Digitalaw introduces "Fresh Contract," a new way of negotiating and drafting contracts, using straight-forward language and focusing more precisely on the core issues. Emphasis is placed on using straight-forward terminology, tight and compact drafting, and abolishing (as much as possible) prototypically overused legalese. When Kris drafts a contract for you, it will be a "Fresh Contract." Guaranteed.
What are the similarities/differences between the different types of IP: (remember our standard disclaimer: this is not legal advice even though it sounds like it).
1) TRADEMARK: WHAT: any word, phrase, logo, sound, that tells the customer the identity of the provider of the product/service; WHEN do I obtain trademark rights: by using the trademark in interstate commerce (federal) or intrastate commerce only (state; yes, each state has a separate trademark law regiment); HOW to "perfect" the rights: obtain "Registration" status by filing with the feds or a state and going through the process; WHAT does this allow me to do: legally block others from using a substantially similar trademark in conjunction with similar goods/services, and get damages if they do; ("substantially similar" = likely to cause confusion amongst customers.
2) COPYRIGHT: WHAT: any creative work of authorship (i.e. books, this article, work of art, software source code, pic, vid, etc.); WHEN do I obtain copyright: when you author the work (BUT, you can't enforce the copyright until you file for and receive the Copyright Registration); HOW to "perfect" the rights: obtain Registration status; WHERE: copyright is a "feds-only" gig; no states; WHAT does this allow me to do: legally block anyone from copying, using, publishing, modifying, your work of authorship and get damages if they do.
3) PATENT: WHAT: a thing or process/method that is (i) new ("novel") and (ii) a non-obvious improvement over the current state of the art; WHEN do I obtain patent rights: when a patent is issued by the feds (no state analog here), after filing and going through the not-easy process; WHERE: patent is a feds-only gig; WHAT does this allow me to do: for 20'ish years, legally block anyone from using, making, or selling an infringingly (should be a word) similar thing or method/process, and get damages if they do.
4)....wait for it...... TRADE SECRETS: yes, that's right, trade secrets: WHAT: any piece of information/knowledge that you possess that gives you a competitive advantage AND to which you apply reasonable measures to keep a secret (thus the reason many times for NDAs and/or Confidentiality Agreements): WHEN do trade secret rights accrue: once you have it, but only if you protect it; HOW to perfect it: protect it as a secret; WHERE: this is a state law gig; WHAT does this allow me to do: legally block use by other parties and get damages if they do.
BONUS #1: many times, the same "thing" is a trademark and a copyrightable work of authorship at the same time; example: my law firm's "eye" logo posted somewhere near this article;
BONUS #2: sometimes, companies forgo the expense and time limit (20 years) of a patent and protect a "thing" as a trade secret; example: the actual formula for Coca Cola is a trade secret, not a patented invention.
Ping me with questions/clarifications. Thanks for reading. Kris Keeney Digitalaw.
Today’s Fresh Contract™ insight covers “contractual intent.” Often a third party (Court, subsequent Contract Manager, or Company Officer) trying to interpret a contract one way or another will search for clues in the document about the parties’ intent. It is helpful for a contract, that otherwise probably has its share of verbose legalese (unnecessarily so), to have a simple sentence or two describing, in plain english, what the parties are trying to accomplish in the deal that gave rise to the contract. Here is an example paragraph from a Joint Venture Agreement:
"Introduction, Intent. The parties desire to work together to market and sell each other's products and services (“Offerings”). Each has become familiar with the type, nature, quality and applicability of the other’s Offerings, as well as its reputation for quality and professionalism in the marketplace. Prior to this Agreement, each party marketed its Offerings independently. By undertaking the Joint Efforts, the parties intend and desire that collectively they can produce sales opportunities for each that otherwise may not have become available."
You can see how this simple, short paragraph helps set the story of the transaction. The subsequent nuts/bolts provisions of the contract will be written and interpreted through this lens/story of the parties’ intent.
Thanks very much for reading. Ping me with questions/comments.
Kris Keeney, Digitalaw, a Business Law Firm.
Fresh Contract™ is a new way of negotiating and drafting contracts, using simple language and focusing more precisely on the core issues, and is a trademark of Kris R. Keeney, PC dba Digitalaw
5380 Twin Hickory Road
Glen Allen, VA 23059
Logos and related trademarks are trademarks of Kris R. Keeney, PC dba Kris Keeney Law
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