Small Business Tips – Leases

If you’re starting out your own business or you work from home, one of the things you may consider at some point in time is to establish a commercial presence by leasing out an office or a retail shop.

A commercial lease is different to a residential lease, so don’t assume that you can deal with it on your own! To do so would be a grave mistake. If you are in any doubt at all you should seek legal advice regarding your lease.

Retail Leases Act

The Retail Leases Act 1994 (NSW) applies to leases which are considered to be “retail shop leases”. A retail shop is defined in the act to cover any shop which is in a shopping centre or any shop which is to be used for retail purposes. There are exceptions, for example, shops which are in excess of 1,000 square metres, leases in excess of 25 years, or offices which are not in a shopping centre.

The Act also requires that all security bonds need to be deposited with the Director-General – however this does not apply to bank guarantees.

Registration

If the term of the lease, including options, exceeds three years, then it should be registered with the Department of Lands. However a lease can still be registered with the Department of Lands if its term is less than three years. Registration reinforces the tenant’s interest in the property and can avoid any conflict with other interested parties.

Common lease terms

While the Law Society has a standard lease document, its use is not mandatory. However, most leases will contain a number of terms that are common between leases. These include:

  • Duration of Lease
  • Options to Renew
  • Permitted Use
  • Rent and Rent Frequency
  • Outgoings
  • Rent Review
  • Security Deposit or Bank Guarantee
  • Insurance

Other Links

The NSW Retail Tenancy Unit may be found at:  www.retailtenancy.nsw.gov.au.

Introduction to Intellectual Property

“Intellectual Property” is a phrase that is often thrown around these days. Most people understand that it can be valuable, that it can be an important element especially in today’s highly competitive markets. However, most people do not understand what it actually consists, and what rights go with it.

There are several types of intellectual property:

Patents

A patent is a right to protect something that you have invented. It can be a device, substance, method, or process, and it has to be new, inventive, and useful. You cannot patent artistic creations, mathematical models, plans, schemes, or mental processes. Patents have to be examined and registered with IP Australia, the Australian Government’s Intellectual Property body.

Having a patent gives you the exclusive right to commercially deal with your product for the lifetime of the patent. In Australia, the standard patent lasts for 20 years, and annual maintenance fees are payable.

While patents give you protections for your product, remember that patents only last for a limited period of time, after which your patent becomes part of the public domain. This may be an issue for you if you would like your product to be exclusively sold by you in the long run.

Trade Marks

A Trade Mark is a mark that represents your business’s image or brand. A Trade Mark can be a phrase, logo, symbol, design, image, aspect of packaging, or combination of these. In some circumstances a Trade Mark may even be a sound, smell, shape, or colour. It is used to distinguish your goods and services from the goods and services of other businesses.

Registration of your Trade Mark gives you the exclusive legal right to use, license, or sell it to others within the territory that it is registered in. Registration is not compulsory; however registration reinforces already existing protections under common law.

Copyright

Copyright is a protection of the original expression of an idea, not the idea itself.  Copyright protects original works of art, literature, music, films, sound recordings, broadcasts, and computer programs. In Australia, Copyright is not registered and protection is automatically provided when the work is written down, painted, or recorded.

Copyright generally lasts for 70 years from the author’s death. Once copyright has expired it becomes part of the public domain.

Designs, Circuit Layout Rights, and Plant Breeder’s Rights

Designs are the features, shapes, patterns that give a product a unique appearance. An artistic design is covered by copyright but a registered design gives you exclusive right to commercially exploit the product.

Circuit Layout Rights refer to designs for circuits and computer chips. They do not need to be registered however the rights can last up to 20 years from the year the layout was made.

Plant Breeder’s Rights are protections on new breeds or varieties of plants. They must be registered and the protections generally last for 20 to 25 years.

Confidentiality and Trade Secrets

You should consider confidential information and trade secrets to be also intellectual property. After all, nobody can infringe on your right if nobody knows about it or knows how to reproduce the work. In certain situations a confidentiality or trade secret strategy may be appropriate to protect your intellectual property. Your strategy can be backed up or reinforced with confidentiality agreements.

All in all, intellectual property protection can be complicated.

As it is a developing area of law, it changes frequently and you should always get advice from your lawyer or an intellectual property specialist.