"What product exclusivity am I getting?" This is a common first question asked by prospective distributors considering a draft distribution agreement.It's usually followed with a money question such as: "How much do I have to pay the supplier or manufacturer?"
Let's consider these questions and techniques for assessment of distribution proposals and draft distribution agreements. The aim is to design realistic, workable and practical arrangements between manufacturers, suppliers and distributors.
The starting point is to recognise that these exclusivity and money questions are often based on assumptions due to what we'll call a 2D view of distribution arrangements. Having drafted or reviewed over 350 distribution agreements, I see them in 3D.
Over recent months that's the learning from our client work as well as from external developments in intellectual property ("IP") law in Australia and abroad.
This article is an update on those external developments, answering these five questions:
We are seeing a growing trend among our software developer clients. They are entrepreneurial business of all sizes. They’re run by smart people who know only too well that the value in what they offer is often not found in "out of the box" software or stand-alone products. They realise customers are busy people who value software that serves niche needs and is efficient, reliable, up-to-date and easily maintained.
These software developers and their customers are realising that the best way to provide this is to keep the software developer in the loop.
The rationale for intellectual property law has changed over time. The topic became highly politicised a decade or two ago with rarely unconfused debate.
A client asked today if he could reproduce logos of big companies without permission onto a brochure which he'd designed to promote his new marketing services business.His intention was to make the brochure more attractive. He wanted to illustrate results he could deliver and make the brochure a more convincing marketing tool. The brochure promotes his services as a marketer for businesses wanting to build their brand.
It's a simple question. I'll try to keep the answer simple too, and short.
"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.