Trademarks are important in marketing your business. A successful trademark allows consumers to instantly recognize your company and your products when they see the mark. This allows you to build up goodwill with the public for your goods or services.
It is crucial that you protect your mark by registering it. This should be done early on and definitely before you have started in marketing of your product. Successfully registering your trademark will keep others from using it, preventing confusion in the marketplace.
Generally, all that is required to form a binding contract is an offer and an acceptance, with the passing of consideration on both sides. Consideration simply means the exchange of value. Generally, the relative value of consideration on both sides makes makes no difference as to whether a contract is formed.
While it generally makes no difference in the formation of a contract what the relative values of the consideration passing are, relief is sometimes available in extreme circumstances. Under the doctrine of unconscionability, a contract, or portions of a contract, may not be enforceable if excessively unfair to one party. Generally, the imbalance in consideration is not enough alone to make a contract unenforceable. A court will usually also need to find that one of the parties had superior bargaining power overwhelmingly in its favor so as to be able to virtually dictate the terms of the agreement. Such contracts are often called adhesion contracts.
Contracts may be written or oral. All that is generally required is an offer and an acceptance, with the passing of consideration on both sides. In general, as long as the terms of the contract can be satisfactorily determined, such as through convincing testimony, an oral contract is just as enforceable as a written contract.
There are many exceptions to this rule. When contracts cover certain subject matter, such as real estate transfers, or are for certain periods of time, such as a contract that cannot be performed within a year, laws often require such contracts to be in writing. Such a requirement is commonly referred to as a statute of frauds.
An important factor in determining the cost of a contract is its negotiating and drafting structure. Drafting and negotiating structure means knowing between the attorney and client exactly who does the negotiating and who does the drafting and setting up a communication system to match. There are several variations, all with advantages and disadvantages. Decisions on who is doing the negotiating and who is doing the drafting should be made early on. Regardless, successful contract negotiation and drafting relies on effective communication with your attorney throughout the process.
First, a client can decide on the most critical deal points and pass that information on to their attorney, and then have the attorney both negotiate and draft the entire deal. In this model, your attorney negotiates directly with the other side, or with their attorneys. Your attorney comes back to you when new or unexpected issues are raised. With a trusted attorney, this method can be efficient and effective.
Second, the business representatives of the parties can negotiate the deal points and then pass those points to the attorneys for contract drafting. This method may require going back into negotiations if the attorneys find additional legal issues that need to be addressed, so it is important to discuss and plan the negotiations with your attorney before starting. This method works well if the business persons carefully and thoroughly negotiate the deal and communicate effectively and frequently with their lawyers behind the scenes before, during, and after the negotiations.
Third, the business persons can negotiate directly and leave important parts of the deal undetermined. This is a mistake that leads to substantially increased costs when your attorney is then forced to fill in the gaps with guesses or by using boilerplate provisions. The parties then need to exchange many iterative revisions of the draft contract until the deal points are finally fleshed out. This leads to substantial increases in legal costs as the documents are reviewed and revised again and again.
In conclusion, the key to efficient and effective contract negotiation and drafting is to sit down with your attorney to carefully plan in advance. Then, throughout the negotiations, you and your attorney must communicate effectively and thoroughly until all deal points have been determined. Only then should the drafting process begin, hopefully only leaving fine-tuning to fill in minor gaps during the final drafting process.
You can protect intellectual property in multiple ways. The methods of protection include patents, copyrights, trade secrets, and trademarks.
Patent law protects the first person to conceive a novel and non-obvious invention, as long as they timely file for and obtain a patent. Others are prohibited from making, using, selling, or importing the inventions without the inventor's permission.
Copyright law protects a creator's original works from reproduction without the author's consent, and also protects against the creation of derivative works without consent.
Trade secret law protects confidential information from improper misappropriations as long as the owner takes reasonable efforts to keep the information secret.
Trademark law protects the use of unique words or symbols to identify a source of goods in commerce. Trademarks allow brand recognition and allow a company to build up customer goodwill in association with the use of the trademark.