Technology Attorneys

Imitation is the Sincerest Form of Flattery?

Five Things You Can Do When You Don’t Feel So Flattered

Combatting counterfeiters

Counterfeits are product imitations sold by counterfeiters using a brand’s name without the company’s permission. It spans various industries, but the most affected are pharmaceuticals, electronics, and apparel, especially clothes, handbags, and jewelry pieces.

Having counterfeits of your product can ruin the product’s integrity and also the brand’s reputation. This is because when products that look like yours do not provide the right quality expected by the customers, it leads to reduced sales and negatively affects brand reputation.

Therefore, it is vital to combat counterfeiting. Here are 5 ways to do this

Secure global protection of IP

Depending on your products, you need to secure a copyright, patent, or trademark to prevent others from reproducing your products without permission. Secure the products where you live, and also register your products in other countries the counterfeiters might be operating. Familiar with the Madrid Protocol? We will talk about it in other blog posts.

Monitor the market

Another way to combat counterfeiting is by searching for counterfeits online. You should include this in your budget because product cloning happens oftentimes. In other words, you must be prepared. Search for counterfeiters in places they might exist. If you deal more in online products, employ someone to search online stores for unauthorized sellers. In addition, avoid using too many channels to advertise or sell your products. That way, you can quickly identify the unauthorized sites making money through the sales of your products.

Use technology

To identify the people counterfeiting your products, you need the best technologies to monitor product movement in various parts of the world. These technologies make it easy to identify counterfeits by creating a pattern on the packaging that can be detected to show that the product is original. Another way this can be done is by adding nano-optic images to your product.

Involve your customers

Get your customers involved in identifying these counterfeits and reporting them. This is one good way to let your customers know that you are genuinely interested in their well-being. In addition, these customers will never have a wrong impression of your brand even if they have mistakenly purchased counterfeits. Inform your buyers through your product label on how to identify and confirm your product. 

Employ brand consistency

If you are always changing your brand products, you’re making it susceptible to counterfeiters. You must ensure that your packaging is consistent; this helps the customer quickly identify the fake ones. Although fake products sometimes look exactly like the original ones, customers can notice errors if you have been consistent with your branding.

Conclusion

Product counterfeits do not take away sales meant for your company; it also exposes your customers to the dangers of using products that might harm their health. However, using the methods listed above can help in combatting counterfeits and increase customer retention rate. 

Copyright vs. Trademark, what’s the difference?

The term Copyright and Trademark are both intellection property protections that have often be used in place of each other.

What are Copyright and Trademark? 

Copyright protects the original work of creative individuals like movies, songs, novels, and software.

Trademark, on the other hand, protects brand names, slogans, and logos. This is perfect for brands that do not want their names or slogan copied and used by any other firm. 

What are the differences between copyright and Trademark?

Some of the key differences between Copyright and Trademark include the following:

Process of Protection

Your works can be copyrighted using the following method:

  • Properly mark your work using a signature or a watermark.
  • Using Creative Commons, which offers creative copyright license for free
  • Adding the copyright symbol that shows your work is an intellectual property not to be used by anyone. 
  • Officially registering your work with the Copyright office in your country of origin. This requires the payment of a fee, after which you will receive a certificate. 

Trademarks, on the other hand, are registered through the federal or state government. It often involves extensive registration to get legal protection for your business properties.

Before trademarking, you must do research to ensure that no company is currently using the branded materials. 

Length of protection

Copyright protects creative works belonging to an individual. As an individual, you can create these works and copyright them immediately. Note that it has to be completed in physical forms. This implies that you cannot copyright an idea or principle. Also, works with expired copyright cannot be re-copyrighted. You’ll find these kinds of works in the public domain, especially those published a long time ago. For example, the U.S. refers to works published before 1923 as public domain work, which means it’s for the public’s general consumption. An author’s works using their original name have a copyright that lasts throughout their life and an additional 70 years. Suppose it’s created under a pseudonym and lasts from 95-120 years after creation. After this time, it becomes a public domain.

Trademark registration, on the other hand, has no expiry date. The only difficulty that is experienced in this is the process and time required to complete your registration. This varies from country to country.

Finally, although copyright and trademarks are key ways of protecting your intellectual properties, they vary in so many ways, as listed above. 

Talk to us about how we can help you PROTECT your intellectual property.

So your company is about to be acquired, what should you ask for?

Mergers and acquisitions are prevalent in the business world. The selling of a business or company is a decision that comes with careful consideration and planning.

The main benefit that comes with the sale of your company is liquidity; a huge amount of cash might be tied to a company and its operations. Oftentimes, advantageous economic tendencies peculiar to your business’ industry may generate increased demand for your business purchase.

To Whom Should You Sell

Deciding how and to whom to sell your business is crucial, and as a business owner, it can be quite a tough decision to make. Before you decide to give up your company for acquisition, here are some things to look out for and some questions that need to be answered by prospective buyers to ensure that you are not only going just to sell your business but also sell to the right buyer, get the exact amount commensurate with your business value, and also to ensure that there is a smooth transition of ownership.

  1. What is the reason for an acquisition?

Inquiring about the reason for an acquisition from a potential buyer guides you to deciding on whether to sell or not. It is important that your buyer’s vision aligns with what you desire for your company.

  • What is the current situation  of any previous acquisition?

For buyers who have had precious acquisitions, a look into the state of affairs might offer an insight into the trajectory that your business might follow if acquired.

  • What is the level of involvement in the business afterward??

While some buyers might allow for your involvement in the company list acquisition, some others might not. This is something that should be discussed extensively with a potential buyer before making a decision.

  • How do you intend to finance the acquisition and structure the deal?

An acquisition is an expensive pursuit and is highly capital intensive. A serious buyer should offer a suitable payment plan and structure the deal in a manner fair to you as the business owner.

Some other matters that should be established include: retaining of employees after acquisition, questions about the change in the company name, long-term goals for the company, strategies to grow the company after the acquisition.

Asides from asking these questions, you might also want to check the track records of your potential buyer to further aid you in making your decision.

Conclusion

During all of these, it is essential to have a legal team give proper counsel and advice and understand the legal implication of whatever decision is going to be made. This is necessary to ensure proper documentation and prevention of disputes that might occur post-acquisition.

Understanding the UDRP Process

In the last few years, disputes and conflicts surrounding domain names have become a common occurrence and are often required to be resolved legally. This article takes a detailed look at the Uniform Domain-Name Dispute-Resolution Policy aimed at resolving dispute.

Read to find out more.

What Is the UDRP

 The Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a legal framework established by the Internet Corporation for Assigned Names and Numbers (ICANN).

The UDRP regulates the domain name industry and tends to the resolution of conflicts encountered in the acquisition and use of internet domain names.

 The Need for the UDRP

Domain names are identity markers in the virtual world, an internet representation of a personal or business brand’s unique identity. Disputes are bound to occur in the process of acquiring, registering, or transferring domain names; legal rights to a particular domain name might be claimed by two opposing parties.

There have also been cases of inadvertent purchase of stolen domain names or fraudulent registration. A stolen domain name is tantamount and equally important as a stolen physical identity.

A domain name is significant intellectual property, and thus disputes regarding it are required to be resolved through appropriate legal channels, hence the need for the UDRP.

The UDRP caterers for the generic top-level domains, which include the .com, .info, .biz, .net, .org, and the country code top-level domains that have adopted the UDRP Policy.

Understanding the UDRP Process

If you have had your domain stolen, been defrauded in the course of registering a domain name or have been a victim of domain name squatting, or any other form of domain name dispute, you have the right to lay a complaint against the registrant (the one charged with an abusive registration).

The complainant would first hire an accredited UDRP service provider, which could cost between 1000 and 2000 USD. It is important to know that In line with the dispute resolution policy, every complainant, through his resolution service provider, must establish the following:

  1. The domain name in question is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
  2. The registrant does not have any rights or legitimate interests in the domain name; and
  3. The domain name has been registered and is being used in bad faith [as determined by several factors]

The UDRP proceedings follow in an administrative panel with a thorough consideration of the factors and view the case at hand through the lens of established laws and policies as regards domain name registration and protection.

The final verdict dictates who maintains the legal rights to the domain name in question. The advantage of tendering domain disputes to the UDRP over the customary law is that it is faster and costs less. If the complainant doesn’t get a satisfactory verdict, he or she might go-ahead to challenge the verdict and file a lawsuit against the registrant in a standard court of law.

Conclusion

UDRP is vital in preventing identity theft or in business situations, a theft of clients. It enables the protection of a personal or business domain name. As mentioned above it also caterers for generic top-level domains which include the .com, .info, .biz, .net, .org, and the country code top-level domains that have adopted the UDRP Policy.

Guidelines for Better IP Budgeting

Intellectual Property is undisputedly a popular word in the business cycle. Once considered a luxury to now a necessity, the manner in which companies see intellectual Property has evolved over time.

However, due to the complexities involved, developing a budget for your IP can be difficult and involve a rigorous process even to the most seasoned professionals.

The main considerations when drawing a budget for your IP: application fees and legal costs. You should also be aware of the life cycle of each type of IP.  They are not all lifetime registrations.  Your IP attorney should walk you through ongoing maintenance of trademarks, copyrights and patents.  They should also have docketing software to make sure they let you know about important dates.

Like protecting any property, you want to make sure that you have a good fence to make sure the copycats can’t get in.  What is important to your brand, which part of your brand will you expand, do you see yourself in other countries?  These are all important questions.  Based on your budget, you need to make sure you have the most protection, you can always hone in later.

This is why all businesses must put in place some best practices to improve IP budgeting; some of these guidelines include the following:

  • Pay Attention to Legal Expenses: From its inception, protection, ongoing maintenance, and management, the lifecycles of your IP assets will be covered by legal services that come with associated costs. Most IP attorneys will charge flat fees for most of the prosecution phase.  Be aware of the online filing services, they merely file, they won’t help you with strategy.
  • Establish A Review Routine: Frequent audits of your IP assets help review your costs and ensure reduced expenses. This also helps organizations make a better decision, meet the business need, and balance cost while focusing on opportunities to make profits. 
  • Organize your portfolio: If you are strategic with your spending, it is vital toorganize your portfolio. A lot of redundancies, errors, and costs will arise when enterprises do not pay attention to their intellectual property portfolio. The manual route may not be the most effective with all the spreadsheets, file folders, and banker boxes. Therefore, all organizations must create room for improved portfolio management through the use of modern-day technology. 

Takeaway 

IP budgeting can be a complicated process for the uninitiated. However, having a viable budget helps in cost management and strategic IP protection. It is essential to the growth of modern enterprises because a strong brand can help you differentiate yourself from the rest of your competitors.

Identifying Your Company’s IP

We live in a world that is greatly influenced by technological advancements; business, health, education are just some of the spheres where we have witnessed revolutions. One of the more obvious changes is in business with automation, big data, machine learning, etc. But more interestingly, corporate value has evolved from the physical to the digital. Nowadays, your company’s value can literally lie in your Intellectual Property (IP).

Tech companies are created to meet the ever-growing demand for technology products. They offer a range of products and services that make it easy for individuals, organizations, and countries to adapt to the high-tech world that is our modern reality. To offer the best services, they have to protect their IP. But protecting their IP can only happen when said IP has been identified and registered. So, if you are looking to identify and protect your tech company’s IP, then you might want to read this article to the end.

List Company Products and Services

This allows you to create a list of your company offerings or product lines. It might be a tasking and time-consuming operation, but it is worthwhile in the long run as you will be able to identify all the IP in your business. Especially those that you didn’t know about. Your company offerings can either be products or services. 

  • Products: These are made to sell or gift. Products are tangible and easily identified.
  • Services Are more intangible are often rendered to customers. Services are often in the form of gene knots, software-as-service or technology consulting. In most cases, services go hand-in-hand with products. It all depends on what your tech company is about.

Categorize

The next step is to categorize your tech company’s products and services. While this is not exhaustive, here is a description of the main categories of IP.

  • Trademark: This can cover the company name, logo, slogan or the names of products and services. Trademarks are designed to separate your company’s offerings from others in the market. They are your corporate identity and should be protected at all costs.
  • Patents: This coversinventions. Registered patents give your company the right to exploit the invention within the time frame specified in the patent registration.  Patent law is a specialty within IP and you should consult a patent attorney to see if your invention can be registered and whether a patent or provisional patent is for you.
  • Trade secrets: They are considered as the alternative to patents and are mutually exclusive.  The best example of a trade secret is the Coca Cola recipe.
  • Copyright: Copyright protection covers tangible expressions of ideas. The product has to be original. Your company software and computer programs fall into this category. Review the categorizations so that you know where your offerings fall into. Be sure to put them in the right category because this will affect the way the IP is protected.

Assess 

A strategic assessment of your assets and protection will help your business in its valuations and get it ready for sale, if that’s your direction.  Too broad of an IP portfolio might be costly and hard to maintain running the risk that your important IP may fall through the cracks in terms of maintenance and policing.

You want to assess what is key to your brand and you should do so on an ongoing basis.

Assess Your Intellectual Property

Protect Your Intellectual Property

Ways to Join Forces with another Company

For so many tech start-ups and new businesses, one way to boost performance, increase profit and stay competitive is teaming up with seasoned professional and companies that are skilled in the game. Through these firms, the new start-ups can have an amazing opportunity to participate in government contracts as subcontractors and also get the exposure and experience to scale through the competitive business landscape while receiving detailed guidance from experienced contractors. 

In teaming up with other businesses, there are some level of partnership and agreement that must be entered into by both firms. Some of these terms include the following:

Strategic alliance: Strategic alliance is a relationship between two or more businesses in orders to pursue a set of agreed goals and meet a critical need while remaining independent. This allows companies, especially start-ups, to expand their documented capabilities and pursue projects beyond their normal capabilities.

Teaming agreement: This, on the other hand, involves two firms, partnering on a single proposal. It can also be described as a prime/subprime contract between two parties where one of the teams pursue a contract as the prime vendor.  The terms between the prime and subprime vendors are outlined in the Teaming Agreement.  One of the benefits of this type of contract is that it allows parties to pool resources from a limited purpose without acquiring a joint venture entity. 

Collaboration contract:  This is also known as a collaboration agreement; it involves two people or companies collaborating to pursue a defined goal. It is a specie of unincorporated joint venture because the collaborators must also contribute resources and decide who owns the proceeds. 

Joint venture: This involves two different companies, individuals or businesses coming together to partner as joint parties. These companies agree to combine their skill, knowledge, efforts, and resources but not permanently.  Each party maintains their own identity.

Things to consider when choosing a partner

As a start-up, there are so many factors to consider before entering into an agreement or any form of contract with tech companies and professionals; some of these factors include:

  • Positive client standing
  • Clarity of commitment and communication
  • Business ethics and trust
  • Capabilities to deliver on time.
  • Does your contract allow for Subcontracting?  Check the fine print.

Finally, every tech start-up entering into an agreement with professionals must understand all terms in an agreement before teaming up with one. 

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About Framing Out Your Joint Business Rleationship
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Key Points in a SaaS Agreement

Software as a Service (‘SaaS’) functions on a delivery model wherein a third-party provider hosts an application that is offered as a service.  This is to differentiate between ON PREMISE solutions which are fast disappearing.

SaaS offers its users a ton of benefits, but it is best optimized when the provision of the service is governed by an agreement between the provider and the customer.

SaaS agreements CAN be clickthrough agreements on a website but here, we are talking about a direct SaaS agreement that you contract with a vendor.

A SaaS agreement is essentially a legal document that defines the terms of the provision and delivery of software services to customers. Well-drafted SaaS agreements eliminate the incidence of disputes between both parties in the course of the contract. To ensure that a SaaS agreement captures the expectations of the parties involved, there are key points that it must cover. Read to find out what they are.

Key Points To Cover In a SaaS Agreement

The following points must be captured in any properly drafted SaaS agreement for the agreement to serve its purpose

  • Technical Specifications: The technical specifications of the service being provided must be clearly spelt out. These specifications define the functionalities of and the expectations for the SaaS service. It also provides a means for measuring the performance of the SaaS service. Defining the technical specifications prevents disputes between both parties and helps if the need for customization arises. 
  • Intellectual Property Rights: With SaaS, the key element of intellectual property rights is licensing because it specifies the way content is to be used in the course of the subscription period. Provisions must be made for revocation or modification of the licence if the subscription expires or is cancelled. Other issues like the ownership, storage, transmission and access of data should always be clearly defined, and depending on the sensitivity of customer data, it might also be appropriate to address storage. Responsibility for the protection of data created using the SaaS service should be clearly defined here.

It is also important to note that while the SaaS vendor will own their own IP, you must be able to retain your IP and easily move it off of their database.  Also, in more complex business requirements, this SaaS will connect with other internal softwares, those ‘connectors’ should belong to you, not the vendor.

  • Payment Clause: This is the aspect of the SaaS agreement that outlines the preferred payment methods for the SaaS subscription. Are you paying per user/seat, monthly, yearly and CAREFUL OF THE AUTORENEWAL contracts or contracts you can’t cancel.

You should be able to cancel, move your data, etc.  SaaS vendors should rely on the value prop of their software to keep customers.

  • Limitation of Liability and Disclaimers: Like with all business transactions, issues of liabilities and commercial risks are likely to occur in the course of the SaaS subscription. For example, issues like operating system incompatibility, breaching of terms and conditions and third-party hosting, intellectual property infringement, among others, can generate confusion and dispute when not handled properly. Liabilities and disclaimers should be specifically addressed so that in the worst-case scenario, liability is shared accordingly.  Assess YOUR risk, and ensure that the vendor doesn’t completely limit their liability.
  • User Obligations: This deals with the obligations of the end-user about the expectations around the use of the software. Safe storage of personal information and update of the product and the notification in the event of security breaches where and when necessary are some of the user obligations that must be spelt out.

Takeaway

SaaS is a critical element of your business, make sure that the contract you sign with your SaaS vendor fits your business needs. 

Technology Contracts

Tailor Made to Suit Your Business

Key Points of an Independent Contract Agreement

Independent contractor agreements have always been a part of the IT tapestry.  Still, over the years, Department of Labor has been scrutinizing these relationships more and more.  Being vigilant in these factors as well as other legal considerations, means you can still leverage this relationship to get on demand specialized expertise and skills.

Often, when companies engage the services of independent contractors, they are quick to review the work they need done, come to an understanding, and get started as soon as possible, resulting in an oral agreement. Given the quick turnaround, they want to ‘keep it simple’.  But, it is so important to create a written contract, formally known as an independent contractor’s agreement. Here are the major reasons your tech company needs this contract.  Like any relationship, it will get tested when things come to an end.

Prevent Scope Creep by Defining Project Details 

When engaging an independent contractor, especially for the first time, ensure that your written contract contains a well-detailed discussion of the work scope. Be sure to include a description of the work to be done, specific deliverables, key dates or deadlines, and what an acceptable final product should look like. Writing down these details will prevent missed deadlines and incomplete work. There should also be an agreed-upon process to follow in the event of unplanned changes that are outside the scope of work. Ensuring that there is a process for addressing scope creep can help tech companies to avoid difficult interactions, conversations, and disagreements as work progresses. 

The agreement should also comprise an agreed bill rate and payment terms such as how and when payment will be made to an independent contractor and how you get an invoice. Payment must be entwined with concrete deliverables and discuss any possible additional costs or expenses that may be accrued.  

Ensure Legal Protection for Your Company 

Perhaps the most important function of a written consulting agreement is that it provides legal protection for your organization and the independent contractor involved. No one wants to incur the financial burden of a lawsuit, so it is in your best interest to include legal protections in the contract. Discuss insurance requirements, and ensure that the contractor understands what they need to provide and who (if anyone) must be listed as an additional insured. 

You also want to put into writing guidelines around ownership of intellectual property and confidential information such as financial data, business plans, and trade secrets, if applicable to your business.

Develop Work Classification Status

One of the most dreaded risks of engaging independent contractors is misclassification. Thankfully, a written agreement is a good step for establishing an independent contractor’s status. To avoid misclassification, let your contract clearly state that you and the independent contractor agreed to an independent contractor relationship. Ideally, it shouldn’t be a personal contract but one with their company that is incorporated with an EIN.  It should also include a statement from the independent contractor acknowledging that they are not entitled to any benefits provided to your employees and that they are responsible for paying their own taxes. It might also prove helpful to secure files that can be used as proof of self-employment, such as a business or professional license, proof of insurance, or business cards.  If in doubt, it is always best to check your state’s department of labor requirements and your attorney.

Conclusion 

Independent contractors are invaluable because they allow organizations to ramp up their skill pool without the overhead. Thereby helping the company save time and resources. However, the relationship between clients and contractors can only be successful when a well-thought-out and a well-detailed written contract is put in place. 

Your Workforce Agreements

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6 Known Boilerplate Clauses and Why They Matter

Boilerplate clause are often the most overlooked and neglected clauses on a legal document. However, these clauses are by no means irrelevant and equally as important as the legal document’s essential parts.  In fact, your next dispute might turn on these very clauses.

Depending on which side of the contract you are on and the wording of the clause, you may get hard done if you ignore the boilerplate clause. Here are six known boilerplate clauses that you should be aware of and why they are important.

  • Indemnification Clause: Indemnity clauses serve to manage the risks associated with a contract. They define the context of legal action against the indemnified party. This clause also covers lawsuits, actions, damages, demands, liabilities, losses, damages, and claims associated with a contract. In addition, it also covers legal action on extreme cases like injury and/or accidental death in the contract.
    • The most important thing here, is who is the one with the most exposure.  Mutual indemnification clauses don’t always make sense.
  • Jurisdiction Clause: This clause defines the most appropriate form of dispute resolution. For instance, a lawsuit must be filed or the substantive laws to be invoked in the case of a contract breach.  Generally, the one presenting the contract will choose their location for the jurisdiction.  You CAN negotiate.  How about first to file chooses jurisdiction or maybe neutral ground or even just arbitration. 
  • Arbitration Clause: Arbitration clause provides the framework for resolving legal disputes and offers an alternative to taking issues court in the event of legal disputes. Arbitration clauses are of great significance because they make the arbitration of legal matters easier when properly drafted.  What you need to look out for, is it mandatory?  Who pays for the arbitrator, how many arbitrators and WHO picks them?  Most arbitration institutions will have their own enforceable language, otherwise that arbitration clause you have in your contract might be UNENFORCEABLE.
  • Force Majeure Clause: The French words” force majeure” roughly translates to “superior force.” It is a type of boilerplate clause that defines what happens when a “force majeure” event like natural disasters, for instance, occurs. Force majeure clauses are important because they define instances when parties can be relieved of their responsibilities, obligations, and liabilities if the incidents covered by a force majeure clause occur.  This is the clause companies turned to when the pandemic began, and to some surprise, maybe the pandemic did NOT excuse performance because it wasn’t included.  Isn’t it time to update your contracts?
  • Confidentiality Clause: Also known as non-disclosure agreements (NDAs), this clause states that certain information shared under the contract are not discussed with parties outside the contract. Breaching this clause (consciously or not) comes with consequences that are often financial as well as equitable. These can carry very heavy consequences, and in some instances should!
  • Choice Of Law Clause: Also known as the Governing Law clause, this boilerplate clause defines the substantive laws that apply in the case of a contract breach. It is particularly important because the breach might occur in different geographic locations. A choice of law clause defines the laws to be used in such disputes to avoid uncertainty and possible delay in getting justice.  You can find instances where the Venue and Choice of Law are different.  While, in theory, this can work, once you get into a Court, the judge has some discretion.

Takeaways

While the meat of the contract is important, often I see disputes turn on the boilerplate clauses since they are often skimmed and glazed over.  Lawyers will read contracts like you read a book, tying pieces and plots together to form the whole picture.  Let us lay the foundations for you.

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