August 12th, 2009 at 12:41am
Under intellectual property
The key provisions in any JV include:
(1) Clearly defined business objectives;
(2) The degree of participation and the management roles of each joint venturer in the business;
(3) Contribution of capital and ownership rights to property / division of the profits and losses;
(4) A dispute mechanism to avoid management impasses that may produce deadlock or litigation;
(5) Termination/liquidation of the JV and the buy-out provisions;
(6) Confidentiality; and
(7) Indemnification.
(1) Clearly defined business objectives. The agreement must initially lay out the purpose of the joint venture, generally a common business interest or investment. For instance, paragraph one could say: “1.1. Business Purpose. The business of the Joint Venture shall be as follows:” and then describe the business purpose. This paragraph should also define the term of the agreement.
(2) Degree of participation and the management roles of each joint venturer. Next the agreement should lay out the roles, management responsibilities, and degree of participation of each joint venturer. This provision will be contractually enforceable, so it must be clearly drafted to accurately define the roles, obligations, rights, and duties of the parties. In the case of a new entity or where an equity investment is involved, it is typical to address representation on the joint venture’s or the other party’s board of directors or similar governing body.
(3) Contribution of capital and ownership rights/Division of the profits and losses. The agreement should next describe the capital contributions and other resources each party will convey to the venture, as well as method and percentage of profit and loss sharing for the venture. Who will be primarily responsible for losses, and how and when shall profits be shared? Typically parties often share profits pro rata according to their respective equity interests. In cases where one company contributes more cash, however, that company may receive priority on the distribution of profits.
(4) A dispute mechanism. The Agreements should lay out the terms of an internal mechanism for resolving any disputes that may arise between the joint venturers. This mechanism is necessary to avoid management impasses that may produce deadlock or litigation. Neither party would benefit from adjudicating claims externally by way of litigation or arbitration while the joint venture is in place. This provision could create a board, filled by executives from each venturer, who would be responsible for hearing and resolving disputes.
(5) Termination of the Joint Venture / Buyout Provision. Joint ventures typically are not intended to last forever. The parties often provide a termination date, at which time contractual arrangements will terminate or one party will buy the other’s equity stake. Buyout provisions can be difficult to negotiate in advance because the parties may not be able to accurately predict the value of the strategic alliance or joint venture at the time of the buyout. One solution is to provide that the valuation will be based on revenues or profits at the time of the buyout, or that a third-party appraiser will determine the valuation. Alternatively, the parties can adopt a “shotgun” or “auction” provision, whereby one party initiates the process by proposing to buyout the other party at a specified valuation, and the other party must agree to buy or sell at that price, or begin an auction by proposing to buy at an increased valuation.
(6) Confidentiality / Intellectual Property. The parties to a strategic alliance or joint venture should consider carefully how to allocate, control and protect confidential information and other intellectual property that is contributed to, or developed in, their business relationship. The parties may want to provide that all employees and consultants with access to confidential information must execute a separate stand-alone confidentiality and nondisclosure agreement. The parties also should consider how to allocate new intellectual property that is developed in the course of the business relationship. In a classic joint venture where the new intellectual property becomes the property of the new entity, the parties should consider who will own the new intellectual property if the entity subsequently is dissolved
(7) Indemnification. Finally, an indemnification provision of a joint venture agreement must be in place to indemnify the manager and its directors, officers, employees and agents, and any person who is or was serving at the request of the joint venture as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against liability. Most importantly, this provision should cover such a director or employee’s costs in defending a third-party law suit, including attorneys’ fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred by such indemnitee in connection with the defense or settlement of such action, suit or proceeding, if such indemnitee acted in good faith or in a manner reasonably believed by such indemnitee to be in or not opposed to the best interests of the joint venture; provided that the indemnitee’s conduct shall not have constituted gross negligence or willful or wanton misconduct.
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By Copyright Law
July 23rd, 2009 at 06:41am
Under intellectual property
An Intellectual Property Licensing Agreement is a written, legally binding contract effectuating an agreement between an owner of intellectual property (”Licensor”) and a party wishing to use that intellectual property for a particular purpose (”Licensee”). One who has a license to use another’s intellectual property does not own it, but merely has the right to use it. Therefore, certain elements must be addressed in any comprehensive Intellectual Property Licensing Agreement. The following are the most important areas to address:
1. Scope of the License: The first thing a license agreement should do is to clearly define the scope of the license. By licensing a product, you are assigning a limited right to use that property, so you must be sure to retain the ultimate ownership rights. At the same time, you don’t want to be overreaching or too limiting so as to discourage potential customers from using the product.
2. Exclusive vs. Non-Exclusive. Except for custom-made products, a license agreement would typically be non-exclusive, meaning that the licensor can sell the same rights to other users. However, this wouldn’t necessarily allow the licensee to reproduce or pirate the product and sell it to third parties. Sometimes, licenses allow reproduction within a controlled environment such as with enterprise licenses or network licenses. In other cases, a licensor may allow for a resale license, with a royalty being paid to the licensor.
3. Revenue Streams. Next in importance are provisions controlling revenue streams generated by licensed products. With most license agreements on end user software for consumers, for example, a one-time license fee is usually paid when the software is purchased. Other arrangements may include recurring payments such as royalties or monthly lease payments. License agreements may also cover maintenance charges such as ongoing maintenance. Other topics to cover include:
4. Term and Termination. The length of the agreement should be designated. The parties must also agree whether or not the agreement will terminate upon a change of control of licensor or licensee. If a change of control will affect the agreement, it must be defined specifically. In addition, this provision should state whether or not the agreement may be terminated by either party for breach, and if so how.
5. Prohibited Uses. The licensor may wish to prohibit the licensee from using their intellectual property in certain ways that could embarrass or otherwise devalue the property. The licensor will want to include these provisions here.
6. Rights to Transfer and Sublicense. The licensor may or may not wish to grant the licensee the right to transfer or sublicense the property at issue. The licensor may want the right to approve or reject potential sub-licensees, or prevent sublicenses all together.
These are the most important areas an Intellectual Property License Agreement must address. Further provisions covering the rights to source code (if software is involved), acceptance, testing and training procedures, warranties, limitations on the licensor’s liability, support and maintenance services, nondisclosure of confidential information, indemnity for infringement, enforcement of remedies, and terminating the contract should also be included.
By Copyright Law
July 22nd, 2009 at 12:41pm
Under intellectual property
An Intellectual Property Assignment Agreement is a written and enforceable contract effectuating an assignment of intellectual property rights from an “Assignor”, the owner of the rights, to an “Assignee”, the purchaser of the rights, in exchange for valuable consideration.
Unlike an Intellectual Property License Agreement, which provides the licensee a right to use, but not to own, certain intellectual property rights, an assignment agreement involves a complete and exclusive sale of the rights, thus giving the assignee complete ownership to exploit the intellectual property rights in whatever way, shape, or form it likes, subject to any limitations listed in the agreement. Usually the assignee will pay the assignor cash or stock consideration in exchange for these rights.
This article will take a look at a traditional IP Assignment Agreement between two companies. In our hypothetical agreement, the assignee is making to the assignor a combination of both stock and cash payments, the details of which will be addressed in the agreement, along with details regarding the transfer of the intellectual property rights, and any other material information in respect to the transactions. The seller of the IP rights is referred to as “Assignor”, while the purchaser is referred to as “Issuer.”
The first section the agreement should provide Definitions of the key terms used in the agreement. Terms that can have more than one meaning, such as “assets”, “business”, “closing”, and of course “intellectual property” should be defined. Next the agreement should address the Issuance of Shares and Transfer of Intellectual Property. The agreement might state that as of the Closing, the Issuer shall sell, assign, transfer, convey and delivery to Assignor the “Assignor Shares and Warrant”, which will be described herein.
In return, the Assignor shall sell, assign, transfer, convey and deliver to Issuer all of Assignor’s right, title, and interest in and to Assignor IP rights as defined herein. Then, both the stock to be awarded and the Intellectual Property rights to be transferred should be described in detail. The timing of the payments, be it at the time of closing or at some point thereafter, should also be addressed.
The next paragraph addresses the details of the Closing, such as the location, date, and what each party shall deliver. The deliverables usually include the shares, copyright, trademark, and/or patent certificates, transfer agreement for each, and the IP assignment agreement, and any accompanying agreements.
The next paragraph deals with Representations and Warranties, where both parties must warrant that they own that which they purport to transfer to the other party (the stocks and the IP rights), and they are authorized and have the requisite corporate power to execute the transaction documents.
Both parties should also warrant that the execution of the agreement will not conflict with any federal, state or local laws, the bylaws of their respective corporation, another agreement, and so on. The parties must lastly promise that the assets to be transferred are own free and clear of any encumbrances, unless provided, and that there are no undisclosed liabilities that could have a material adverse effect on the transaction.
Lastly, the agreement should address general matters in respect to the transaction. The parties should agree that the agreement sets forth the entire understanding of the parties and supersedes all prior agreements; that any amendments must be in writing and signed by both parties; that the agreement shall be binding upon each party’s heirs, legal representatives, successors, and permitted assigns; and that no party may assign the agreement without the other party’s prior written consent.
The parties may also want to include a provision recognizing that in these types of arrangements, damages may not be a sufficient remedy in the case of breach, and that the remedies of specific performance orders, restraining orders, and injunctions shall be permitted. Finally, the agreement should also address which law will govern the interpretation of the agreement, whether the agreement may be executed in two or more counterparts, and whether the provisions of the agreement are severable.
These are the key aspects of an Intellectual Property Assignment Agreement. Drafters should be sure to consult Federal intellectual property laws before drafting this type of agreement, and should make sure the parties have a clear understanding of their arrangement. To read and/or download actual Intellectual Property Assignment Agreements, please check out the Agreements section of this website.
Mark Warner is an
Intellectual Property Assignment Agreement Research Analyst for RealDealDocs.com. RealDealDocs gives you insider access to millions of
legal documents online drafted by the top law firms in the US that you can download, edit and print. Search For Free at RealDealDocs.com.
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By Copyright Law
July 21st, 2009 at 12:46am
Under trademark law
Properly thought out and managed trademark license arrangements can be win-win opportunities for all parties, including the public. The document that goes a long way toward realizing this opportunity is the trademark license agreement. This agreement is a written contract in which the holder of a trademark (licensor) grants the revocable right to a second party (licensee) to use the holder’s trademark in exchange for royalty fees. Without the license, the licensee could not legally use the trademark.
Trademarks are a type of intellectual property. Trademarks are distinctive signs or indicators-usually phrases, logos, slogans, designs, images, or combinations thereof-that identify a specific company or organization to the public. Protected marks are accompanied by the superscript “TM” for trademark, “SM” for service mark, or the encircled “R.” They are similar to copyrights and patents but also have distinct differences. One of them is the protection they receive. Copyright protection spans the length of the author’s lifetime plus another 70 years; however, trademark protection is usually only five years, and it must be attentively guarded.
Similarly, trademark license agreements are also of limited duration. While a trademark owner may license the mark, knowing full well that the ownership does not pass to the licensee, the owner may also go one step further and sell the mark to a buyer. A sale, however, must include the underlying goodwill or assets that make the mark what it is. Without such goodwill or assets, courts have determined that such a sale is a fraud on the public, similar to selling a brand new car that lacks an engine.
Trademark license agreements should contain a handful of essential clauses for everyone’s protection, including the public. First, the trademark must remain somewhat exclusive. A licensor would be foolish to dilute the mark by licensing it to every maker of ball caps in the market. Such a scenario might seem like a bonanza for the licensor, but it would soon become absurd as trademarked caps flooded the market. Second, the licensor must make certain that the licensee adheres to the licensor’s preexisting quality control standards. To license the mark and then to discover that it is to be placed on substandard licensee products would be disastrous for all parties. Next, it is up to the licensor to provide examples of the mark, in various media forms if need be. If the licensor leaves it to the licensee to try to copy the mark as best it can, then surely trouble will result. Instead, the licensor should provide exemplars and hold the licensee to them-no slight modifications of font or color or spacing; no additions of phrases or images; nothing to alter the mark in public’s eye.
Fourth, the licensor must have veto power over the use-not merely the design-of the trademark. The licensee should not be permitted to use the mark in connection with the licensee’s political or philanthropic causes (even if they are good causes), if the agreement was for use of the mark only on the licensee’s ball caps. If the licensor does not want the mark used with political or religious organizations, or hawked to promote alcohol, the agreement must give the licensor this veto power. Lastly, the license agreement must tie these protections together under a monitoring and inspection provision. Here, the licensor can pre-approve licensee samples, so that problems do not arise later. Monitoring may seem like a luxury, but it is a necessity, for a licensor that does not monitor the quality of its products and does not safeguard its mark can be deemed to have abandoned the mark-akin to commercial suicide for many companies.
While these provisions might seem to protect only the licensor, in reality, they protect everyone. For a diluted or abandoned trademark hurts the licensor, the licensee, and even consumers.
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By Copyright Law
July 16th, 2009 at 12:41am
Under intellectual property
An Intellectual Property Agreement (”IP Agreement”), also called an Intellectual Property Transfer Agreement or Intellectual Property Assignment Agreement, consummates and formalizes an agreement between two companies for the purchase and sale of intellectual property rights. The Intellectual Property being purchased can consist of copyrights, trademarks, moral rights, and/or patents. (Moral rights are recognized in Europe, but not the United States. Thus, a transfer of moral rights would only be applicable in an international agreement.) As opposed to an IP License Agreement, the purchaser or assignee in an IP Transfer Agreement takes total and exclusive ownership and control of the IP rights, and is free to use those rights however he or she wishes.
When drafting an IP Agreement, be sure to consider including the following provisions:
1. Assignment and Waiver of Moral Rights. Moral rights, recognized in Europe but not the U.S., involve general rights in respect to the intellectual property. In this provisions, the assignor must irrevocably and in perpetuity waive, in favor of Assignee, all moral rights in and to the transferred intellectual property, including the following:
* a. The right to restrain or claim damages for any distortion, mutilation, or other modification of the transferred IP;
* b. The right to be associate with the transferred IP; and
* c. The right to restrain use or reproduction of the transferred IP
* d. This waiver shall be binding upon the heirs, executors, employees, directors and all successors involved in the creation of the IP.
2. Representations and Warranties. It is important to include a representations and warranties paragraph in the agreement where the assignor promises that it has the full authority to assign the transferred intellectual property, free and clear of any material encumbrances, liens, or claims against the property. The assignor must also promise that it has the full authority to waive all moral rights.
3. Non-disclosure. The assignor should promise, for itself, its officers, directors, shareholders, etc., that it agrees that, except with the assignee’s express prior written consent, that it will not disseminate, disclose, or use, or permit to be used, any of the transferred intellectual property, since upon execution of the agreement the IP is property of the assignee.
4. Damages Inadequate. The assignee may want to include a provision whereby the assignee must concede that damages at law by itself may not be an adequate remedy for a breach of the agreement. In the event of a breach, the assignee’s rights may be enforceable by specific performance, injunction, or other equitable remedy, as opposed to remedies at law.
5. Assignment of the Agreement. The assignee may wish to require their prior written consent before the assignor is allowed to assign the agreement to a third party.
6. Governing Law. The parties should agree which state will govern the agreement, and if they desire, could include a binding arbitration provision in an effort to seek a speedy resolution to any dispute.
These are the key provisions that must be included in an Intellectual Property Agreement. To read and download actual IP agreements, please visit the agreement section of this website.
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By Copyright Law
July 11th, 2009 at 12:42pm
Under intellectual property
An Intellectual Property Assignment and License Agreement is a unique agreement whereby one party, the assignor, transfers to another party, the assignee, rights to their intellectual property, be it in a copyright, trademark, or patent, in exchange for valuable consideration, and in exchange for the assignee assigning back to the assignor a license to use the intellectual property. Thus, in such an arrangement, ownership to the intellectual property rights has been transferred, but the assigning party is still able to use the copyright, trademark, or patent, subject to the terms and conditions of the agreement. Unless stated otherwise, the rights, for the duration of the license at least, are thus non-exclusive, as both parties have the right to use property.
Because the arrangement is so unique, a drafter of an IP Assignment and License Agreement must be sure to carefully state the rights and obligations of each party. The following are the most important areas to address:
1. Assignment. The agreement must first address the parameters of the assignment. This generally involves a full and irrevocable transfer, assign, conveying, and delivering of all proprietary ownership and all other right, title, and interest in and to the property. The assignee should also require further assurances that the assignor will execute all documents and do all other things deemed necessary to perfect, establish, protect, prosecute, defend, and enforce assignee’s right to the property, which could include things like filing certain documents with the Federal Government.
2. Compensation. This section must address what the assignee is giving up in exchange for the intellectual property rights. It could be a cash payment, a stock payment, a mixture of both, or some other form of payment altogether. If it is an agreement with a subsidiary company, there may not be any consideration at all. Generally though, the purchase price is substantial for valuable intellectual property rights, as it is not unusual to see hundreds of thousands, if not millions, shares of stock in play.
3. Rights. The actual rights being assigned by Assignor to Assignee must be described here. Intellectual Property rights fall into the categories of copyrights, trademarks, or patents. Many times a company will have a trademark to a name and as well as a patent to that service.
4. License to Assignor. Here the terms of the “license back” to the Assignor should be addressed. For example, this paragraph could state: “In further consideration for the assignment, the assignee will grant to Assignor a worldwide, exclusive, royalty-free right and license for the purposes of making, using, selling, offering for sale, and importing products.” The key is to outline the scope of the license, whether it is exclusive or non-exclusive, what territory it covers, and whether there are any limitations on the Assignor’s right to use the intellectual property. The agreement must also state the term, i.e. length, of the license.
5. General Provisions. The agreement should address the rules governing the Assignor/Licensee’s right to sublicense the property or obligation to refrain from sublicensing the property. The agreement should also address issues such as assignment, waiver, and governing law.
These are the most important provisions involved in an Intellectual Property Assignment and License Agreement. For further information, or to read and download actual Intellectual Property Agreements, please see the Agreements section of this website.
By Copyright Law
July 10th, 2009 at 04:27am
Under website copyright
If I copy somebody’s template exactly (without permission), then go back and modify all of the colors, as well as even modifying names of html classes within the html itself, then I put my own content into it – is that copyright violation?
In fact, is copying pure html (not content) even a violation of copyright? If it was, pretty much every website online has been a copy of something else, just with different content.
By Copyright Law Enquirer