Trade Marks vs Other Types of IP: What’s the Difference?

Trade Marks vs Other Types of IP: What’s the Difference?

Trade marks are a very cost-effective and powerful tool which businesses often overlook when starting a new venture. In some ways, trade marks are the ultimate form of IP protection, because if granted, they allow you to monopolise the public’s association between certain words or a logo and your business. This means you have ownership over your intangible “goodwill”, which otherwise cannot be protected by other forms of IP. I often hear people talk about “patenting” or “copyrighting” their brand name, when they really mean is obtaining a trade mark. While frustrating, such confusion is understandable, given the overlaps between these forms of IP, and the fact they are often used together as part of a broader IP protection strategy. In this brief, I will try to clarify this issue by discussing and contrasting trade marks with other forms of IP, namely, copyright, patents and trade secrets. Trade Marks A trade mark allows the owner the exclusive right to prevent others from using any confusingly similar mark over similar services. This is done by comparing the look and sound of the marks, as well as the trade channels where the marks appear, and if this would lead to confusion, you can sue for trade mark infringement. Trade marks can also be used in other ways, such as forcing others to hand over a website address incorporating your trade mark.[1] Trade mark rights are territorial and usually last 10 years in each jurisdiction, but can be renewed indefinitely. Unregistered trade mark rights exist at common law, but these are typically subject to the rights of the “official” registered trade mark....
10 of the Most Important Clauses to Put in Your Shareholder Agreement

10 of the Most Important Clauses to Put in Your Shareholder Agreement

Starting a new business has many risks, including failure to achieve a viable business model with product/market fit, excessive competition, economic downturns, lack of cashflow/runway, hiring risks, delays in delivery and technical risks. However, one of the largest risks and most common cause for business failure is due to disputes between shareholders. This article will discuss 10 of the most important clauses to put in your shareholder agreement. 1. Sweat Equity Because of the limited funds available to pay salaries, many start-up companies offer shares to co-founders and key staff who provide “sweat equity” instead of capital. When properly used, offering shares can provide a strong incentive to commit and grow the business. If the business is eventually sold or listed on a stock exchange, these shares can make initial founders and staff very rich.[1] In addition, allocating shares at an early stage usually provides significant tax advantages as any increase in the value of the shares is taxed at a lower rate or sometimes not at all. Despite the benefits of providing equity to founders and staff, problems arise if relationships with shareholders break down and people are terminated from the company. Without a valid legal agreement in place to deal with this event, such “bad leavers” will keep their shares and the remaining shareholders are stuck with minority shareholders who are now “free riding” on the efforts of the actively involved shareholders. While there are some legal “tricks” which can be used to solve this problem, such as issuing additional shares to dilute shareholders or selling the business assets to a new entity,[2] these can create grounds...
Do you have Legal ‘Viruses’ in your Code?

Do you have Legal ‘Viruses’ in your Code?

Most developers I speak to are under a lot pressure to deliver. They borrow code from ‘open source’ libraries and think they are free to use it in their deliverables. They don’t have time to read software licences. For many of them, English is a second language, and even native speakers cannot be expected to understand the nuances of contractual interpretation, particularly under ‘multi-licensed’ software with conflicting terms. Discussions of licence terms in forums such as HackerNews and Reddit are typically prefaced with the disclaimer IANAL (“I am not a lawyer”). As a result, it’s not surprising that a significant amount of proprietary code is in breach of open source licences, increasing the risk of lawsuits. For example, a 2010 code audit undertaken by Open Logic, found that 71% of iPhone®, iPad® and Android™ apps failed to comply with the open source licence terms. Disturbingly, there was 0% compliance with Android apps incorporating software licensed under GPL/LGPL. The latter contain ‘viral’ clauses covering third-party software incorporated into their software product, which require you to release source code to your competitors or open you to risk of a copyright infringement claim for non-compliance with various conditions. The problem is there are hundreds of licences “in the wild”. Further, the license agreements themselves are not drafted by lawyers, and therefore include ambiguous or contradictory language. For example, the BSD license is one of the most popular in the ‘open source’ community, and in fact, BSD licensed software is running the MacBook Pro computer I am writing this on. However, the BSD license arguably requires you to put a broad liability disclaimer “in the...