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Emma Berry

associate, commercial

meet Emma

about Emma

Clients and colleagues know Emma for her calm and commercial approach to the intellectual property and trade matters she handles within  Macpherson Kelley’s Commercial team. With a primary focus on intellectual property and franchising law, Emma assists clients from the beginnings of a new business or brand, all the way to enforcing intellectual property rights and agreements.

The only thing Emma enjoys more than a challenge is understanding the businesses her clients operate. Emma’s inquisitive nature combined with her strategic thinking enables her to deftly identify and resolve any issues her clients face. Whether it’s assisting clients to build and protect their brands with trade mark registrations or pragmatically settling franchise disputes, Emma’s clients appreciate her diverse expertise and approachability.

“When clients come to me with queries, they know I will approach the matter holistically and provide tailored advice which  considers their business and industry. Nothing satisfies me more than working closely with clients and seeing the fruits of our collaboration materialise.”

Emma’s fierce advocation for her clients extends beyond the office. She is a volunteer lawyer with the Arts Law Centre Australia, advising on intellectual property and commercial matters for the arts community. She is also a committee member of Tarwirri, an organisation representing and supporting indigenous lawyers and law students.

Areas of Expertise

competition and consumer
franchising (agreements and disclosure documents, disputes)
intellectual property (trade marks, patents, copyright, designs, trade secrets, confidential information)
intellectual property disputes
internet law (websites, domain names, social media)
misleading and deceptive conduct
terms and conditions

industries

franchising

  • Defending Manufacturer’s Trade Mark Registrations

    When a competitor filed revocation actions against a client’s trade mark registrations, Emma assisted in opposing the actions and preparing evidence of use so the client’s registrations could be maintained. Concurrently, the competitor filed their own trade mark applications for the same mark which Emma alerted the client to so the marks could be opposed if accepted by IP Australia. Emma’s vigilance has meant the client can continue manufacturing its goods and distributing them to major retailers without fear of losing their trade mark registrations.

  • Leading Franchise and Trade Mark Dispute for Franchisor

    When the client, a major gym franchisor in Australia and overseas, alerted Emma to a potential breach of restraint by a franchisee, Emma discovered the franchisee was also using the client’s confidential information and intellectual property in their operation of a competing business. Emma issued a notice of breach to the franchisees, followed by a notice of termination when the breach was not remedied. To protect the client’s position, Emma successfully sought an injunction to cease the infringing conduct. This strategy reinforced the seriousness of the conduct and encouraged the franchisee to approach negotiations with more commerciality, securing a favourable damages settlement for the client.  The overall outcome for our client was protecting the goodwill and reputation the client had built in their brand and franchise system, and more widely protecting the goodwill in their other franchisees’ businesses.

  • Franchise Deposit Returned Plus Costs

    Emma recently settled a protracted dispute over the return of her client’s $150,000 refundable franchise deposit. Over a 12-month period, the franchisor continually withdrew from attempted negotiations. After revising the client’s strategy, Emma issued a statutory demand for the return of the deposit and advised the client to file a VCAT application to increase pressure on the franchisor. After the first VCAT hearing, Emma sought to re-open negotiations which was challenging because the franchisor had no legal representation and sometimes did not understand the strength of her client’s position. Following challenging negotiations, the franchisor agreed to sign a settlement deed setting out a payment plan where they returned the client’s deposit in full, together with the client’s legal costs in the matter and interest accrued in the time the franchisor held the deposit.