Briffa Advises Santa Claus
Briffa are pleased that Father Christmas has once again been to see us to discuss his IP portfolio and general legal position. At our meeting we found a number of issues. We are grateful that he is willing to waive confidentiality to allow us to disclose the details and even more so because we advised him on a number of issues just before Christmas 2013 but he seems to have failed to have taken appropriate action.
To be fair to Santa Claus has been distracted by the Elves’ legal claim that as part of the gig economy they are entitled to similar rights as employees and not self-employed independent contractors meaning that they are entitled among other things to holiday pay.
However with that issue now decided by the courts there is still much to be done.
Santa still does not have contract which clearly states the ownership in the intellectual property in the toys created by the Elves. The legal case has created uncertainty as to their status and he really does need to put contracts in place that state clearly that he is the owner of the intellectual property rights in the toys they create.
Although he was open about the fact he was keeping a list of people’s names and whether or not they had been bad or good, he has failed to comply with the terms of the Data Protection Act and has done nothing to gear up for the new General Data Protection Regulation. We have advised that under the new rules there is potential for penalties issued by the Information Commissioner to be so huge that his entire Operation is at risk of being wiped out.
In light of fact there has been a slowdown in Elf productivity while the legal action was progressing Santa has also taken to importing goods from outside the European Union but has failed to obtain an indemnity against any claims of IP infringement in the context of his activities (although he maintains he is a mere innocent and secondary infringer).
Turning to image rights and brand, Santa has allowed his likeness to be used without imposing any quality control on the individuals who represented him – in fact, it would have been appropriate to establish a robust licence with full quality control including such terms as size of beard, colour of suit and also to impose ethical terms relating to the use of “reindeer” (he freely admitted that some of them were donkeys with stuck-on antlers).
Of great concern was the fact he had failed to file a defence to a breach of contract claim brought by a child claiming specific performance of the promise of toys on the basis of their good behaviour which he had failed to deliver and may now be out of time.
Most inexcusably, he has taken no action for the slander pertaining to the scurrilous rumour that he does not exist so adding fuel to the fire started by a group of unbelievers intent on making us face reality.
We are currently working hard to resolve these issues for him, some of which are now extremely urgent. As you might imagine, as he is able to cover the world in a single evening he is quite difficult to pin down and is quite a challenging client to sort out but at Briffa we like a challenge!
By Margaret Briffa – #BriffaBites