When running a business, sometimes it is easier and more effective to contract with a third party to provide software services than to develop software on your own. Many software service providers offer useful software services that can be accessed over the internet or can facilitate cloud computing and storage. The software that is provided by the third party is referred to as software as a service (SaaS), and many companies choose to use SaaS to conduct various aspects of their business.

Whether the software is used to run an online retail portion of your company, process payroll, or to collect and store customer data, SaaS is an important tool for new startups and established companies alike. When a company identifies a useful SaaS that they would like to use, the company must approach the software service provider and request to enter into a SaaS agreement, by which the company will gain access to the software for the duration of the agreement in exchange for a fee.

SaaS agreements can contain complicated language that is highly technical and confusing. The SaaS agreement is a legally binding contract, so it is important that the hiring company understands its obligations and responsibilities under the contract prior to entering into the agreement. If you are not confident in your ability to read and understand the terms and conditions of the SaaS agreement, you should consult with an experienced attorney who specializes in SaaS agreements to make sure that the contract is fair and reasonable.  

Practical aspects of a SaaS agreement that businesses should fully understand

There are several key terms in a SaaS agreement that companies should look for and make sure that they understand in any SaaS agreement that the company plans on entering into. For instance, companies should understand:

• How the SaaS agreement can be terminated. Contracts can be terminated if there is a material breach of the contract by either party. For example, if the software service is constantly down and inaccessible, you would want to know if your company can get out of the contract. Why pay for poor service?
• Who is responsible for data privacy? Usually, the software service provider is responsible for data protection and privacy, but it is important to understand whether your company carries any liability in the event that there is a data breach.
• ​Uptime and downtime provisions. Most SaaS agreements include a guarantee on the uptime of the service provided to the business, usually a guarantee of 99% of the agreed upon use time. This means that the software will be available and usable by the company 99% of the time that the parties have agreed that the company will have access to the software (e.g., from 8 am - 9 pm, Monday - Friday).
• Service and maintenance details. Like with any software or computer system, there will need to be updates made to the system. Your company needs to know how maintenance outages will be conducted and how those outages will affect business.

When a business just starts out and is in its initial growth stages, the business needs to distinguish itself through the creation of intellectual property rights, or IP rights. IP is useful to a business as IP is generally intangible property that derives value for the business based on its protected status. Patented inventions, copyrighted manuscripts, and trademarked logo designs are all common forms of intellectual property that generate a lot of value for a business.
 
One of the more frequently overlooked forms of intellectual property protection is copyright protection. It is often overlooked because many people mistakenly believe that the generation of enforceable rights is automatic upon the creation of a creative work, such as a drawing, design, or photograph. While it is true that rights are generated in a creative work the moment that the work is made in a tangible form of expression, it is challenging to prove the exact date that the work was created, and thus the copyright was established, in order to enforce the copyrighted work.

What Can Be Copyrighted?
 
A copyright is an intellectual property right that can be sought for original works of authorship. These works must be created in a tangible form of expression in order to be registerable. A few examples of common forms of copyrightable materials typically found in business include original creative works such as:

• A written manuscript, employee training handbooks, instruction guides, etc.
• Artwork for websites, product packaging, product illustrations, etc.
• Movies, videos, films, and other video-based productions.
• Musical compositions, such as sheet music for a commercial jingle.
• Musical performances, such as an orchestral performance of music, or a band’s performance of a commercial jingle.
• Artistic performances, such as choreographed dances.  
• Sculptures, figurines, product prototypes, etc.  
• Architecture.

 
With a little creativity and the right guidance, it is easy to figure out how obtaining copyright protection could be beneficial to your business. Many businesses generate original creative works that contribute value to their business in some way.
 
Registration of A Copyright

That is why it is important to register copyrighted materials for your business with the United States Copyright Office. Registration is a fairly simply and affordable process that confers a specific copyright registration date to your copyrighted work. This registration date can then be used to enforce your copyright protection. Copyright registration can be made anytime, but it is important to understand the benefits of getting your business-related copyrighted works registered as soon as possible. For instance, a successful copyright infringement lawsuit can lead to statutory damages for the unauthorized use or copying of your registered copyrighted material back to the date of registration, if the infringing action was occurring as far back as that.
 
At Keystone Scientific, Inc., we make it our goal to help you and your business or development project to reach its full potential. Ask us about how we can help you achieve your goals and solve your project problems. Please feel free to reach out to our team by calling 814-205-3393 or contact us online.

One of the earliest forms in intellectual property protection that startups and small businesses seek to obtain is trademark protection on their company name. Your name says a lot about your business, and you will ultimately build a brand around your company identity. Your trademark will grow into the image or word that the customer will come to identify with your company and your product. Trademarks are valuable business assets and they need to be protected from your competitors, and copycats.  
 
Four Trademark Categories
As a small business or startup, funds are limited, so you need to meet with success when you apply for a trademark with the United States Patent and Trademark Office. Since obtaining trademark protection involves applying, your application could be rejected if another, similar trademark already exists in your area of commercial use (i.e., the industries or commercial areas that you plan on using your mark in), or if your mark is not distinctive enough to warrant trademark protection.

A trademark must be worthy of protection, and as such, four categories of trademarks exist. These categories refer to the strength of the mark, and there is an undeniable correlation between the strength of a trademark, and its likelihood of being approved by a trademark examiner at the USPTO, and thus registered.

When it comes to applying for trademark protection, it is important to understand that some marks are more “trademark worthy” than others, and this is sometimes referred to as the strength of a trademark. The strength of a trademark is tied to how distinctive the mark. Trademarks are often broken down into four categories based on how distinctive the mark is. The more distinctive the trademark is, the more likely that the mark will be granted trademark protection by the United States Patent and Trademark Office.

The strength of a trademark lies in how the mark is perceived by consumers. There are four categories of trademarks, which include:
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• Generic. Generic marks are overly simple marks that carry no special meaning and are thus not a protectable mark at all. Generic marks are usually phrases that simple represent the good or service.

• Descriptive. Whether a descriptive mark is granted trademark protection or not depends on the description of the mark in relation to the product. Descriptive marks are broken down into two groups:
  • Merely descriptive marks. Merely descriptive marks simply describe the product and don’t require any thought or imagination to understand what aspect or characteristic of the product or service the mark is trying to convey. A mark cannot simply describe the good or service.
  • Secondary meaning. When a descriptive mark develops secondary meaning that is distinctive in the eyes of consumers, then the descriptive mark could be protectable under trademark law. It is often hard to prove secondary meaning, and it usually takes a long time to develop secondary meaning a mark with consumers. When a mark is a surname, the surname must develop secondary meaning to the consumer in order to be trademarkable.

• Suggestive. Suggestive trademarks hint at some aspect or characteristic of the product or service that the mark represents. Suggestive marks are useful for marketing purposes, as they require the consumer to use thought or imagination to understand what the mark is conveying, such as the quality of a product or a characteristic of the product.

• Arbitrary or Fanciful. Arbitrary and fanciful marks are the most distinctive marks because they are so unique or distinctive that it is hard for the mark to represent anything by the product or service it is meant to represent.  
  • Arbitrary trademarks involve arbitrarily assigning a known word or logo to an unrelated product.
  • Fanciful trademarks involve a creative new word that is used solely as a trademark and has no other known meaning. 

​Keystone Scientific, Inc. is focused on helping businesses grow and develop. We work diligently to place our clients in contact with professionals who possess the skills our clients need to accomplish great things. Please feel free to reach out to our team by calling 814-205-3393 or contact us online. 

​The information contained in this blog is for informational and educational purposes only as a service to the public, and is not legal advice or a substitute for legal counsel, nor does it constitute advertising or a solicitation. The information contained in this blog reflects the most current legal developments at the time it is written; accordingly, information contained in this blog is not promised or guaranteed to be correct or complete. Please consult with a lawyer if you have any questions or legal matters that need addressing. 

​Trade secrets are one of the most affordable and useful forms of intellectual property (IP) protection that is available to startups and small companies that are on a tight budget as they start to build their business. Other forms of intellectual property protection, such as patents and trademarks, often require the skills of a specialized IP lawyer in order to secure protection, and there are fees associated with obtaining these IP rights. Trade secrets are an attractive form of intellectual property protection because the mere act of keeping useful business information secret and from being known by the general public is all that is required to create a trade secret. However, trade secret protection can also be just as easily lost if the secret gets out. As such, trade secrets can be one of the most useful and affordable, yet risky, forms of intellectual property protection that is available to small businesses.

What Are Trade Secrets?

Any information that gives a business a competitive advantage and has economic value due to the fact that the information is kept a secret can be considered a trade secret. Trade secrets can be knowledge, information, a device, a tool, a method of doing something, a recipe, schematics, or nearly anything. Trade secret protection is created when the holder of the trade secret actively takes steps to keep the information secret. So long as the information remains a secret, the trade secret holder can have trade secret protection - potentially indefinitely.

How To Protect A Trade Secret

Trade secret holders need to actively go about protecting their intellectual property. This means taking steps and precautions to ensure that the trade secret does not fall into the wrong hands, that the trade secret is not used in an unauthorized manner, or that the trade secret is not accidentally disclosed to the public. When the secret gets out, it is referred to as the misappropriation of the trade secret, and protection is lost from then on. However, trade secret holders may have a legal cause of action when their trade secrets are wrongly misappropriated.

A few measures that can be used to protect the secrecy of a trade secret include:

• Consistently and diligently using nondisclosure agreements with employees, contractors, vendors, suppliers, customers, etc.
• Limiting access to the trade secret information to only those employees or people that need to know the secret information.
• Keeping the trade secret information in a restricted place, e.g., locked up, password protected, etc.
• Labeling any trade secret documentation as “confidential.”

 
What Is, and Is Not, Misappropriation of a Trade Secret

Misappropriation is the improper acquisition of trade secret information, the unauthorized use of trade secret information, or the disclosure of trade secret information to the public. When a trade secret is wrongly misappropriated, either by deliberate theft of the trade secret, or inadvertent disclosure, and the trade secret holder has actively taken steps to prevent the loss of trade secret protection, the trade secret holder can seek to enforce the trade secret protection through the courts. The trade secret holder can request an injunction that will prevent the entity that misappropriated the trade secret information from disclosing it or using it, and can also seek damages for any losses that are the byproduct of the misappropriation.

Conversely, independent discovery of a trade secret, and reverse engineering of a trade secret, is not misappropriation. If trade secret information is learned from either independent discovery or reverse engineering, then the party who learned the trade secret information is free to use what they have learned for their own purposes.
 
Keystone Scientific, Inc. is in the business of connecting clients with the right people having the right skills to meet their project needs. How can we help you achieve your goals and solve your project problems? Please feel free to reach out to our team by calling 814-205-3393 or contact us online.