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After years of trying to manage the multiple responsibilities of a full-time and demanding senior in-house role, with those of mother and spouse, a friend of mine recently decided to resign from her job. She tried to make it work, including negotiating with her employer to reduce her hours. Her efforts were to no avail. That decision took courage and is to be congratulated as my friend, when forced, chose a path in keeping with her priorities of family first. What irritates me is that she had to make the choice in the first place. It is a significant loss to her employer, and a loss to the in-house community.
Monday, 07 May 2012 09:51

Do you know what you’re paying for?

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‘Using a regional office of a national firm can yield savings between 25 and 45 per cent,’ says one in-house counsel. Photo: Shutterstock
‘Using a regional office of a national firm can yield savings between 25 and 45 per cent,’ says one in-house counsel. Photo: Shutterstock
On his first day as director of litigation and information in the legal department of Manitoba Public Insurance, Dean Scaletta asked to see the retainer agreement the Crown corporation had with its external legal providers.
The CEO of Legend Gold Corp. says individual mines should have responsibility for CSR in their area. Photo: Legend Gold Corp.
The CEO of Legend Gold Corp. says individual mines should have responsibility for CSR in their area. Photo: Legend Gold Corp.
Embracing a model of corporate social responsibility can help a company better manage its risk and improve its governance structure, but it’s not just in-house counsel who should be working on it — external counsel have a role to play as well.
Brian Hilbers, left, and David Gore offer up ways to have legal positively impact the bottom line. Photo: Jennifer Brown
Brian Hilbers, left, and David Gore offer up ways to have legal positively impact the bottom line. Photo: Jennifer Brown
Aligning the goals of the business with the goals of a legal department is often discussed as an ideal model but how many in-house counsel actually achieve that while at the same time fighting against the constant tide of work flowing into their departments?
Monday, 16 April 2012 10:10

Notice is a two-way street

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b_150_0_16777215_00___images_stories_01-INHOUSE_Standard_photos_carol_chan.jpgOntario’s highest court recently upheld an award for nearly $20 million in damages against four key employees who quit their jobs with only two weeks’ notice. The decision is an important reminder to in-house counsel that the obligation to provide reasonable notice is a two-way street. The key is to protect your organization at the outset of the employment relationship with a well-drafted employment agreement.
Monday, 09 April 2012 10:36

Tips on training your colleagues

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I know at first glance the notion of “training your colleagues” may seem a little offensive and perhaps condescending. I intend to be neither. One of the things I try to be very aware of as a parent is how my behaviour creates incentives or disincentives for my child’s actions. I work hard not to reinforce negative behaviour. I don’t give in when tears come falling from my child’s beautiful brown eyes. Even though it would be easier to acquiesce, I don’t do it to stop my child’s whining, perfectly pitched (it seems) to push me over the edge. Conversely, I try to stand my ground when I am the target of a mercenary sweetness designed to persuade me to do something I’ve already said I won’t or to reverse a consequence flowing from my child’s poor behaviour.
In the workplace, the behaviours are typically not quite so dramatic but laying the foundation for your own effectiveness means clearly establishing with your colleagues the scope of your role as well as what behaviours are acceptable and unacceptable. It also involves ensuring that your own behaviour doesn’t subvert your intentions.
Do not let colleagues set your priorities
As a less-experienced lawyer, both in private practice and when I moved in-house, I was more inclined to move heaven and earth to meet my colleagues’ deadlines. However, as in-house lawyers, we are seen as a resource for all of our fellow employees and this is a good thing because risks arise at all levels of the organization. The downside is, of course, that there is no retainer to pay, there are no fees, and in the end, no natural barrier to discourage our fellow employees from asking for help.
To each person who contacts me by e-mail, phone, or by walking into my office, his or her request is important and often urgent. However, your role is to put all of those important and urgent things in priority based on relative importance and urgency, while making sure that your own list of tasks — things you think are important to undertake — are considered and moved ahead, too. No one else understands your “to do” list like you do.
Rank doesn’t equal priority
The nature of the work is what should govern what gets done, not the rank of the person requesting that the work be done. Work from your CEO will always naturally get your attention, but this must be tempered by your own views of the organization’s legal priorities, as well as commitments you have made. The same goes for peers.
Do not compromise the quality of your work
My work is not perfect and that’s a good thing. I worry about getting the important things right. I try hard not to let colleagues set unrealistic deadlines that will mean that I cannot get the important things right.
One thing I’ve noticed about last-minute assignments is that they usually come from the same people, and their urgency more often arises from the other person’s failure to be organized. This is where having a clear sense of the importance of not reinforcing negative behaviours comes in very handy. Set your colleague’s expectations such that he or she understands that you will need to take time to do the important things well, and ensure the colleague plans accordingly.
Subscribe to the notion that “someone else’s lack of planning is not your emergency.”
Respond, don’t react
Emergencies don’t always arise because of someone else’s lack of planning. They may arise because your colleague perceives a need to immediately respond to a given situation. For many of us faced with a negative situation, action of any sort seems the preferable course. Training your colleagues to step back and conduct a calm assessment in situations like these is invaluable for your organization. Don’t accept at face value that immediate action is necessary. Focus on assisting your colleague to respond rather than react.
Do not do your colleague’s work for him or her
I recently attended an event where one of the other speakers cautioned in-house counsel against becoming the organization’s scribe. It’s great advice that illustrates my next point. As lawyers, we are good at a lot of things — writing is one of them. This does not mean we should take on the task of writing for our colleagues for whom writing is more challenging.
Again, your behaviour can reinforce or create the opportunity to use your skills in a way that doesn’t advance the legal interests of your organization. If, in the course of your legal reviews, you regularly rewrite press releases, marketing collateral, or grant applications for stylistic reasons, your colleagues will come to rely on you and you will notice that the need to rewrite becomes the status quo. Avoid the urge to rewrite and, if something is unclear, send it back pointing out the lack of clarity.
Be sure that you clearly understand and communicate your role and avoid getting pulled into doing non-legal work others can do. Focus on using your legal expertise and ensuring the organization is getting the best legal support possible.
Do not let colleagues ‘pass the risk buck’
As in-house counsel, one of our main roles is to quickly assess risk and make decisions and recommendations. If we’re working at the level of general counsel, this is a critical skill. Once your colleagues realize that you’re pretty good at that, and that you’re willing to make difficult calls, you’ll find yourself being asked to make judgment calls and decisions that aren’t necessarily yours to make.
The colleague who doesn’t want to make those decisions is quite happy to be able to say that he or she made it because the lawyer recommended it. Be sure to identify which decisions you need to make and make them. By the same token, be very clear when it’s a business-risk decision that your colleague should be making based on his or her assessment of the overall risk (including legal considerations) and don’t let colleagues pass the buck for these types of decisions.
Respect your own time
If you don’t respect your time, your colleagues won’t either. I am the first one to stay late, work long hours, and do whatever it takes to get a project or assignment done, if necessary. I don’t like the “9 to 5” mentality and am committed to being there when my organization needs me.
However, as I get older and wiser (insert smiley face here), I’m much more difficult to persuade that all of these things are necessary in the normal course. If your colleagues know you’ll stay late and work weekends at the drop of a hat, they will learn to ask you to do that. If they know that you have commitments and priorities that will mean they cannot count on you routinely dropping everything to respond to last minute requests, they will learn to plan, organize, and use your time wisely. Training your colleagues to respect your time is crucial.
All of the tips in this column rest on the key not-to-be-forgotten fact that none of your colleagues is your client — your client is your enterprise or organization. To perform your role effectively, both you and your non-legal colleagues must understand that your first duty is to the entity. No one individual can dictate your priorities, or compromise the quality of the legal service you provide to the organization.
I know at first glance the notion of “training your colleagues” may seem a little offensive and perhaps condescending. I intend to be neither. One of the things I try to be very aware of as a parent is how my behaviour creates incentives or disincentives for my child’s actions. I work hard not to reinforce negative behaviour. I don’t give in when tears come falling from my child’s beautiful brown eyes. Even though it would be easier to acquiesce, I don’t do it to stop my child’s whining, perfectly pitched (it seems) to push me over the edge. Conversely, I try to stand my ground when I am the target of a mercenary sweetness designed to persuade me to do something I’ve already said I won’t or to reverse a consequence flowing from my child’s poor behaviour.
Monday, 09 April 2012 09:15

Register that tune

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Canadian companies have historically relied on unique icons, images, and phrases for brand recognition but now they can add sounds to that list.
On March 28, the Canadian Intellectual Property Office published a Practice Notice entitled “Trade-mark consisting of a sound,” thus effective immediately, CIPO will accept applications for the registration of sound marks.
That means sound can function as a brand and can now be registered as such in Canada. Some iconic sounds associated with top brands include the “Intel Inside” chime or the myriad sounds made by cellphones that have become familiar to their specific brands.
“We need to encourage companies to get their message across in sound because there is no greater medium for communication than sound — it is universal,” says Andrea Rush, a trademark and copyright specialist with Heenan Blaikie LLP who is also a performer and musicologist.
“With computer technology it’s easy to create sound marks and sound appeals to the head and the heart as all musicians know. Ask any string player what distinguishes one player from another — (cellist) Yo-Yo Ma from (Mstislav) Rostropovich — they will tell you it is his sound because his sound becomes the trademark of the performer. What better way to convey the brand experience than in a manner in which draws on the ability to reach out to people universally?”
Previously, the CIPO refused applications for the registration of sound marks on the basis that s. 30(h) of the Trademarks Act requires that “unless the application is for a word or words not depicted in a special form, a drawing of the trade-mark and such number of accurate representations of the trade-mark as may be prescribed.”
The recent change in CIPO’s practice brings its policy in line with the position of other countries around the world. The practice notice resulted from an appeal by Metro-Goldwyn-Mayer Studios Inc. on the refusal of the registrar to approve its application to register as a trademark the sound of its familiar roaring lion.
Rush says people have applied to register sound marks for many years — the MGM lion was first applied for in October 1992. At the time, the company submitted the sound-only portion of the roaring lion — the drawing of the trademark in the form of the voiceprint and a cassette tape containing the roaring lion sound.
“The issue was whether the sound of the lion is a trademark within the Trademarks Act,” says Rush. “We know that sound can be used to distinguish but the problem was whether or not there is a visual requirement — in other words can you speak a mark or do you need to see it for that sound mark to be in use?”
In other countries where sounds are permissible as trademarks, most parties have faltered at the opposition stage, says Cynthia Rowden of Bereskin & Parr LLP.
“I think that while some people may be willing to give this a try and meet the requirements in the act, at the same time the possibility for successful oppositions is certainly there,” says Rowden.
“I think something like the roaring lion is the reason we have this policy. It strikes me as a mark that does have immediate recognition,” she says. “On the other hand it’s going to be difficult — most parties won’t have a trademark that will meet that kind of threshold and if there is an opposition I think it will be interesting to see how the opposition board handles the degree of distinctiveness that a registrant will have to have in order to get a registration.”
According to the practice notice, an application for the registration of a sound mark must:
• state that the application is for the registration of a sound mark;
• contain a drawing that graphically represents the sound;
• contain a description of the sound; and
• contain an electronic recording of the sound.
“The guidelines effectively establish a manner of transposing the audible to the visual — in other words how you deposit your sound mark is done in two ways — audible and also a visual component,” says Rush.
“The reason this is so important is that over the years so much has happened in the field of computer technology,” says Rush. “There were no administrative procedures in place for drawing a co-relation between visual and audible.”
A sound mark application may only be submitted through paper application, and not through the office’s online filing system. The electronic recording of the sound must be less than five megabytes in size and recorded on a CD or DVD in mp3 or wav format and should not contain any repetition of the sound.
“People need to think about the criteria that the trademarks office has stated. They have introduced a procedure that will require people to spend a bit of effort to put their trademark application together,” says Rowden. “It will still continue to be possible for other parties to challenge the application by way of an opposition based on the trademark not being sufficiently distinctive and is clearly description.”
Rush sees the ability to register sound marks as a big step forward for companies that increasingly want to communicate globally with a universal means that is not tripped up by language differences.
“One of the difficulties in visual marks or words that have one meaning in one language is the meaning in another language is not necessarily the same or can often be something completely contradictory. One of the challenges for companies that do branding all over the world is to come up with a sound bite, so to speak, or mark which effectively communicates the same message to the consumer base or stakeholders all over the world at the same time in a language they understand. Sound can do that,” she says.
“I see this as a natural evolution — it’s as though we’ve been given the opportunity to use new palettes of colours and new paint brushes have just become available for everyone.”
b_150_0_16777215_00___images_stories_01-INHOUSE_soundwave.jpgCanadian companies have historically relied on unique icons, images, and phrases for brand recognition but now they can add sounds to that list.
Finance Minister Jim Flaherty debates his budget in the House of Commons on March 29, 2012. Photo: Chris Wattie/Reuters
Finance Minister Jim Flaherty debates his budget in the House of Commons on March 29, 2012. Photo: Chris Wattie/Reuters
Corporate tax changes announced by the Conservatives in last week’s federal budget will generate some much needed additional revenue for federal coffers, but will surely be unwelcome by foreign multinationals who will see it as an additional tax cost to doing business here.
b_150_0_16777215_00___images_stories_01-INHOUSE_2012_March_antle_stephen.jpgTwo recent court decisions illustrate key practice points for in-house counsel of companies contemplating significant transactions that will give use to shareholder dissent rights.
Monday, 19 March 2012 11:37

Indispensable Counsel

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b_150_0_16777215_00___images_stories_01-INHOUSE_2012_March_e._norman_veasey.jpgCanadian Lawyer InHouse recently spoke with former Delaware chief justice E. Norman Veasey to talk about his new book, Indispensable Counsel, The Chief Legal Office in the New Reality.
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