Spross & Associates, PLLC

Use of Images

So you found an image on some website that you want to use.  It’s just a little image and you only want to use it once so you copy it.  If you do not have a license, you may have committed copyright infringement.  I am not going to go into all of the details of copyright infringement, but suffice it to say if you wanting to use the image in a commercial manner and you do not have a license, don’t use it.

 

Image owners have a right to enforce an unauthorized use of their copyright and the potential damages can be huge.  Getty Images is one company that is particularly active in enforcement of their copyright and they own millions of images that are used throughout all kinds of media.  The costs for a license can be relatively small; however, once you have used infringed someone’s copyright, all of a sudden the copyright owner can make larger demands.

 

So, take away that right click or ctrl c on the image and only use materials that you own or are properly licensed.  By the way, that ctrl c can be a problem with content too.  Also remember that the copyrighted material does not have to be marked.  It remains subject to copyright regardless of marking.

 

Ownership Assignment in NDAs

Here is another reason to have your attorney read your NDAs.  I have seen companies try to throw ownership assignment provisions in their NDA.  This is not the standard provision that says the disclosing party owns what they disclose, but a full blown assignment of new materials created.  This is a problem if you are a consulting organization and are in the sales dance with a potential customer.  These NDAs provide assignment of those initial items you create without a written contractual obligation for you to get paid.  That does not put the consulting organization in a very good negotiating position down the road.

 

So make sure you read these NDAs, even if the other party tells you, “It is standard, everyone signs it,” especially if that is their response.

 

If you Sign It, an Attorney Should Read It

It is time for my post on having at attorney read everything you sign.  It can be as innocuous as a Nondisclosure Agreement or a Rental Space Agreement for a hotel conference.  I cannot tell you how many times clients and friends have come to me AFTER signing something saying, “How do I get out of this?”  At that point it is usually to late. 

 

Always keep in mind, a template agreement protects the drafter’s party, not you.  We attorneys even add provisions that say things like, “You agree you have had an attorney review this” or “This Agreement will not be construed against the drafter” to prove that you read it.  And yes, attorney’s throw in provisions that are very one-sided.

 

And by the way, clicking “I Accept” counts as signing.  So do yourself a favor and always remember, if you sign it, have an attorney read it.

 

QRANK - Ricochet Labs

Check out this great article about one of my clients, Ricochet Labs, and their QRANK application.  Congratulations to the entire team on all of the hard work.

If you want to play QRANK click here.

Trademarks - Classes and Specimens

The United States trademark office groups all trademarks into "buckets" that they call classes or classifications.  All classes are identified by a number which is determined by the trademark office in accordance with international treaties.  With most of our clients, we use (i) class 9 which includes, among other things, software; and (ii) class 42 which is used to classify, among other things, web services.

Once the class(es) are identified, a description of the goods and/or services that a trademark represents is drafted.  This is why when we are filing trademark applications, we ask for a 2-3 sentence description of what your mark stands for.  Using what is provided a description for what your mark represents is created.

After we have identified class(es) and goods/services description(s), we must receive proof of use.  This proof of use is referred to as a specimen.  A specimen must show use of the mark for each class that is filed.  For instance, a valid specimen in class 9 shows the mark actually being used on the software.  Just talking about the functionality of the software on a website will not work for class 9.  A valid specimen in class 42 is something that describes the services that are being provide, such as a website or a marketing slick.

The first use date is tied to which class(es) are filed .  This is the reason we cannot use the date of formation of a company.  The first use date has to be the date on which you started using the mark in commerce *and* in the class or classes that you file in.

Brian Spross & Tina Erales

Double Negatives in Contracts

I realized today that I have a pet peeve in contracts related to double negatives.  Legal agreements are already hard to understand and seldom in plain English.  It makes it even worse when there are double negatives in the middle of a run on sentence.  For instance I just read this, "the website is not unsuitable".  How about, "the website is suitable"?

I would love to see attorneys go with more plain language.

Great Startup Lawyers

I really like these guys' list of great startup lawyers, especially the Austin one!  Giff Constable also posts some very important things to consider when thinking about the type of lawyer to work with.

I am also a fan of this article title "How to Work with Lawyers at a Startup."  When thinking about how to meet and work with your attorney, this article gives some very good advice.

Blog Post Legal Topics

I am looking for topics that people want to hear about.  If you have any thoughts on small quick hit topics that you would like to know more about, let me know and I'll see what I can do.

Contract Rescission

Does anyone remember the traveling door to door salesmen of the 1940s and 1950s?  I don’t, but I’ve read about them.  To counter the forceful selling pressure of someone at your door, many states enacted cooling off statutes that were designed to allow someone to rescind a contract within 72 hours of “buying”.  Interestingly, I have now run across people attempting to use this tactic to rescind commercial contracts between two business entities.  It is not a valid tactic in my opinion and as a business, you are within your right to uphold the contract and not allow the rescission.  I do not think courts have taken up the issue, but I certainly do not think a court will allow rescission between two commercial entities because the sale was over the internet and did not take place “at the seller’s place of business”.

Inc. 500

Congratulations to two of my clients, Adlucent and Headspring Systems for making the Inc. 500.  They are two of ten companies in Austin on the list.  These are both great companies and great to work with.  Keep up the amazing work!