"There are certain things we need to get down way before we get to the point of drafting agreements or changing agreements." This is how I ended my video, Prerequisites for Technology & IP Contracts.
Imagine you run a company named Offline Pty Ltd. Its revenue is declining. It wants to spend its savings to launch a parallel business to be named Webco Pty Ltd.
This web business case study illustrates the required preparatory work for taking a business online.
Assume Online Pty Ltd is willing to spend say $20,000 to get a smart website with many trimmings.
Apple has become a lead innovator in shaping the competitive landscape for mobile devices and apps. This is an outcome of its integrated business strategy, hardware, software and user interface initiatives.
These are evident in the launch of iTunes and iPods in 2001, iPhone in 2007 and the iPad in 2010. Each blind-sided old and new competitors and indeed their industries. Strategy is also evident in Apple’s decision, during R&D on touchscreens, to prioritise going to market first with iPhone over iPad due to seeing a clearer "go to market" strategy, to quote Steve Jobs.
I've found as a lawyer that I use historical analysis to understand and advise on proposed client deals and decisions.
Like business law, history involves gathering evidence principally documentation, putting it into order usually chronological, and letting examination produce results.
In business law this approach helps study proposed business and legal relationships. In history relationships can be between ideas, actors, forces and responses. In business law they involve entities, rights, obligations, and prohibitions. Same, same but different.
I read a lot of law and a lot of history, they inform each other. One of my favourite sources is the Conversations with History series on YouTube from the University of California, Berkley. It has a great format, a scholarly interview for an hour or more usually with a historian who has written a recent book.
A terminology issue exists in a contract if key terms are not defined or are poorly defined. Terminology issues are commonplace in technology and intellectual property (IP) agreements. To be meaningful these types of agreements require good situation-specific definitions.
This Mumbrella video on YouTube (http://www.youtube.com/user/TheMumboReport#p/u/7/TD153sb6SVg) illustrates that the practice of imitating popular supermarket products is rife at Coles. Coles no doubt checks the legality of each of its imitations.
Here's a few suggestions on how manufacturers and product originators can improve their legal protection. Each involves being a futurist in use of intellectual property law. Each involves the principle that it's better to design your IP than IP your design.
To prepare a letter of demand to protect a name you have two main tasks. Assume you claim ownership to the name and today discover a competitor using an identical or similar name. It might be for a similar business or for comparable products or services.
Task 1: First, gather facts by listing registrations you have for any relevant trade marks, company names, domain names or business names. You're sure to have some evidence here, maybe even if it is a product name or brand.
Task 2: Next, gather facts by listing your evidence of use of the name or brand in the course of trade. This task is difficult for many businesses.
One is for an established wealth management consultancy. Another for a supplier of hosted customised software.
Both require us to design and test like an engineer designing a car of the future.
The relatively easy bit is drafting legal wording for compliance with law and making legally effective agreements.
The hard bit is finessing and designing when and how each client will deal with its business tasks. That's the work that minimise the most risks. They are the client's practical tasks of writing business proposals, project plans, scope of work or specifications, and setting price expectations.
A prospective client this week sought to register a name as a business name or company name. He did his own online name availability search... or so he thought.
On seeing an identical name on a business name register in another state he wondered if he should still proceed with the target name. It was still available as a domain name and trade mark... or so he thought.
I wrote on this topic in What trade mark professionals do. Today I had to be blunt. Here's what I wrote.
1. Do people love work at your place?
2. Do people at your place feel their careers and the business is developing?
3. Are they trained to take both to the next level?
4. Are the paths for that clear to all?
5. Do the employment contracts align with those paths?
6. Is there credible evidence for your answers to these questions?
These question are focused on people. My personal experience points to people as the top priority. As further evidence let's see what two great inventors working with teams have said.
We've all learned a lot from Steve Jobs (1955-2011).
He's inspired a great deal of thought and writing on this Lightbulb law blog.
In memory of his unforgettable life and work, below is a list of my articles about him or shaped around his work.
He won't stop inspiring. Great people never do. Each time I look up at the clouds, he'll be beaming down.