Ask the experts: Advice on trade marks, personal data and employment status

  • 12 Aug 2020

Our experts are on hand to answer all your queries about setting up on your own. Rianda Markram, a solicitor at FSB Legal, tackles the latest reader questions.

Q What is a trade mark and how long does it last?

Trade marks are a category of intellectual property rights and can help give identity to your business. Not only do they have a marketing benefit, but they also have commercial value, which means you can sell, license or mortgage them.

Common examples of things that might be covered by trade marks include your business name, words, sounds or a logo. Once you’ve protected something, you can usually take legal action against people who use it without your permission. Registration is the best means to protect your trade mark; the process takes about four months and lasts for 10 years. 

 

You can use the ® sign or RTM for registered trademarks, and TM if your registration is underway but not yet completed. The TM mark is useful because it serves at least as a deterrent to people who might otherwise be tempted to try and use it before your registration is confirmed.

Certain things cannot be trade marked, for example common and non-distinctive statements – e.g. ‘plumber in London’ – or things that are offensive or misleading.

The Intellectual Property Office provides detailed information on trade marks and the registration process.

Q What is personal data?

Start-ups often have questions around this.

The General Data Protection Regulation (GDPR) came into force in 2018 and sets out how to comply with data protection rules. It requires implementation of appropriate technical and organisational measures to ensure you can show that your handling of your clients’ personal data is done in accordance with the GDPR.

Personal data includes information relating to natural persons who can be identified or who are identifiable directly from the information in question, or who can be indirectly identified from that information in combination with other information. For example: your client wants to buy a new pair of trainers but you don’t have the required size in stock so you agree that you’ll arrange for delivery to the client’s home address. You’ll capture your client’s personal data to be able to deliver the shoes, e.g. name, surname and home address. 

 

The Information Commissioner’s Office website provides useful information for startups and SMEs. In addition, FSB members can call the legal advice line for a discussion around their duties in handling personal data. 

Q Starting out, what do I need to know about employment status?

There are essentially four categories of worker recognised by UK employment law: employee, employee shareholder, worker, and self-employed person. The distinction has great significance legally because the legal rights of each are different, and it does affect your responsibilities as an employer.

Employee and employee shareholders are entitled to a considerable level of statutory and common law protection – much more than if that person was self-employed, or a worker.

Likewise, a worker benefits from certain employment law rights that a self-employed person does not.

It is also important to be aware that tax and employment law regimes are separate. This means that a worker could be classed in one way for tax purposes and another for employment law purposes, although this is rare in practice.

Being aware of the different options will help you to decide what type of employee you need when your business expands. 

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