As your company grows, you may be looking to expand your team and add to your workforce. When hiring additional employees or engaging independent contractors you need to be well-aware that an independent contractor may actually be considered an employee, regardless of how you label the person.

Employees are entitled to rights pursuant to the applicable Employment Standards Acts (based on the province the employee resides) such as: (1) vacation pay; (2) overtime pay; (3) statutory holidays; (4) notice period or payment in lieu of such notice period upon termination; (5) severance pay; and (6) employment insurance benefits.

Independent contractors are not entitled to such benefits. However, if a government authority determines that an independent contractor is actually an employee based on the factual relationship between the parties, the independent contractor will be entitled to all of the above rights and there may be penalties that come with such determination.

There is no one test to determine whether a worker is an employee or an independent contractor, but here are some factors to consider when engaging an independent contractor:

Level of Control: Does the worker set his/her own hours of work? Does the worker determine how the services are to be completed?

Equipment: Is the worker required to provide his/her own tools and equipment for work?

Sole Income: Is the employer the sole source of income for the worker? Is the worker prohibited from taking other jobs?

Subcontractors:  Is the worker allowed to engage subcontractors for the services?

Opportunity for Profit:  Is the worker taking on a chance for profit and a risk of loss?

Compensation:  Is the worker providing monthly invoices to the company?

The above factors may all be considered when determining whether a worker is an employee or an independent contractor. If a worker who you presumed to be an independent contractor is determined to an employee, you may face fines and penalties including and related to unpaid vacation and overtime pay, severance pay, employment payroll taxes and employment insurance deductions and remittance.  All of which are costly, so way the least!

In summary, you will need to assess the relationship between the company and each of its potential workers before determining whether to commit to an employee or contractor relationship, something that your legal team is best suited to assist with to avoid costly penalties down the road.

Our clients spend an immense amount of time building their business, from product development, to names and branding.  In this whirlwind of creation, we often encounter businesses that forgot to see if their product or business name is available for trademark.  This is a problem that also arises with third party creative agencies, who have a tendency to propose names or logos without clearing their availability for trademark!

With multitudes of company and brand names registered daily, it is critical to undertake a trademark search prior to investing any capital into a name or logo.

A trademark registration can protect a name or logo, for example a company and brand name. Without trademark registration, there is little to no protection against others using your brand, passing off, or imitating the brand that you have worked hard to build. Worse, competitors can even force you to abandon your brand if they register a similar trademark before you, even if you entered the market before them.

Enter the trademark search.  Your lawyers will search existing trademark databases to see if there are any direct or similar marks already registered. If the trademark search is clear, the next critical step is to register your trademarks to provide legal protection from both use and misuse by competitors. Where issues arise, your lawyers can advise as to risk with proceeding and other options available.

When approaching a trademark search, a few considerations:

1. Logo and Word Marks.  Many business have two potential trademarks, one for their name and another for their logo.  Each should be searched to ensure availability.
2. Geographic Scope.  What countries do you plan on selling goods/services in?  Trademarks are filed on a per-country basis and an effective search will focus on those markets that you plan on operating/filing trademarks in.
3. More Than Direct Hits.  It’s critical for the search to look beyond direct hits, i.e. the exact name.  Instead, an effective search will also look for similar names or logos, which could involve similar or alternative spellings.

Keep in mind that a corporate name search is NOT a trademark search and a corporate search cannot provide any certainty that a trademark is available.

Before investing time and money in your business names and logos, contact your IP lawyer to undertake a trademark search.  It’s much easier to pivot to a new name or logo at the start, rather than right before launch.

On November 3, 2020, California voters approved the California Privacy Rights Act (CPRA), which replaces the California Consumer Privacy Act of 2018 (CCPA).

The CPRA expands consumers’ rights regarding protection of personal information. Companies collecting personal data should review the changes to ensure compliance. Indeed, we anticipate that enforcement of these laws will drastically increase when the CPRA comes into effect

For many companies, the CPRA may not directly apply, but companies may be contractually obligated to comply with the law if they conduct business with large tech firms.  As as a result, it will be prudent for many companies to comply in order to ensure they can continue to service their clients.

Major changes include:

1. Enforcement

The CPRA creates the California Privacy Protection Agency, a government body tasked to make the regulations and enforce the CPRA. It is predicted that the CPRA will increase the level of enforcement because it is partially funded by the fines.

2. No more warnings

The new law eliminates the 30-day cure period provided by the CCPA. The CCPA provided notices to businesses not complying with the law and allowed them to fix the violations within 30 days without having to pay fines. The notice and cure period no longer exist with the CPRA.

3. Sensitive Personal Information

The CPRA creates a new subcategory of personal information, which includes information such as biometric information and contents of e-mails and texts. Collection of sensitive personal information compels additional disclosure, opt-out and use requirements.

4. Expansion of Consumer Rights

Consumers now have the right to opt-out of businesses sharing and selling their personal information. Under the CCPA, consumers only had the right to opt-out of the sale of their personal information. Consumer also have the right to request businesses to delete their personal information and businesses must notify third parties to delete the personal information as well.

The CPRA will become effective on January 1, 2023 with a look back period of 12-months so businesses will need to comply by January 1, 2022.

The CPRA will likely be the foundation for privacy legislation in other states and on a federal level. Similar laws will pass in the near future in many states including Washing and New York and on a federal level in both the US and Canada.

In this constantly changing regulatory environment, it will be critical to review your data collection practices and Privacy Policy to ensure that your company remains compliant and to avoid enforcement actions.

The Canadian Intellectual Property Office (CIPO) recently announced that it will be accepting requests for expedited examination of trademark applications along with other measures to speed up the trademark registration process in Canada. Before the recent announcements, CIPO took approximately 24-30 months to issue an examiner’s report (also called an office action). The new measures are expected to greatly reduce delays in Canada. 

Expedited examinations may be requested by an applicant if one of the following conditions are met:

1. a court action is expected or underway in Canada with respect to the applicant’s trademark in association with the goods or services listed in the application.
2. the applicant is in the process of combating counterfeit products at the Canadian border with respect to the applicant’s trademark in association with the goods or services listed in the application;
3. the applicant requires registration of its trademark in order to protect its intellectual property rights from being severely disadvantaged on online marketplaces; or
4. the applicant requires registration of its trademark in order to preserve its claim to priority within a defined deadline and following a request by a foreign intellectual property office.

Other measures to reduce delays in trademark registration include:

1. examiners providing fewer examples of goods and services that would be considered acceptable in examiner’s reports;
2. faster examinations of applications with goods and services from CIPO’s pre-approved list of goods and services; and
3. reduced number of examiner’s reports for each application and issuance of refusals in a timely manner. 

If you have a pending trademark application that has yet to be approved and you believe you meet one of the four conditions above, you may wish to request expedited examination for your application. If a request for expedited examination is accepted, the application will be examined as soon as possible. 

Please reach out to a member of Voyer Law’s IP team if you would like to request expedited examination for your trademark application.