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I’d appreciate some advice on selecting a legal advisor geography-wise.

I am in the process of developing a globally oriented Web 2.0 site. I am based in Australia and we are incorporating in Australia. I will own 90 percent of the company, and an investor will own 10% (with an option for the investor to convert his shareholding to a loan payable from company profits). The investor is residenced in Asia and lives in the USA.

I am seeking a legal advisor initially to do the following:

  • finalise the shareholder agreement
  • create terms of use and a privacy policy
  • file an international trademark for the name

I’d be more than happy to engage more than one advisor for the different tasks.

Given my circumstances, I have a couple of questions:

  1. For the terms of use / privacy policy and the trademark filing, I am considering using a legal advisor from Elance. There are a couple of very highly rated and recommended US-based providers who sound like they would be perfect for my needs. Is there any reason at all, given my business is a global website, that I should use a local Australian-based advisor instead of a US-based advisor for these tasks?

  2. For the shareholder agreement, would it be more prudent to select an Australian legal advisor? As I mentioned, the business will be incorporated in Australia. I am planning to use a template from Business In A Box to start with, and then get that tailored for us.

Thanks in advance for any help. Trish

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5 Answers

up vote 2 down vote

Ok, you are NOT a global business. It is irrelevant for the stuff you discuss where your visitors come from, the ONLY thing is where you incorporate, pay corporate taxes etc.

So, get soemone from close by (!) in australia and have him do your bidding.

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You can write your own privacy policy... there are sites that generate it for you. You can file your own trademark, but if you need an attorney the service fees should be reasonable. Shareholder agreements is tricky, make sure to have your investor involved as to reduce the number of hours the attorney will have to make edits. – Frank Jan 13 '11 at 14:06
up vote 2 down vote

Agreed- you are an Australian entity.

Get an Australian lawyer first.

If your company does business (has sales to customers or has employees or the like) in other countries, then consider getting lawyers in those other countries. Your investor may push to have documents governed by US law and subject to US jurisdiction (or Asian), but not your problem for now.

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This is important. By you SLA, TOS, EULA etc you tell your users what laws are applicable when using your product. So, use the same laws as where you're incorporated. – John Sjölander Jan 13 '11 at 12:08
up vote 1 down vote

I think an Australian lawyer can do everything you have described.

You should definitely have your shareholders agreement drawn up by an Australian lawyer since the shareholders are in Australia. They could also do your terms of use and privacy policy (or modify something you already have.)

As for your trademarking & IP protection, that is something you want to get right and for that reason I, personally, wouldn't be comfortable in using someone on eLance. Any good IP lawyer here should be able to help you protect your IP globally. I would be looking for recommendations from other Australian entrepreneurs about someone to use for this. Going to a networking event such as the Hive (depending where you live) would be a great place to start asking these kind of questions and collecting names.

As mentioned in one of the other posts is you need to create contracts between entities in different countries, you may need to source someone outside Australia.

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Hi Susan. As I posted in last 'answer', I understand the concern about Elance. However, leaving the method of finding the advisor aside, I'd appreciate your thoughts on the reasons there are for having an Australian lawyer in particular submit a global tradmark application. ~Trish – Trish Jan 14 '11 at 1:04
One other thing Susan. I looked up your profile. Given you're a lecturer at Swinburne I presume you are Melbourne-based, as am I. Can you recommend any Melbourne lawyers who have a web focus? (I'll send you an email about this.) Thanks again, Trish – Trish Jan 14 '11 at 1:08
I'm not a lawyer, so I'm not an expert on this, but my understanding about patents and trademarks is that they have to be filed separately in EACH country, you can't just do a global application. As you can imagine this is expensive and so most companies only file trademarks in countries where they feel it is strategically important to protect their business. – Susan Jones Jan 14 '11 at 12:53
As to lawyers, I don't know anyone personally, but I can ask my contacts. Email away! – Susan Jones Jan 14 '11 at 12:53
Actually Trish, I do know someone who can help you. Contact me if you want more info. – Susan Jones Jan 24 '11 at 1:46
up vote 0 down vote

Thanks everyone for your comments. I understand the principle that you are suggesting - be legally protected in the country I'm incorporated in, notwithstanding the location of my website's users.

I have a couple of Australian lawyers in mind, most definitely for the shareholders agreement, but also for the TOC/Privacy policies.

I also understand the concern about Elance. Leaving the method of finding the advisor aside, I'm wondering what particular reasons there are for having an Australian lawyer submit the global tradmark application.

Trish

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up vote -1 down vote

My trademark knowledge is limited, but your Australian counsel can file the trademark application in Australia and should be able to recommend firms in other countries for filing the trademark applications overseas.

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