Waikato Business News August/September 2020

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34 WAIKATO BUSINESS NEWS August/September 2020 Enlighten signs deal Hamilton tech firm Enlighten Designs has signed a strategic partnership with Australia’s ARQ Group, as both companies look to expand their Trans-Tasman operations. Australia’s leading digital services provider, ARQ Group, has been working with Enlighten Designs for the last 12 months on web and digital experience platforms, along with innovative data storytelling and advanced data visualisation for commercial and public sector customers. Enlighten CEO Damon Kelly says the new alliance will diversify the services provided to Enlighten’s New Zealand clients by bolstering its data science, machine learning and artificial intelligence capabilities. Fresh look for Hamilton tech company Dynamo6 Hamilton technology company Dynamo6 has broadened its service offerings and rebranded. Creative director Andrew Rozen says the company now has the “perfect blend” of disciplines to supercharge digital programmes of work, build digital assets and support them under one roof, from strategic thinking and cloud engineering to digital experience and software development. “The Dynamo6 rebrand is more than a change of appearance, it’s been quite the journey of self-discovery to define who we are and what we do. Our point of difference versus our competitors is unique and deserves being told.” Dynamo6 was an established cloud service IT provider, and has been ramping up its development of websites and apps for the last two years. Rocketspark and Wintec get local business online A partnership with a purpose has seen Wintec students using Cambridge company Rocketspark’s web building platform to create free e-commerce sites for Waikato businesses. More than 80 ecommerce websites have been built by Wintec students studying the Graduate Diploma in Supply Chain Logistics since 2019 for start-ups and existing businesses. Supporting local business owners facing the effects of a Covid-19 hampered economy and new startups are areas in need, and head of partnerships at Rocketspark, Jason Tiller, says they will continue to supply their award-winning website builder and work with students to continue the successful programme. “Every business needs a website and the students can design a bespoke ecommerce website for a local business, for free. “This partnership is creating a path for business to sell online, and it proves you don’t need to outlay massive amounts of money to launch into the e-commerce space.” He said that while the world has changed in many ways due to Covid-19, ecommerce has grown significantly. Waikato Chamber of Commerce chief operating officer Paula Sutton runs a small business with her sister, Amy, creating artworks that celebrate New Zealand. They had no visible presence online until Paula worked with Wintec students last semester on a new ecommerce website for Ampa. “Working with the students from Wintec was an absolute pleasure,” said Sutton. “The students took their time in getting to know us and understand what we wanted from a new website that more accurately reflected our brand. Our new online presence now echoes our passion for creating good quality artwork that celebrates New Zealand.” Wintec academic Ehsan Yaeghoobi tutors the Graduate Diploma in Supply Chain Logistics, a programme for people who already have a degree, or relevant work experience, and want to upskill into supply chain and management positions. “Supply chain logistics is an increasingly exciting and vital space connecting suppliers, distributors, manufacturers, wholesalers and retailers to end users. Ecommerce is an important link, and Covid-19 has shown that being able to sell online and deliver in contactless ways is now more important than ever. It is a vital link in the supply chain,” says Yaeghoobi. The students’ work is overseen and mentored by Rocketspark design partner Rachel Bauer from Luna Solutions. Rocketspark’s award-winning Customer Success team is also made available to students throughout the programme. This partnership is creating a path for business to sell online, and it proves you don’t need to outlay massive amounts of money to launch into the e-commerce space Wintec and Rocketspark’s practical website design programme aims to give Wintec students real-life insight into what’s required for a business to operate online, the ecommerce web building process and how to set it up in a way that Google likes, so it can be found by potential customers. “Once our students have completed their projects, the website is handed over to the business owner who will then be able to edit their content and go live with a special offer from Rocketspark for ongoing hosting,” adds Yaeghoobi. 25 ward street Hamilton CBD Retail and Office Space for Lease High profile CBD character building on corner site opposite central mall Ground floor Retail: 58m2 at $20k rent pa + opex 80m2 at $44k rent pa + opex 100m2 at $50k rent pa + opex 1st floor Office: 68m2 at $12k rent pa + opex 110m2 at $24k rent pa + opex Ring your local agent or owner on 0274742326
WAIKATO BUSINESS NEWS August/September 2020 35 When IP rights are bona vacantia it ain’t no vacation In my last article I wrote about the importance of doing thorough due diligence on any business or asset acquisition. I recommended drawing up a list of due diligence issues, including identifying and verifying ownership of all intellectual property assets. With this article I explore a related issue – the risk of IP rights being bona vacantia after a business’s assets have been sold. What is bona vacantia? Bona vacantia is Latin and means ‘unclaimed goods’. More broadly, it means unclaimed property. ‘Property’ includes intangible assets like trade marks, patents, copyright, trade secrets and designs.* The issue of IP assets being bona vacantia most commonly arises in relation to registered IP rights. When does bona vacantia apply? Property owned by a company (limited or unlimited) is deemed to be bona vacantia if, immediately before the company is removed from the New Zealand Companies Register (the “Register”), the property has not been distributed or disclaimed by the company. (In the context of IP rights, ‘distributed’ means assigned by way of deed or otherwise in writing to a new owner; ‘disclaimed’ means withdrawn, cancelled or surrendered.) On removal of the company from the Register, ownership rights in the property vest in – pass to – the Crown. The Crown takes ownership of the property because the company no longer exists as a legal person and under New Zealand law the property must be owned by someone – it cannot remain ownerless. By way of example, if ABC Limited owns a registered trade mark but does not assign or cancel the registration before the company is removed from the Register, the Crown will become the owner of that registration on removal of the company from the Register. Similarly, if XYZ New Zealand (an unlimited company) owns a granted patent but does not assign or surrender the patent before the company is removed from the Register, the Crown will become the owner of that patent on removal of the company from the Register. Can you get your property back? If property does vest in the Crown, all is not lost. Property can be recovered by a person “who would have been entitled to receive all or part of the property, or payment from the proceeds of its realisation, if it had been in the hands of the company immediately before the removal of the company from the New Zealand register”. The recovery process is not a simple one, however, and may involve restoring a company to the Register. (I say ‘may’ because for registered trade marks at least, entitled persons can pursue a private process directly with the Treasury which does not involve restoring the company to the Register.) If the company is restored to the Register, then, subject to certain exceptions, any property vested in the Crown re-vests in the company as if the company had not been removed from the Register. This ‘restoration without interruption of right’ can be pivotal in retaining and enforcing IP rights – as a trade mark owner in England found out recently. In Fit Kitchen Ltd & Anor v Scratch Meals Ltd,** the plaintiff, Fit Kitchen Limited (“FKL”) successfully sued the defendant, Scratch Meals Limited (“SML”), for trade mark infringement and passing off. A key feature of the case was whether the trade mark relied on by FKL was valid. FKL applied to register its FIT KITCHEN logo trade mark (“Trade Mark”) on 8 August 2016. Unbeknownst to its director at the time, the application was made six days after FKL had been removed from the UK’s Companies Register for failing to file its annual accounts. The failure was due to an address mix-up. On discovering the company had been removed, FKL’s director applied to restore the company to the Register; the company was duly restored on 11 December 2017. In December 2016, while FKL was not on the Companies Register, however, SML began using a similar FIT KITCHEN logo mark; it did so until November 2019. In infringement proceedings brought by FKL in the Intellectual Property Enterprise Court, SML argued, among other things, that FKL’s INTELLECTUAL PROPERTY ISSUES > BY BEN CAIN Ben Cain is a Senior Associate at James & Wells and a Resolution Institute-accredited mediator. He can be contacted at 07 957 5660 (Hamilton), 07 928 4470 (Tauranga) and benc@jaws.co.nz. trade mark registration was invalid because on the date FKL applied to register its trade mark it was a dissolved company, and a dissolved company cannot apply for a trade mark. Much to FKL’s relief, the Court disagreed. Applying very similar law to that in New Zealand, the Court found that as FKL was deemed to have continued in existence at all times, including on 8 August 2016, the trade mark application was properly made by FKL and the Trade Mark belonged to FKL. Take homes To avoid a significant headache, all companies with IP assets should ensure: (a) the company’s details on the Companies Register are correct; (b) the company keeps a detailed register of all its IP assets, whether registered/ granted or not; (c) the company’s contact details for any IP assets on the Intellectual Property Office of New Zealand database (and any other databases, including domain name registrars) are correct; (d) if the company has an IP agent, the agent has up-todate contact details for the company; and (e) if the directors and shareholders of the company intend to wind the company up, then in preparation for removal from the Companies Register all IP assets are assigned in the proper fashion to a new owner/new owners before removal. If any readers of this article require specific advice, or know someone who does, then contact James & Wells or your nominated IP attorney. Don’t leave it until it is too late! *Refer the definition of ‘property’ in section 2 of the Companies Act 1993 ** [2020] EWHC 2069 (IPEC) Is it time to Rebrand? We can help with that Get in touch today – info@dpmedia.co.nz | 07 838 1333 | dpmedia.co.nz
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Waikato Business News August/September 2020

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