Second, use a professionally prepared employment agreement that identifies the respective rights and responsibilities of the new employee and you as the employer. If you don’t have one you regularly use with your workers, check out our firm’s Business Contract Legal Protection Package.
Yes, it takes a little time to do this right. But it costs a lot less than a lawsuit because you cut corners in your hiring process.
Whether you’re a developer or you’ve contracted with one to create a new application, there’s often a big misunderstanding as to who owns the intellectual property at the end of a software development project.
If you paid to have the app developed, naturally you expect to own it. On the other hand, if you’re the developer, chances are you recycled some code on the current project and plan to use it in the future on other projects.
Open Source Code?
And then there’s the open source issue.
Was any of the code added per a GNU General Public license, Creative Commons license, or other open source license?
As you can see, there’s plenty of room for disagreement about who owns what intellectual property.
Of course, the solution to this problem is to having the project done per a comprehensive app development contract that covers ownership, licensing (including type of license), and any open source issues.
Your written contract can provide not only for intellectual property issues but also prevent other problems from arising during all phases of development and testing.
Where Should You Get An App Development Contract?
By having your agreement professionally prepared by an experienced software lawyer, you’re likely to get what you want rather than leaving it to chance.
For example, our firm prepares a Software Development Legal Protection Package that’s designed to favor our client’s legal rights while offering a fair deal to the other side. Often the agreement is reused by our client on future app development projects with minimal changes.
Regardless of what you decide to do, whether you’re a developer or paying one, don’t just wing it when it comes to software intellectual property ownership, licensing, and related legal rights. That’s not only bad for business relationships but also an invitation to a lawsuit to sort things out after the fact.
Business contracts can help prevent your company’s cascading collapse caused by a single point of failure (SPOF). Did you know that one of the biggest mistakes entrepreneurs make is running their ventures so that a SPOF can wipe out everything?
In fact, most small businesses are riddled with SPOFs ready to explode like a land mine when you can least afford it.
For example, let’s say you have a worker (employee or independent contractor) that’s vital to your operations who needs to take a week off to attend a parent’s funeral. If the worker’s absence brings your company to a halt, that’s a SPOF.
Or your software developer acts like a prima donna, making unreasonable demands or not timely delivering. Will your business be held hostage?
And for business owners, the most vital SPOF is the one you see in the mirror, i.e. your business can’t survive without you. Your vacations (if you take one) are 24/7 working vacations where you’re checking text messages, voicemail, and emails to make sure everything’s running.
How To Prevent SPOFs
It doesn’t have to be that way.
Build in redundancy by cross-training workers and finding alternate sources for vital products and services.
One of the best places to start eliminating SPOFs is to identify all of the key tasks that must be performed for your business to function smoothly (including your own responsibilities) and make sure there’s at least 2 to 3 people who can handle those tasks.
The Importance of Business Contracts For Avoiding SPOFs
Then use employment contracts and independent contractor agreements to formalize those responsibilities with each worker to ensure you’re protected. Our firm prepares these types of agreements as part of a Business Contract Legal Protection Package.
Let’s face it. Because it’s essential to your company’s success to make sure no one becomes a fatal bottleneck, you need to put the right business contracts in place to prevent your operations from grinding to a SPOF halt.
How do you enter into business contracts? If you lived a couple hundred years ago, chances are you’d reach an important business agreement by spitting in your palm and shaking hands with the other person.
By the 20th Century, that evolved into a simple handshake “Gentleman’s Agreement.” No spitting.
Today, many business deals are made by an exchange of emails, i.e. a virtual handshake.
What’s the problem with that?
The Dangers of Email Deals as Business Contracts
The spitting starts when something goes wrong during performance.
You and the other party argue over what’s in the chain of messages back and forth. In other words, you both have very different ideas on what those emails meant. Were they negotiations or did you agree to specific terms?
At a minimum, it’s a loss of time. Too often, it’s a lawsuit and the end of what had been a good relationship.
And if you signed any of those emails as an individual (rather than on behalf of your company), you might find yourself personally on the hook if you lose in court.
A Simple Solution
Many of our clients have found the easiest way to prevent this mess is to systematize their business deals using a professionally prepared written contract designed to protect themselves and their businesses.
For example, if you repeatedly buy or sell a particular service/product, it makes sense to have an experienced business lawyer prepared a customized written “standard agreement” you’ll use as the basis for your deals.
Whether you sell goods and/or services, you want to protect your business brand by preventing others from misusing it to hurt your image. In many cases, a trademark lawyer can help you get maximum legal protection for your brand.
What Is A Trademark?
Your trade mark is your brand name for one or more goods that you sell. You can express this brand in multiple ways, including a name, symbol, words, device, or a combination of these with the purpose of identifying your good(s) separately from competitors.
If you have not registered your trademark with the U.S. Patent & Trademark Office (USPTO), you may assert your unregistered mark as your brand by adding a superscripted “TM” to it.
However, to reduce the risk of getting into legal hot water, it’s a good idea to have trademark attorney review your unregistered mark and have a search performed to see if there are competing claims to the mark or one similar to it.
What Is A Service Mark?
Just as a trademark is a brand for your good(s), a service mark is a brand for one or more services that you sell. If you don’t have a registered service mark with the USPTO, you may assert your unregistered service mark by adding a superscripted “SM” to it.
However, just like an unregistered trademark, you’ll probably want to have an experienced trademark attorney review your unregistered service mark to see if there are legal risks, including potential competing claims to the mark by others.
If your trademark or service mark qualifies under federal law, you can apply to register it with the U.S. Patent & Trademark Office (USPTO) for extra legal protection under U.S. law. For a registered mark, you add a superscripted “R” inside of a circle.
A registered mark receives special protections under U.S. federal law that are unavailable to unregistered marks. For example, a registered mark creates a legal presumption nationwide that you own the mark with exclusive right to use it for the goods and/or services for which you registered it with the USPTO.
If you are building a brand for products and/or services, this is why it typically makes sense to take advantage of USPTO registration for your mark if it is eligible.
Most mark owners retain an experienced trademark lawyer to handle the application process.
This typically includes preliminary work to determine whether you should apply for registration, such as a comprehensive search of federal, state and common law marks that may conflict with the mark you want to register. This search is important because the federal database of registered marks, the USPTO Trademark Electronic Search System (TESS), does not include state and common law unregistered marks that may conflict with the mark you want to register.
In addition, your trademark attorney will use the USPTO Acceptable Identification of Goods and Services Manual to properly classify and describe the goods and/or services for which you’re seeking registration. This is very important because you want the registration to protect your brand but not be overbroad so that it inaccurately covers goods or services unrelated to what your brand. For example, if your mark is the unique name of your restaurant chain, the description shouldn’t be so broad that it covers children’s swimwear you don’t sell in your restaurants.
The application itself will be reviewed by an attorney who works as a trademark examiner for the USPTO. Although this attorney may answer some procedural questions if you file the application yourself, as a USPTO employee the examiner will not give you legal advice.
Trademark Registration Renewal and Abandonment
How do you maintain the federal registration for your mark?
Generally, after between 5 and 6 years after your registration date, you’ll need to file a maintenance document with the USPTO (Declaration of Continued Use or Excusable Nonuse).
In addition, every 10 years after your registration date, you’ll want to renew your registration by filing a maintenance document with the USPTO (Combined Declaration of Continued Use and Application for Renewal).
An experienced trademark lawyer can handle these maintenance documents for you.
What happens if you fail to file to timely file these documents?
The USPTO will deem the mark to have been abandoned (cancelled or expired) and you will lose all of the advantages of having a registered mark. However, you may still have lesser legal rights for it as an unregistered mark.
If someone unlawfully uses your mark (e.g. counterfeit goods), you may have a claim for infringement against them.
Your available remedies will vary depending upon a variety of factors, including whether your mark is registered or unregistered, the nature of the infringement (how the mark was unlawfully used), and applicable law.
If your mark is registered with the USPTO, you may be entitled to significant statutory damages and an award of attorney’s fees under federal law. For an unregistered mark, you are likely to collect less to compensate you for the infringement.
You may choose to license your mark for others to use. This is often done in exchange for licensing fees.
It’s important to use a qualified trademark lawyer to prepare your licensing agreements so that they protect your legal rights and don’t conflict with each other. Otherwise, the benefits of licensing are outweighed by the lawsuits filed against you by angry licensees when they discover you’ve sold them conflicting rights.
On the other hand, you may wish to license a mark owned by another business or individual. If the mark’s owner is willing to license it to you, your attorney can protect you by ensuring the agreement protects your rights as a licensee.
Where Do You Find A Good Trademark Lawyer?
An experienced Registered Patent Attorney can help you with your trademarks and service marks, including federal registration with the USPTO if they qualify.
Good Internet transactional attorneys can also help you with trademark issues, such as preparing licensing agreements that boost the income you receive from your marks while protecting your intellectual property.
MATERIAL CONNECTIONS DISCLOSURE
Unless otherwise expressly stated, you should assume that all references to products and services at MikeYoungLaw.com are made because material connections exist between the Law Office of Michael E. Young PLLC and the providers of the mentioned products and services. This may include: (1) an attorney-client relationship; (2) and/or monetary or other compensation.