Advertising and marketing lawyers Sydney

Are you looking for expert legal advice for your advertising and marketing initiatives? 

We advise creative agencies and media outlets on a range of legal matters in our areas of expertise generally and in particular intellectual property issues, and compliance with industry standards and consumer protection requirements.

We understand the importance of effectively communicating brand messages to target audiences. Our goal is to help you navigate the complex legal landscape so that you can focus on what you do best – promoting your business.

We offer a range of legal services, including but not limited to:

  • Review and clearance of advertisements, promotions, and marketing materials
  • Drafting and negotiating advertising and marketing contracts
  • Advice on advertising compliance with relevant laws and regulations, including the Australian Consumer Law
  • Intellectual property protection and licensing of advertising and marketing assets

We are dedicated to providing personalized and practical legal advice to meet your unique business needs. Our team stays up-to-date with the latest industry trends and regulations to ensure that your advertising and marketing efforts are compliant and effective.

Contact us today to schedule a consultation with one of our experienced commercial lawyers.

Related insights

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Australian Branch Overseas Business vs Australian Subsidiary Company

This article focuses on two frequently used methods for foreign companies to carry on business in Australia. Frequently, foreign companies do so either by establishing an Australian branch of their existing overseas business (i.e. it is the overseas business which trades in Australia) or, alternatively, the foreign company establishes an Australian company as a subsidiary of the overseas company (i.e. it is the Australian subsidiary company which trades in Australia). Australian branch of your overseas business A “foreign company” for the purposes of the Corporations Act 2001 (Cth) (Corps Act) can be a body corporate that is incorporated outside Australia, or even an unincorporated body that does not have its head office or principal place of business in Australia. Register as a foreign company: If your “foreign company” wants to carry on business in Australia, your foreign company must be registered as a foreign company under the Corps Act with the Australian Securities and Investments Commission (ASIC). Carrying on business in Australia: Whether or not a foreign company is carrying on business is a question of fact and depends on the circumstances. Section 21 (3) of the Corps Act provides that a body corporate does not carry on business in Australia merely because it: (a)       is or becomes a party to a proceeding or effects settlement of a proceeding or of a claim or dispute; or (b)     holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs; or (c)      maintains a bank account; or (d)     effects a sale through an independent contractor; or (e)      solicits or procures an order that becomes a binding contract only if the order is accepted outside Australia, or the State or Territory, as the case may be; or (f)      creates evidence of a debt, or creates a security interest in property, including PPSA retention of title property of the body; or (g)      secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts; or (h)     conducts an isolated transaction that is completed within a period of 31 days, not being one of a number of similar transactions repeated from time to time; or (j)       invests any of its funds or holds any property. Registration requirements: The following documents must be provided to ASIC in order to register as a foreign company: Certified copy of a current certificate of incorporation or registration, or a document of similar effect; Certified copy of constitution; List of directors containing personal details of those directors; A memorandum stating the powers of any directors who are resident in Australia and members of a local board of directors; Certain information and documents relating to registrable charges on property of the foreign company; Notice of the registered office of the foreign company in its place of origin (if it has one) or otherwise its principal place of business; and Notice of the foreign company’s registered office in Australia which complies with s.601CT of the Corps Act[1]. Australian registered office, local agent, and public officer: In addition to an Australian registered office, you will need to appoint an Australian local agent / representative[2]. The local agent is personally liable for anything the foreign company is required by law to do. You must also appoint a public officer for taxation purposes. ARBN: ASIC will issue your foreign company with an Australian Registered Body Number (ARBN). Foreign companies must ensure that their ARBN and their name (as registered with ASIC) and place of origin are shown on their public documents. Reporting: There are ongoing reporting requirements to ASIC. Australian company as a subsidiary of your overseas business Foreign companies often choose as an alternative to register a proprietary company (i.e. one with less than 50 shareholders) as a subsidiary of the foreign company. In this scenario it is the Australian company which carries on business and trades in Australia. The requirements are similar to registration as a foreign company in the sense that registration with ASIC is required, there must be at least one Australian director, there needs to be an Australian registered office, and there are ongoing reporting requirements with ASIC. Australian companies must maintain a company register and unless an exemption applies lodge audited financial statements each year. The company will need to separately apply for an Australian Business Number, Tax File Number, and typically register for Goods and Services Tax (assuming GST turnover exceeds $75,000) as well as Pay As You Go withholding (if the business employs employees or contractors with whom the business has entered into voluntary agreements to withhold or if the business makes payments to other businesses that don’t quote an Australian Business Number). Other key associated considerations (a)       Business name and trade mark search If the foreign company or Australian subsidiary company wishes to trade under a name other than its own name (as registered with ASIC) it must register it as a business name with ASIC. Whether or not the foreign company is trading under its own name or some other new name, it is important that a trade mark search is undertaken by a professional so as to minimise the risk of potential infringement of existing registered or unregistered rights in the proposed name and/or misleading or deceptive conduct under the Competition and Consumer Act 2010 (Cth).  See here for further information. (b)      Trade mark registration Trade mark registration in Australia confers a monopoly right upon the holder of the trade mark to use the mark in respect of the goods or services for which it is registered. You should ensure that your chosen name does not infringe the rights of other by commissioning a trade mark search and protect your brand by registering your trade mark in respect of your goods and services without delay.  See here for further information. (c)       FIRB approval of foreign investment Foreign investment approval may be required depending on the value of the investment, nature of the investment

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Guide to Statutory Demands – What to Do When Served

Intro If a company owes one or more debts which are due and payable to a creditor and which remain outstanding, it is possible that the creditor may decide to serve a statutory demand on the debtor company. The statutory demand may require the debtor company to either pay the debt(s) in full or provide security for the debt(s) to the creditor’s reasonable satisfaction within 21 days after the demand is served on the company[1]. Requirements for a valid demand In summary the requirements for a valid statutory demand on a company are as follows: If the demand relates to a single debt the demand must specify the debt and its amount. If the demand relates to 2 or more debts then the demand must specify the total; The total debt(s) owed must be more than $2,000; The demand must require payment of the debt or the debtor company to secure or compound the debt to the creditors reasonable satisfaction within 21 days of service of the demand on the debtor company; The demand must be in writing, in the prescribed form, and signed by or on behalf of the creditor; and If there is no judgement in respect of the debt then the demand must be accompanied by an affidavit which clearly verifies that the debt is due and payable in full and the affidavit must comply with the rules. Bear in mind the available grounds to have the demand set aside, and the likely costs outcome if it is set aside (discussed below).  All of the circumstances should be considered before deciding to proceed with service of a demand. Time is of the essence If you are on the receiving end of a statutory demand, legal advice should immediately be sought. If the debtor company does not take any action (i.e. comply with the demand, ensure that the demand is no longer in effect, or apply to the relevant Court) within 21 days of service of the demand, and the demand is still in effect, the creditor[2] can immediately apply for the debtor company to be wound up and the Court “must” presume that the debtor company is insolvent[3]. Extensions of time are not possible. Aside from the very harsh effects of winding up proceedings on the debtor company, the onus will be on the debtor company to then prove that it is in fact solvent. In such circumstances the debtor company will not, without the leave of the Court[4], be able to oppose the application on a ground that it might otherwise be able to do so in an application to set aside the statutory demand. Application to set aside a statutory demand If however an application is made to set aside the statutory demand within 21 days of service, supported by an affidavit, and the application to set aside the statutory demand along with the supporting affidavit is served on the person who served the demand on the debtor company within the 21 day period[5], then the application to set aside the demand would be validly issued[6]. Grounds for setting aside the statutory demand The Court must be satisfied either: that there is a “genuine dispute” between the company and the creditor about the existence or amount of the debt; that the debtor company has an offsetting claim[7]; that there is a defect in the demand “and substantial injustice will be caused unless the demand is set aside”; or that some other reason exists why the demand should be set aside[8]. If the demand is set aside then there will be no automatic presumption of insolvency and it is likely that the creditor would have to pay the debtors costs of the application to set aside[9] unless the debtor has behaved unreasonably. ……………………… [1] S.459E of the Corporations Act 2001 (Cth) (Corps Act) [2] being one of the class of persons under s.459P of the Corps Act [3] s.459C (2) (a) of the Corps Act [4] the Court can only grant leave if it is satisfied that the ground is “material” to proving that the company is solvent under s.459S of the Corps Act. [5] Sufficient time must be allowed for service in compliance with s.109X of the Corps Act. Any person receiving a statutory demand must take action immediately. [6] s.459G of the Corps Act [7] s.459H of the Corps Act [8] s.459J of the Corps Act [9] s.459N of the Corps Act

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Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017

The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (Bill) was introduced by the House of Representatives on 1 March 2017.  A report of the Senate Education and Employment Legislation Committee is presently due by 9 May 2017.  It is anticipated that the Bill (in its current form or otherwise with amendments) will receive Royal Assent later this year. The Bill addresses the findings of various well publicised reports regarding the exploitation of workers (including migrant workers under temporary work visas).  Briefly, the measures to be introduced include: Higher penalties[1] for “serious contraventions[2]” of various workplace laws[3] (to act as a deterrent); Prohibitions against employers unreasonably requiring their employees to make payments (e.g. requiring their wages to be paid back in cash); Making franchisors and holding companies[4] potentially liable for underpayments by their franchisees or subsidiaries where they “knew or could reasonably be expected to have known” that the contraventions, or similar contraventions, would at least be likely to occur and failed to take reasonable steps[5] to prevent them; Higher penalties for record keeping failures; and Increased evidence gathering / investigatory powers of the Fair Work Ombudsman. The following activities are examples of some reasonable steps which could be taken by franchisors and holding companies (who have a significant degree of influence or control over their franchisees or subsidiaries) to try to avoid a contravention of the Bill (if and when enacted), depending on the size and influence of the relevant franchisor or holding company: ensuring that the franchise agreement or other business arrangements require franchisees to comply with workplace laws. Consider appropriate amendments to your franchise manual for example; providing franchisees or subsidiaries with a copy of the FWO’s free Fair Work Handbook and information notices / circulars; encouraging franchisees or subsidiaries to cooperate with any audits by the FWO; establishing a contact or phone number for employees to report any potential underpayment to the business; and auditing of companies in the network. ……………………… [1] Up to $108,000 for individuals and $540,000 for corporations [2] Where the conduct constituting the contravention was deliberate (i.e. expressly, tacitly, or impliedly authorised) and part of a systematic pattern of conduct bearing in mind the number of contraventions, the period of time during which the contraventions occurred, the effect of the contraventions, and any other relevant considerations [3] e.g. contravening the National Employment Standards, a modern award, enterprise agreement, workplace determination, national minimum wage order, equal remuneration order, certain payment related provisions and record provisions [4] Who have a significant degree of influence or control over the affairs of their franchisee or subsidiary [5] The court will take into account factors such as the size and resources of the franchisor or holding company, their ability to influence or control, any action taken to ensure that the franchisee or subsidiary knew about their obligations under the specific workplace laws, any arrangements in place for assessing compliance with the specific workplace laws, whether there are any complaints related arrangements in place, and the extent to which compliance with the specific workplace laws is encouraged or required by the franchisor or holding company

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Online copyright infringement of movies and website blocking by CSPs: Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503 (15 December 2016)

The Federal Court of Australia has made the first reported orders under the new s.115A of the Copyright Act 1958 (Cth) by requiring numerous Australian carriage service providers to disable access[1], for up to 3 years[2], to various websites whose “primary purpose” is the infringement or facilitation of infringement of copyright. The Copyright Amendment (Online Infringement) Act 2015 (Cth) amended the Copyright Act 1958 (Cth) by introducing s.115A. s.115A provides that the Federal Court of Australia may, on application by the owner of a copyright, grant an injunction to require a carriage service provider to take reasonable steps to disable access to an online location if: a carriage service provider provides access to an online location outside Australia; the online location infringes, or facilitates the infringement of, the copyright; and the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia). The purpose of the scheme under the new s.115A is to allow a specific and targeted remedy to prevent online locations which flagrantly disregard the rights of copyright owners from facilitating access to infringing copyright content. Knowledge or intention on the part of the carriage service provider is not required; the specific and targeted remedy exists simply to bring an end to access to such online locations without the need for lengthy factual enquiries associated with copyright infringement actions of the kind seen in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16. There is a high threshold test to be satisfied, namely, that the “primary purpose” of the online location must be to infringe. The case[3] provides guidance on the evidence that will satisfy a Court in this regard. The time at which the Court must be satisfied of the elements in s.115A is the time of granting of the injunction. The making of the application for an injunction must be notified to both the carriage service provider and the person operating the alleged infringing online location (unless their identity cannot be ascertained despite reasonable efforts). The rights owners were required to pay the arguably nominal compliance costs of the carriage service providers in complying with the orders (calculated as a sum per domain name), in addition to the carriage service providers’ legal costs. The carriage service providers were not awarded / not all of them sought their costs of setting up and configuring the necessary systems (i.e. website blocking systems) in order to comply with s.115A. s.115A (9) provides that the carriage service provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings. It would seem that such costs should be quantifiable by reference to “the proceedings”, if considered commercial to spend time undertaking that exercise. ………………………… [1] By implementing DNS blocking, IP address blocking, URL blocking or any other alternative technical means of disabling access to the online locations (outside Australia) of various websites whose primary purpose is the infringement or facilitation of the infringement of copyright [2] Capable of extension for another 3 years in the case of continued infringement [3] As does the revised explanatory memorandum to the Copyright Amendment (Online Infringement) Bill 2015

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