IP SPOTLIGHT MAY 11

WITNESSING DOCUMENTS VIA AUDIO VIDEO LINK IS NOW ALLOWED IN NSW DURING COVID-19

Taking effect from 22 April 2020, the Electronic Transactions Regulation 2017 (NSW) has been amended to include new provisions (i.e. Schedule 1 Response to COVID-19 pandemic) relating to witnessing and attestation of

This would include some of the frequently used video conferencing applications such as Skype and Zoom. The types of documents to which the new regime applies include: – – a will; – – a power of attorney or an enduring power of attorney; – – a deed or agreement; – – an enduring guardianship appointment; – – an affidavit, including an annexure or exhibit to the affidavit; and – – a statutory declaration. Where an audio video link is used for witnessing, the person witnessing must: – – observe the person signing the document sign the document in real time, – – attest or otherwise confirm the signature was witnessed by signing the document or a copy of the document, – – be reasonably satisfied the document the witness signs is the same document, or a copy of the document signed by the signatory; and – – endorse the document, or the copy of the document, with a statement:

(i) specifying the method used to witness the signature of the signatory, and (ii) that the document was witnessed in accordance with the regulation. The witness may sign a counterpart of the document, or a signed and scanned copy of the document sent by the signatory, as soon as practicable after witnessing the signature. In addition, the wording of the required endorsement may be to the effect of: the document was signed in counterpart and witnessed over audio visual link in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017. If you would like more information about the regulation, please contact our specialists.

According to the study, simply holding one type of IP right is no guarantee for increasing business profitability. The study shows that there is no marked effect on business profitability if the business only owns a registered trade mark. In a world where brands are often the most valuable asset of a company (think NIKE, Uber and Coca Cola), this finding seemed counterintuitive and surprised me the most. Interestingly, however, firms that only own registered designs appear to have the highest profit ratio over invested capital on average, at 10.2%. Looks obviously count! The fashion industry has certainly been taking advantage of the registered design system – Australian-based fashion house Zimmerman Wear and Magi Enterprises (better known to fashionistas as KOOKAÏ Australia) were ranked first and second amongst Australian design applicants in 2019, in good company with Louis Vuitton and Cartier who were amongst the top five foreign design applicants. Generally, in comparison with businesses who do not own any IP rights, business profitability is markedly higher for businesses who own a combination of IP rights, such as patents and designs, or patents and trade marks, and especially a combination of patents, trade marks and designs. Unfortunately, the report does not name these successful businesses. But based on these findings, the ownership of a range of IP rights as a marker for a profitable business is obviously a desirable attribute for any Australian company, when looking to attract investment and partnerships.

In most cases, the positive link between business profitability and ownership of a combination of IP rights would seem to suggest that these businesses have a commercialisation plan that marries protection of technological innovations (patents) with marketing (trade marks) and product aesthetics (design). The positive link between profitability and ownership of a range of IP rights reinforces our long held view that IP rights are an essential commercial tool to enable businesses to optimise the value of their technological innovation. Wrays IP professionals, including patent and trade mark attorneys, IP lawyers and corporate advisory specialists are well-placed to deliver end-to-end solutions for our Australian, New Zealand and international clients at any point along their innovation cycle.

documents during the COVID-19 pandemic.

The new regime allows:

– – witnessing of a signature by audio visual link; and – – performing arrangements in relation to witnessing and attestation of documents (e.g. confirming the identity of the signatory, or swearing or affirming the contents of an affidavit) by audio visual link. For the purpose of the new Schedule, ‘audio video link’ means: technology that enables continuous and contemporaneous audio and visual communication between persons at different places, including video conferencing.

MARY TURONEK Principal

JUDITH MILLER Commercial National Practice Leader

JAYDEN LEE Associate

wrays.com.au | 3