最新二十篇文章公告:判決與法律命令之解析、契約與商業模式之範例
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何謂「眾律」?

「眾律國際法律暨專利商標事務所」的名稱是從英文「ZOOMLAW」音譯而來,而ZOOM-LAW就是放大/縮小檢視現行法律的意思。

眾律的創所律師認為,身為法律人不能單純接受既定法律的成文規定,而是應該不斷地去重新檢視法律的規範是否合乎時宜,是否符合法律的精神和保障人民權益的目的。既遵循法律,卻不因法律的侷限,而排除各種自由發展的可能性,這就是「眾律 ZOOMLAW」的理念。

眾律的特色

關於國內外商業法律事務與一般的律師事務所不同,「眾律」的創所及合夥律師都曾經長期擔任過企業或政府法務部門的重要職位。

如果說一般的律師所做的是外部律師(Outside Counsel)的工作,眾律的律師則非常熟悉如何於從企業內部法務律師(In-house Counsel)的角度去思考客戶的真正需求。

眾律面對客戶的法律服務需求,並非將客戶提出的要求僅視為一個案件或一份文件來處理,而是認真地去思考,企業客戶的真正需求何在。從長期的縱深去觀察,企業及產業未來的發展方向何在,眾律如何輔佐陪伴客戶成長,如何協助客戶在瞬息變化的商場上致勝。

基於對國際貿易、高科技產業、智慧財產權、資本市場、創業研發的深刻認識,眾律提供企業客戶,包括全球商務規劃、專利/商標佈局、募資發行、公司治理等高端法律服務。同時對於企業經營所可能面臨的法律風險,由歷練豐富的訴訟律師,提供民事、刑事、行政訴訟、商務仲裁、民事調解等各方面的爭議解決方案。

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In this article, we will advise you on the steps to be taken and costs involved to set up and to register a company. We will also give advice about your legal obligations as a company director and company officers.

Steps to incorporate a company:

There are a few things for you to consider before incorporating a company. This include whether a company is the right business structure, choosing a company name, decide how the company operate, understanding the legal obligation of a company and its officeholders, gathering consent of persons involved in the company before registering a company.

At this stage, you should make sure that you have fully understand what your legal obligations will be if you become a company officeholder. Once you register your company in Australia with the Australian Securities and Investments Commission (ASIC), your company can conduct business throughout Australia without the need to register in individual states and territories (s117 Corporations Act 2001). However please note that your registered business name would not be the same as registering a company. Registration or use of a business name does not create a legal entity (only when registering a company) or allow the use of privileges to which a company is entitled.

Reserving your company name:

It is common practice for someone to register their business as Pty Ltd. The word ‘Pty Ltd’ is the abbreviation of ‘Proprietary Limited’. This means that the liability of the company’s members is limited to the amount unpaid on their shares. A company would come into existence at the beginning of the day on which it is registered (s119 Corporations Act 2001) until it is deregistered (Chapter 5A Corporations Act 2001).

It is important to check your business name availability and to see whether your chosen business name has been previously registered. By doing so, you would need to check if your proposed business name is similar or identical to any other registered business or pending trademarks through the ‘check the IP Australia website’.  This is because even if you reserve or register a name for your company, person or corporation with similar registered name may still take action against you. Therefore to prevent this, it is your responsibility to be aware of any problems that might arise for your business name to be similar or likely to confuse from names already registered elsewhere.

Please note it is not necessary for you to give your company a name. You can use your Australian Company Number (ACN) as the name of your company name instead (s118 Corporations Act 2001).

In addition, you can reserve your business name by using form 410. This is to make sure that another person would not take your intended business company name before you register its business name. Once the ASIC approve your company name, they will reserve the name for you for two months. You may however apply to extend the two-month period by lodging another application with a fee. The second application must be lodged before the first two-month reservation period has elapsed. However ASIC would not indefinitely reserve a company name if that prevents other people to use the company name legitimately.

Internal Governance:

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Books and Records:

Pty Ltd. is a share structure proprietary company, limited by shares. This means that your company must not engage in any activity that would require disclosure to investors under Chapter 6D of the Corporations Act 2001 except for an offer of its shares to its employees of the company or a subsidiary of the company or existing members of the company. It is imperative to notify ASIC of any changes of information as soon as possible or at least within 28 days of the change without incurring any lodgment fees. Things you will need to notify ASIC include: when a new director, alternative directors or secretary is appointed, or when a current one ceases, change to the name or residential address of the officeholders, resignation or retirement of officeholders.

Under s286 (1) of the Corporations Act 2001, a company must keep written financial records that correctly record and explain its transactions, financial performance and position. Such financial records are defined in s9 of the Corporations Act 2001 including invoices, receipts orders for the payment of money, bills of exchange, cheques, promissory notes and vouchers, documents of prime entry, working papers and other documents, the method by which financial statements are made up and any adjustments to be made in preparing financial statements. Financial records can be kept electronically but such record must be convertible into hard copy made available within a reasonable time to a person who is entitled to inspect the records under section 288 of the Corporations Act 2001.

Officeholder obligations:

As officeholders, you must follow the requirements set out in the Corporations Act. This include to ensure company details are kept up to date, maintaining various registers and records and to pay the appropriate lodgment and annual review fees to avoid late fees and non-compliance action. Both director and secretary must ordinary reside in Australia. Directors are responsible for managing the company’s business and may be liable for debts incurred by the company at a time when the company is unable to pay those debts fall due.

Disclosure requirements:

Under section 191 of the Corporation Act 2001, if a director of a company who has a material personal interest in a matter that relates to the affairs of the company, he or she must give the other director notice of the interest unless exceptional rules applies.

Written consent requirements and keeping of records:

Both directors and secretary must ordinarily reside in Australia. Written consent must be obtained from directors, the secretary and members. Please note that you must have the relevant consents and agreements when you lodge the application.

Fees:

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Dispute Resolution              

There are various dispute resolution techniques that you can possibly use resolving conflicts. They are:

Negotiation:

Negotiation is a process whereby two or more parties seek to reach a mutual agreement. There may be no third party involvement during the negotiation, therefore the principals usually act for themselves or have their legal representatives to act for them. 

Below is a summary of advantages and disadvantages of using the Negotiation technique for dispute resolution.

Advantages of Negotiation

  • Parties with their lawyers are in best position to assess proposed solutions
  • Compromise often offer parties at least some of what they want
    • (note: court may not give them any of what they want)
  • Parties might not resolve all issues but may narrow them

Disadvantages of Negotiation

  • If there is no adequate preparation, a party can agree to a settlement outcome well below what a court may order
  • May not have valuations, adequate medical evidence to properly assess case
  • A party may feel that they were pushed too far
  • A party may agree to an unfair agreement due to inequality of bargaining power/coercion

Mediation

Mediation is a process where an independent third party mediator assists two or more parties to reach a mutual agreement. The mediator’s role is to facilitate communication between parties rather than providing legal or any other advices.

During the mediation process, mediator will aim to engage parties in constructive communication.

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8/2514.00~17.00 正在進行本所為東元集團量身訂做的商標管理訓練課程,由黃怡然律師主講全球商標佈局監控及商標權盡職調查。

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Trademark search is important. Trademarks are considered as one of the most important and valuable assets of a business. A good trademark would allow a business to build brand reputation and public goodwill in its goods or services sector. A trademark search is a review of various information and helps to ferret out potential conflicts (which is, intent-to-use, prior use to a similar mark). The trademark search report provides useful information. Such search can give us an idea of the protectability of the mark especially whether such trademark is distinctive or diluted and for which trademarks a particular company owns. If the search findings show that there are numerous references to similar mark for similar goods, the proposed mark may be considered weak and the scope of protection would be narrow. Searching a trademark prior registering is crucial as forgoing a search can be risky. Defendant’s failure to conduct trademark search may constitute “carelessness” and the court may weight in favor of plaintiff’s right to injunctive relief.[1] The description of goods for the proposed mark must be furnished in arranging for a search. It is crucial to insert accurate trademark descriptions because the search will focus on similar marks for similar goods as well as identical marks for unrelated goods.

Trademark search is usually conducted with a review of trademarks recorded on the register for that particular country. Some trademark searches may need to cover multiple countries. It is however uncommon for a trademark to be available for use and registration in all countries. Therefore an alternative trademark may be required in some other countries. Such searches can take about one to two weeks to complete, however it can also be as quick as a few days or as long as several months. Longer time is usually required if there are adverse results and additional steps needs to be taken.

United States for example, “full search” would include searching the U.S. Trademark Register; U.S. pending trademark applications; market directories; state registrations; domain names; telephone directory listings; trade name listings; reported directions and online database and industry publications directed to the goods or services being searched. Such trademark search should be analyzed from two perspectives that are: protectability of the mark from infringing use by others and availability of the mark for use.

Sometimes it can be difficult to determine when you spot potential trademark conflicts. This is especially the case between competitive, similar or closely related marks or goods. You must first evaluate whether the prior user has grounds for protest. In addition, if such grounds for protest exist, you must assess the risk of monetary relief or injunctive should suit be filed. Nevertheless, sometimes potential trademark conflicts can be rested by further investigation. It is important to check whether such trademark is still in use or whether such mark was discontinued. However please keep in mind that even if a trademark registration has expired, such trademark may still in use. One of the reason for such expiration may be due to inadvertent failure to file the necessary maintenance documents. The owner of the expired registration may still be entitled to rely on common-law rights based on his/her continued use.[2] Alternatively, when there is a potential conflicting trademark, you can possibly seek for the other trademark owner’s consent. If you believe prima facie the description of goods on its surface is similar, but the channels of distribution and purchasers do not overlap with each other, it is possible for the first user to be willing to consent for your use. You might also sweeten the negotiation by imposing some restrictions. 

                                                                                                                                                                                            


[1] Chips’ N Twigs, Inc. v. Chip-Chip Ltd., 414 F. Supp. 1003, 1015 (E.D.); cf. Pizzazz Pizza & Rest. V. Taco Bell Corp., 642 F. Supp. 88, 94.

[2] Siegrun D. Kane. Kane on Trademark Law (2009).

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Since the Family Law Amendment[1] commenced on 21 November 2008, it has introduced not only financial aspects of de facto relationship breakdown into the Family Law Act 1975 (Cth) (“FLA”), but has also changed a number of parenting provisions in the FLA which has significant impacts for surrogate families and same-sex couples.

The purpose of this research paper is to consider whether further reforms are required to the FLA when two or more parties are in dispute about parenting arrangements for a child in the context of same-sex relationships:

  1. Artificial Conception Procedure (“Artificial insemination”) or;
  2. Surrogacy or;
  3. Adoption.

Assuming all circumstances, parties and children are in Queensland, State and Commonwealth Laws apply. In considering all of the above scenarios, it is important to keep in mind that the FLA makes the best interest of a child the paramount consideration in all decisions relating to parenting arrangements.[2] In assessing the best interests of children, family law would look at the role of ‘both of their parents’ and ‘other people significant to their care, welfare and development’.[3] Further, the Discrimination Law Amendment[4] has introduced ‘de facto partner’[5] as a new category of ‘spouse’. A large number of amendments have removed references to ‘husband’ and ‘wife’ with a replacement of ‘spouse’. Significantly, these amendments have also made changes to the Acts Interpretation Act 1954 (Qld)[6] that any reference to a ‘spouse’ in other legislations would include a ‘de facto partner’ as part of the interpretation unless the particular legislation expressly states the contrary.[7] Further potential areas of reform for same-sex relationships were identified from the Anti-Discrimination Commission in Queensland,[8] which will be discussed in detail in this paper.

Artificial insemination

When a child is born using an artificial insemination, provided the consent of the other intended parent is given, the child would be the child of the biological mother and of the other intended parent.[9] Relevant sections which apply to same-sex female couples in circumstances of artificial insemination in Queensland include 17, 18, 19, 19C, 19D and 19E of the Status of Children Act 1978 (Qld).[10]

The FLA has been slow to catch up to the changing face of the family. This creates problems for non birth mothers and often, the men who donated sperm to assist them. The new s60H of the FLA[11] now refers to the woman’s partner as an “other intended parent” rather than a “parent” to incorporate all situations if a woman was married to, or a de facto partner of, another person, then the child is the child of the woman and of the other intended parent, not the party who have provided genetic material for the child.[12] However the failure to expand the definition of a “parent” in s4 of the FLA to include an “other intended parent” could potentially be problematic because ss60B (1)(a), (1)(d), (2)(a), (2)(c) and (2)(d) (objects and principles of Part VII); ss60 CC (2)(a), (3)(c), (3)(e) and (3)(i) (best interest of the child); s61C (parental responsibility); s61DA (presumption of equal shared parental responsibility) of the FLA could all exclusively incorporate “other intended parent” to these provisions. This has indicated an inconsistency between s60H and other provisions of the FLA because a non-birth mother may be considered as an “other intended partner” under s60H of the FLA but may not be considered as a “parent” for the purposes of other provisions of the Act.[13] Section 60H of the FLA would need to be read in conjunction with s. 90RB FLA which provides that a child is “child of a de facto relationship’ in accordance with s. 60H and its associated sections to extend such section to “both opposite-sex and same-sex de facto couples.”[14]

 

 

[1] Family Law Amendment (De Facto Matters and Other Measures) Act 2008 (Cth).

[2] Family Law Act 1975 (Cth), s60B.

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In circumstances of artificial insemination, the birth mother will be a legal parent whereas the other intended parent, the lesbian co-mother, would need to obtain a parenting order in respect of their child. Such parenting order may not always entitled lesbian co-mothers to have the same financial and work-related benefits as a legal (birth) parents do. The other intended partner in the same-sex relationship will only be considered as a ‘parent’ of a child if the child was born in a de-facto relationship at the time of the artificial insemination.[1] This may compromise the best interest of a child born to a lesbian or gay couple.[2] The result is that same-sex families are excluded from a range of federally funded entitlements and benefits that are available to heterosexual families. Consequently, this has resulted in same-sex families being denied access to benefits intended to help parents’ support their children that may leave the children in a same-sex family worse off than other children from opposite-sex families.

Therefore as a federal government policy officer, it is important to undertake further reforms to ensure equality of the children being raised in same-sex families and to clarify access entitlements for parents seeking to support their children in the best way they can.

 

Surrogacy

A child born to a gay couple will often have a birth father and a gay co-father, as well as a birth mother. Alternatively, a child may have two gay co-fathers as well as a birth mother. If there is a birth father, he will be a legal parent. Pursuant to the Surrogacy Act,[3] the intended parent or intended parents may include a man and an eligible woman; or two men; or two eligible women to be parents of the child; and a birth parent would stop being a parent of the child.[4]

The present requirements for gay couples making a parenting order include a proposed order for the well-being and in the best interest of the child; the child must has resided with the applicant for at least 28 consecutive days before the day of the application was made and before time of hearing; proof of evidence of a medical or social need for the surrogacy arrangement and such arrangement was made after the parties obtained an independent legal advice; all parties must have obtained counseling from a qualified counselor about the surrogacy arrangement and such arrangement was made with the consent of the birth mother, the birth mother’s spouse (if any) and the applicant, or joint applicants before the child was conceived; provided such arrangement cannot be a commercial arrangement.[5] It is recognized that further reform is needed to clarify the status and role of a person who has no biological connection to a child.

Article 26 of the International Covenant and Civil and Political Rights[6] provides:

“All persons are equal before the law without any discrimination to the protection of the law. The law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground…”

In Re Michael: Surrogacy Arrangements,[7] Watts J considered[8] s60HB of FLA and found unexpected consequences in relation to application for leave to adopt a child born as a result of a family surrogacy arrangement. This is one example of how the new provision s60H of FLA could lead to strange results.  In Re Michael, Sharon’s mother Lauren, who was in a de factor relationship with Clive, gave birth to Michael by using Paul’s sperm (Sharon’s husband) as Sharon suffered from a cervical cancer, she could not give birth. However, due to the s60G of FLA which defines the “prescribed adopting parent”, Paul and Sharon could not adopt Michael despite the fact that Paul was Michael’s biological father. Section 60H of FLA only provides scope for a child born as a result of artificial insemination to have two parents, this provision would not however assist the children of a gay male couple who have a child or children under a surrogacy arrangement. Such restriction is problematic for children born to multi-parent families, or children born to gay male couples. Despite the fact that the new s60H of FLA has now recognised the status of non birth mother, nevertheless, in a number of cases, s60H of FLA is not sufficiently flexible to recognize the various forms of family that exist in today’s society. Further reform would need to be made to recognise the multiplicity of family constellations for the benefit and security of the children living with them.

 

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Adoption

Section 89 of the Adoption Act[1] restricts its adoption right to heterosexual individuals or couples may infringe article 21 of the Convention on the rights of the child (“CRC”)[2] in conjunction with article 2. Article 21 of the CRC[3] requires countries that permit adoption to ensure that the best interests of the child are ‘the paramount consideration’ in the adoption process. Discrimination against same-sex couples in adoption may also lead to discrimination in access to financial entitlements for the benefit of the family, which are only available to birth parents or adoptive parents.

Such restrictive and discriminatory laws have a particularly serious impact on the children of gay couples. It is particularly difficult for gay couples to become a legal parent of their child without adoption. Gay male couples that wished to have children would need to go through artificial reproductive procedures or intercourse without involving a childbearing woman. Such limited scope of state adoption laws severely limits the possibly of adoption for same-sex couples. Thus, it has certainly infringed article 21 of the CRC[4] that requires the best interests of the child to be the paramount consideration in adoption.  This may also compromise the best interest of the child under article 3(1) of the CRC[5] that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a paramount consideration.

Recommendations

One of the consequences of the reform introduced by the Same-Sex relationships[6] and the Family Law Amendment[7] is that from 1st July 2009, the FLA acknowledges that children are frequently cared for by a range of ‘other people significant to the care’ of a child. Those people other than the birth parents or adoptive parents can seek a parenting order from the Family Court of Australia if they wish to formalise their parenting role.[8]

Further amendments are needed to clarify the status and role of a person who has no biological connection to a child. This is to ensure equal protection for the children of same-sex parents. As a federal government policy officer, such reforms should include the recognition of lesbian co-mother or gay co-father. Federal laws should ensure that a lesbian co-mother of an artificial child could access the same financial and work-related entitlements available to a birth mother and birth father. This could be achieved by amending the FLA to include a parenting presumption in favour of the lesbian co-mother of an artificial child and ensuring that the definition of ‘child’ in any relevant legislation recognizes the parenting presumptions of the FLA; or in the Acts Interpretation Acts[9] that any references to a person’s ‘child’ in federal legislation would include the artificial child of a lesbian co-mother. In addition, Queensland should also enact parenting presumptions in favour of lesbian co-mothers and gay co-fathers. While parenting presumptions are appropriate for the artificial child of a lesbian couple, broader adoption laws are the better solution for a gay couple having an artificial child. Federal financial and work-related laws should include the definition of ‘step-child’ that recognizes a child under the care of a ‘de facto partner’ of a birth mother or birth father. ‘Step-parent adoption’ laws should be more readily consider adoption by a lesbian co-mother or gay co-father. Same-sex couples should have equal rights to apply for adoption of an unrelated child. Further, there should be a public information and education campaign to ensure that gay and lesbian families are aware of their rights and entitlements under federal financial and work-related laws. In addition, federal laws should explicitly recognizes the eligibility of a person who has a parenting order from the Family Court of Australia. Such access to financial or work-related benefits would be extended beyond legal parents. 

 

Bibliographies

Secondary Sources

Belle Lane, ‘Who is a parent?’ (2010) 21(2) Australian Family Lawyer.

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