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7 questions regarding a breach of contract

While it is true that all breach of contract cases have their own unique details - such as what was promised or how much it cost - there are still basic elements that a judge will look at every time a claim is made. These constant elements can help determine A) if there was a breach and B) what is owed as a result of that breach.

To make this determination, a judge may ask the following questions:

  1. Did the two parties actually have a valid contract that they both agreed to?
  2. If they did, what were the requirements on both sides?
  3. Was there ever a time when they modified the contract and/or those requirements?
  4. Based on the requirements, did the breach really happen?
  5. If it did, does it appear that the violation was "material to the contract"?
  6. Is there a legal defense being offered to the party accused of the breach?
  7. If the breach did happen and was not defended, what damages relate to that breach?

Can sounds be trademarked?

Trademarking a sound is a relatively new phenomenon. The National Broadcasting Company (NBC) successfully registered the first sound in 1978. However, over the years, it has been proven to be somewhat challenging for other companies to trademark sounds. A prospective applicant must follow stringent guidelines to do so.

The Lanham Act allows someone to register a trademark to protect symbols, words, devices or names. Under the Lanham Act, a sound has to be so distinctive or unique that it resonates with a listener on a subliminal level. The law describes how a sound must have the potential of awakening the listener when they hear it. It must also be associated with some discernable event or source.

What copyright protections cover

Copyrights are used to protect a person's rights to their artistic works. Artists may be delighted to find out that copyrights can be utilized to protect their rights for a variety of dramatic, literary and other creative works, including computer software, songs, architecture and novels. However, it is important to note that copyrights can't protect operation methods, ideas, facts, or systems.

Many clients ask their intellectual property attorneys if they can copyright their domain name or website. Existing laws don't allow you to copyright your web address. However, you can protect any information that you author on your website such as photographs, artwork, or writings by copyrighting them.

You can sue a board member for a breach of fiduciary duty

If you have investments, a will, or a company with a board of directors, then you should know what the term 'fiduciary' means. It's a term that refers to someone who's in a position of responsibility. Anyone who assumes such a role, whether it's as an investment portfolio manager, an executive of an estate, or a board member, generally qualifies for monetary compensation or other valuable benefits in exchange for their services.

Fiduciaries take on a "duty of care" when they come into their roles. They assume the responsibility of doing what they see is in the best interest of others and not themselves as part of this equation. Courts expect fiduciaries to hire professionals to guide them in making sound decisions when they don't have the expertise to know how to act. The ultimate responsibility to ensure that the company becomes profitable should be high on the priority list for fiduciaries.

Registering a patent is often a complex process

A company's leadership often worries about safeguarding any tangible property such as computers, office furniture, and other items within their office building that they deem to be valuable. However, only a few business owners realize just how important it is to protect their intellectual property rights. One way individuals or companies can ensure that their inventions don't get knocked off by others is through patenting their idea. Design and utility patents are the most common patent types pursued for protections.

Design patents

Do you know what the fair use concept is?

Most of us have probably heard that the reproduction of any copyrighted work is unlawful. Additionally, many individuals have likely come across the signs posted alongside photocopiers that highlight how anyone who violates copyright laws may be subject to significant fines. However, artists of all kind should know that there are some instances in which an individual can use copyrighted material without permission and not face penalties for doing so.

Individuals are allowed to utilize certain pieces of copyrighted work in a limited capacity under the concept of fair use. In fact, anyone can generally sample a copyrighted piece provided that they intend to use it in a limited and transformative way. Many legal scholars have interpreted that an individual is generally allowed to criticize, parody, or comment about a work without first seeking permission from the copyright owner.

How long do your intellectual property rights remain in effect?

There are several intellectual property tools that entrepreneurs can utilize to protect their creative or business assets. Protections granted by intellectual property remains in effect for various amounts of time after being awarded them.

Patents, which are used to protect the use of a product in a new way and its composition or manufacturing process, remain in effect for at least 20 years from the time an inventor applies for protection. Patent holders must pay filing maintenance fees at the 3.5, 7.5 and 11.5-year marks after the patent has been initially granted. Successfully paying filing fees preserves an entrepreneur's rights to their intellectual property throughout the two decades.

What can I do if someone violates a confidentiality agreement?

California employers often have their employees and independent contractors sign confidentiality agreements before they're allowed to take on a job. Employers do so for a variety of reasons. One of the more common reasons is to protect the business' intellectual property rights such as trade secrets.  Confidentiality agreements often spell out the penalties that a worker face should they violate their company's trust.

It's not uncommon for workers who sign confidentiality agreements to be fired from their job if they violate the terms. This scenario is particularly common among employees that are under contract. The terms of that legal agreement generally detail how a variety of penalties may be assessed when a worker violates specific parts of their employment contract. Being fired is one of the more serious steps that an employer may take in such instances.

The importance of a recognizable logo

When you look at the logos of well established companies, you can recognize them instantly. In some cases, you don't even have to read them fully. Consumers are able to instantaneously grasp the style, because all of the branding efforts over the years have tied the company to that logo.

This is why many of the best logos are the simplest ones. Companies like Disney, Coca-Cola and Google all just use their names in their own stylized fonts. It does not get simpler than that. For Apple, they use an image: A silver apple -- minus one bite. While not quite as simple as using just their company name, it's the same basic idea. If you see that logo on a product, you know what company made it and what quality to expect from it.

Rapid advancement makes for challenging IP issues

It's clear that technology will continue to advance quickly. Unfortunately, it's often hard for things like the law to actually keep up with these rapid advancements. This lack of instantaneous adaptability can create a very challenging situation where new definitions and regulations of the law are needed more quickly than they can be provided.

For instance, consider the role that social media plays in intellectual property issues. Most laws governing these issues were drafted and approved either before social media existed or before it became as popular and widely used as it is now. Either way, legislators were not thinking about social media when they created these laws.

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