Search

Search

Subject

Subject

Why are contracts relevant to my business?

Every business executes transactions with other parties many of which constitute legally binding contracts.  Written contracts provide evidence of each party’s rights and responsibilities.  When transactions involve the acquisition or the exploitation of an intellectual property, written contracts are critically important to define the intellectual property rights involved and whether those rights are being sold or licensed, and, if licensed, whether the rights are exclusive or non-exclusive, the territorial limitations of use, if any, the duration and many other terms.

How are contracts formed?

Contracts can be formed in a variety of ways depending on the facts and circumstances.  They can be formed by oral agreement, commencing performance, written agreement, and electronically via a manifestation of assent.  The sequence of events leading to the formation of a contract generally includes an offer, an acceptance of the offer, an exchange of consideration or something of value between the parties, and a lawful purpose.

When should I use a written contract?

Generally, a written contract is preferred over an oral contract because all parties have something to refer to that defines the scope and nature of their rights and responsibilities. However, a written contract is not always necessary for a contract to be legally enforceable.

What happens if I do not have a written contract?

What happens will in large part depend on the facts and circumstances of your specific situation. What can happen is that a court may not recognize your agreement as being an enforceable contract. If you do not have your agreement in writing, then you will have to rely on corroborating evidence to prove that you have a contract.  Another possibility is that you may not obtain all the benefits of your bargain.  In other words, the terms of your agreement may not be clear enough to be enforceable.  Or, you may find that your memory differs from the other party’s when it comes to crucial points of your agreement.

Is it okay to use a standard form contract?

The first thing to keep in mind about a “standard form” is that it represents the author’s perspective of how a transaction should occur.  For example, a “standard form” publishing agreement could be prepared by an author’s agent or by a publishing company.  In either case the resulting “form” will likely include provisions that are favorable to the party drafting the form.  You should never assume that a “standard form” will only contain provisions that are favorable to your side of the transaction.  Always read the entire “standard form” and make your own judgment based on your own objectives and legal risk tolerances.  It is always wise to consult with a competent attorney.

There are also pluses and minuses to using a standard form contract for multiple independent transactions.  On the plus side, using a standard form is quicker and tends to make your transactions more uniform.  If your transactions tend to not be negotiated much by the other side, then this route may work well in your situation.  However, the more flexibility you may need to close your transactions, the more difficult it may be to use a standard form contract.  You should always keep in mind that, even though most of your transactions may occur in a relatively standardized way and under relatively standardized terms and conditions, you never know when the other side may try to negotiate changes.

What is a trademark?

A trademark is any word, name, symbol, or device, or any combination of these, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In other words, a trademark is what is commonly referred to as a brand name.

What is a service mark?

A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.

How does a mark help my business?

A mark is most commonly used by businesses that manufacture and sell products or provide services. In this context, a mark represents your company’s standard of quality and care, whether it is manufacturing a product or providing a service. When you consistently produce and offer for sale products that are of high quality, your customers will associate that high quality product with your trademark. If you extend your product line under the same trademark, generally customers will associate the same level of quality with the new product. In addition, a unique trademark is generally easier to remember and helps your customers distinguish your products from those of your competitors.

Trademark News Blog

VIEW ALL POSTS

When do employers own the IP derived from an employee’s work?

Employee Preston accepted employment at Marathon Oil Company under a written contract with an express “at-will” term of employment. After Preston began employment, Marathon asked Preston to sign a separate written employment agreement that, among other things, assigned to Marathon all “Intellectual Property” defined in...

Read more

Maryland long-arm snags California company on copyright infringement claim

American Home Realty Network (“AHRN”), based in California, operates a website that displays photos of residential home for sale and that facilitates real estate agent referrals and home sales. Metropolitan Regional Information Systems (“MRIS”), based in Maryland. MRIS facilitates real estate transactions in the mid-Atlantic...

Read more