Mutual Non-Disclosure Agreement Template
By Sangeeta Tomar
NON-DISCLOSURE AGREEMENT
THIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of [date] between [Your Company name] having its place of business at [ address] (“Company”) and [company 2], having its place of business at [Address]
Purpose:Company and [company 2] wish to explore a business opportunity of mutual interest and in connection with this opportunity wishes to execute this Non Disclosure Agreement (“Agreement”).
1. Confidential Information: Confidential information means any information disclosed to by one party to the other, either directly or indirectly in writing, orally or by inspection of tangible or intangible objects, including without limitation documents, business plans, source code, software, documentation, financial analysis, marketing plans, customer names, customer list, customer data. Confidential Information may also include information disclosed to a party by third parties at the direction of a Disclosing Party. Confidential Information shall not, however, include any information which the Receiving party can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of Receiving Party; or (iii) is in the possession of Receiving Party, without confidentiality restrictions, at the time of disclosure by the Disclosing Party as shown by Receiving Party’s files and records immediately prior to the time of disclosure. The party disclosing the Confidential Information shall be referred to as “Disclosing Party” in the Agreement and the party receiving the Confidential Information shall be referred to as “Receiving Party” in the Agreement.
2. Non-use and Non-disclosure: The Receiving Party agrees not to use any Confidential Information for any purpose except to evaluate and engage in discussions concerning a potential business relationship between the parties hereto. Receiving Party agrees not to disclose any Confidential Information to third parties or to its employees, except to those employees who are required to have the information in order to evaluate or engage in discussions concerning the contemplated business relationship. The Receiving Party shall not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the Disclosing Party's Confidential Information and which are provided to the Receiving Party hereunder.
3. Maintenance of Confidentiality Information: The Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Receiving Party shall take at least those measures that Receiving Party takes to protect its own most highly confidential information and shall have its employees, if any, who have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any disclosure of Confide�tial Information to such employees. The Receiving Party shall not make any copies of Confidential Information unless the same are previously approved in writing by the Disclosing Party. The Receiving Party shall reproduce the Disclosing Party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. The Receiving Party shall immediately notify the Disclosing Party in the event of any unauthorized use or disclosure of the Confidential Information.
4. No Obligation: Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.
5. No Warranty: ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
6. Return of Materials: All documents and other tangible objects containing or representing Confidential Information and all copies thereof which are in the possession of Receiving Party shall be and remain the property of the Disclosing Party and shall be promptly returned to the Disclosing Party upon the Disclosing Party’s request.
7. No License: Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of Company, nor shall this Agreement grant Receiving Party any rights in or to Confidential Information except as expressly set forth herein.
8. Term: This Agreement shall survive for a period of 3 years from the date of disclosure of the Confidential Information.
9. Remedies: The Receiving Party agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Disclosing Party, entitling the Disclosing Party to obtain injunctive relief in addition to all legal remedies.
10. Miscellaneous:This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement shall be governed by the laws of [name of your state, country], without reference to conflict of laws principles. This document contains the entire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. Any and all disputes arising under or related to this Agreement shall be adjudicated exclusively in [name of your state, country]. The parties have executed this Nondisclosure Agreement as of the date first above written.
Your Company Name. [Compnay 2] By: ___________________ By: Name: ________________ Name: Title: _________________ Title: Date: _________________ Date:
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Online legal and business guides for small businesses
Article Source: http://EzineArticles.com/?expert=Sangeeta_Tomar
Friday, January 26, 2007
Monday, January 15, 2007
Intellectual Property at All Stages of a Company's Life
by David J. Dawsey, PE, Esq
Many businesses believe that intellectual property (IP) law only applies to the large corporate giants. Nothing could be further from the truth. Business owners who take the time to educate themselves on the basics of IP will be able to avoid common pitfalls and take full advantage of IP opportunities throughout the life of the business. After all, there are many points in the life of a business firm when the firm and its employees should consider IP matters.
Starting Up: The Company's Name
You should start thinking of IP issues as soon as you begin thinking about starting a company. While few people think of their firm name as IP that warrants protection, everyone desires a distinctive name that customers easily associate with a particular organization. If a business plans on conducting interstate business then a comprehensive trademark/service mark search is warranted. Obviously, one should always error on the conservative side. You don't want to find out you cannot use a particular name outside the initial state after you have developed a booming business and achieved name recognition.
An informed business owner must understand the simple distinctions between trademarks and service marks, as well as distinctions between state and federal registration. First, a trademark is any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.
One common misconception about marks is that if a mark is not federally registered then it is not protected. Actually, common law rights arise in a mark from its actual use in commerce even if it is not registered federally or with a state. Common law rights offer less extensive protection than afforded by state trademark registration, which offers less extensive protection than afforded by federal trademark registration.
Federal registration has several advantages including notice to the public of the registrant's claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration. Therefore, when forming a company one should file for state mark registration at a minimum, and preferably seek federal registration.
Employee Policies and IP Law
During the formation stages of a business, one must consider establishing a non-compete policy. Most company's go through tremendous efforts to protect their physical property while paying little attention to protecting their intellectual property, which is often worth far more than a company's physical assets. A company should do everything possible to ensure valuable information such as marketing data, client lists, and other proprietary information does not fall into a competitor's hands.
Such information generally falls into �he hands of a competitor when they hire away an employee that had access to this confidential information. Non-compete agreements can minimize this threat. A non-compete agreement is a contract between the employee and employer that explicitly identifies what the employee may and may not do when that employee leaves the company. The laws governing these agreements vary from state to state, however, virtually all states require reasonableness in the scope and type of information protected.
Non-compete agreements are essential for the owners of a company and should be addressed in the articles of incorporation/organization or the partnership agreement. Similarly, key employees that have access to confidential information should be required to sign a non-compete agreement.
Ideally, employment should be conditioned upon the signing of a non-compete agreement. However, when key employees and owners are developed from within the company, a plan must be in place identifying when an "up and comer" must sign such an agreement. Some states consider continued employment with the company sufficient consideration to support the enforceability of a non-compete agreement, however, one should always have their attorney draft such agreements and identify procedures that are in accordance with state law. Often it is convenient to require that a non-compete agreement be signed prior to promotion to management or other high-level positions.
Generally, low level staff should not be required to sign non-compete agreements unless they have access to information the company needs to protect. Lower level staff members generally do not have access to this information and are not hired away for this knowledge. Additionally, employees expected to sign non-compete agreements often require additional compensation, therefore the fewer employees that really need to sign, the less expense to the employer.
In addition to non-compete agreements, management should be required to sign confidentiality agreements. Everyone is familiar with the old adage that "loose lips sink ships." While the confidential information shared among the executives of a business is not likely to sink a ship, it undoubtedly has the potential to cause friction between employees and management and result in tremendous reductions in productivity. It is simple human nature that when one must sign an agreement to keep certain information confidential they will be less likely to disclose the information.
Copyright Issues Occur in Daily Practice
Once the company has been formed, its name and products protected with service marks and trademarks, and appropriate non-compete and confidentiality agreements signed, the focus must turn to IP issues encountered during operation of the business.
Business owners often make mistakes regarding copyright law. Copyright is a form of protection provided by the laws of the United States to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works, including architectural works. This protection is available to both published and unpublished works. Copyright protection may be appropriate for the company's web site, marketing material, published articles, installation instructions, user's manuals, and software developed in-house.
Patent Law and the Business Owner
A patent on an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions.
The right conferred by the patent grant is "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States. There are three types of patents: utility, design, and plant. Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or compositions of matter, or any new useful improvement thereof. Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plants.
Business owners must avoid the mindset that they are just applying tried and true principles in carrying out their business.
Trade Secrets
Business owners should also be aware of the potential for trade secret protection. Consider that fact that a recent study estimates that Fortune 100 companies lost more then $45 billion in 1999 from the theft of proprietary information.
Generally, a "trade secret" can include all forms and types of financial, business, scientific, technical, economic, or engineering information. This includes patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing. Protection is available if the owner has taken reasonable measures to keep the information secret; and the information has independent economic value, actual or potential, from not being generally known. Trade secrets are afforded protection both under state and federal law.
A protectable trade secret may not be "within the realm of general skills and knowledge" in one's field of business and is something not "readily duplicated without involving considerable time, effort or expense." Therefore, business owners should discuss trade secret matters both with their attorney and clients.
Business Owners as Software Pirates?
The one IP issue that may get the most small businesses into trouble is software piracy, both intentional and inadvertent. Unlicensed copying of software by businesses and individuals, known as end-user copying, is the most common type of software piracy found within new businesses. This includes installing software on more company computers than you have licenses for and disk swapping among friends and associates. These activities are illegal and put not only the individual performing the copying at risk, but also the company.
Software piracy does not only hurt the software companies. A recent survey estimates that software piracy resulted in the loss of 118,000 jobs in the U.S. and approximately $5.6 billion in wages! Every business should have a written policy against unauthorized software duplication. Additionally, software and licenses should be meticulously cataloged and stored in a locked enclosure.
You will get caught! All it takes is one disgruntled employee to tip off a software company. Just consider that a recent tip offered to Autodesk through their website resulted in a settlement of close to $208,000 with a consulting engineering firm.
Final Issues: IP Concerns in Winding Up a Business
Every business must plan for the eventual retirement or discharge of the owners. Virtually every ownership agreement will include the necessary provisions as to how the company will be valued and the method of distributing the leaving owners share in the business. However, owners of businesses having intellectual property should be particularly concerned as to how it will be valued. While intellectual property valuation is a complicated subject beyond the scope of this article, it's not a subject to consider for the first time when dissolving a firm. It should be discussed with your attorney at the outset to avoid litigation when an owner leaves the firm.
DISCLAIMER
We hope you understand that we cannot possibly give accurate legal advice to all inventors in a brief article on intellectual property issues that should be considered when starting a business. Accordingly, nothing in the above is intended as specific legal advice to any person. Such legal advice can only be given by a qualified practitioner after a careful review of all the individual facts. We urge you to consult us, or another licensed professional, before you proceed.
About the Author
David Dawsey is an experienced intellectual property attorney specializing in the prosecution and litigation of domestic and foreign patents, trademarks, and copyright. David is one of the few patent attorneys that is also a registered Professional Engineer. In addition to his legal and engineering education, David has also earned an MBA degree. You may reach David via the firm website www.Invention-Protection.com.
Many businesses believe that intellectual property (IP) law only applies to the large corporate giants. Nothing could be further from the truth. Business owners who take the time to educate themselves on the basics of IP will be able to avoid common pitfalls and take full advantage of IP opportunities throughout the life of the business. After all, there are many points in the life of a business firm when the firm and its employees should consider IP matters.
Starting Up: The Company's Name
You should start thinking of IP issues as soon as you begin thinking about starting a company. While few people think of their firm name as IP that warrants protection, everyone desires a distinctive name that customers easily associate with a particular organization. If a business plans on conducting interstate business then a comprehensive trademark/service mark search is warranted. Obviously, one should always error on the conservative side. You don't want to find out you cannot use a particular name outside the initial state after you have developed a booming business and achieved name recognition.
An informed business owner must understand the simple distinctions between trademarks and service marks, as well as distinctions between state and federal registration. First, a trademark is any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.
One common misconception about marks is that if a mark is not federally registered then it is not protected. Actually, common law rights arise in a mark from its actual use in commerce even if it is not registered federally or with a state. Common law rights offer less extensive protection than afforded by state trademark registration, which offers less extensive protection than afforded by federal trademark registration.
Federal registration has several advantages including notice to the public of the registrant's claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration. Therefore, when forming a company one should file for state mark registration at a minimum, and preferably seek federal registration.
Employee Policies and IP Law
During the formation stages of a business, one must consider establishing a non-compete policy. Most company's go through tremendous efforts to protect their physical property while paying little attention to protecting their intellectual property, which is often worth far more than a company's physical assets. A company should do everything possible to ensure valuable information such as marketing data, client lists, and other proprietary information does not fall into a competitor's hands.
Such information generally falls into �he hands of a competitor when they hire away an employee that had access to this confidential information. Non-compete agreements can minimize this threat. A non-compete agreement is a contract between the employee and employer that explicitly identifies what the employee may and may not do when that employee leaves the company. The laws governing these agreements vary from state to state, however, virtually all states require reasonableness in the scope and type of information protected.
Non-compete agreements are essential for the owners of a company and should be addressed in the articles of incorporation/organization or the partnership agreement. Similarly, key employees that have access to confidential information should be required to sign a non-compete agreement.
Ideally, employment should be conditioned upon the signing of a non-compete agreement. However, when key employees and owners are developed from within the company, a plan must be in place identifying when an "up and comer" must sign such an agreement. Some states consider continued employment with the company sufficient consideration to support the enforceability of a non-compete agreement, however, one should always have their attorney draft such agreements and identify procedures that are in accordance with state law. Often it is convenient to require that a non-compete agreement be signed prior to promotion to management or other high-level positions.
Generally, low level staff should not be required to sign non-compete agreements unless they have access to information the company needs to protect. Lower level staff members generally do not have access to this information and are not hired away for this knowledge. Additionally, employees expected to sign non-compete agreements often require additional compensation, therefore the fewer employees that really need to sign, the less expense to the employer.
In addition to non-compete agreements, management should be required to sign confidentiality agreements. Everyone is familiar with the old adage that "loose lips sink ships." While the confidential information shared among the executives of a business is not likely to sink a ship, it undoubtedly has the potential to cause friction between employees and management and result in tremendous reductions in productivity. It is simple human nature that when one must sign an agreement to keep certain information confidential they will be less likely to disclose the information.
Copyright Issues Occur in Daily Practice
Once the company has been formed, its name and products protected with service marks and trademarks, and appropriate non-compete and confidentiality agreements signed, the focus must turn to IP issues encountered during operation of the business.
Business owners often make mistakes regarding copyright law. Copyright is a form of protection provided by the laws of the United States to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works, including architectural works. This protection is available to both published and unpublished works. Copyright protection may be appropriate for the company's web site, marketing material, published articles, installation instructions, user's manuals, and software developed in-house.
Patent Law and the Business Owner
A patent on an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions.
The right conferred by the patent grant is "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States. There are three types of patents: utility, design, and plant. Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or compositions of matter, or any new useful improvement thereof. Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plants.
Business owners must avoid the mindset that they are just applying tried and true principles in carrying out their business.
Trade Secrets
Business owners should also be aware of the potential for trade secret protection. Consider that fact that a recent study estimates that Fortune 100 companies lost more then $45 billion in 1999 from the theft of proprietary information.
Generally, a "trade secret" can include all forms and types of financial, business, scientific, technical, economic, or engineering information. This includes patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing. Protection is available if the owner has taken reasonable measures to keep the information secret; and the information has independent economic value, actual or potential, from not being generally known. Trade secrets are afforded protection both under state and federal law.
A protectable trade secret may not be "within the realm of general skills and knowledge" in one's field of business and is something not "readily duplicated without involving considerable time, effort or expense." Therefore, business owners should discuss trade secret matters both with their attorney and clients.
Business Owners as Software Pirates?
The one IP issue that may get the most small businesses into trouble is software piracy, both intentional and inadvertent. Unlicensed copying of software by businesses and individuals, known as end-user copying, is the most common type of software piracy found within new businesses. This includes installing software on more company computers than you have licenses for and disk swapping among friends and associates. These activities are illegal and put not only the individual performing the copying at risk, but also the company.
Software piracy does not only hurt the software companies. A recent survey estimates that software piracy resulted in the loss of 118,000 jobs in the U.S. and approximately $5.6 billion in wages! Every business should have a written policy against unauthorized software duplication. Additionally, software and licenses should be meticulously cataloged and stored in a locked enclosure.
You will get caught! All it takes is one disgruntled employee to tip off a software company. Just consider that a recent tip offered to Autodesk through their website resulted in a settlement of close to $208,000 with a consulting engineering firm.
Final Issues: IP Concerns in Winding Up a Business
Every business must plan for the eventual retirement or discharge of the owners. Virtually every ownership agreement will include the necessary provisions as to how the company will be valued and the method of distributing the leaving owners share in the business. However, owners of businesses having intellectual property should be particularly concerned as to how it will be valued. While intellectual property valuation is a complicated subject beyond the scope of this article, it's not a subject to consider for the first time when dissolving a firm. It should be discussed with your attorney at the outset to avoid litigation when an owner leaves the firm.
DISCLAIMER
We hope you understand that we cannot possibly give accurate legal advice to all inventors in a brief article on intellectual property issues that should be considered when starting a business. Accordingly, nothing in the above is intended as specific legal advice to any person. Such legal advice can only be given by a qualified practitioner after a careful review of all the individual facts. We urge you to consult us, or another licensed professional, before you proceed.
About the Author
David Dawsey is an experienced intellectual property attorney specializing in the prosecution and litigation of domestic and foreign patents, trademarks, and copyright. David is one of the few patent attorneys that is also a registered Professional Engineer. In addition to his legal and engineering education, David has also earned an MBA degree. You may reach David via the firm website www.Invention-Protection.com.
Saturday, January 13, 2007
Protecting your Website's Images from Stealing: Is it Really Possible?
Protecting your Website's Images from Stealing: Is it Really Possible?
By Mary Markell
It is simply not possible to prevent someone from copying your website images. If someone is skilled and determined there's no way to stop them from abusing your website and your content. But there's still light in the end of the tunnel. You can use some semi-sophisticated techniques to limit the amount of people that can copy your website's images. Keep reading.
The first method I recommend is called digital image watermarking. A watermark can be visible or can be invisibly embedded into the pixels of an image. There are companies offering digital watermarking services and providing a digital identity for any media object, thus protecting it from stealing. But these systems are not fool proof, they have weaknesses and they are costly.
Another method would be to hide your original image behind a transparent GIF using CSS style sheets. If someone right clicks the image and selects to save it, it will only save the transparent GIF, not the original image. Similarly, you can insert the image as a table background. But in both cases a visitor can always make use of the -PrtScrn- button to copy anything from your website.
Embedding the images in Flash files is another popular method. Now, this is a neat method to use, it will make it difficult for a thief to steal your work. You cannot right click and copy the image if it's embedded in a flash file. But the flash file is already on your hard drive (cache). You can use any flash de-compiler software to easily grab any contents from a flash executable file. And of course you can simply use the -PrtScn- button to take snapshots.
You see, there's nothing you can do to prevent a thief from stealing your content. Fortunately there are services like Copyscape that monitor your website's activity and detect potential thieves. You can also have a look at this copyright protection guide written by a former federal prosecutor and learn about the same legal techniques that the top internet attorneys and big law firms use.
Article Source: http://EzineArticles.com/?expert=Mary_Markell
By Mary Markell
It is simply not possible to prevent someone from copying your website images. If someone is skilled and determined there's no way to stop them from abusing your website and your content. But there's still light in the end of the tunnel. You can use some semi-sophisticated techniques to limit the amount of people that can copy your website's images. Keep reading.
The first method I recommend is called digital image watermarking. A watermark can be visible or can be invisibly embedded into the pixels of an image. There are companies offering digital watermarking services and providing a digital identity for any media object, thus protecting it from stealing. But these systems are not fool proof, they have weaknesses and they are costly.
Another method would be to hide your original image behind a transparent GIF using CSS style sheets. If someone right clicks the image and selects to save it, it will only save the transparent GIF, not the original image. Similarly, you can insert the image as a table background. But in both cases a visitor can always make use of the -PrtScrn- button to copy anything from your website.
Embedding the images in Flash files is another popular method. Now, this is a neat method to use, it will make it difficult for a thief to steal your work. You cannot right click and copy the image if it's embedded in a flash file. But the flash file is already on your hard drive (cache). You can use any flash de-compiler software to easily grab any contents from a flash executable file. And of course you can simply use the -PrtScn- button to take snapshots.
You see, there's nothing you can do to prevent a thief from stealing your content. Fortunately there are services like Copyscape that monitor your website's activity and detect potential thieves. You can also have a look at this copyright protection guide written by a former federal prosecutor and learn about the same legal techniques that the top internet attorneys and big law firms use.
Article Source: http://EzineArticles.com/?expert=Mary_Markell
Friday, January 12, 2007
Google, YouTube and Copyright
Google, YouTube and Copyright
02nd December 2006
Author: Gerard Simington
In a rather stunning move, Google recently purchased the popular video site YouTube The question many are asking is how Google will deal with the potential copyright violations on the site?
To show you how much the Internet has changed in a relatively short amount of time, it is important to look back at the last big public medium that had copyright issues. In this case, we are talking about Napster. As you know, Napster was a system where music could be traded by people for free. This, of course, drove the record labels and artists crazy. If people were trading the music for free, royalties and revenues were not being produced. To quell the uprising, the music industry went after Napster and even individual users, claiming that the copyright for the musical pieces was being violated. As you also know, the record companies won the fight.
Now consider YouTube. From just about any angle, YouTube appears to be the Napster of the online video industry. The obvious difference is that many people will simply upload their own videos and creations to the site. In such circumstances, it's obvious that nobody can complain that there is a copyright violation because people have voluntarily put it up on the site. The problem that arises, however, is when people go ahead and upload videos and other matter from television, DVDs, and so on. Based on the various legal precedents set in the Napster case, it would appear that copyright claims can be made against YouTube.
So, why would Google risk purchasing YouTube? Does it really want to risk being sued to high heaven? Google assures everyone that the copyright problems are no big deal, but its rumored action tell a different story. Depending upon the media you are reading, Google has supposedly set aside between $200 and $500 million dollars to deal with copyright claims. That is an absolute ton of money and represents a certain lack of faith by Google on the copyright issues. So, will Google actually end up paying out most of this money? The chances seem slim. To understand why, we need to find an answer to the question of what makes YouTube different from Napster?
Ironically, the law really has not changed in any noticeable way. The primary thing that is different is us as a society. It goes without saying that the record industry took a beating on the public relations front when it started suing kids in relation to the Napster litigation. The backlash from that process led to a situation where companies began reassessing such heavy handed tactics. In concert with this, online music sites where you could buy individual songs proved a huge success. Throw in the Ipod and the future became clear. For mainstream entertainment groups, the internet was no longer a nasty word.
Instead of trying to beat down companies like YouTube with copyright claims, entertainment groups will seek out mutually profitable solutions. In fact, Google has already announced such deals and you can expect a lot more in the future. Will there still be copyright disputes? Sure, but they should be fairly nominal. The real question is what will happen to the concept of copyright as it is applied to the net. Although hardly a psychic, I think I am hardly out of line in predicting it will change dramatically over the next five to 10 years. In fact, I tend to think the legal concept of copyright may be applied by a more specific set of rules applicable just to the net. For many online sites, this would prove to be a positive move.
Gerard Simington is with FindAnAttorneyForMe.com - an online intellectual property law information and attorney directory.
This article is free for republishing
Source: http://www.articlealley.com
Gerard Simington is with FindAnAttorneyForMe.com - find an attorney online with our free directory.
http://www.findanattorneyforme.com
02nd December 2006
Author: Gerard Simington
In a rather stunning move, Google recently purchased the popular video site YouTube The question many are asking is how Google will deal with the potential copyright violations on the site?
To show you how much the Internet has changed in a relatively short amount of time, it is important to look back at the last big public medium that had copyright issues. In this case, we are talking about Napster. As you know, Napster was a system where music could be traded by people for free. This, of course, drove the record labels and artists crazy. If people were trading the music for free, royalties and revenues were not being produced. To quell the uprising, the music industry went after Napster and even individual users, claiming that the copyright for the musical pieces was being violated. As you also know, the record companies won the fight.
Now consider YouTube. From just about any angle, YouTube appears to be the Napster of the online video industry. The obvious difference is that many people will simply upload their own videos and creations to the site. In such circumstances, it's obvious that nobody can complain that there is a copyright violation because people have voluntarily put it up on the site. The problem that arises, however, is when people go ahead and upload videos and other matter from television, DVDs, and so on. Based on the various legal precedents set in the Napster case, it would appear that copyright claims can be made against YouTube.
So, why would Google risk purchasing YouTube? Does it really want to risk being sued to high heaven? Google assures everyone that the copyright problems are no big deal, but its rumored action tell a different story. Depending upon the media you are reading, Google has supposedly set aside between $200 and $500 million dollars to deal with copyright claims. That is an absolute ton of money and represents a certain lack of faith by Google on the copyright issues. So, will Google actually end up paying out most of this money? The chances seem slim. To understand why, we need to find an answer to the question of what makes YouTube different from Napster?
Ironically, the law really has not changed in any noticeable way. The primary thing that is different is us as a society. It goes without saying that the record industry took a beating on the public relations front when it started suing kids in relation to the Napster litigation. The backlash from that process led to a situation where companies began reassessing such heavy handed tactics. In concert with this, online music sites where you could buy individual songs proved a huge success. Throw in the Ipod and the future became clear. For mainstream entertainment groups, the internet was no longer a nasty word.
Instead of trying to beat down companies like YouTube with copyright claims, entertainment groups will seek out mutually profitable solutions. In fact, Google has already announced such deals and you can expect a lot more in the future. Will there still be copyright disputes? Sure, but they should be fairly nominal. The real question is what will happen to the concept of copyright as it is applied to the net. Although hardly a psychic, I think I am hardly out of line in predicting it will change dramatically over the next five to 10 years. In fact, I tend to think the legal concept of copyright may be applied by a more specific set of rules applicable just to the net. For many online sites, this would prove to be a positive move.
Gerard Simington is with FindAnAttorneyForMe.com - an online intellectual property law information and attorney directory.
This article is free for republishing
Source: http://www.articlealley.com
Gerard Simington is with FindAnAttorneyForMe.com - find an attorney online with our free directory.
http://www.findanattorneyforme.com
Monday, January 8, 2007
Understanding Copyright
Understanding Copyright
by: John V. W. Howe
When you create original content, it is automatically copyrighted, but you should know about copyrights and how to specifically mark your work. Also, establishing the date of creation is very important.
The basis for copyright law in the USA is found in the United States Constitution in Article 1, Section 8, Clause 8 as follows:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The first copyright law was the Copyright Act of 1790. We are currently operating under the Copyright of 1976 as amended.
Copyrights have a term of the life of the author plus 70 years. We Boomers can thank Sonny Bono (Sonny and Cher) for this. The Copyright Term Extension Act of 1998--alternatively known as the Sonny Bono Copyright Term Extension Act set the current term of copyrights.
When you write original content, it is copyrighted even if you do not specify "Copyright" or use the "circle C" © copyright symbol.
However, it is best to declare your works are copyrighted. The proper way to do this is "Copyright © (Date of first Creation) ( Name of author).
The best way to approach using any information that you have not created yourself is to consider that it is copyrighted.
To copyright an item, you must establish a dated record of some type when you first created the item so you can prove the date of the copyright if someone challenges you. The earliest date will get the copyright. Before computers, a technique was to write the piece and have it notarized or witnessed. Another technique was to enclose the item in an envelope and mail it to yourself. The postmark established the date.
Now we have computers that record the date of file creation for anything we record on them. This date becomes the date of the copyright.
All you have to do to copyright something is to create it and follow the previously specified procedure by specifying "Copyright © (Date of first Creation) ( Name of author)" Use of the copyright symbol is not required.
The following procedure is for MS Word: To insert the copyright symbol, click Insert on the tool bar, Click Symbol on the dropdown and you will be presented a table of all kinds of symbols. Highlight the "circle C" and click the Insert button and the © will appear where your cursor is located. You will have to click on the Close button to close the Symbol box.
There, that was easy. Now start creating content on which you can proudly hang that "circle C".
Copyright 2006 John Howe, Inc.
About The Author
John V. W. Howe is an entrepreneur, author, inventor, patent holder, husband, father, and grandfather. He has been involved in entrepreneurial activities for over 40 years. He founded http://www.boomer-ezine.com and http://www.retirement-jobs-online.com to help Boomers (baby boomers) become entrepreneurs when they retire.
by: John V. W. Howe
When you create original content, it is automatically copyrighted, but you should know about copyrights and how to specifically mark your work. Also, establishing the date of creation is very important.
The basis for copyright law in the USA is found in the United States Constitution in Article 1, Section 8, Clause 8 as follows:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The first copyright law was the Copyright Act of 1790. We are currently operating under the Copyright of 1976 as amended.
Copyrights have a term of the life of the author plus 70 years. We Boomers can thank Sonny Bono (Sonny and Cher) for this. The Copyright Term Extension Act of 1998--alternatively known as the Sonny Bono Copyright Term Extension Act set the current term of copyrights.
When you write original content, it is copyrighted even if you do not specify "Copyright" or use the "circle C" © copyright symbol.
However, it is best to declare your works are copyrighted. The proper way to do this is "Copyright © (Date of first Creation) ( Name of author).
The best way to approach using any information that you have not created yourself is to consider that it is copyrighted.
To copyright an item, you must establish a dated record of some type when you first created the item so you can prove the date of the copyright if someone challenges you. The earliest date will get the copyright. Before computers, a technique was to write the piece and have it notarized or witnessed. Another technique was to enclose the item in an envelope and mail it to yourself. The postmark established the date.
Now we have computers that record the date of file creation for anything we record on them. This date becomes the date of the copyright.
All you have to do to copyright something is to create it and follow the previously specified procedure by specifying "Copyright © (Date of first Creation) ( Name of author)" Use of the copyright symbol is not required.
The following procedure is for MS Word: To insert the copyright symbol, click Insert on the tool bar, Click Symbol on the dropdown and you will be presented a table of all kinds of symbols. Highlight the "circle C" and click the Insert button and the © will appear where your cursor is located. You will have to click on the Close button to close the Symbol box.
There, that was easy. Now start creating content on which you can proudly hang that "circle C".
Copyright 2006 John Howe, Inc.
About The Author
John V. W. Howe is an entrepreneur, author, inventor, patent holder, husband, father, and grandfather. He has been involved in entrepreneurial activities for over 40 years. He founded http://www.boomer-ezine.com and http://www.retirement-jobs-online.com to help Boomers (baby boomers) become entrepreneurs when they retire.
Sunday, January 7, 2007
Intellectual Property
Intellectual Property by: Richard A. Hall
Over the course of humanity, every discovery has yielded more questions as we continue to explore new territory. As we continue to explore the frontier known as cyberspace, and discover new ways to use the medium, we are opened up to more ethical dilemmas and questions. Intellectual property has always been a thorny issue. The internet however raises new problems for businesses and individuals seeking to protect their intellectual property. With the easy access to information, protecting your IP is a virtual minefield.
What is Intellectual Property? Intellectual property (IP) is subject matter that is a product of the intellect or mind. The term however, actually refers to the legal entitlements that are attached to intangible ideas, concepts, and certain types of information in their expressed form. In example, a book or movie is the expression of creative and artistic work and Intellectual Property would provide the copyright holder exclusive rights for a period of time to control the reproduction and adaptation of that work. Copyrights, patents, trademarks and industrial designs are all examples of intangible subject matter. An often overlooked intangible is trade secrets. Trade secrets can be protected under Intellectual Property.
Intellectual Property is a valuable business asset which can be leveraged in the marketplace to as a competitive advantage. An IP audit can help you to determine what hidden assets you may have in your business. Many firms will send you an IP audit checklist which has a series of questions designed to uncover valuable business assets. Once you have uncovered your IP, you should take steps to protect it.
Ensure that you own the rights. In today’s world, many businesses outsource functions which are not their core competency. Paying to have something created does not grant you ownership. You may have paid an outside contractor to develop a sophisticated software program, or a graphic designer to revamp your logo or even a writer to develop your marketing collateral. When hiring outside firms to create something for you, you should always use a Work for Hire Agreement. Standard agreements are widely available. A Work for Hire Agreement basically transfers all rights from the creator to the payer.
Don’t forget your employees. Many organizations have their employees sign employment contracts which stipulate that any work created for the company belongs to the company. It is similar to a work for hire agreement with independent contractors in that the rights belong to the organization and not the individual. You are paying the employees to create the work on your behalf.
Protect your inventions. If you have invented a business method, process or other patentable invention you need to take steps to protect it. It is advisable to refrain from selling a patentable invention until you have taken the necessary steps to protect your rights. Filing a patent application is expensive and is something that should be done by an attorney specializing in patent law. If you are a new business, there are interim steps that you can take that will offer you protection until you have the cash to file the patent application. File an Invention Disclosure Document. This document can be purchased for about $10.00 and when filed with the United States Patents & Trademarks Office will protect some of your rights for approximately two years. You can also document your invention in an invention diary or something similar and mail it to yourself via the United States Postal Service. It is important to use the US mail system rather than an outside carrier such as FedEx, or DHL. The post office is a federal agency and will be accepted by the Patents and Trademarks Office. Once you receive the package, do not open it – store it in a safe place until you are ready to take the next steps.
Notify others of your rights. If you have created written works or other information which falls within copyright laws, use the copyright symbol, which is the C within a circle. This can be followed by the year the work was created and your organization’s name. An R within a circle indicates a registered trademark and should not be used unless you have in fact registered the item (i.e. logos, brand name). However, you can use TM (trademark) or SM (service mark) next to your name or logo. This will deter others from stealing your work. Additionally, if your internal or external contractors are creating software for you, have them embed footprints in the code to protect you in the event that someone steals your software. The footprints are identifiable information that can be used to prove that you created the software.
While you want to share your IP with the public to drive business, it is equally important to take the necessary steps to protect this valuable asset.
About The Author
Richard A. Hall is founder and President/CEO of LexTech, Inc., a legal information consulting company. Mr. Hall has a unique breadth of experience which has enabled him to meld technology and sophisticated statistical analysis to produce a technology driven analytical model of the practice of law. As a busy civil trial attorney, he was responsible for the design and implementation of a LAN based litigation database and fully automated document production system for a mid-sized civil defense firm. He developed a task based billing model built on extensive statistical analysis of hundreds of litigated civil matters. In 1994, Mr. Hall invented linguistic modeling software which automatically reads, applies budget codes, budget codes and analyzes legal bill content. He also served as California Director and lecturer for a nationwide bar review. Mr. Hall continues to practice law and perform pro bono services for several Northern California judicial districts.
http://www.lextech.us/
Over the course of humanity, every discovery has yielded more questions as we continue to explore new territory. As we continue to explore the frontier known as cyberspace, and discover new ways to use the medium, we are opened up to more ethical dilemmas and questions. Intellectual property has always been a thorny issue. The internet however raises new problems for businesses and individuals seeking to protect their intellectual property. With the easy access to information, protecting your IP is a virtual minefield.
What is Intellectual Property? Intellectual property (IP) is subject matter that is a product of the intellect or mind. The term however, actually refers to the legal entitlements that are attached to intangible ideas, concepts, and certain types of information in their expressed form. In example, a book or movie is the expression of creative and artistic work and Intellectual Property would provide the copyright holder exclusive rights for a period of time to control the reproduction and adaptation of that work. Copyrights, patents, trademarks and industrial designs are all examples of intangible subject matter. An often overlooked intangible is trade secrets. Trade secrets can be protected under Intellectual Property.
Intellectual Property is a valuable business asset which can be leveraged in the marketplace to as a competitive advantage. An IP audit can help you to determine what hidden assets you may have in your business. Many firms will send you an IP audit checklist which has a series of questions designed to uncover valuable business assets. Once you have uncovered your IP, you should take steps to protect it.
Ensure that you own the rights. In today’s world, many businesses outsource functions which are not their core competency. Paying to have something created does not grant you ownership. You may have paid an outside contractor to develop a sophisticated software program, or a graphic designer to revamp your logo or even a writer to develop your marketing collateral. When hiring outside firms to create something for you, you should always use a Work for Hire Agreement. Standard agreements are widely available. A Work for Hire Agreement basically transfers all rights from the creator to the payer.
Don’t forget your employees. Many organizations have their employees sign employment contracts which stipulate that any work created for the company belongs to the company. It is similar to a work for hire agreement with independent contractors in that the rights belong to the organization and not the individual. You are paying the employees to create the work on your behalf.
Protect your inventions. If you have invented a business method, process or other patentable invention you need to take steps to protect it. It is advisable to refrain from selling a patentable invention until you have taken the necessary steps to protect your rights. Filing a patent application is expensive and is something that should be done by an attorney specializing in patent law. If you are a new business, there are interim steps that you can take that will offer you protection until you have the cash to file the patent application. File an Invention Disclosure Document. This document can be purchased for about $10.00 and when filed with the United States Patents & Trademarks Office will protect some of your rights for approximately two years. You can also document your invention in an invention diary or something similar and mail it to yourself via the United States Postal Service. It is important to use the US mail system rather than an outside carrier such as FedEx, or DHL. The post office is a federal agency and will be accepted by the Patents and Trademarks Office. Once you receive the package, do not open it – store it in a safe place until you are ready to take the next steps.
Notify others of your rights. If you have created written works or other information which falls within copyright laws, use the copyright symbol, which is the C within a circle. This can be followed by the year the work was created and your organization’s name. An R within a circle indicates a registered trademark and should not be used unless you have in fact registered the item (i.e. logos, brand name). However, you can use TM (trademark) or SM (service mark) next to your name or logo. This will deter others from stealing your work. Additionally, if your internal or external contractors are creating software for you, have them embed footprints in the code to protect you in the event that someone steals your software. The footprints are identifiable information that can be used to prove that you created the software.
While you want to share your IP with the public to drive business, it is equally important to take the necessary steps to protect this valuable asset.
About The Author
Richard A. Hall is founder and President/CEO of LexTech, Inc., a legal information consulting company. Mr. Hall has a unique breadth of experience which has enabled him to meld technology and sophisticated statistical analysis to produce a technology driven analytical model of the practice of law. As a busy civil trial attorney, he was responsible for the design and implementation of a LAN based litigation database and fully automated document production system for a mid-sized civil defense firm. He developed a task based billing model built on extensive statistical analysis of hundreds of litigated civil matters. In 1994, Mr. Hall invented linguistic modeling software which automatically reads, applies budget codes, budget codes and analyzes legal bill content. He also served as California Director and lecturer for a nationwide bar review. Mr. Hall continues to practice law and perform pro bono services for several Northern California judicial districts.
http://www.lextech.us/
Saturday, January 6, 2007
Choosing a Trademark: A Couple of Important Considerations
Choosing a Trademark: A Couple of Important Considerations by David Dawsey
If you are thinking about starting up a new business or introducing a new product or service to the market, one of the last things you may have considered is seeking trademark protection for the name of your business, product or service. However, the importance of selecting a trademark cannot be emphasized enough. Often times the trademark you choose will play a role in shaping the consumer's first impression of the product or service offered by your company. This article will discuss some of the important issues associated with choosing a trademark for your business, product or service.
What is a Trademark?
A trademark can be any word, name, symbol, or device, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. Likewise, a service mark can be any word, name, symbol, or device, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services. However, it should be noted that it is not important for a consumer of a product to know the name of the company that manufactured the product, only that the product can be distinguished from the products of other companies.
Choosing a Trademark
A. Avoid Likelihood of Confusion
There are a couple of major issues that should be considered when choosing a trademark. First, it is crucial to determine whether or not another entity is already using a trademark that is the same or similar to your proposed trademark in connection with related products or services. This is commonly referred to as the "likelihood of confusion" issue. Likelihood of confusion is the basic test that is used to determine trademark infringement. Under this test, the question to be answered is whether the average purchaser of a product or service would be confused or deceived as to the source of the product or service. It is important to note that the "likelihood of confusion" issue is evaluated with regards to the specific product or service that the trademark identifies. Thus it is possible to have identical trademarks associated with totally unrelated goods or services, such as "EQUAL" for synthetic sweetener and "EQUAL" for a synthetic resinous material for balancing tires.
B. Make Your Mark Distinctive
A second important issue that should be considered is the distinctiveness of your proposed trademark in relation to the goods or services. Trademarks can generally be classified in four categories: generic, descriptive, suggestive, and arbitrary/fanciful. Typically, the strength of a trademark is related to the category in which it falls. For example, arbitrary or fanciful trademarks are very strong, while a trademark that is generic receives no protection.
As its name suggests, a generic term is the common name associated with a type of product and therefore can never receive trademark protection. The policy behind this is that every competitor should be able to describe his goods as what they actually are. Some examples of terms that were found generic include "SUPER GLUE" for strong-bonding, rapid-setting glue and "SURGICENTER" for surgical centers.
Descriptive marks literally describe the product or service. A test that is often used to determine descriptiveness is whether the mark immediately conveys an idea of the ingredients, qualities or characteristics of the goods. Descriptive marks are generally not registrable with the USPTO unless the applicant can show that consumers have learned to associate the mark with a single source, which is known as "secondary meaning" in legal terms. Examples of marks found to be descriptive are "HONEYBAKED" for hams, "TRIM" for manicuring implements, and "ICE" for beer.
A suggestive mark is similar to a descriptive mark, but does not literally describe the product or service. Suggestive marks require some analysis, imagination, thought and perception to determine the nature of the goods or services. Moreover, suggestive marks do not require a showing of secondary meaning to receive protection. Some examples of suggestive marks are "GREYHOUND" for bus services, "JAGUAR" for automobiles, and "COPPERTONE" for suntan lotions.
Finally, arbitrary and fanciful marks are very strong and typically receive a great deal of protection. Arbitrary marks are common words that are applied in an unfamiliar context, such as "APPLE" for computers, "CAMEL" for cigarettes, and "ORACLE" for software. On the other hand, fanciful marks are coined (made-up) terms that do not have a dictionary meaning, such as "KODAK" for film, "LEXUS" for automobiles, "ROLEX" for watches, and "XEROX" for copiers.
Conclusion
Before expending large amounts of time and money on advertising and marketing for a new product or service, a business should consider the points set out above. As to the likelihood of confusion issue, a comprehensive trademark search should be performed to determine whether another entity is already using a mark similar to the proposed mark in association with similar or related goods. When choosing a trademark, the distinctiveness of the mark should be a major consideration. From a purely legal perspective, it is best to choose a mark that is arbitrary or fanciful. If at all possible, businesses should stay away from trademarks that are descriptive of their goods or services, since descriptive marks are more difficult to register and protect.
DISCLAIMER
We hope you understand that we cannot possibly give accurate legal advice in a brief article. Accordingly, nothing in the above is intended as specific legal advice to any person. Such legal advice can only be given by a qualified practitioner after a careful review of all the individual facts. We urge you to consult us, or another licensed professional, before you proceed.
About the Author
David Dawsey is an intellectual property attorney with the law firm of Gallagher and Dawsey Co. LPA. David also operates TheTrademarkFirm.com, which is the online portal for trademark searches and applications. Please visit http://www.TheTrademarkFirm.com.
If you are thinking about starting up a new business or introducing a new product or service to the market, one of the last things you may have considered is seeking trademark protection for the name of your business, product or service. However, the importance of selecting a trademark cannot be emphasized enough. Often times the trademark you choose will play a role in shaping the consumer's first impression of the product or service offered by your company. This article will discuss some of the important issues associated with choosing a trademark for your business, product or service.
What is a Trademark?
A trademark can be any word, name, symbol, or device, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. Likewise, a service mark can be any word, name, symbol, or device, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services. However, it should be noted that it is not important for a consumer of a product to know the name of the company that manufactured the product, only that the product can be distinguished from the products of other companies.
Choosing a Trademark
A. Avoid Likelihood of Confusion
There are a couple of major issues that should be considered when choosing a trademark. First, it is crucial to determine whether or not another entity is already using a trademark that is the same or similar to your proposed trademark in connection with related products or services. This is commonly referred to as the "likelihood of confusion" issue. Likelihood of confusion is the basic test that is used to determine trademark infringement. Under this test, the question to be answered is whether the average purchaser of a product or service would be confused or deceived as to the source of the product or service. It is important to note that the "likelihood of confusion" issue is evaluated with regards to the specific product or service that the trademark identifies. Thus it is possible to have identical trademarks associated with totally unrelated goods or services, such as "EQUAL" for synthetic sweetener and "EQUAL" for a synthetic resinous material for balancing tires.
B. Make Your Mark Distinctive
A second important issue that should be considered is the distinctiveness of your proposed trademark in relation to the goods or services. Trademarks can generally be classified in four categories: generic, descriptive, suggestive, and arbitrary/fanciful. Typically, the strength of a trademark is related to the category in which it falls. For example, arbitrary or fanciful trademarks are very strong, while a trademark that is generic receives no protection.
As its name suggests, a generic term is the common name associated with a type of product and therefore can never receive trademark protection. The policy behind this is that every competitor should be able to describe his goods as what they actually are. Some examples of terms that were found generic include "SUPER GLUE" for strong-bonding, rapid-setting glue and "SURGICENTER" for surgical centers.
Descriptive marks literally describe the product or service. A test that is often used to determine descriptiveness is whether the mark immediately conveys an idea of the ingredients, qualities or characteristics of the goods. Descriptive marks are generally not registrable with the USPTO unless the applicant can show that consumers have learned to associate the mark with a single source, which is known as "secondary meaning" in legal terms. Examples of marks found to be descriptive are "HONEYBAKED" for hams, "TRIM" for manicuring implements, and "ICE" for beer.
A suggestive mark is similar to a descriptive mark, but does not literally describe the product or service. Suggestive marks require some analysis, imagination, thought and perception to determine the nature of the goods or services. Moreover, suggestive marks do not require a showing of secondary meaning to receive protection. Some examples of suggestive marks are "GREYHOUND" for bus services, "JAGUAR" for automobiles, and "COPPERTONE" for suntan lotions.
Finally, arbitrary and fanciful marks are very strong and typically receive a great deal of protection. Arbitrary marks are common words that are applied in an unfamiliar context, such as "APPLE" for computers, "CAMEL" for cigarettes, and "ORACLE" for software. On the other hand, fanciful marks are coined (made-up) terms that do not have a dictionary meaning, such as "KODAK" for film, "LEXUS" for automobiles, "ROLEX" for watches, and "XEROX" for copiers.
Conclusion
Before expending large amounts of time and money on advertising and marketing for a new product or service, a business should consider the points set out above. As to the likelihood of confusion issue, a comprehensive trademark search should be performed to determine whether another entity is already using a mark similar to the proposed mark in association with similar or related goods. When choosing a trademark, the distinctiveness of the mark should be a major consideration. From a purely legal perspective, it is best to choose a mark that is arbitrary or fanciful. If at all possible, businesses should stay away from trademarks that are descriptive of their goods or services, since descriptive marks are more difficult to register and protect.
DISCLAIMER
We hope you understand that we cannot possibly give accurate legal advice in a brief article. Accordingly, nothing in the above is intended as specific legal advice to any person. Such legal advice can only be given by a qualified practitioner after a careful review of all the individual facts. We urge you to consult us, or another licensed professional, before you proceed.
About the Author
David Dawsey is an intellectual property attorney with the law firm of Gallagher and Dawsey Co. LPA. David also operates TheTrademarkFirm.com, which is the online portal for trademark searches and applications. Please visit http://www.TheTrademarkFirm.com.
A New Music Copyright Lawsuit Against YouTube
A New Music Copyright Lawsuit Against YouTube by Gerard Simington
In the middle of November, Universal Music filed an extensive copyright lawsuit against YouTube, not long after Google moved to purchase it. So, what does this portend?
A New Music Copyright Lawsuit Against YouTube
As you undoubtedly know, YouTube is a site that allows people to post videos of all sorts. Sometimes the videos are their own and sometimes they are copied from other locations. This second category has raised a number of issues in the cyber law field with most of the questions surrounding copyright. Specifically, many wonder how this situation is anything different than what happened with Napster and similar sites. With Universal's lawsuit, we are about to find out.
Copyright is often a misunderstood area of the law, particularly when it is applied to the internet. Copyright is simple the right of a party to control the distribution of the work in question. The party is usually the creator of the work, but they can sell it off to another party if they wish. Regardless, the party has the right to license out their work to other parties for distribution in exchange for compensation. When someone uses the piece without the consent of the party, they are infringing upon the copyright.
Unlike Napster, many media companies have entered negotiations with YouTube to try to resolve copyright issues up front. Although every deal is different, copyright infringement issues are usually resolved by paying royalties to the offended party. In this case, Universal and YouTube actually entered such negotiations. With the filing of the lawsuit, it obviously didn't work out. The reported problem was the fact an unreleased Jay-Z music video appeared on YouTube. Obviously, Universal felt its thunder had been stolen.
One must wonder what Google thinks of all of this. Although a brilliant search engine company, Google has a history of falling on its face when it comes to legal issues ranging from privacy protection to swiping executives from other companies, particularly Microsoft. With YouTube, many wondered if Google was purchasing one giant lawsuit. Apparently, this may have occurred to the powers that be at Google as rumors abound that hundreds of millions of dollars of the purchase price were set aside to cover lawsuits. Time to break out the check book!
Regardless, the dispute between Universal and YouTube/Google looks to be significant in the development of copyright law on the net. This is definitely something worth keeping an eye on.
About the Author
Gerard Simington is with FindAnAttorneyForMe.com - providing free legal information on a variety of topics.
In the middle of November, Universal Music filed an extensive copyright lawsuit against YouTube, not long after Google moved to purchase it. So, what does this portend?
A New Music Copyright Lawsuit Against YouTube
As you undoubtedly know, YouTube is a site that allows people to post videos of all sorts. Sometimes the videos are their own and sometimes they are copied from other locations. This second category has raised a number of issues in the cyber law field with most of the questions surrounding copyright. Specifically, many wonder how this situation is anything different than what happened with Napster and similar sites. With Universal's lawsuit, we are about to find out.
Copyright is often a misunderstood area of the law, particularly when it is applied to the internet. Copyright is simple the right of a party to control the distribution of the work in question. The party is usually the creator of the work, but they can sell it off to another party if they wish. Regardless, the party has the right to license out their work to other parties for distribution in exchange for compensation. When someone uses the piece without the consent of the party, they are infringing upon the copyright.
Unlike Napster, many media companies have entered negotiations with YouTube to try to resolve copyright issues up front. Although every deal is different, copyright infringement issues are usually resolved by paying royalties to the offended party. In this case, Universal and YouTube actually entered such negotiations. With the filing of the lawsuit, it obviously didn't work out. The reported problem was the fact an unreleased Jay-Z music video appeared on YouTube. Obviously, Universal felt its thunder had been stolen.
One must wonder what Google thinks of all of this. Although a brilliant search engine company, Google has a history of falling on its face when it comes to legal issues ranging from privacy protection to swiping executives from other companies, particularly Microsoft. With YouTube, many wondered if Google was purchasing one giant lawsuit. Apparently, this may have occurred to the powers that be at Google as rumors abound that hundreds of millions of dollars of the purchase price were set aside to cover lawsuits. Time to break out the check book!
Regardless, the dispute between Universal and YouTube/Google looks to be significant in the development of copyright law on the net. This is definitely something worth keeping an eye on.
About the Author
Gerard Simington is with FindAnAttorneyForMe.com - providing free legal information on a variety of topics.
BASICS OF PATENT LAW INDIA
BASICS OF PATENT LAW INDIA by Kaviraj Singh
BASICS OF PATENT LAW INDIA
Patent law has been formulated with an objective to promote and protect the inventions and methods. The object of granting a patent is to encourage and develop science, technology and industry.
A patent can be defined as a grant of exclusive rights to an inventor over his invention for a limited period of time. The exclusive rights conferred include the right to make, use, exercise, sell or distribute the invention in India. The term of a patent is twenty years, after the expiry of which, the invention would fall into the public domain.
About the Author
Kaviraj Singh, Attorney of Trustman & Co- A law Firm at Delhi India http://www.trustman.org, http://delhilaw.firm.in
BASICS OF PATENT LAW INDIA
Patent law has been formulated with an objective to promote and protect the inventions and methods. The object of granting a patent is to encourage and develop science, technology and industry.
A patent can be defined as a grant of exclusive rights to an inventor over his invention for a limited period of time. The exclusive rights conferred include the right to make, use, exercise, sell or distribute the invention in India. The term of a patent is twenty years, after the expiry of which, the invention would fall into the public domain.
About the Author
Kaviraj Singh, Attorney of Trustman & Co- A law Firm at Delhi India http://www.trustman.org, http://delhilaw.firm.in
Basics of US Patent Law
Basics of US Patent Law by Kaviraj Singh
Basics of US Patent Law
Author: Kaviraj Singh, Attorney of Trustman & Co - A Law Firm at Delhi India http://www.trustman.org
United States has the most expansive patent subject matter in the world. US Patent Office has granted patents to living organism, computer software, business methods, new alphabets and countless.
Article 1 Section 1 Clause 8 of the US Constitution empowers the congress to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. In furtherance of the power granted by the constitution, the US Congress enacted the first patent act in the year 1790. Though the act was amended several times, the most important amendment came about in the year 1952, when congress passed a new patent act codified under Title 35 of the United States Code. Though a few changes were made in 1986, 1996 and 1999, most provisions of the 1952 Act are still in effect.
The US Patent Law is based on the utilitarian reasoning, which is to promote the progress of science and useful arts in general public interest. An inventor gives an invention to the public and gets exclusive rights over it for a limited period of time. By granting exclusive rights to inventors for a limited period of time, the patent law provides incentive to invent, invest, design around and disclose which in turn encourages progress of science and technology.
Requirements for Patentability
To be eligible for a patent, an invention should satisfy the requirements of Patentable subject matter (Sec. 101),
a) Usefulness (Sec. 101) b) Novelty (Sec. 102) c) Non-obviousness (Sec. 103) d) Specification (Sec. 112).
Usefulness - An invention would be eligible for a patent grant only if it is useful (35 USC Sec. 101). The utility of the invention should be current, substantial and credible. Speculative or future uses are not eligible for the patent. But with regard to genetic inventions, showing of future use is generally allowed. Inventions, which have immoral uses, are not accepted to be useful.
Novelty - Novelty means new. An invention in order to be patentable should be new in the light of that exists at the time of conception of the invention. Section 102 gives a non-exhaustive list of circumstance that denies an invention of its newness.
Non-obviousness - An invention to be patentable should not be obvious or known at the time of invention. An invention is obvious, if a single prior art reference or a combination of prior art references as a whole, make the invention obvious to a person with ordinary skill in the art to which the invention belongs. The invention should be obvious at the time of conception of the invention and not at the time of contention of obviousness.
As per the Section 103 - Obviousness of an invention will be decided by determining the scope of the prior art, by finding out the differences between the prior art and the claimed invention and by ascertaining the level of ordinary skill in the art. Secondary Indicia like commercial success, unexpected results, copying, praise of experts, etc. could also be considered for making an obviousness determination.
Specification - An inventor must file a patent application containing a specification (35 USC Sec. 112). The specification should contain written description of the invention and of the manner and process of making and using it, in such full, clear, concise and exact terms, so as to enable a person with ordinary skill in the art to make and use the invention. The specification should also describe the best mode of carrying out the invention. The written description may contain drawings where and when required to clearly describe the invention. The specification should conclude with one or more claims particularly pointing out and definitely claiming the subject matter of the invention. The claims define the metes and bounds of the invention claimed by the inventor. The inventor gets rights only over what is defined in the claims.
The basic requirement for patentability is that the invention should fall within the scope of patentable subject matter as defined under Section 101. (35 USC Sec. 101). As per section 101, any new and useful invention or discovery, which is a process, machine, manufacture or composition of matter is patentable. It also includes any new and useful improvements made to an existing invention. An invention generally falls under more than one category.
The courts have construed the terms process, machine, manufacture and compositions of matter very broadly. In Diamond v. Chakrabarty, the United States Supreme Court while upholding the patentability of an oil-eating bacterium stated that everything under the sun made by man is patentable.
Not eligible for Patentability
The statute does not expressly bar any subject matter from patentability, the Courts have held physical phenomenon, abstract ideas and products of nature to be outside the scope of patentability.
An invention is not considered new or novel if the same were on sale for more than a year before the filing date of patent application. Selling the invention for testing deprived it of the novelty. Even making an offer to sell or making a contract of sale for the future is fatal to novelty of the invention and it shall not patented.
An invention is not new if it is known or used by anyone in the United States or printed or published in a foreign country. The use should be publicly accessible use and not secret use.
An invention can not be patented, if the inventor had abandoned the invention to the public. Taking an invention, which has been dedicated to the public out of the public domain, is against the basic objective of patent law.
An invention is not patentable if it has been patented in a foreign country twelve months before the filing date of the present patent application.
Priority date
As per the Section 102 - For ascertaining the priority, the date of conception would be taken into consideration. The inventor who conceived first and was diligent in reducing the invention to practice would be considered as the first inventor. An invention is not patentable if another person before the applicant has invented it. That first inventor should not have abandoned, suppressed or concealed his invention.
About the Author
Author: Kaviraj Singh, Attorney of Trustman & Co - A Law Firm at Delhi India http://www.trustman.org
TRUSTMAN is an organization of qualified professionals based at Delhi, India of high caliber and other firms to provide multi disciplinary services at one place to all businesses / individuals and firm is capable of addressing and resolving several business and legal issues.
Basics of US Patent Law
Author: Kaviraj Singh, Attorney of Trustman & Co - A Law Firm at Delhi India http://www.trustman.org
United States has the most expansive patent subject matter in the world. US Patent Office has granted patents to living organism, computer software, business methods, new alphabets and countless.
Article 1 Section 1 Clause 8 of the US Constitution empowers the congress to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. In furtherance of the power granted by the constitution, the US Congress enacted the first patent act in the year 1790. Though the act was amended several times, the most important amendment came about in the year 1952, when congress passed a new patent act codified under Title 35 of the United States Code. Though a few changes were made in 1986, 1996 and 1999, most provisions of the 1952 Act are still in effect.
The US Patent Law is based on the utilitarian reasoning, which is to promote the progress of science and useful arts in general public interest. An inventor gives an invention to the public and gets exclusive rights over it for a limited period of time. By granting exclusive rights to inventors for a limited period of time, the patent law provides incentive to invent, invest, design around and disclose which in turn encourages progress of science and technology.
Requirements for Patentability
To be eligible for a patent, an invention should satisfy the requirements of Patentable subject matter (Sec. 101),
a) Usefulness (Sec. 101) b) Novelty (Sec. 102) c) Non-obviousness (Sec. 103) d) Specification (Sec. 112).
Usefulness - An invention would be eligible for a patent grant only if it is useful (35 USC Sec. 101). The utility of the invention should be current, substantial and credible. Speculative or future uses are not eligible for the patent. But with regard to genetic inventions, showing of future use is generally allowed. Inventions, which have immoral uses, are not accepted to be useful.
Novelty - Novelty means new. An invention in order to be patentable should be new in the light of that exists at the time of conception of the invention. Section 102 gives a non-exhaustive list of circumstance that denies an invention of its newness.
Non-obviousness - An invention to be patentable should not be obvious or known at the time of invention. An invention is obvious, if a single prior art reference or a combination of prior art references as a whole, make the invention obvious to a person with ordinary skill in the art to which the invention belongs. The invention should be obvious at the time of conception of the invention and not at the time of contention of obviousness.
As per the Section 103 - Obviousness of an invention will be decided by determining the scope of the prior art, by finding out the differences between the prior art and the claimed invention and by ascertaining the level of ordinary skill in the art. Secondary Indicia like commercial success, unexpected results, copying, praise of experts, etc. could also be considered for making an obviousness determination.
Specification - An inventor must file a patent application containing a specification (35 USC Sec. 112). The specification should contain written description of the invention and of the manner and process of making and using it, in such full, clear, concise and exact terms, so as to enable a person with ordinary skill in the art to make and use the invention. The specification should also describe the best mode of carrying out the invention. The written description may contain drawings where and when required to clearly describe the invention. The specification should conclude with one or more claims particularly pointing out and definitely claiming the subject matter of the invention. The claims define the metes and bounds of the invention claimed by the inventor. The inventor gets rights only over what is defined in the claims.
The basic requirement for patentability is that the invention should fall within the scope of patentable subject matter as defined under Section 101. (35 USC Sec. 101). As per section 101, any new and useful invention or discovery, which is a process, machine, manufacture or composition of matter is patentable. It also includes any new and useful improvements made to an existing invention. An invention generally falls under more than one category.
The courts have construed the terms process, machine, manufacture and compositions of matter very broadly. In Diamond v. Chakrabarty, the United States Supreme Court while upholding the patentability of an oil-eating bacterium stated that everything under the sun made by man is patentable.
Not eligible for Patentability
The statute does not expressly bar any subject matter from patentability, the Courts have held physical phenomenon, abstract ideas and products of nature to be outside the scope of patentability.
An invention is not considered new or novel if the same were on sale for more than a year before the filing date of patent application. Selling the invention for testing deprived it of the novelty. Even making an offer to sell or making a contract of sale for the future is fatal to novelty of the invention and it shall not patented.
An invention is not new if it is known or used by anyone in the United States or printed or published in a foreign country. The use should be publicly accessible use and not secret use.
An invention can not be patented, if the inventor had abandoned the invention to the public. Taking an invention, which has been dedicated to the public out of the public domain, is against the basic objective of patent law.
An invention is not patentable if it has been patented in a foreign country twelve months before the filing date of the present patent application.
Priority date
As per the Section 102 - For ascertaining the priority, the date of conception would be taken into consideration. The inventor who conceived first and was diligent in reducing the invention to practice would be considered as the first inventor. An invention is not patentable if another person before the applicant has invented it. That first inventor should not have abandoned, suppressed or concealed his invention.
About the Author
Author: Kaviraj Singh, Attorney of Trustman & Co - A Law Firm at Delhi India http://www.trustman.org
TRUSTMAN is an organization of qualified professionals based at Delhi, India of high caliber and other firms to provide multi disciplinary services at one place to all businesses / individuals and firm is capable of addressing and resolving several business and legal issues.
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