be investigative, a good trade association may be the only buffer a company has between itself and unfounded, unscientific and often illogical accusations.

When members trust their trade association, they are more willing to share scientific and proprietary data in an anonymous manner, which the association can collate into a sound, scientific and coherent response to the hysteria which arises from an unsubstantiated news article or an alleged hazard accusation based solely on junk science. A trade association can also be of incredible assistance in representing the industry in discussions with government, regulators and reputable interest groups who are prepared to listen to sound science and consider risk management. In short, the trade association can provide members with the knowledge and expertise to be their eyes, ears and voice for industry information, for advocacy with governments and regulators and as the industry spokesperson in a multitude of public situations.

The beauty of trade associations, as shown in the cosmetics industry, is that they provide an effective way of collecting industry expertise, sharing knowledge, unifying representation of common interests and voicing a credible position in a professional manner. This is done, not only at a cost that allows participation by small and medium sized businesses, but also in a manner which is compliant with the rules of fair competition and does not breach anti-trust provisions.

By way of information, we invite you to investigate the following:

For the professional industry and cosmetologists:

In Canada Allied Beauty Association

In the USA Professional Beauty Association

For retail and professional cosmetic manufacturers and distributors:

In Canada The Canadian Cosmetic Toiletry and Fragrance Association

In the USA Independent Cosmetic Manufacturers and Distributors

Personal Care Products Council

Tips for a First-Time Home Buyer – Part 3

Posted on by Megan E. Fife

You’ve hired a real estate lawyer, signed on the dotted line (See Tip #1) and have all the funds you’ll need to close the deal. The only thing left is to wait for moving day, right? Not quite.

Once the Agreement of Purchase and Sale is completed and all conditions (if any) have been waived, you will need to meet with your real estate lawyer at least one more time before Closing Day (the day you get your keys and the deal is officially done). Assuming you have a mortgage, the bank will send your lawyer instructions to prepare the necessary mortgage documents for you to sign. The sooner you’re able to meet with your bank and finalize the details of your new mortgage, the sooner they will be able to provide your lawyer with these instructions. The sooner your lawyer receives those instructions, the better. Most banks have deadlines in place for when they must receive those signed documents back from a lawyer in order to provide the mortgage funds required on Closing Day. These timelines can range from a couple of days to over a week. In addition, your lawyer will need the details of your homeowner’s insurance in order to provide this information to the bank. Be sure to arrange your home insurance soon after meeting with the bank so that you can provide this information to your lawyer when requested. If your lawyer only receives information respecting your mortgage from the bank a couple of days before your Closing Day, and/or you don’t already have your home insurance arranged, it could result in a delay in the bank funding your mortgage and consequently, a delay in the closing of your purchase transaction. Arranging your mortgage and home insurance early will help avoid any possible funding delays.

Once you’ve met with your lawyer to sign the mortgage documents and a few other legal documents BEFORE closing, then you can sit back and wait. On Closing Day, your bank will send the mortgage money to your lawyer (who will already have the down payment, provided by you at an earlier date) who will, in turn, send all the funds to the Seller’s lawyer. The Seller’s lawyer will send the keys for the home to your lawyer and when your lawyer has the keys in hand, the deal can be completed. There will be a couple phone calls back and forth between the two law firms, a few clicks of the mouse releasing and registering the transfer of the ownership of the property, and then your lawyer will make one final phone call to you – Congratulations! You’re a home owner!

There is no guarantee how long this Closing Day process will take; technically, the deadline for closing is 5:00pm (the electronic system does not allow for registrations after 5:00pm) and for the most part, the process is completed earlier than that, but again, there are no guarantees. Delays at the bank, at either law firm or other factors can push a closing until the very end of the day, or worst case scenario, to the next business day or later. For that reason, we strongly recommend that you don’t plan your actual move into the home for Closing Day. You are not permitted to enter the home until the entire process is complete, and there’s nothing worse than renting a moving van and/or hiring movers for the day and being unable to unload or move in.

No matter when you’ve planned your actual move into the home, you should absolutely visit your new home on Closing Day, once the deal is done. Check to ensure the previous owners didn’t leave any belongings behind or garbage that can’t go out to the curb on pick-up day, and make sure there is no damage to the home you weren’t previously aware of. If anything isn’t as it should be, let your lawyer know! We also recommend changing the locks as soon as possible; you never know who might still have a key (cleaning ladies, dog walkers, mothers-in-law, etc.).

Most importantly, celebrate your new purchase and enjoy your new home!

So, tip #3 – if you have one, arrange your mortgage as soon as possible; no matter what, arrange your home insurance as soon as possible; and more importantly, at least for your own sanity, don’t schedule your moving day on Closing Day.

No Carte Blanche When it Comes to Powers of Attorney

Posted on by Michael A. Chambers

With an aging population increasing in numbers every day, more and more people are assuming the care and control of financial and health care decisions for others through the exercise of powers of attorney.

There are two very distinct types of power of attorney. A power of attorney that permits the named attorney to manage the financial affairs of an incapacitated person is called a Continuing Power of Attorney. A power of attorney over health care decisions that are to be made for an incapacitated individual is called a Power of Attorney for Personal Care.

It is a misconception of many who are named as either or both a person’s attorney to manage his or her financial affairs, and/or to assume responsibility for making health care decisions for him or her, that in either case they have an unfettered discretion to manage the incapacitated person’s financial affairs or to make health care decisions for them any which way they wish, without regard to anyone else’s views, so long as it is what they consider for the benefit of the incapacitated person. It is not quite so.

With regard to a power of attorney over financial affairs, a Continuing Power of Attorney, first and foremost the law requires that the named attorney exercise the powers given to him or her diligently, with honesty and integrity and in good faith, for the incapacitated person’s benefit. In addition, the individual exercising a power of attorney over financial affairs, has to ensure that his or her financial decisions for the incapacitated person are consistent with the decisions that are being made for the incapacitated person’s health care by whomever may be his or her attorney for personal care. And, beyond this, the named attorney for financial matters:

  1. Must, to the extent reasonably possible, explain to the incapacitated person, what the attorney’s powers and duties are;
  2. Must encourage the incapacitated person, to the best of their abilities, to participate in decisions about their financial affairs;
  3. Must seek to foster regular personal contact between the incapacitated person and his or her supportive family members and friends; and
  4. Must consult from time to time with,
    (a) those supportive family members and friends; and with
    (b) whomever is the personal care attorney for the incapacitated person; and
  5. Must do his or her best to endeavour to find out what is in the incapacitated person’s Will, and then, subject to very limited exceptions, not dispose of property that is subject to a specific gift to someone in the incapacitated person’s Will.

Finally, in making expenditures for an incapacitated person, a person acting under a power of attorney over financial matters must first and foremost of course make expenditures that are reasonably necessary for the incapacitated person’s support, but must also make expenditures, assuming the incapacitated person’s finances are sufficient to do this, for the support of the incapacitated person’s dependants, and to satisfy any other legal obligations he or she may have.

With regard to a person exercising decision making authority under an individual’s Power of Attorney for Personal Care, subject to limited exceptions, several conditions apply to the exercise of that authority. For example, in making personal care decisions for the incapacitated person, the attorney:

  1. Must use reasonable diligence to ascertain the wishes of the incapacitated person and exercise his or her decision making authority in accordance with those wishes;
  2. Must, in the absence of knowing what the incapacitated person’s wishes are, nevertheless only make health care decisions for the incapacitated person that are in his or her best interests;
  3. Must, in determining what the incapacitated person’s best interests are, have regard to:

(a) the incapacitated person’s values and beliefs;

(b) the incapacitated person’s wishes, if they can be ascertained;

(c) consider whether the decision to be made is likely to:

(i) improve the incapacitated person’s life;

(ii) prevent the incapacitated person’s quality of life from deteriorating; or

(iii) reduce the extent to which or rate at which the incapacitated person’s life is
likely to deteriorate;

(d) weigh whether the benefit to be experienced by the incapacitated person from the
decision outweighs the risk of harm;

  1. Must keep records of decisions made on behalf of the incapacitated person;
  2. Must encourage the incapacitated person to participate in the decision to the best of his or her abilities;
  3. Must seek to foster regular personal contact between the incapacitated person and his or her supportive family members and friends;
  4. Must consult with those supportive family members and friends, and the persons from whom the incapacitated person receives personal care;
  5. Must, as far as possible, foster the incapacitated person’s independence; and
  6. Must choose the least restrictive and intrusive course of action in any particular situation.

So, as one can see neither a Continuing Power of Attorney, nor a Power of Attorney for Personal Care affords to the named attorney any carte blanche.