Data Protection Fees, Virtual Event Order Terms, and Trademark: Answering Your Burning Business Questions

Hello, and welcome to our weekly LinkedIn newsletter!

Every week, we share three insights based on discussions during our Savvy Shay Business Club. This week, we cover important topics like data protection fees, terms and conditions for virtual event order bumps, and trademarking diagrams with geometric shapes and words. Keep reading to learn more!

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Do I have to pay the Data Protection Fee if I am thinking about closing down my business to start something new? 

The data protection fee is a fee paid to the Information Commissioner's Office, the UK’s data protection regulator, of ￡35 per year for small businesses if paid by direct debit or ￡40 if not. 

If you are part of a certain industry sector, then you have to pay the data protection fee, regardless of your data processing activities. These include training, marketing services, accountancy, legal services, consultancy and advisory services, and more. 

However, if you are not part of one of the prescribed sectors, and you only process personal data for the following purposes, you are exempt from paying the fee:

1. staff administration such as payroll;
2. marketing and advertising your own business; and
3. your own accounting 

The link to check whether you need to pay the fee is https://ico.org.uk/for-organisations/data-protection-fee/self-assessment/

As for winding down your current business and starting a new one, if you need to retain personal data, e.g. your insurance requires you to do so, or you want to retain it in case of any legal challenge (which could be up to 6 years after the breach of contract, for example), this would still be processing personal data and hence you would need to pay the data protection fee in relation to that business even if you are no longer trading but merely storing personal data relating to that business. 

I am doing an order bump on a virtual event, so that purchasers can add a friend for a discounted price. How do I need to amend my terms and conditions for this and do I need the additional person to sign anything?

The additional person does not need to sign the full terms and conditions as you do not for example, need terms as to payment etc, but there are some key things that you need to provide for, and as such, I would have some simplified terms for the second person to agree to, including the following key protections:

1. The ability to remove the person if causing disruption, without any obligation to refund;
2. Protection of your IP so that the additional person cannot use your IP in a way that you don’t want them to eg share a recording of the sessions on their website;
3. Giving yourself the right to record the sessions and putting the onus on the person to opt out by using a pseudonym and not going on camera if they do not want to be shown on the recording;
4. Confidentiality provisions if what is being discussed has a confidential nature and on the flip side you being able to disclose any information that you need to for supervisory / duty of care purposes; 
5. Limiting your liability to the second person - this would be in relation to any duty of care rather than contractual obligations.

You should also amend your main terms and conditions with the main purchaser to make it clear that if the second person cannot attend, there is no refund for this part of the purchase. 

If you were doing this order bump in relation to an in-person event, rather than a virtual event, you would also include provisions in relation to compliance with the health and safety policy of the venue, putting the responsibility onto the attendee for the care of their personal belongings and obtaining an indemnity from them in relation to any damage to person or property that they may cause.

In addition, you should consider GDPR and ideally, how you should structure it is that on the thank you page of the main purchase, there would be an essential information note to ask the purchaser to arrange for the second attendee to contact you at x email address for access to the virtual event. In this case, you will be receiving the personal data from the second attendee directly, and when you reply to them with the details for the event, you should provide them with a link to your privacy notice with the phrase “we process your personal data in accordance with our privacy notice“ (and then link to your privacy notice). 

In relation to ongoing marketing to the second attendee, strictly, this would not fall under the soft opt-in exemption, as they have not themselves purchased the services. You should, therefore, by the letter of the law, obtain opt-in consent to future marketing. However, you may consider this low risk and offer them the chance to opt out of your marketing instead.

There is a template in the Small Business Legal Academy for terms to be signed “at the event” that you can use to cover this. You can also amend them for virtual events by cutting out the bits that aren’t relevant to virtual events.

Can I trademark a methodology conveyed by way of a diagram that comprises geometric shapes with words?

There is nothing to say that you cannot trademark a diagram, as images are capable of being trademarked. However, the usual rules as to distinctiveness and other requirements for being registrable apply.

Geometric shapes in themselves are unlikely to be distinctive unless they have acquired distinctiveness through brand recognition.  

Marks that have a limited distinctive character will have a better chance of being registered if combined with a distinctive element (e.g. a mark that includes both a word/words and a figurative element). The trademark right will then cover the trademark in totality and not the individual elements of the mark. 

In addition, you would need to do appropriate searches to ensure that nothing similar has been trademarked in the relevant classes with the same or similar specification.

The problem with geometric shapes is that they are difficult to classify and search, and due to the numbers of these types of marks on the IPO database, these types of marks are unable to be searched on the IPO website.

So in summary, depending on the nature of the diagram, it is potentially possible to register it, but likely not easy to do so. 

And that's it for this week's newsletter!

We hope you found these insights from our Savvy Shay Business Club surgery helpful. And remember, these are just a small sample of what we have to offer.

By the way, if you're looking for a commercially savvy legal expert who can help your business thrive, consider joining Suzanne Dibble's Savvy Shay Business Club. You can try it out for just ￡1 for your first month, apply here! Don't miss this opportunity to get the legal support you need to grow your business.

Suzanne Dibble