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The International Landscape: A Broad View on Intellectual Property Protection
Despite the harmonization of intellectual property law and policy seen in the numerous international treaties between countries, there is no single copyright or trademark law that protects a work in every country in the world. To avoid legal problems, such as property theft, companies which conduct or seek to conduct business abroad should take the necessary steps to ensure that their IP is safe in every applicable country.
Before proceeding with securing international rights, a company should assess whether filing for protection is appropriate. Circumstances for determining what type of IP protection is best for a certain company vary, so seeking legal counsel is advisable. Several general questions can help guide the decision, such as whether or not you will be selling, distributing or outsourcing your product abroad, and what the likelihood if of your product being copied overseas. International protection is not inexpensive, and affordability should be a deciding factor. While every care and consideration should be taken in the decision, businesses should keep in mind that since certain actions can bar certain types of protection, it’s in a business’s best interest to consider IP protection as early as possible.
Once you have decided to protect your IP abroad, legal counsel can help you develop an overall protection strategy, conduct due diligence of potential foreign partners, record your U.S.-registered trademarks and copyrights with Customs and Border Protection, and secure and register trademarks and copyrights in the appropriate foreign markets.
As trademarks are territorial and a U.S. trademark does not grant protection in other countries, trademarks must be filed in each country where protection is sought. If a business is seeking trademark protection in numerous countries, it may be expedient to file an application under the Madrid Protocol, which offers trademark protection in many countries, including those beyond the European Union (e.g. Turkey, Iran). Another option for businesses seeking protection in several countries is a CTM, which must be applied for and provides protection for a trademark in all member countries of the European Union.
Although there is no such thing as an “international copyright” that will protect a work worldwide, most countries offer protection to foreign works under international copyright treaties and conventions. In the case that the work can’t be brought under an international treaty, a country may still offer protection under its national laws. Examples of international copyright treaties and conventions include the Berne Convention for the Protection of Literary and Artistic Work, the Universal Copyright Convention, the World Intellectual Property Organization (WIPO) Copyright Treaty; the WIPO Performances and Phonograms Treaty, and the Agreement on TradeRelated Aspects of Intellectual Property Rights. Since there are still some countries that offer little or no copyright protection to any foreign works, it may be advisable to consult www.copyright.gov for a list of policies specific to each country.
It is important to keep in mind that international protection and U.S. protection can differ in several ways with regards to IP. For example, the U.S. offers arguably less protection of an author’s moral rights than other countries. On the other hand, the fair use defense to copyright infringement under §107 of U.S. copyright law is significantly broader than international fair use exemptions, which have a tendency to be more specific in nature. Since policies can vary between countries, it is always advisable to conduct due diligence for the most up-to-date legal and procedural issues surrounding international protection. Failing to do so may result in product or name infringement and dilution in a jurisdiction where you have no judicial or legal remedies, possibly resulting in devastating economic consequences.
by, Sheheryar Sardar, Esq., Sardar Law Firm LLC*
For more information on contract law, contact: Sardar Law Firm atsardar@sardarlawfirm.com.
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+ Read more…What Social Media Companies Should Know About the Contract
Sheheryar T. Sardar discusses Social Media companies and their potential contract issues.
Social media has grown exponentially in the last decade, with enterprising companies creating uncontested market space in the online and digital industries. Whether its new search engines or unique services offered to niche markets within the browsing population, social media has transcended all ages, incomes and geographic regions. Due to the fast-paced nature of social media, ambitious entrepreneurs often overlook the need for contracts for their business. While staying ahead of the competition is paramount, creating and maintaining contracts will only enhance your edge.
Before you even start a company, or else plan on developing professional relationships with external agencies, prospective partners and employees, it is critical to understand the laws of contract. When there is a dispute, and often there is at least one during the development phase, all parties will look to the contract. As such, having a lawyer on board from the outset will always be an advantage for your business. Here is a brief list of issues to consider:- Non-Compete Clauses: you want to protect your business by impeding your partners’ or employees’ rights to directly compete with your business if they leave. This would be framed within a specific time period, limited to a geographic area, but is very important because they possess inside knowledge of your competitive advantage.
- Non-Solicitation Clauses: you don’t want your partners or employees soliciting your colleagues or your customers away from your business.
- Non-Disclosure Agreements: NDAs are no unreasonable, so long as the language in the contract is clear on protecting your right to confidentiality.
- Moonlighting and Loyalty: This may or may not be necessary, depending on the nature of your business. A lawyer could assess its need once you discuss your goals.
- Ownership of Intellectual Property: You may want to protect any processes, templates, systems, or methods created by an employee by retaining any IP rights over them. A contract on the outset will provide necessary protections so that work product created under your business does not ultimately go to a competitor.
- Use, Licensing, Technology Transfer: Social media companies will likely need to outsource its products or services through other digital or online mechanisms, usually other companies. Often, partnerships are created to facilitate such business development. In this context, having contracts to protect the use and licensing of your work product, so that it doesn’t leak or be misused, will make your transitions to the next stage much more efficient. Similarly, if you are interested in commercially exploiting your methods, processes or inventions (Technology Transfer), you will need contracts to protect your financial interests.
Spending a little time on developing a legal structure through contracts, while slightly time-consuming, is a real investment in your social media business. Your business will make or break based on the contract, often when you must make strategic decisions for the success of your business. Retaining a contract lawyer will only enhance the probability of that success.
This article was published by Sunshine Suites, here.
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+ Read more…Student Visas: Understanding It
The SARDAR LAW FIRM offers strategic representation to our clients in their application for a student visa. Contact
us at 631.838.0178 to set up a consultation, or email us at sardar@sardarlawfirm.com.Students who want to study in the United States will need a visa if they plan to study for more than 18 hours a week. Students intending to take a short course of study consisting of less than 18 hours a week may be able to do so on a visitor visa and should contact their U.S. Embassies or Consulates. Email us at sardar@sardarlawfirm.com or call 631.838.0178 for more information or a consultation.
What Is A U.S. Student VISA?
Just as some schools of choice are outside the United States, for many in foreign countries, schools inside the U.S. are the ones that foreign students want to study at. Some requirements to obtain a U.S. student VISA are:
- You must show proof that you have been accepted at a school in the United States.
- You must be able to show proof of having the financial resources you need to survive will you are studying in the United States.
- You must have the educational prerequisites necessary to begin your studies in the United States
Understanding U.S. Student VISAS
Typically there are some factors about a U. S. Student VISA that you should understand:
- United States student VISAS are temporary and good only for the period of time specified.
- If you intend to return to the U.S. to study again in the future, you must repeat the application process and meet the same requirements as we stated the original time.
- The student VISA application process takes time. You should allow as much time as possible to apply. You should also make sure that you are applying within the specified time frame and according to the guidelines.
Email us at sardar@sardarlawfirm.com or call 631.838.0178 for more information or a consultation.
Working on a Student Visa
A student visa approves a non-immigrant to come to the United States to study, not to work. A student could do odd jobs like babysitting or lawn mowing, but could not work for an employer.
Obtaining a Student Visa
Embassies and Consulates are able to issue a student visa 120 days or less in advance of the course of study registration date. All initial, or beginning, students may not enter the United States more than 30 days before the start date of the course of study. They may enter anytime 30 days or less before the start date of the course.
As a Current Student: When to Apply
Continuing students can apply for a new visa anytime as long they are have maintained student status. Continuing students may enter the United States at any time prior to their classes starting.
Email us at sardar@sardarlawfirm.com or call 631.838.0178 for more information or a consultation.
+ Read more…E2: Investor Visas
The SARDAR LAW FIRM offers strategic representation to individual and corporate clients in regards to E2 Investor Visas. Contact us at 631.838.0178 to set up a consultation, or email us at sardar@sardarlawfirm.com.
Investment Requirements
Foreign investors who invest a “substantial amount of capital” in a US business, and who will develop and direct the business may apply for the E2 investor visa, if their country of citizenship has the required treaty (Pakistan has this treaty) with the US. Foreign companies whose owners are nationals of a treaty country may potentially petition their employees for the E2 visa. Email us at sardar@sardarlawfirm.com for more information or a consultation.The investor must demonstrate that he or she has control of the enterprise by showing ownership of at least 50 percent of the business and possessing operational control through a managerial position or other means. The investor must have already invested in the US business or is actively in the process of investing in the business.
The investment must be substantial. The law does not specify a minimum dollar amount to qualify. Instead, “substantial investment” is defined as sufficient funds to ensure the investor’s financial commitment to the successful operation of the E2 enterprise and large enough to support the likelihood that the investor will successfully direct and develop the business. The investment enterprise must be more than a marginal business solely for earning the investor’s living.
The business must a real and operating enterprise. If the applicant is not the principal investor, he or she must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify.
Non-Immigrant Intent Requirement
The E2 visa has a nonimmigrant intent requirement. Nonimmigrant intent means the applicant must intend to depart the United States when the E2 status terminates. However, holders of E2 visas may renew their visas indefinitely as long as they continue to own and operate their E2 enterprise or work for a qualifying E2 business in the case of an employee. Email us at sardar@sardarlawfirm.com or call 631.838.0178 for more information or a consultation.
Application Process
If the investor or employee is inside the US, he or she may apply directly to the US Citizenship and Immigration Services (USCIS, formerly INS) for a change of status, extension of stay, or change of employment without leaving the country.
The E2 category does not require a petition for employment, if the investor is outside of the US. This means the investor or employee may apply for the E2 visa on his or her own behalf directly to a US Embassy or Consulate abroad. The E2 visa may be issued for up to 5-year validity period and may be renewed indefinitely, as long as the applicant continues to satisfy the visa requirements. The actual length of the visa depends on the treaty between the US and the applicant’s country and the consular officer’s discretion.
You should understand that a change of status is not a visa. Once the person leaves the United States, he or she must apply for an E2 visa at a US consular office before returning to the United States. Only a consular office may issue a visa. The USCIS cannot issue a visa. Email us at sardar@sardarlawfirm.com or call 631.838.0178 for more information or a consultation.
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