Essay: Suitable Business Structures And Intellectual Property For Isabel's Cosmetics Business.

Company Structure and Limited Liability Partnership (LLP)

What are the two structures that would be the most suitable to Isabel and her requirements.

The company business structure is a chief business structure in Australia. In a company structure, the shareholders are actually regarded as the owners. Any particular company shall have a distinct legal personality separate from its own associates or members. The Corporations Act 2001 can be said to be the main legislation in relation to the company structure, in accordance to which the incorporation or registration of any company is done. There are certain specific characteristics in relation to a company structure: (i) In case of company structure, there shall be limited liability of the involved members. The personal assets shall not be considered while making payments of the loans or the debts in respect of the creditors. Nevertheless, accountability can be imposed upon the directors in case they get involved in any unlawful and prohibited act; (ii) In case of a company business system, the creation, establishment and management of the business would be expensive; (iii) In any company business structure, capital could be raised with the help of the issuance of the shares, thereby resulting in the accretion of an enormous amount of the capital; (iv) In any company structure, the reporting and filing requisites is certainly complicated and intricated; (v) In any company structure, the companies are obligated to make payment of the yearly tax returns, and they have to acquire the TFN (or the ‘Tax File Number’) in connection to the such yearly tax returns. The registration for the purposes of GST should also be completed in a company structure.

The business structure known as ‘Limited Liability Partnership’ can be said to be another significant business structure in Australia that has recently become prevalent. The primary objective of LLP system is to facilitate the entrepreneurs, enterprises and professionals, who all might be providing any specific kind of services or might be involved in the technical and scientific disciplines, to create commercially competent and effectual vehicles that would be suited in relation to their necessities. A primary characteristic of LLP can be said to be the limited liability. In any LLP, all the partners shall have limited individual liability concerning the financial responsibilities in relation to the business, which is unlike the general partnerships, where all the partners shall be obligated to bear the accountability of unlimited liability concerning the financial responsibilities commitments in relation to the business. Although, it shall be easy to establish as well as manage LLPs just like any general partnership business. The possibility of the buildup and accretion of capital exist thoroughly in LLP as new partners could be introduced into the business with the help of a specific resolution. In Australia, all the different states possess distinct statutes concerning LLP, like the Partnership (Limited Liability) Act 1988 of Queensland.

In the provided circumstance, Isabel wants to commence her cosmetics and make-up business (by the name of ‘Eye Lux’, and involve Pat and Vince in the business.

Intellectual Property (IP): Trade Mark and Patent

As per Isabel’s requirements, the ‘Limited Liability Partnership’ (LLP) business structure shall be most fitting (even more fitting than company business structure). If Isabel selects the company business structure, then the formation as well as management expenditures shall be a lot and the reporting necessities shall be multifaceted and complicated, which would not be in accordance to the requisites of Isabel. Therefore, Isabel must select the LLP structure, in which the establishment and management of business would be less costly and the reporting necessities would not be complex (as per the requirements of Isabel). The termination of the business in LLP would be smooth, if Isabel chooses to do so. Even the capital accretion would be possible in LLP through the integration of fresh new partners. If Isabel selects the LLP business structure, then she shall be able to evade any financial debt (which may arise due to any poor decision-taking) because of the limited liability feature. The taxing commitments of the company structure (such as the obtaining of the TFN number and GST complexities) could be avoided by Isabel if she selects the LLP business structure. If Isabel selects the particular LLP structure, then, being in the role of a partner, she would have the ability to regulate the day-to-day happenings of the concerned business, and there shall be no intrusion regarding such control (like that of the government).

Conclusion

In the case of Isabel, the most suitable business structures shall be company structure and LLP, and Isabel should select the LLP structure in order to meet her specifications.

In Isabel’s circumstance, what shall be the 2 most adequate kinds of IP (or ‘Intellectual Property’).

In the Australia nation, any kind of phrase, image, sound, word, letter, number, logo, movement, shape or scent shall be regarded as a trade mark. It must be noted that one shall be required to renew any specific trade mark registration in every 10 years. The chief statute in relation to trade marks is Trades Mark Act 1995.

In Australia, protection could be provided to an individual’s method, procedure, device or substance with the help of any standard patent. The chief statute in regard to the patents is actually known as the Patents Act 1990.

The name ‘Eye Lux’ could be protected by Isabel with the help of a trade mark with the help of Trades Mark Act 1995. Under the Patents Act 1990, Isabel may safeguard her unique formula.

Conclusion

In Isabel’s circumstance, the 2 most adequate kinds of IP shall be trade mark and patent.

The formation of a particular contract shall be come possible only when there is presence of each and every element concerning a contract, and such elements are the offer, the acceptance, the intent as well as the consideration. In Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61, it was said that in the absenteeism of an offer as well as the acceptance in connection to the offer, it shall not be possible to form an agreement. In Beaton v McDivitt (1987) 13 NSWLR 162, it was said without the factor of consideration, it shall not be possible to establish a particular contract. In Masters v Cameron [1954] HCA 72, it had been stated that if the factor of intent (of giving effect to legal relations) is not present amidst the parties, then a contract cannot be given effect to. Thus, in the absenteeism of the factors mentioned above, there shall not be any existence of a contract.

Whether any contract is actually present and whether any right may arise in case of David concerning the contract.

In Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 (CA), offer was distinguished from ‘invitation to treat’. The ‘invitation to treat’ was described as making an invitation to somebody else for making an offer. Although, it was also stated that if any advertisement (which is normally considered as ‘invitation to treat’) is made along with the intent to give effect to a specific contract, then in such instance, the advertisement would become an offer.

Making application of Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 (CA), the advertisement in connection to the bookshop shall be regarded as an offer because it was made along with the intent to give effect to a specific contract. Applying Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61, David accepted the offer to buy the books after he visited the bookshop.

Conclusion

Contract is actually present and David can obtain the books at less charges because of discount.

Whether any contract is actually present and whether any right may arise in case of Bob concerning the contract.

In Fisher v Bell [1961] 1 QB 394, it was stated that any particular advertisement should not be considered to be an offer, but as an ‘invitation to treat’.

Applying Fisher v Bell [1961] 1 QB 394, the particular advertisement as forwarded by Peter should not be considered to be an offer, but as an ‘invitation to treat’. Applying Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61, Bob forwarded the first offer subsequent to when he perceived the advertisement. Subsequent to few discussions, Bob finally accepted the ‘counter-offer’ of the 1900 dollars. Applying Beaton v McDivitt (1987) 13 NSWLR 162, the factor of consideration was certainly existing. Applying the case of Masters v Cameron [1954] HCA 72, the factor of intent is certainly existing in Bob’s case as well as Peter’s case. Therefore, a contract has been given effect to by Bob and Peter.

Conclusion

A contract is actually present and Bob can obtain compensation for the breach of the contract.

Whether any contract is actually present and whether any right may arise in case of Violet concerning the contract.

In Balfour v Balfour [1919] 2 KB 571, it had been ruled that the domestic agreements shall not be regarded as legally enforceable due to the fact that a specific rebuttable presumption exists and in accordance to such presumption, in domestic agreements, there shall be no intent to create legal relations. Although, afterwards, in Merritt v Merritt [1970] EWCA Civ 6, cancelling the Balfour v Balfour rule, it had been stated that if the required intention is present, then domestic agreements could be enforced in a legal manner.

Applying Merritt v Merritt [1970] EWCA Civ 6, the required intention was existing in case of Violet as well as the father, and therefore, the specific contract could be enforced in a legal manner.

Conclusion

A contract is actually present and Violet can obtain the payment.

Whether any contract is actually present and whether any right may arise in case of Victor concerning the contract.

In Commonwealth v Amann Aviation Pty Ltd [1991] HCA 5, it had been stated when any contract is breached, the distressed party could terminate the specific contract as well as acquire compensation.

Applying Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61, Victor accepted Lizzie’s offer of 500 dollars. Applying Commonwealth v Amann Aviation Pty Ltd [1991] HCA 5, Lizzie breached the contract by not giving the amount, hence, Victor could terminate the specific contract as well as acquire compensation.

Conclusion

A contract is actually present and Victor can receive the unpaid amount.

References

Balfour v Balfour [1919] 2 KB 571.

Beaton v McDivitt (1987) 13 NSWLR 162.

Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61.

Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 (CA).

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 5.

Corporations Act, 2001 (Cth).

Fisher v Bell [1961] 1 QB 394.

Masters v Cameron [1954] HCA 72.

Merritt v Merritt [1970] EWCA Civ 6.

Partnership (Limited Liability) Act, 1988 (Qld).

Patents Act, 1990.

Trades Mark Act, 1995.