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[post_content] => What are licence agreements?
The starting point is that the owner or right holder has the exclusive right to use his right. In most cases, this involves the use of intellectual property rights, such as a patent, a trademark, a domain name or software. If another party makes use of this right without permission, he runs the risk of committing an infringement and having to pay compensation for the damage suffered by the rights holder. In many cases, however, the intention is for others to make use of the right, particularly from a commercial point of view.
Another possibility is that different companies within one group make use of the same right. In both cases, the entrepreneur would be wise to arrange this use with a licence agreement (or user agreement).
Content of licence agreement
The licence agreement regulates the conditions under which one party (licensee) may use rights of the other party (licensor). In this way the licensor has the certainty that he is not infringing and can also demonstrate this. The advantage for the licensor is that he holds the licensee to his obligations.
The licence agreement shall describe the scope of the licence as accurately as possible. The following questions are at least important in this respect:
- What exactly may the licensee use?
- Are there territorial or other specific restrictions?
- When may the licensee not use the right?
- When does the right of use expire?
- Is the licensee the only party getting the use (exclusivity) or are there multiple licensees?
- Can the licensee transfer the licence and may he issue sublicences?
In addition to the description of the scope, the licence agreement also deals with the payment for use and termination. After all, the licensor has an interest in ensuring that payment for use is made and that the right of use is terminated as soon as possible if the licensee is no longer able to meet the payment obligations. This is for instance the case when the licensee goes bankrupt.
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[post_content] =>
What is fashion & Design?
Fashion & Design is the branch par excellence where innovation and creativity are central. Designers are busy every day designing and creating new products, accessories or clothing. Some designs are so good that copycats are only too happy to make use of them. Are you dealing with a
copycat? Our lawyers can help you protect your design. They are specialised in Fashion Law.
Various rights come into play when protecting a design. Soon designers will have to deal with copyright. This is the right of the creator. Once copyright has been obtained, this brings advantages. Especially in the context of protecting a design or product.
If products are copied without the designer's consent, action can be taken against this. The question is then always whether there is illegal counterfeiting. There is no simple answer and it often depends on the circumstances of the case.
Trademark and design law also offers protection possibilities. The same applies to trade name law. By filing the shape of a new design, designers acquire design rights. The appearance of the design is thus protected. Logos, names and other trademarks can also be protected. Our lawyers can help you choose between the various protection options.
In addition, the way Fashion & Design is marketed plays an important role in the industry. Companies try to sell their products through agents, distribution, licensing or through a franchise system. We advise you to think beforehand about the design of such collaborations. In the end, it is the agreements that ensure a pleasant cooperation.
We are happy to advise you on the legal aspects of Fashion & Design. We have extensive experience in the fashion and design industry.
What can we do for you?
- Protection of Fashion & Design.
- Guidance in the event of counterfeiting of your products or if you are sued for counterfeiting.
- Advice on the protection of intellectual property rights (copyrights, trademark and design rights and trade and domain names).
- Advice on the distribution of your products, on licences, franchise agreements and
agency agreements.
- Advice on advertising.
- Guidance on tackling unwanted parallel imports.
- Advice on the design of your webshop.
- Agreements with buyers and designers.
- Product liability and re-call of products.
- Drafting general terms and conditions.
Who can we help?
We are ready for anyone who needs our help. Our current clients in the field of fashion consist mainly of:
- Clothing manufacturers.
- Companies in the fashion and design industry.
- Designers and creators.
- Textile industry.
- Franchisors and franchisees.
- Licensors and licensees.
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[post_content] => Can a
competitor use my trademark to advertise? For entrepreneurs it is often still unclear to what extent this is allowed. In this article I will briefly explain the basic principles once again.
Starting point: infringement
The use of a
trademark without the consent of the trademark owner is an infringement. That is the starting point.
This also applies to the competitor who enters someone else's brand (as a keyword) in Google AdWords on behalf of his own advertisement. Although this often happens in practice, it is not permitted. The competitor suggests in this way that there is an economic link between himself and the trademark holder. The trademark is used to attract customers to the competitor's website. However, for the customer it will be unclear whether the trademark belongs to the competitor or the trademark holder.
Exceptions: reseller and comparative advertising
In some cases,
use of another's trademark is allowed.
For example, resellers are allowed to advertise with another party's trademark, provided that the product (with the trademark) has been "put into circulation" with the consent of the trademark owner. Quite a mouthful, but what it comes down to is that second-hand sellers are allowed to advertise with the trademark, as long as the product was initially put on the market by the trademark owner or another representative of the trademark owner.
Consider, for example, the advertising of used cars. Initially, the car is sold by an official dealer. The owner can then trade in or sell the car to another garage. In order to be able to sell the used car, this garage is allowed to advertise the car. This may include the trademark of the car.
The second exception relates to
comparative advertising. A competitor may use the trademark (and the related product) for comparison with one of its own products. Even if the advertising is done through Google AdWords. Please note the form of the advertising. It must really be comparative advertising. Therefore, the strict legal requirements for comparative advertising must be met. Are these requirements not met? Then there is still trademark infringement.
Want to know more about using brands in advertising? Please contact
Frédérique Kuiper.
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Advertising is a great way to put your products and/or services on the map. There are many forms of advertising. Think of Google Ads, promotional videos you see on Youtube and commercials on TV.
Affiliate marketing is also a form of advertising.
When advertising, various (legal) rules must be taken into account. This applies to both online and offline advertising. Advertisements may not be misleading. For example, misleading can occur regarding the price, the size of the stock or the duration of the guarantee.
Specific rules also apply to comparative advertising. This is the case when one product is compared to another (competing) product. This happens a lot in online blogs. For example, beauty products are compared with each other in high-end vs. low-budget videos.
All these forms of advertising involve advertising regulations.
Trademarks in advertisements
In practice, most problems arise when brands are used in advertising. Mainly due to the use of trademarks of other organisations. In that case you do not advertise with your own
trademark, but use another trademark. In some cases this is allowed. For example, if you sell a second-hand product. Or if you have a web shop. You can read here what rules apply to using another party's trademark in advertisements. Curious about the rules a webshop has to comply with?
Also,
brands are often used as search words. Through Google Ads, the advertiser can link keywords to an ad himself. These can also be brands. For example, if you sell Nike shoes, you can use the word Nike as a keyword. But there are also hurdles to this use of someone else's brand.
Do you have a question in the area of:
- Conditions for advertising;
- Trademark use in advertising;
- Google Ads;
- Using the right keywords;
- Liability in advertising;
- Online and offline advertising;
- Comparison with the competitor.
Or are you being sued by another party? Please contact
Frédérique Kuiper.
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[post_content] =>
What is software?
Whereas
software used to support
hardware (machines), it is increasingly becoming crucial to allow entire chains to function. These chains depend on the proper functioning of the software. We can therefore help to make agreements with the programmer. Or if a customer wants to tinker with the software's source code (by himself) or build on the existing software. We also answer your software-related questions. For example, how should you deal with a software crash that prevents your company from running for a day? Who pays for the damage?
Smart manufacturing
Software also plays a crucial role in
smart manufacturing. For technological developments such as robotics, artificial intelligence, Internet of Things, blockchain and additive manufacturing (3D printing), software is very important.
In smart manufacturing (industry 4.0), software must enable the exchange of data between all parties in the entire value chain. From producer to end-user. This means that parties must open their doors to each other and start working together in one ecosystem. Parties will have to give each other access to each other's systems and data. In that context, parties must share data and new data will be generated (together).
All this raises new (legal) questions about
software and data. Because legally no one can be the owner of data, parties must make agreements about the use of data. Without detracting from the opportunities that cooperation in such an ecosystem offers, agreements will also have to be made, for example, about who may do what with data, for how long, in what way and what must happen when the cooperation ends (exit).
In practice
Software may be protected by an
intellectual property right (e.g. copyright or a patent). The holder of an IP right will want to exploit it and protect it against infringers. We regularly assist clients who have been visited by a bailiff who has come to seize software. The Business Software Alliance (BSA) then claims that the company has insufficient software licences.
Our specialists can help you with the
following topics:
- Review and drafting of agreements such as software development, software license, data sharing, Software as a Service (SaaS), Data as a Service (DaaS), manufacturing agreements, consortium agreements, cooperation agreements, etc.;
- Advising on protection options for software and concepts;
- Acting on infringements of intellectual property rights on software;
- Assisting clients who have had a raid and are said to have insufficient software licences.
Do you have any questions in this area? Then contact us without obligation.
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[post_content] =>
What is IT-right?
Well-functioning
software is crucial for every company. Whether it is a production company or a service provider. The choice for new software is therefore an important moment. Both for the supplier and for the customer. The supplier has a duty of care here. After all, he knows that software is often crucial to the customer's business operations. The customer must ensure that his wishes and expectations are made clear and that he raises the alarm in time when things threaten to go wrong. Still, things sometimes go wrong. The customer buys a car and expects a Ferrari. The supplier delivers a Volkswagen and thus has delivered a car. The customer is not satisfied. And then the automation process may have failed.
What do we do?
Preliminary phase: we supervise the process leading up to the contract (formulating wishes and requirements, defining functional requirements, scope document);Drawing up the contract: establishing who does what, when, how, general conditions applicable, etc. But also agreements about user rights, what happens to data, how the supplier maintains the software (service level agreement), what if the customer wants to continue with other software, what if the supplier no longer supports the software, etc.Execution of contract: we advise on the implementation of the software, how to deal with delays ('fatal deadlines'), is the supplier fulfilling his obligations, how and when to complain, how and when to formally declare him in default, etc. Sometimes conflict mediation can offer a solution. For example, via the Technology Arbitration and Mediation Institute.Failed automation process: We advise on the timing and content of a notice of default, rescission of the contract, recovery of paid amounts, claiming additional damages, experts to be called in, etc. We have experience with IT procedures at the civil court and with arbitration at the SGOA. But sometimes alternatives are a better solution, such as first focusing on completion of the automation process (by a third party) and only then settling the conflict legally.- We act for suppliers and buyers. We therefore know the ins and outs of both positions.
Do you have any questions in this area? Then contact us without obligation.
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[post_content] =>
What is slavish imitation?
Does a product, idea or other design not qualify for protection under intellectual property law? Then a appeal for
slavish imitation comes into play. Slavish imitation is, as it were, the safety net for all designs that are not protected by any other right. It is a form of tort.
Is it possible to invoke slavish imitation?
The starting point is that slavish imitation is permitted. But this principle is regularly deviated from.
To be able to invoke slavish imitation, you have to prove a number of things. An advantage is that it is not necessary to prove that a product or design has been copied one-on-one. Slavish imitation protects against all designs that are too similar. In concrete terms, you will have to argue that:
The imitated product causes confusion among the public. If a specific example of sown confusion can be presented, it is absolutely helpful. For example, customers confusing the products with each other. This is proof that confusion has already occurred, but a well-founded fear that confusion may occur in the future is also sufficient.- Secondly, it must be substantiated that the imitating party did not do enough to prevent the risk of confusion. This party should have taken measures. For example, by deviating from the original design in certain respects, so that similarity between the products is prevented as much as possible. This concerns the reasonable measures that could have been taken. Measures that, for example, affect the usability of a product do not have to be taken.
When these points are raised, a design is slavishly imitated.
Action
A product is unlawfully imitated. And now? You can take action against this. There are many examples in case law of proceedings on the question of whether products are slavishly imitated. But not everyone is waiting for
legal proceedings.
Therefore, we usually start by writing to the party that slavishly imitates a product. During a consultation between the parties, we can examine whether the imitated product can be adjusted on certain crucial points, for example, to remove the similarity. Only if the consultations seem to have no effect can a procedure be considered.
Branches
Slavish imitation is common in the following industries:
Fashion: jewelry, clothing, shoes and/or accessories;Design: furniture, including protection of a certain style.
Read more about various protection possibilities in the
Fashion & Design branche.
Do you have questions about slavish imitation? Would you like to test whether your product or design is slavishly imitated? Please contact one of our lawyers.
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[post_content] =>
What are trade secrets?
Trade secrets are the core business of innovative companies. They are internal information that has commercial value. The information is secret and measures have been taken to guarantee its secrecy. In other words, it is know-how that you would rather not have out on the street.
Roadmap for protection
Proper protection of trade secrets can prevent problems. This requires investment at the front end, so that discussions at the back end can be avoided. Are you curious about what you can do yourself? Read our step-by-step plan here so that you can protect your trade secrets yourself.
Collaboration
The protection of trade secrets also comes into play when organisations cooperate.
Good cooperation often goes hand in hand with sharing trade secrets. Sharing secrets is also possible, but we recommend taking additional measures.
Do you prefer personal contact? Call or e-mail one of our lawyers. They are experienced in advising on trade secrets. We look at your NDA, assess what measures can be taken and advise on legal positions. We also regularly assist entrepreneurs in legal proceedings. Particularly when trade secrets have been used or disclosed unlawfully.
Do you have questions about the protection of trade secrets? Please
feel free to contact one of our lawyers.
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What are trade names?
In the digital age, a good trade name is important for distinguishing companies. A creative trade name increases the online recognisability and findability of companies. Because the development of trade names is an expensive process, the need for protection is increasing.
Protection
Trade name law arises when the trade name is actually used in commerce. It arises automatically and there is no obligation to register. The use of the trade name in, for example, e-mail signatures, on a website, social media or on letterhead may be enough. As a holder of a trade name, you can take action against different types of infringements. For example if:
- a competitor uses the same trade name;
- the trade name is mentioned in someone else's domain name;
- the competitor uses a trade name that is not or barely different from your trade name;
- a party tries to benefit from your success;
- the trade name or reputation of the company is damaged.
The basic principle is that an older trade name takes precedence over a new trade name.
Identical trade names
The use of an identical trade name is, in principle, prohibited. However, there are also exceptions to this rule. In this blog we explain when it is allowed to use the same trade name. However, for identical trade names within the hotel industry, please refer to this blog.
Please feel free to contact us.
The lawyers at BG.legal are specialised in trade name and domain name law. They can determine your legal position, answer your questions and assist you in proceedings.
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What are domain names?
In the digital age, a good
domain name is important for distinguishing companies. A creative domain name increases the online recognisability of companies. Because the development of domain names is an expensive process, the need for protection is increasing.
Protection
A legal regulation for the protection of domain names is currently lacking. The domain name right arises through its registration. Thereafter, you as a domain name holder can take action against infringements.
In some cases, it is also possible to demand the transfer of someone else's domain name. This can be useful, for example, if another party tries to ride on your success.
We regularly see that domain names are only registered to be able to 'link through' to another page. Or that the domain name of a competitor differs very slightly from your domain name.
The lawyers of BG.legal often advise on these kinds of legal pitfalls. Preventing the abuse of domain name registration is part of our daily practice. In addition, BG.legal has experience in claiming and defending domain names on the basis of trademark and trade name law.
Who owns a domain name?
In addition, the question often arises: to whom does a domain name belong? Does it belong to the person who registers it? To the person in whose interest he or she acts?
We have answered these questions. Read our informative blog
here. We have also written a
blog about the use of trademarks or tradenames in a domain name.
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What are licence agreements?
The starting point is that the owner or right holder has the exclusive right to use his right. In most cases, this involves the use of
intellectual property rights, such as a patent, a trademark, a domain name or software. If another party makes use of this right without permission, he runs the risk of committing an infringement and having to pay compensation for the damage suffered by the rights holder. In many cases, however, the intention is for others to make use of the right, particularly from a commercial point of view.
Another possibility is that different companies within one group make use of the same right. In both cases, the entrepreneur would be wise to arrange this use with a licence agreement (or user agreement).
Content of licence agreement
The licence agreement regulates the conditions under which one party (licensee) may use rights of the other party (licensor). In this way the licensor has the certainty that he is not infringing and can also demonstrate this. The advantage for the licensor is that he holds the licensee to his obligations.
The licence agreement shall describe the scope of the licence as accurately as possible. The following questions are at least important in this respect:
- What exactly may the licensee use?
- Are there territorial or other specific restrictions?
- When may the licensee not use the right?
- When does the right of use expire?
- Is the licensee the only party getting the use (exclusivity) or are there multiple licensees?
- Can the licensee transfer the licence and may he issue sublicences?
In addition to the description of the scope, the licence agreement also deals with the payment for use and termination. After all, the licensor has an interest in ensuring that payment for use is made and that the right of use is terminated as soon as possible if the licensee is no longer able to meet the payment obligations. This is for instance the case when the licensee goes bankrupt.
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