Canadian Small Business Women

Connection, Synergy, Community

Sound Practices – Music and Your Online Presence

A number of months ago an article I wrote was posted on the CSBW blog, entitled Just ASK – Making Photo-Legal Groundwork Add Up. Today, I am going to address the use of music in your online content, e.g. in blogs and podcasts. While this post is focused on the copyright and related proprietary rights in musical works, there are other potential copyright and intellectual property issues that can affect what you do online, when you consider the sources of content used, how you adapt content and whether or not you are interviewing or using the image of other people in your podcast. If you need help applying sound legal practices in this area, get in touch with an intellectual property lawyer who can advise you on your specific circumstances.

It Takes a Village to Make Music

Unlike photographs which are generally the result of one person’s creative efforts, the music we listen to is the culmination of a number of creative contributions recognized under copyright laws.

There are composers (e.g. songwriters) for the lyrics and musical compositions; performers including singers and musicians, and sound recorders who produce what ends up being the final version of a musical work, ready for publication and distribution. Each of these contributors has certain rights in a musical piece, namely copyrights and related proprietary (‘neighboring’) rights.  Composers have legal interests in downstream efforts to perform, record and distribute their music. Performers and sound recorders have rights in the actual performances and recorded versions of musical works. Even when the copyrights in the composition of a musical piece have expired, new rights can persist and be created in new performances and recordings of the musical piece. Bottom line, there are typically a number of interests that have to be considered when selecting a musical piece to integrate into your online content.

The High Road – Music Licensing

One of the primary ways creative contributors and rights holders are compensated in connection with their copyrights and related proprietary interests, is with the payment of royalties under copyright license agreements. Unless you are confident that your use of a musical work falls within one of the exceptions to infringement prescribed under copyright laws, you need to familiarize yourself with the options available to get the license(s) you need. You can either go directly to the source (rights holder) or you can work with organizations established to issue licenses for the benefit of creative professionals and rights holders.

There are copyright licensing bodies which administer licenses, collect royalties (when applicable) and distribute proceeds to various stakeholders. This makes life easier for everyone. Creative professionals and businesses (e.g. publishers) have someone else monitoring the play time and distribution of musical works and someone else dealing with transactional processes which take away from creating new music. Users of works (businesses primarily) can go to one or two organizations to get the permissions needed to legally copy and play a tune. These organizations may also take care of the onerous task of connecting with their counterparts in other countries to coordinate efforts since similar copyright regimes operate in basically all countries around the world.

In Canada, there are several licensing bodies for musical works, but two that you will come across often are SOCAN and Re:Sound. Announced recently is a collaborative project by these two organizations to offer a joint portal for users to further streamline the licensing process (http://www.socan.ca/news/socan-and-resound-working-together-make-licensing-process-easier).

Alternatively, you could seek to select a musical piece that has been tagged with a Creative Commons license (https://creativecommons.org/about/program-areas/arts-culture/arts-culture-resources/legalmusicforvideos/). So long as you the follow the terms of the license, you can have some piece of mind that your use of a musical piece is legally approved, without having to pay royalties.

When the commercial exploitation of a particular musical piece is not within the authority of a licensing body to manage, or not otherwise pre-approved (licensed) for certain kinds of uses, you still have to get permission. It can be a long and winding road to track down rights holders, which may include authors, performers, and their estates, or employers and third party assignees. If you find this pursuit too cumbersome, there may be value in paying a modest fee to get the permissions you need and focus on creating engagement with your audience.

Remember, just ASK

In summary, if you want to legally use musical works as part of your online content:

Approach, get consent and acknowledge those who contributed to making the music you use.

Substitute with other musical pieces, if in doubt about using your first choice ‘tune’.

Know your options because today there are many, and there is really no reason you can’t be efficient finding the music you want without jeopardizing the integrity of your enterprise.

Ariadni Athanassiadis

Kyma Professional Corporation

T: 613-327-7245

E: ariadni@kymalaw.com

W: www.kymalaw.com

Intellectual Property Asset Audit – Make this Part your Business Planning for 2018?

I hope many of you had the opportunity to listen in on Sandra Dawes’ great sessions on planning for 2018 and are spending the time to set out and act on the plan you are developing using her fabulous workbook.  I know I am and in the process of doing so checked out the resources that the Canadian Intellectual Property Office (CIPO) provides for businesses to get a handle on the intellectual property (IP) they have and what they can do to formalize and leverage their IP rights.

So, to help you with your planning, you can add an IP audit of your business assets into the mix. Starting with the easy to read and use resources in the CIPO’s IP Toolbox (https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr04320.html) you can get a good initial grounding in IP and how to factor it into your business plans.

Take for example, the “IP Inventory Checklist” which lists a variety of types of business assets that you could have operating at the core of and for the benefit of your business (e.g. branding elements, customer lists, software applications) and the kind of IP rights to consider in relation to those assets. You can also refer to https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr04055.html for additional insights on the types of business assets that are commonly part of many enterprises and which can give rise to IP rights.

Once you have what you feel is a reasonably complete inventory, you can then check out the “Intellectual property in Canada” fact sheet which provides an indication of the nature of the IP rights that may apply to the business assets you identified in your inventory. To fully leverage the IP rights you have you can refer to the guide entitled, “Intellectual Property – It’s yours. Own it.” to learn more about how the process of creating business assets leads to IP creation and the steps you can take to identify and formalize your IP (e.g. register copyrights and trademarks). There are also individual, more detailed fact sheets to explain what the different forms of IP are and how they can be leveraged, namely for copyrights, industrial designs, patents, trade secrets and trademarks.

Finally, moving from the IP Basics tab on the CIPO’s IP Toolbox page you can access other tabs with information relating to IP when you export goods and services and other information resources.

If you are thinking, how you can identify all of the business assets to include in your inventory beyond what is exemplified in the IP Inventory Checklist, start by simply listing any products and/or services you have developed and sell, and the tools you use to help you sell and market what you sell. Copyrights, industrial design rights, trademarks and patent rights will be relevant to what you give the public access too (e.g. your products and services), while trade secret rights will apply to those assets (e.g. confidential information) that the public does not have access to, but that you leverage internally to support your business and gain a competitive advantage (e.g. to make your business more efficient, or develop new business lines and opportunities).

While conducting your audit consider setting up a spreadsheet to create your inventory and add in information to document details about what you have and the steps you take to formalize your IP and leverage it in B2B and B2C contexts. For example, include in your inventory when the business asset was created, by whom, under what written contract (if any) and whether you have a written assignment (transfer of ownership) from the creators of the assets and related IP rights to your business. Then include a column with information about steps you have taken or would like to take to formalize the IP rights in your assets.

If some of the business assets you have were licensed in, or obtained from third parties (e.g. stock images, products you sell), include the contracts in your inventory which give your enterprise the permissions to use, apply, distribute, lease, or sell those assets and identify the provisions in those agreements which specifically refer to the permissions you have to leverage third party IP rights and what you have to do in exchange to maintain those permissions. These contracts also represent a form of IP rights, which together with what you have invested in to create form the foundation of your business.

Obviously, the intention behind doing an IP audit and creating your inventory of assets is to use it, update it from time to time and determine how you want to invest in IP for your business. Once created, it is itself a business asset that should be maintained as a trade secret. You can use your inventory to make decisions by correlating the performance of your business to the assets and associated IP rights. If you choose to consult with an IP professional on the many ways you can make use your inventory, consider: i) consulting on what other information to include in your inventory, ii)  how to map out budgets to formalize key IP, iii) identify DIY steps you can take to protect and leverage your IP, and iv) milestones to be aware of so that you can be confident that you always have a full picture of all of the IP options and value available to support your business.

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Ariadni Athanassiadis

Kyma Professional Corporation

T: 613-327-7245

E: ariadni@kymalaw.com

W: www.kymalaw.com

Starting Local and Deciding Whether to Go Global – Three Trademark Related Questions to Ask

As I find myself in both familiar and foreign territory visiting family overseas I have been appreciating the differences in the entrepreneurial rhythm of a different culture and society. Small business tends to dominate the economic fabric of most societies and in many places growing a small business beyond the local area it initially is set up to serve is just not be part of the plan. When there is a clear vision to serve a local customer base, a small business may have different branding and trademark priorities than a business that has an eye on growth and expansion beyond its local presence.

To tease out some of these differences and navigate the implications for developing a trademark strategy let’s focus on three questions: “Can I”, “Should I” and/or “When should I” take steps to adopt and register a trademark.

Implicit in this bundle of questions is the presumption that at some point consideration should be given to registering trademark(s). There are a multitude of good reasons for registering a distinctive trademark in order to support the branding of a business, locally focused, or not. Unless a business operates using generic or descriptive terms to make itself and its offerings known in the marketplace, often the issue is a question of timing and the prioritization of resources, and not so much if it is worth doing in the first place.

Using the food and beverage industry as an example, consider a customer’s dining experience at a hip restaurant in the trendiest part of town. If positive, the customer knows the experience depends on the chef and ambiance created on site. The name of the restaurant is a marker of where to go to get the desired experience. This is in contrast to when a customer likes a food or beverage product that has been scaled for distribution through multiple outlets. In this case, the trademark associated with the product is the one thing that can inspire confidence in consumers that they are getting what they are looking for from a reliable originating source. In both cases, the initial key legal concern is to avoid infringing on the marks of other food/beverage enterprises. Conducting a clearance search to address the “Can I” adopt and register a trademark question is the first investment needed before moving on to the “Should I” question, and/or to the “When should I” question.

If the “Can I” question is answered in the positive, going to the appropriate next question requires a deeper inquiry about whether to remain a locally focussed small business. Basically, any time that a small business owner turns their mind to developing product lines, franchising opportunities, or selling the business, the option to register trademark(s) should be visited, or revisited, as the case may be.

The “Should I” question of whether or not to register a trademark comes into play if the reputation and good will of your business is likely to develop primarily from customers associating their experience with the people and/or location representing the business, rather than a product that is being sold. Other examples of such businesses may be service-based enterprises (e.g. individual coaches and wellness providers), intermediate (B2B) supply chain distributors, and common commodity retailers (e.g. local convenience stores). Customers are attracted based on what they know about the experience interacting with personnel and/or the experience they have by accessing the business site. In these situations, when the customer has or can have more direct contact with the business owner, taking the step to register a trademark may not be as crucial.

In any event, the “Should I” question answered in the negative need rarely be a final decision. Within certain limits, this decision can become a decision to put off registering a trademark as part of a “When should I” inquiry. If after a risk assessment, putting off the registration of a trademark is the sound business decision to make, the ever changing commercial landscape is reason enough to periodically revisit that decision.  This can be done by monitoring the commercial landscape (e.g. through online searches) and the activity at relevant Trademark Offices. This allows small business owners the opportunity to have notice of marks being adopted by others and of applications to register confusingly similar marks. With notice, a small business owner can then take the necessary action, with the support of an experienced trademark professional, to address competitive threats through trademark registration, negotiation, or otherwise.

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Ariadni Athanassiadis

Kyma Professional Corporation

T: 613-327-7245

E: ariadni@kymalaw.com

W: www.kymalaw.com

Starting Local and Deciding Whether to Go Global – Three Trademark Related Questions to Ask

As I find myself in both familiar and foreign territory visiting family overseas I have been appreciating the differences in the entrepreneurial rhythm of a different culture and society. Small business tends to dominate the economic fabric of most societies and in many places growing a small business beyond the local area it initially is set up to serve is just not be part of the plan. When there is a clear vision to serve a local customer base, a small business may have different branding and trademark priorities than a business that has an eye on growth and expansion beyond its local presence.

To tease out some of these differences and navigate the implications for developing a trademark strategy let’s focus on three questions: “Can I”, “Should I” and/or “When should I” take steps to adopt and register a trademark.

Implicit in this bundle of questions is the presumption that at some point consideration should be given to registering trademark(s). There are a multitude of good reasons for registering a distinctive trademark in order to support the branding of a business, locally focused, or not. Unless a business operates using generic or descriptive terms to make itself and its offerings known in the marketplace, often the issue is a question of timing and the prioritization of resources, and not so much if it is worth doing in the first place.

Using the food and beverage industry as an example, consider a customer’s dining experience at a hip restaurant in the trendiest part of town. If positive, the customer knows the experience depends on the chef and ambiance created on site. The name of the restaurant is a marker of where to go to get the desired experience. This is in contrast to when a customer likes a food or beverage product that has been scaled for distribution through multiple outlets. In this case, the trademark associated with the product is the one thing that can inspire confidence in consumers that they are getting what they are looking for from a reliable originating source. In both cases, the initial key legal concern is to avoid infringing on the marks of other food/beverage enterprises. Conducting a clearance search to address the “Can I” adopt and register a trademark question is the first investment needed before moving on to the “Should I” question, and/or to the “When should I” question.

If the “Can I” question is answered in the positive, going to the appropriate next question requires a deeper inquiry about whether to remain a locally focussed small business. Basically, any time that a small business owner turns their mind to developing product lines, franchising opportunities, or selling the business, the option to register trademark(s) should be visited, or revisited, as the case may be.

The “Should I” question of whether or not to register a trademark comes into play if the reputation and good will of your business is likely to develop primarily from customers associating their experience with the people and/or location representing the business, rather than a product that is being sold. Other examples of such businesses may be service-based enterprises (e.g. individual coaches and wellness providers), intermediate (B2B) supply chain distributors, and common commodity retailers (e.g. local convenience stores). Customers are attracted based on what they know about the experience interacting with personnel and/or the experience they have by accessing the business site. In these situations, when the customer has or can have more direct contact with the business owner, taking the step to register a trademark may not be as crucial.

In any event, the “Should I” question answered in the negative need rarely be a final decision. Within certain limits, this decision can become a decision to put off registering a trademark as part of a “When should I” inquiry. If after a risk assessment, putting off the registration of a trademark is the sound business decision to make, the ever changing commercial landscape is reason enough to periodically revisit that decision.  This can be done by monitoring the commercial landscape (e.g. through online searches) and the activity at relevant Trademark Offices. This allows small business owners the opportunity to have notice of marks being adopted by others and of applications to register confusingly similar marks. With notice, a small business owner can then take the necessary action, with the support of an experienced trademark professional, to address competitive threats through trademark registration, negotiation, or otherwise.

 

Ariadni Athanassiadis

Kyma Professional Corporation

T: 613-327-7245

E: ariadni@kymalaw.com

W: www.kymalaw.com

Confidentiality and Nondisclosure Fundamentals for Any Business – Part III

Delving into the fundamentals of confidentiality would not be complete without getting into why it matters to take steps to protect confidential information in the first place.  There is no better way to illustrate the “why” than by considering the kind of confidential information that businesses rely on to gain an edge or economic advantage in the marketplace, a.k.a, trade secrets.

Trade secrets represent defined subsets of an enterprise’s confidential information that derive their value, often increasingly so over time, by being kept secret.Identifying a trade secret can be tricky, but they are generally technologically based or the culmination of diligent efforts to collect and manage business intelligence and customer information. A hallmark of a trade secret is not being able to reverse engineer what it is by simply having access to a given product or service offering.

As noted, the value of a trade secret comes from being able to leverage the information while keeping it secret for as long as a business needs that to be the case, even if that means perpetually. To be legally recognized as a trade secret, the confidential information in question needs to be subjected to deliberate and considered measures of secrecy, for your business to benefit from the remedies available if the trade secret is stolen or disclosed without authorization.

For those of you who lived through the ‘80’s, remember the launch of the “New Coke”, the consumer backlash that followed and the return of the original recipe as “Coca-Cola Classic”? While most would agree the decision to change the recipe of the iconic soft drink was a mistake (http://www.cbsnews.com/news/30-years-ago-today-coca-cola-new-coke-failure/), one thing the company did do right was make sure it maintained the strict secrecy of the original recipe to be able to successfully re-introduce its distinctive product amidst fierce competition.

More contemporary examples of trade secrets exist everywhere in our digitized, big data and efficiency driven corporate and consumer world. The litigation between Uber and Google over driverless car technology is one of the more high profile trade secret cases in the news these days (http://www.reuters.com/article/us-alphabet-lawsuit-idUSKBN14A2BX).

Whether your trade secrets are technologically based, or the meticulous accumulation and processing of business intelligence and data, ultimately, the best way to maintain secrecy is to minimize and control access to the trade secrets, possibly going so far as to ensure no one individual has access to all of the key bits that together form the trade secret.  This not only entails using physical and electronic means for limiting access (e.g. encryption), but also ensuring that particular attention is given to trade secrets in the confidentiality provisions of your contracts when granting access to them. More often than not trade secret theft or loss happens at the hands of employees (or service providers). Ensuring individuals who work for (and cease to work for) the benefit of your business are frequently reminded of the obligations of confidence, protocols for handling, and restricted uses of trade secrets is critical to your business.

Not all losses of trade secret secrecy are necessarily intentionally driven. Often it is the leakage of bits and pieces over time from a simple lack of awareness that erode the value of a trade secret, particularly where that secret is based on a combination of information, parts of which may not in fact be confidential. Unlike a formula, software code or a process for making a product may include several steps that are quite standard in a given industry, but which, when carried out in a particular order, or with a novel twist can give rise to trade secret.

So, to summarize, trade secrets are almost always present in a business, merit a thoughtful approach to ensure their value can be fully realized, and, regrettably, are often underappreciated, or not even recognized until it is too late to put the genie back in the bottle. The take-aways here are:

i)audit and define the trade secrets developed and being leveraged by your business – if you don’t know what your trade secrets are, you won’t know how to protect them;

ii)design secrecy protocols properly tailored to manage and maintain trade secrets by applying a multi-prong approach to limit access and disclosure, including the use of carefully drafted agreements; and

iii)routinely monitor and update the strategies used to maintain and increase the value trade secrets bring to your business – maintaining awareness and adapting to support the significance of your trade secrets is the key to them working their magic for your business.

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Ariadni Athanassiadis

Kyma Professional Corporation

T: 613-327-7245

E: ariadni@kymalaw.com

W: www.kymalaw.com

Confidentiality and Nondisclosure Fundamentals for Any Business – Part II

 

While all non-disclosure agreements (NDAs) cover certain fundamentals, the way these fundamentals are covered will vary. To illustrate this, let’s compare how some core provisions of a non-disclosure agreement might be structured in a few commonly encountered business contexts, namely working with service providers and pitching to investors.

Service Providers are bringing their skill, expertise and resources to the table to work for your business. Like employees, they will generally need to have access to your confidential information to bring about a result or generate a work product. They may bring their own confidential information into the mix, and will almost always generate new confidential information in the course of delivering services to you. They know they need to agree to preserve confidential information relevant to your business in order to gain your trust, and that if they don’t abide by those obligations their professional reputation, and therefore future business prospects are at stake.

Given the foregoing context, the provisions of an NDA for a service provider often take on the format of a one-way NDA where the emphasis isprotecting the interests of the business owner. In this kind of NDA, the provisions relating to the ownership of confidential information and intellectual property, and the management of confidential information will be fairly detailed. Especially if the service provider has been hired to contribute to the development of a technical solution for a business or product, the NDA should include provisions which obligate the service provider to:

 

  1. Disclose in detail all relevant new (confidential) information;
  2. Assign the rights to the new (confidential) information, work products and related proprietary rights to the business owner (without giving away rights which the service provider owned coming into the relationship);
  3. Execute further documentation to confirm the assignment of rights in ‘2’ and support the potential future enforcement of those rights against third parties, if necessary, at the business owner’s expense;
  4. Unless related to the purpose of the service provider’s engagement, refrain from copying, distributing and reverse engineering confidential information without the permission of the business owner; and
  5. Provide a declaration that all confidential information in its possession has been returned or destroyed once the service provider’s engagement is concluded.

 

Investors are bringing money and, in some cases, the benefit of their experience to the table. While they may be interested in how your business is “good” for the public they are at the same time very focused on knowing how investing in your business is going to benefit them. Sophisticated investors are up front about minimizing their obligations so that they can explore dancing with a lot of potential opportunities before getting married to any. They also want to be able to easily annul or divorce from a business relationship if things don’t work out.

Access to your confidential information is, therefore, largely about assessing and re-assessing risk and ensuring a return on the investment made into your business. The kind of information needed to do this will change over time as the relationship progresses through different stages. Accordingly, the obligations between you as a business owner and an investor with respect to confidential information may change and require review as certain milestones are reached.

During the early stages when initial discussions are taking place, investors may not need to have juicy, confidential details to understand the value proposition you are putting forward. Moreover, investors will not generally need to share much of their confidential information with you, not at least until your wagons are going to be hitched to one another. As a result, if an investor is resistant to the idea of signing a NDA you as a business owner have a choice to make – either walk away from further discussions or be very selective about what information you disclose. The idea here is to avoid providing confidential information, or if some confidentiality is to be lost, ensure it is not so much so as to leave your business exposed and you powerless to do anything about it.

Once an investor decides to do a due diligence review of your business to formalize an investment, however, a NDA becomes a must. As always, the provisions of a NDA have to be clear about the ownership of confidential information and intellectual property, and the management of confidential information. Unlike the service provider context, however, an investor may not really have new (confidential) information to disclose that is relevant to the business, and even if he or she does, there is no compelling reason for the investor to agree to assign rights in that information to the business owner at the due diligence stage.  An investor will instead want to hold onto proprietary rights she or he contributes and request a two-way (mutual) NDA where the rights and interests of both parties in confidential information are respected and maintained. In other words, each party would own what it contributes, be obligated to refrain from copying, distributing and reverse engineering confidential information without the permission of the other party, and to provide a declaration that all confidential information in its possession has been returned or destroyed once the relationship is concluded.

Finally, if all goes well at the due diligence stage and a business agreement is formalized with an investor, the parties can agree to further adapt their obligations under the NDA in order to carry forward an agreed upon business plan.

Next month, in the final part of this post series we will dive deeper into the world of trade secrets, a particular kind of confidential information, which can be both the most valuable and yet under- appreciated assets available for a business to leverage.

Confidentiality and Nondisclosure Fundamentals for Any Business – Part I

There are inevitably times when an enterprise needs to share information on a confidential basis.  Expectations, obligations and practices of confidentiality are at play all the time in day to day business. While most entrepreneurs know this when it comes to managing their finances or keeping customer information private, it is not as obvious when they need to be proactive and thoughtful about using non-disclosure agreements (NDA) to advance and protect business interests.

 

When is a NDA needed?

An NDA is needed any time an entrepreneur has to share or release sensitive business information into someone else’s care, such as employees, service providers, collaborators, clients and investors.

Even when it is apparent that a written undertaking of confidentiality needs to be put into place, entrepreneurs will skip this step not wanting to throw cold water on the embers of a fledging business relationship. All too often, however, small business owners find themselves “burned’ because of disclosing confidential information to others who have then gone off and independently leveraged that information.

No doubt, to get business done and protect your interests, consideration needs to be given to the timing for executing, and language used in a NDA. If you don’t want to use a NDA right away, however, the best strategy is to work with publicly available information about your business and market opportunities to pique interest, articulate your value proposition, and/or define what you are asking for.

 

Anatomy of a NDA

While it is true that signing a piece of paper in and of itself cannot prevent the inadvertent disclosure or intentional misappropriation of confidential information, a well drafted NDA can make it easier to stop or mitigate the damage that can be done.

Just as confidentiality and privacy are regulated by government in different relational contexts, so should written non-disclosure undertakings be crafted and adapted to fit the circumstances. This is as true for stand-alone non-disclosure agreements as it is for confidentiality provisions embedded in a larger contract.

To begin to appreciate and discern what kind of legal language you might need in a given situation, let’s review the core provisions of a NDA:

 

  1. Definition of Confidential Information – Confidential information is information that is not generally known to others and reserved for the benefit of an enterprise. It does not include information which is public or legally accessible from independent third party sources. The definition should ideally list out types of confidential information that are likely to be shared between the parties, including examples of technical, operational, market and financial information.
  2. Obligations of Confidence and Limited Use – These provisions represent the main undertakings of the parties, setting out how the confidentiality of information is to be preserved and the purposes for which it can and cannot be used. This helps to ensure the objectives of sharing confidential information are realized without breaching the obligations of confidence.
  3. Control/Ownership of Confidential Information – Knowing who controls what information clarifies the parties’ legitimate expectations of benefit under the agreement. These provisions also address the interface between confidential information and other proprietary rights such as patent rights and copyrights.
  4. Management of Confidential Information – At a minimum, this entails setting out which obligations and for how long those obligations will survive termination or expiry of the NDA. The return of confidential information to the controlling party, or its destruction is also addressed. For example, trade-secrets are a particular type of confidential information that should be kept secret in perpetuity to maintain their value.
  5. General Provisions – These provisions, among other things, address the applicable law, interpretation, and enforcement of rights and obligations under the NDA. The selection of the law governing the NDA can have a significant impact on how issues are resolved between the parties with the help of legal advisors, arbitrators or the courts.

 

While all NDAs typically have the above core provisions, in Part II of this post series, we will look at how a NDA may be structured differently in a few commonly encountered business contexts.

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Ariadni Athanassiadis

Kyma Professional Corporation

T: 613-327-7245

E: ariadni@kymalaw.com

W: www.kymalaw.com

Product Design – More Than Meets the Eye

I recently read an insightful and catchy confessional article by a product designer in RedShift: https://redshift.autodesk.com/small-business-tips-product-designer-confessions-part-1/. It struck me how each of the lessons she raised from a business point of view has its parallel from an intellectual property and legal point of view.  So, I thought in today’s post, I would map out those IP related tips to round out the sharing of insights from one entrepreneur to another.

 

  1. Do Your IP Homework Before You Launch – As much as you need to know the ins and outs of launching a crowdfunding campaign, or working with the manufacturing cycle that supports a product sales cycle, you also need to know what intellectual property issues to consider before you put a product into circulation.  Certain intellectual property rights that can give your product a competitive edge in the market place require that you take steps to secure those rights before you do the big reveal (e.g. patents and industrial designs).  Among other things, taking steps to register IP rights before you launch a product can deter the making of copycat goods and give you access to border control remedies to prevent counterfeit product from entering into circulation.

 

  1. Every New Solution Should Trigger an IP Evaluation – So you know your shiny new product is one of a kind and deserves some attention from an IP standpoint, but what about all of those tricks of the trade that make production easier, packaging snazzier and distribution more efficient? Having a 360 IP view of these processes and product branding tools offers you more opportunity to structure your business so that you can keep your price points down and present your product to capture the heart and minds of customers. Whenever you tell your customers that you have a proprietary process that allows you to put less stress on the planet, or offer packaging that doubles as a handy tool to get the best use from your product, there is innovation there to evaluate for its IP value to your business.

 

  1. Be Sure Your Partners Understand and Value IP – If a manufacturer who makes 25 cent souvenirs is not a good fit for making your high end home product line, then neither is a manufacturer who does not bring into the equation a discussion or contractual terms to address how you will manage IP rights between you.  Partners who do not pay attention to IP rights as part of their up-front business dealings are less likely to have robust systems in place to prevent your CAD drawings (or blueprints as they used to call them in my previous lifetime), end-up in the wrong hands.  One way to gauge their sophistication and attitude towards the IP rights of their partners is indeed to meet them and to start-off the business discussion with a request for a non-disclosure agreement. Observing the response you get can tell you whether there is an alignment of business values to merit taking the discussion to the next level.

The moral of this story, is that for every business consideration, there is a parallel IP and legal consideration, and while they may not always be easy to recognize it is worth the effort to look into with everything else.

Ariadni Athanassiadis is the lead attorney of Kyma Professional Corporation, which provides intellectual property (IP) legal services to help your business develop and benefit from the creative efforts and assets that make it distinctive. Whether it is your brand, product, services, designs, technology or business processes, Ariadni can help design IP legal solutions which let you make the most of what you give to your business.

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Ariadni Athanassiadis

Kyma Professional Corporation

T: 613-327-7245

E: ariadni@kymalaw.com

W: www.kymalaw.com

Doing Business Online – Your Website and Legal Notices

 

The theme of globalization that took center stage at the Canadian Small Business Women’s Expos in 2016 made one thing very, very clear – for small businesses, our communication HQ for reaching the rest of the world is our website.

While most of us are great at talking about our offerings and communicating our brand online, taking the time to set out certain legal notices, demonstrates how seriously we take our business and emphasizes what makes it unique. Drafted and presented properly, such notices can even take on the character of a binding contract between users and your business.

Here is an overview of the kinds of legal notices that should be considered for every website:

 

  1. Terms of Use – These are notices, which let web surfers know the ground rules for using your website by setting expectations with respect to the use of information and other content on your site. Different terms of use may be noted on various pages or footers, and/or consolidated on a separate page of your site. At a minimum, you need to notify users that the content of your website is: i) for their personal use only, and not for commercial application; and ii) intended for general informational purposes and not as advice that can be necessarily applied to their personal circumstances. You also need to provide notice about your intellectual property (IP) rights and the rights of others you have permission to use in connection with your business and site (such as trademarks and copyrights). If you provide links to the websites of others, it is a good idea to also remind users of your website that you are not responsible for the content of other sites which you do not control.
  2. Privacy Policy – This is a policy which every business needs to have to be able to describe for stakeholders, among other things and in accordance with applicable legislation: i) what personal information is collected and for what purpose; ii) how an individual may provide and withdraw its consent for the business to the use its personal information; and iii) how the business collects and safeguards personal information.  In Ontario, most businesses collecting personal information are subject to the FederalPersonal Information Privacy and Electronic Documents Act (PIPEDA). Especially, if collecting personal information through its website, a business should provide notice of its privacy policy online, either as part of its consolidated Terms of Use, or on a separate page.  The Office of the Privacy Commissioner of Canada offers guidance and a tool kit to help businesses comply with PIPEDA at https://www.priv.gc.ca/en/privacy-topics/privacy-laws-in-canada/the-personal-information-protection-and-electronic-documents-act-pipeda/pipeda-compliance-help/guide_org/.
  1. Marking Intellectual Property Rights – Every business website is likely to include copyrighted content and present its content using various branding elements, such as a logo and word marks to distinguish various service and product offerings for the benefit of customers. In addition, business offerings may have other IP rights associated with them, such as industrial design registrations and patent rights.  Making users aware of these rights by marking them where they appear helps you communicate to users what is unique to your business and makes it easier to prove that someone who misappropriates these rights had notice of them. Furthermore, if you are using IP rights, such as copyrighted content and trademarks with the permission of others it is best to include specific attribution regarding those rights, unless otherwise agreed to with the rights holder(s).

Marking IP rights is a shorthand way of giving notice of the existence of such rights.  A basic copyright notice at the footer of every webpage using the ‘©’symbol and using the ‘TM’ and ‘®’ symbols to denote unregistered and registered trademark rights, respectively, will be familiar to many business owners. Similar shorthand ways of denoting industrial design and patent rights also exist.  It is important to be aware that different countries may have different rules for how to properly apply IP markings to ensure that rights holders are not being misleading about the rights they have, or otherwise engaging in anti-competitive conduct. Given that websites transcend jurisdictional boundaries, understanding these rules in the markets you are targeting with your website is something every business owner needs to learn about, or seek the advice of a legal professional.

Providing conspicuous and clear legal notices such as those outlined above is a pillar of a B2B and B2C communication strategy that leads to mutually beneficial business relationships. It lets the public, potential business partners and competitors know you are aware of, and value your legal rights, as well as the legal rights of others.

If you would like to find out more about how to draft and create legal notices for your website, study the notices used by IP savvy businesses on their websites and consider consulting a lawyer to review the language of your notices and IP markings to make sure you are achieving the benefits that these notices offer.

Ariadni Athanassiadis is the lead attorney of Kyma Professional Corporation, which provides intellectual property (IP) legal services to help your business develop and benefit from the creative efforts and assets that make it distinctive. Whether it is your brand, product, services, designs, technology or business processes, Ariadni can help design IP legal solutions which let you make the most of what you give to your business.

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Ariadni Athanassiadis

Kyma Professional Corporation

T: 613-327-7245

E: ariadni@kymalaw.com

W: www.kymalaw.com

Just ASK – Making Photo-Legal Groundwork Add Up

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There are few mediums which can universally capture the hearts and minds of people like the perfect photo.  When updating your website, blogging or developing ads for your business, the hunt is always on for the images that say it all.  Just don’t be tempted to turn a blind eye to the origins of those perfect images and the conditions for copying them, in case you find yourself exposed because of a copyright violation.

Your exposure is no less just because you may have relied on someone else to put your website, blog content or ad together and get those little copyright details right. Your business is your business and you have the responsibility to make sure it is not threatened by wasted investment, a senseless tarnishing of its reputation and in some cases, litigation that bleeds your time and your profits. Taking the time to find photo perfection may mean digging around a bit, but in the end the effort will help you and your business stand tall above the rest.

Let’s start from the obvious – the mantra everyone knows – just because a photo can be downloaded from the internet does not mean it is free to use.

Okay, great, so you know that, but what about stock photos?  You may have paid for them, but you still have to read the fine print.  Not all stock photos can be used for any purpose, or come with permission for indefinite usage.  Similarly, accessing images under a Creative Commons license (e.g. through Flickr) is still a license and has terms that have to be respected to stay on the right side of the law. These are issues you have to educate yourself about, either through your own research or by asking the professional who helps you put your ad together.

And what about those photos you commission? Again, there are questions you need to ask to be sure you can put them to the uses you are contemplating to market your business:

  • If there are models in the photos, were model release forms executed?
  • Will you own the copyright in those photos? This is a question to discuss with the photographer in advance.
  • If the photographer won’t assign to you their copyrights in the photos taken for the benefit of your business, do you have a solid agreement (license) that you can rely on to use the photos the way you want to?

When it comes to getting the ‘pics’ you want for your business use, you always have to be prepared to assess your resources, seek the appropriate rights to use them and be prepared to adapt if too many unknowns are left unanswered. While it may feel like only one image can say it all, remember that neither you nor your business is one, or even two dimensional – there is more than one photo waiting to be snapped, or out there, to help capture the brilliance of your enterprise and message.

In summary, your photo-legal groundwork boils down to a simple practice – Just ASK:

Approach, get consent and acknowledge the original source of the images you use.

Substitute with other images, if in doubt about making copies of your first choice ‘pics’.

Know your options because today there are many, and there is really no reason you can’t be efficient finding the imagery you want without jeopardizing the integrity of your enterprise.

 

Ariadni Athanassiadis is the lead attorney of Kyma Professional Corporation, which provides intellectual property (IP) legal services to help your business develop and benefit from the creative efforts and assets that make it distinctive. Whether it is your brand, product, services, designs, technology or business processes, Ariadni can help design IP legal solutions which let you make the most of what you give to your business.

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Ariadni Athanassiadis

Kyma Professional Corporation

T: 613-327-7245

E: ariadni@kymalaw.com

W: www.kymalaw.com

Reaching for the Moon – Entrepreneurship and the Alchemy of Ideas and Relationships

 

ari-2In the coming months, I plan to cover those indispensable tips for working with various forms of intellectual property (IP) in your business, such as copyrights and trademarks.  To set the stage, I would like to touch on the desire we have as entrepreneurs to protect our “ideas”.  At the risk of bursting some bubbles, the reality is that the legal system is really not designed to protect ideas. Instead, the whole premise behind having IP legal regimes is to promote the conceptualization, application and exchange of ideas. So if this is the case, why have IP legal regimes or “protect” anything in the first place?

 Before going down a rabbit hole, let me back-up for a moment and try to clarify what I mean when I use the word “idea”. To me an idea is what comes from inspiration, like the epiphany in the mid-20th century that we could fly to the moon. Examples of innovation and creativity around this idea are everywhere, and include everything from Sinatra’s classic rendition of “Fly Me to the Moon,” to NASA’s Apollo missions, to today’s quest by Branson and others to make private space travel a reality. Our drive to innovate is so core to our humanity it bubbles up everywhere, all the time, in all corners of the universe, in all arts, fine or technical, and in all human enterprise and cultures.

So it is not the ideas, but the innovation that flows from them that is addressed by our society. One way this is done is reflected in IP legal regimes. These regimes speak to what happens when an idea is being translated into a result and made accessible to the public. This can only happen in the co-creative processes that take place in relationship with one another. In these relationships there will be intersecting interests and layered rights that arise and are engaged. Innovation in business is no less personal or fundamental to our existence as it is in other areas of our life, and like many other social imperatives can be supported by guidelines and frameworks for balancing interests and contributions to it. While the debate is always open about whether or not existing frameworks help or take away from achieving the best balance, society will always seek to find harmony through constructs for managing relationships.

The two primary issues that IP legal regimes address are who benefits from intellectual endeavour and how. In general terms, the various regimes create economic rights for creators/innovators and rights of use for the public because, after all, the governments and legal systems that grant rights in the form of patents, trademarks, copyright, industrial designs and trade secrets (confidential information) are there for and on behalf of the public.

So when NASA decides to release a chunk of its patent portfolio (under certain terms and conditions of course –http://www.sciencealert.com/nasa-just-released-56-patented-space-and-rocket-technologies-to-the-public) we are witnessing that the way things may have been done in the past can change and adapt to the way they need to be for the future, shifting the balance point in the relationship between governments, the marketplace, and the public interest.

At the end of the day, innovation is fueled by a continuing tradition of alchemy between ideas and the relationships which shape and mould them. In my experience, the ideas can be relatively easy to come by, but the magic comes from what we do in relationship with one another on our quests for the philosopher stone, or perhaps, just a little moon rock.

Ariadni Athanassiadis is the lead attorney of Kyma Professional Corporation, which provides intellectual property (IP) legal services to help your business develop and benefit from the creative efforts and assets that make it distinctive. Whether it is your brand, product, services, designs, technology or business processes, Ariadni can help design IP legal solutions which let you make the most of what you give to your business.

———————————

Ariadni Athanassiadis

Kyma Professional Corporation

T: 613-327-7245

E: ariadni@kymalaw.com

W: www.kymalaw.com

Intellectual Property is Your Business and “A rose by any other name …”

 

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I remember my first exposure to Shakespeare in high school and the stress it caused when I realized that somehow I had to understand what looked like English, but which to me, might as well have been written in Klingon. I have witnessed the same stress in business owners when the topic and lingo of intellectual property comes up. The way to get through it, like anything else, is to start with what does make sense and go from there. So, with that in mind, let me recount to you the gist of two conversations I recently had with business owners about intellectual property and their business.

 

Do I really need to bother with intellectual property?

The short answer to that question is IP is always part of your business, so why wouldn’t you? Let’s also consider, however, the context for the question.

The question was prompted after a business owner received mixed messages from her board of advisors about the relevance of intellectual property (IP) to her business, an enterprise focused on educating young entrepreneurs. The different perspectives of her advisors ranged from “forget about IP” to “worry about it later”; focus instead on your “value proposition and managing risk”.

This thinking reveals some common misconceptions about what IP is and the role it plays in a business. The first was that IP can somehow be disassociated from managing risk and is extraneous to the brand, content, and expertise, at the core of her business. In fact, in this case, content is her product, and so the value proposition of her business is all about IP.  Selling her brand of content fundamentally relies on working with her copyrights and trademark rights. Whether or not she chooses to register these IP rights is another question, but even if she does not, she will still be using those rights in her transactions with publishers, distributors and customers.

Then there is the idea that you can put off addressing IP issues until you have some traction in the marketplace and some cash to spare. While addressing IP issues early on can indeed pull on meager start-up resources, suggesting you can cut IP out of the business incubation stage is like saying you can add yeast to bread to make it rise after you have baked it. In reality, you can make the most of the bread (and butter) of your business if you take the time to consider the legal nature of your creative assets from the get go. To do otherwise, is to risk not achieving the very thing you set out to do.

 

If I am dealing with intellectual property in my business, I don’t know it.

The business owner who raised this point works with a number of artisans and was thoughtfully reflecting on how business relationships seem to work fine without bringing intellectual property into the conversation. I get it. The more you talk about “legal stuff”, the harder it can be to get folks on board. The thing is, at the risk of being repetitive, IP is part of the equation even if not seen or acknowledged, and the math generally will not work in the long run if it is not somehow accounted for. So knowing this, would you rather address IP issues before or after they become a problem?

While the language of IP is not the most prosaic, understanding and talking about what something is, instead of around it, makes for clear, transparent and informed conversations, conducive to building solid business relationships. You can also save everyone the trouble of investing in relationships which are not a fit to begin with.

Whenever I have had this discussion with small business owners, I am reminded of my early days as a gardener, going to the nursery, buying plants and overlooking some of the details about how to care for them in different seasons. During the summer, flowers bloomed and there was new growth. In the fall and winter I would bypass a few steps to help the plants weather the colder days, and then when spring arrived, there was not much of a garden to speak of. Out of pocket and starting over, it was clear that there is no substitute for having a few targeted conversations and paying attention to the details.

And so it is with IP and your business relationships –  a more thorough understanding of your creative assets is always a plus and with this knowledge, the options for cultivating business plans and relationships become more numerous, adaptable, sustainable and reflective of the real value of your business.

 

Ariadni Athanassiadis is the lead attorney of Kyma Professional Corporation, which provides intellectual property (IP) legal services to help your business develop and benefit from the creative efforts and assets that make it distinctive. Whether it is your brand, product, services, designs, technology or business processes, Ariadni can help design IP legal solutions which let you make the most of what you give to your business.

———————————

Ariadni Athanassiadis

Kyma Professional Corporation

T: 613-327-7245

E: ariadni@kymalaw.com

W: www.kymalaw.com

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