Mutual and Unilateral Confidentiality Agreement - Why Sign a Unilateral Confidentiality Agreement?

Many situations require you to have a confidentiality agreement. It is also known as a nondisclosure agreement. Basically, you have two options - you can either choose a mutual confidentiality agreement or a unilateral confidentiality agreement. The first means that both parties are obliged by the agreement not to disclose information, know-how, technologies, relationships or anything of interest to third parties. It has to be underlined that this is relevant for both parties. On the contrary, the second type of agreement - the unilateral confidentiality agreement restricts only one of the parties in the contract to disclose any of the issues mentioned above. The other party can share the information though.

Most people probably think that nobody would ever sign a unilateral confidentiality agreement but they will be surprised. Maybe even you have signed one without giving it much thought. Do you remember signing a work contract stating that you are not allowed to share any information or knowledge that you have gained as a result as your work at the company. Did you even consider saying no to this contract? Especially with the idea that you actually sign a unilateral confidentiality agreement? That is a typical example of a unilateral nondisclosure agreement. As you see, many people sign them without hesitation, probably even a lot of you have.

In fact, this is more than an agreement. It underlines in which you want the business to go. If you want to show that you want to keep some things secret, you would choose a mutual agreement. This can make your relations a bit strained as this may imply some suspicion but it is definitely a very wise thing to do if you think that the leakage of information can cause you problems in the future. If you have even the slightest hesitation, ask for a mutual nondisclosure agreement.

Moreover, when it comes to agreements between companies, you would very rarely find any unilateral confidentiality agreements. And that is quite logical. Many companies have invested a lot of resources to acquire information and they do not want to hand it freely to everyone. Such agreements leave the information unprotected and it can be distributed according to the wishes of your partner. Needless to say, not so many companies want that. Even in our digital era, information is very valuable. What is more, it probably has never been more valuable as even hours and minutes can make a great difference nowadays.

Unless you have full confidence in your partner, which is very rare, or you do not think the issues in the contract are so important and need to secretive, which is more often the case, there is no problem to choose a unilateral confidentiality agreement.

In any case, make sure to protect your business with a NDA-Non-disclosure agreement, as by doing so you ensure the smooth workflow of the partnership.

There are a lot of legal document templates online which will enable you to create your own confidentiality agreement which will serve your purposes and will save you a lot of time which you can spend more productively.

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Breach of License of Intellectual Property Infringement

Two companies enter into an intellectual property licensing agreement. Later, a dispute erupts over whether the licensee has used the IP outside the scope of the license agreement such as marketing a brand on a new product line or selling patented goods in another territory. Does this extra-license use constitute breach of contract? Infringement of the IP rights or both?

The distinction matters because remedies for infringement differ from contract damages. For example, a copyright registered pre-infringement entitles the owner to elect statutory damages over actual damages. A successful plaintiff in a trade secret or trademark case can potentially recover exemplary damages in addition to actual damages recoverable in a breach of contract action. In patent and trademark actions, treble damages are available. Recovery of attorney's fees, while provided under the Patent Act and Lanham Act, are generally easier to recover in connection with a successful breach of contract action. Therefore, these differences make careful consideration of claim pleading necessary to maximize recovery.

While it may not always be clear at the onset whether an extra-license use constitutes a breach of contract or an infringement of IP rights, the following provides some guidelines between where a license ends and infringement begins:

· Type of license. The threshold issue is determining whether the license is an exclusive license or a non-exclusive license. Courts have held that where the licensee has been granted an exclusive license, unlicensed use of the IP is merely a breach of contract. The underlying rationale stems from the understanding that an exclusive license transfers ownership of the IP rights. The licensee is incapable of infringing an interest in IP that he owns. Thus, any use of the IP beyond the scope of the license agreement would result in breach of contract, rather than infringement. Conversely, if the licensee has only been granted a non-exclusive license, any use of the IP beyond the scope of the license agreement could result in the licensee being liable for infringement.

· Provision Breached. Another key issue in distinguishing between a breach of contract or infringement is determining whether the provision of the license agreement breached is a contract covenant or a condition precedent. If the provision were a contract covenant, then the breach would result only in a breach of contract. However, if the provision were a condition precedent, then the condition was not satisfied and the contract effectively does not exist. Therefore, any use of the IP would result in infringement.

· Limitations. Similarly, if the license agreement is limited in scope and the licensee acts outside the scope, then the licensor can bring an action for infringement. To prevail, the licensor must establish that the license terms are limitations on the scope of the license, rather than independent contractual covenants, and that the licensee's actions exceed the scope of the license.

In certain instances, courts have concluded that a license agreement has created both contractual covenants and conditions precedent or both contractual covenants and limitations on the scope of the license. In such cases the courts have held that both breach of contract and infringement causes of actions are available.

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Business Trademark: New and Existing Businesses Protecting Their IP

Intellectual property, commonly referred to as IP, is that material which is created intellectually; such as inventions, designs, systems or even a great idea that has been recorded in a written format. Where it is traditionally a property which cannot be physically touched, bought or sold, it is without a doubt an essential asset for the business. Just as physical products, businesses should protect the intangible assets by carefully identifying and recording the various intellectual properties that the business owns; and protect the identified IP through the successful application of the business trademark.

By registering the business trademark, it empowers the company an exclusive right to prevent other businesses and individuals for using the intellectual property listed in the trademark without your express permission. Furthermore, it prevents competitors from imitating or copying your inventions, concepts or technology. With the company successfully registering a business trademark, it provides the businesses with the legal right to sell or trade the intellectual property, as well as license or franchise the intellectual property in an effort to generate additional revenue streams.

It is not only long standing and established businesses that need to protect their intangible assets with a business trademark, but newly formed and forming business need to protect their competitive edge in the market; in many cases, a business's intellectual property is often the single factor that differentiates the business or provides the whole basis of the business concept. For these reasons, it is essential that the company's intellectual property should be listed in detail with the process of registering the trademark application at the stage of developing the business plan.

A business plan outlines the resources and assets required for the venture to operate successfully in an ever increasingly competitive marketplace. It is essential that the basics are covered successfully in any new business venture and the business plan is where those thoughts, actions and aims are placed in a written form. It provides the business a blueprint for success and a guideline for how it is to implement the plan to achieve this success.

The creation of new knowledge, processes or ideas in the driving force behind successful businesses in the current market environment. For this reason alone, it is essential for new venture to explicitly cover and include the process of registering for a business trademark to protect the assets which provides the basis and conceptual foundation of the business.

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The New Banking, Finance and Insurance Award

Australian workplaces are preparing for a readjustment of employment conditions under the Federal Government's planned shake-up of workplace relations. The remainder of the Fair Work Act 2009 (Cth) ('the Act') comes into force on 1 January 2010, bringing with it a myriad of Modern Awards and changes in workplace standards.

As a major part of the Government's "Forward with Fairness" Policy, the Act aims to create a unified national industrial relations system that will ensure balance and fairness for all Australian workers. The Federal Government will assume power over certain employment standards, previously administered by the states, to introduce consistency across all Australian workplaces.

Workplaces are encouraged to familiarise themselves with the new Act and relevant Modern Awards. Of particular significance is the new Banking, Finance and Insurance Award ('the Banking Award'), effective as of 1 January 2010. The Banking Award, prescribed by the Act, will prevail over state imposed awards unless expressly provided for by the Act. It works to regulate the terms and conditions of employment for all employees in the banking, finance and insurance industries, irrespective of their role. It will therefore be the applicable award for many clerical employees who were previously covered by the NSW Clerical & Administrative Employees Award.

Major Changes

The New Award introduces an extra employee grade to aid in the distinction between employee roles, updating to a grading scale of one through six. While the grading of an employee will continue to increase in accordance with the skill and knowledge required in the proper execution of their employment tasks, the terms of reference for each grade have been significantly altered to better correspond with the duties and responsibilities particular to the banking, finance and insurance industries. It is anticipated that the new guidelines will enable a fairer assessment of employee roles and changing skill requirements within identified industries. All workplaces will need to re-evaluate their employee duties and responsibilities accordingly.

It is similarly important that employers ensure compliance with revised minimum wages for the respective grading. The standard minimum wage, which reflects current basic fairness requirements, has changed to adopt the new grading system. Further changes to wages may become necessary after reassessment of employee grading within the workplace. The new rate of pay will override any lower rates made in earlier enterprise agreements and will continue to be reviewed annually.

Other changes under the Act and Banking Award include an increase of sick leave entitlements, an adjustment of meal break allowances and a reassessment of unfair dismissal laws.

Enterprise Agreements

A key element of the Government's policy is the encouragement of greater flexibility within the employment relationship. The framework for enterprise agreements is premised in good faith bargaining and the promotion of a more balanced approach to workplace standards. Where appropriate, the Act allows for bargaining between employers and their employees regarding employment conditions such as overtime rates, penalty rates, allowances and leave loading.

In support of this, the New Award includes a flexibility term and guidelines for the implementation of individual or collective agreements, which may be used to vary the application of award terms in order to meet those specific needs of the employment relationship. Any such agreement will be carefully regulated by the Award in its negotiation and execution.

Fair Work Australia

Seven former Government bodies have been superseded by Fair Work Australia, a new and independent national workplace relations tribunal. Heralded by the Government as the "one-stop shop" for information and assistance on workplace issues, Fair Work Australia will be the point of call for any issues arising under the Act. As well as managing industrial relations and dispute resolution, the tribunal will conduct four yearly reviews of the New Award to maintain a relevant and fair minimum safety net for Australian workers.

Conclusion

Employers and employees alike hold it in their best interests to become well acquainted with the Act, its purpose and its legal implications. Workplaces across Australia should be gearing up to adopt and maintain all relevant changes under the Act and the Banking Award. Be they subtle adjustments or major alterations, the employment standards across all Australian workplaces are set to change.

If you have any general or specific questions in relation this article, please do not hesitate to contact us employment lawyers, Melbourne

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Fighting Web-Based Counterfeiters

The producers and distributors of counterfeit products are making extensive use of bogus web sites to market their knockoffs of established brands. Using web sites allows them to circumvent retailers who may recognize the counterfeits or be wary of the bad will they might generate by selling fake products. Web-based selling also reduces the counterfeiters exposure to jurisdictions that might crack down on their piracy.

The counterfeiters' web sites may appear almost identical to the official sites of the actual makers. The site domain names may even include the actual makers' trademarks. Other sites may claim to be authorized resellers. As a result, customers believe they are buying the authenticate article. When a customer buys and receives the inferior knockoff product, the actual maker not only loses a sale, but often the goodwill of the customer, who is usually disappointed with the purchase.

Shipments are typically from contract fulfillment operations. Orders for multiple websites can be forwarded to a single fulfillment house. If the actual makers shut down one fulfillment house, another can be quickly and almost seamlessly brought on line. As a result, the counterfeiter has little physical presence in the United States except for the financial accounts receiving the orders and the inventory at the fulfillment house.

The counterfeiter may also have a minimal physical presence overseas, presenting a whack-a-mole problem when trying to shut it down. The counterfeiter is typically organized as a shell company that contracts for everything. If it is shut down, the pirates simple organize under a different name and continue making knockoffs using the same suppliers without pause.

Counterfeiters can be effectively defended against by shutting down the bogus web sites that sell fake products. Shutting down the web sites cuts much of the counterfeiter's most profitable business, and often convinces the pirates to pursue less vigilant victims.

The easiest way to shut down a bogus site is through the ICANN Uniform Dispute Resolution (UDR) process. The fees and costs are relatively low, and the whole process can be completed in a few months. You need only show that 1) the domain name is identical or confusingly similar to your mark; 2) the holder has no legitimate interest in the domain name; and 3) the domain name was registered in bad faith. This is easily done for bogus sites.

However, using the ICANN UDR can still present you with a whack-a-mole problem. The counterfeiters may be able to set up new sites faster and more cheaply than you can shut them down. Because they rely on paid advertising rather than organic search, a new web site can be up and in business in minutes.

In these cases, it is usually more effective to sue in Federal court for trademark infringement or under the anti-cyber squatting act. This type of action has proved successful in shutting down multiple sites, as well as allowing the actual maker to shut down future sites without a new lawsuit.

Counterfeiters can be stopped. Businesses that have aggressively defended against counterfeiting find that a strong defense quickly pays for itself.

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What Constitutes Trademark Infringement?

The primary purpose of having a trademark would be to distinguish your company from other ones, particularly when your merchandise or specialty is regarded as high-quality. A trademark can be almost anything so long as it helps the consumer identify with the particular service or product. It will be a phrase, saying, symbol, picture or sound recording, and from time to time just a color. In the event that the public has begun to count on your merchandise, another person employing your trademark may lead to mix-ups, and often lost revenue.

This is when you may want to start a trademark infringement case. Despite the fact that a trademark will not have to be registered, it could still be safeguarded by intellectual property rights legislation. A valid claim happens when the trademark holder can establish that someone else is employing the exact same or closely similar logo, and in what ways this would cause harm to their reputation over time if this hasn't previously succeeded in doing so.

In every such case, the judge will examine a range of factors. The judge will not just look at the similarity of the two slogans or logos but if the goods are closely related. The strength and influence of your logo, generally meaning the corporation or agency's revenue and reputation with the public, will also be taken into account. If real losses or shopper confusion are able to be demonstrated, the claim would have a higher likelihood of success.

Additional circumstances can be considered, such as the closeness of the two products when they are in the shops, and whether the product is one over which the consumer would identify the difference among companies as a point of personal preference. One more serious issue might be in case the secondary provider's product line extended, thus triggering further problems for the level of popularity of the original company and what they've got to offer. This is termed trademark dilution, for the reason that power in the trademark is weakened in time.

What can you do if ever another business or person begins to tread on your trademark rights? Talking to an intellectual property attorney will assist you to better become more knowledgeable about the laws associated with your trademark, the infringement and the steps through which you are able to file the necessary legal action.

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