licensee http://www.artwoo.com Returned search results for licensee Copyright 2008 Tue, 02 Dec 2008 17:44:08 +0000 http://www.artwoo.com/rss/licensee Patent License Agreements http://www.artwoo.com/article/patent-license-agreements http://www.artwoo.com/article/patent-license-agreements#comments Wed, 23 Jul 2008 14:57:19 +0000 patent license agreementpatent license agreementsvital coglicensor grantsroyalty feebusiness operationlicensee http://www.artwoo.com/article/patent-license-agreements patent license agreement has become a valuable and trusted technique for companies to share knowledge in a protected way. No company wants to invest time and money in an invention, only to give it away without the prospect of compensation. Thus, the patent license agreement was created. It is an agreement in which a to a for consideration the revocable right to perform an act that would otherwise be illegal without the licensor's permission. Here, in contrast to other types of license, the act is to use the licensor's invention, which is patented for the protection of the licensor. The grant of permission, which may be exclusive or non-exclusive, is embodied in a document called the license.

There are a number of reasons why companies use . Perhaps the licensor stumbled upon the invention and has no desire to develop it, lucrative though it may be. Or perhaps the licensor has the desire to develop the invention but not the capabilities to do so. Only with another company's money or knowledge can the invention be advanced. On the other side of the coin, maybe the licensee needs the invention as a in a bigger . Finally, the licensee could well have the ability and the desire to further the invention that the licensor lacks.

Ideally, both parties benefit from the agreement. The licensee receives the benefit of using the licensor's invention, and the licensor gets a for this use. Generally, a licensor can expect to get a fee of five percent of the licensee's net sales. But this five percent is only a starting point and is certainly not consistent from industry to industry.

A license is necessarily limited, both in scope and in duration. The licensor grants certain rights in the invention while retaining others, namely ownership. However, the licensor may transfer all of its rights in the invention completely and without limitation. This type of transfer, to be distinguished from a license, is called an assignment. When the patent license expires or is revoked, the right to use the material reverts back to the licensor.

Patent License agreements have several key elements. The most important is the license grant, which talks to scope of the license: what is being licensed? To whom? For how long? In what capacity? May the licensee turn around and sublicense the invention to a third party? A second clause addresses payment terms, including how much the royalty fee will be and which party will maintain the patent. The licensee will usually be required to keep records of its use of the invention; the licensor will be allowed to view these records for a time. Unique to patent license agreements are the improvements and infringement provisions. What happens if the licensee, in using the invention, actually improves it? From time to time, a third party may infringe upon the licensor's patent, and this scenario may involve the licensee to some degree. Will the licensee be obliged to defend the licensor's patent? Bear in mind that if the licensor and licensee are competitors, it may be in the interests of the latter to let the former's patent fail. Finally, these agreements address patent markings-if products can be marked and if they should be-and whether the licensee is entitled to receive not only rights to the invention but also certain of the licensor's know-how and technical assistance.Mark Warner is a Legal Research Analyst for RealDealDocs.com. RealDealDocs gives you insider access to millions of legal documents drafted by the top law firms in the US. Search over 10 million Documents, Clauses, and Legal Agreements for Free at http://www.RealDealDocs.com]]> Crash Course on Trademark License Agreements http://www.artwoo.com/article/crash-course-on-trademark-license-agreements http://www.artwoo.com/article/crash-course-on-trademark-license-agreements#comments Sat, 30 Aug 2008 10:01:32 +0000 trademark license agreementdistinctive signsroyalty feesbrand new carball capsdistinct differencesspecific company http://www.artwoo.com/article/crash-course-on-trademark-license-agreements trademark license agreement. This agreement is a written contract in which the holder of a trademark (licensor) grants the revocable right to a second party (licensee) to use the holder's trademark in exchange for . Without the license, the licensee could not legally use the trademark.

Trademarks are a type of intellectual property. Trademarks are or indicators-usually phrases, logos, slogans, designs, images, or combinations thereof-that identify a or organization to the public. Protected marks are accompanied by the superscript "TM" for trademark, "SM" for service mark, or the encircled "R." They are similar to copyrights and patents but also have . One of them is the protection they receive. Copyright protection spans the length of the author's lifetime plus another 70 years; however, trademark protection is usually only five years, and it must be attentively guarded.

Similarly, trademark license agreements are also of limited duration. While a trademark owner may license the mark, knowing full well that the ownership does not pass to the licensee, the owner may also go one step further and sell the mark to a buyer. A sale, however, must include the underlying goodwill or assets that make the mark what it is. Without such goodwill or assets, courts have determined that such a sale is a fraud on the public, similar to selling a that lacks an engine.

Trademark license agreements should contain a handful of essential clauses for everyone's protection, including the public. First, the trademark must remain somewhat exclusive. A licensor would be foolish to dilute the mark by licensing it to every maker of in the market. Such a scenario might seem like a bonanza for the licensor, but it would soon become absurd as trademarked caps flooded the market. Second, the licensor must make certain that the licensee adheres to the licensor's preexisting quality control standards. To license the mark and then to discover that it is to be placed on substandard licensee products would be disastrous for all parties. Next, it is up to the licensor to provide examples of the mark, in various media forms if need be. If the licensor leaves it to the licensee to try to copy the mark as best it can, then surely trouble will result. Instead, the licensor should provide exemplars and hold the licensee to them-no slight modifications of font or color or spacing; no additions of phrases or images; nothing to alter the mark in public's eye.

Fourth, the licensor must have veto power over the use-not merely the design-of the trademark. The licensee should not be permitted to use the mark in connection with the licensee's political or philanthropic causes (even if they are good causes), if the agreement was for use of the mark only on the licensee's ball caps. If the licensor does not want the mark used with political or religious organizations, or hawked to promote alcohol, the agreement must give the licensor this veto power. Lastly, the license agreement must tie these protections together under a monitoring and inspection provision. Here, the licensor can pre-approve licensee samples, so that problems do not arise later. Monitoring may seem like a luxury, but it is a necessity, for a licensor that does not monitor the quality of its products and does not safeguard its mark can be deemed to have abandoned the mark-akin to commercial suicide for many companies.

While these provisions might seem to protect only the licensor, in reality, they protect everyone. For a diluted or abandoned trademark hurts the licensor, the licensee, and even consumers.Mark Warner is a Trademark License Analyst for RealDealDocs.com. RealDealDocs gives you insider access to millions of legal documents drafted by the top law firms in the US. Search over 10 million Documents, Clauses, and Legal Agreements for Free at http://www.RealDealDocs.com]]> Licensing Requirements For CB Radios http://www.artwoo.com/article/licensing-requirements-for-cb-radios http://www.artwoo.com/article/licensing-requirements-for-cb-radios#comments Sat, 23 Sep 2006 10:27:10 +0000 cb radio servicecb radiosradio signalsradio licenseradio licensespreferablysupervision http://www.artwoo.com/article/licensing-requirements-for-cb-radios CB radio service generally doesn't interfere with other . This is normally accomplished through frequency regulations adopted by the government. Considering the safety aspects, many governments have made it mandatory to have a license for operating a CB radio.

The signals sent into the air do not stop at the borders; therefore, every country should have the proper rules set up for planning and managing the radio signals so that one does not interfere with another. If this fails, the CB radio service is useless. Therefore, the installation and use of should by done with someone with a valid license, one issued by a government agency. The agency manages the radio signal spectrum in such a manner that they are available to those who need them.

In the UK, the agency that regulates the use of CB radio is a subdivision of the department of trade and industry. They manage the CB radio spectrum of the UK both nationally and internationally. CB radios can be used only with a valid license or under the of a license holder. OAP networks, Girls Guides and Scouts are exempted from having a license. The license is issued by the radio-licensing center in the UK. Other countries have other agencies that issue CB s.

As noted above, the user either should have a valid license to operate or be under the supervision of a license holder. Supervision by a licensee stipulates that both the licensee and the non-license holder should be in close proximity. However, genuine cases of group operations are exempt from direct supervision. Normally, the license is issued in the name of the CB radio license holder. Individuals under the age of 14 are not issued a license.

A license is still required for the reception of CB signals, even without transmission. Walkie-talkies are exempted from licensing, but they do need to conform to the agency directives on equipment. Taxi drivers should be licensed individually and the taxi company must comply with all the rules of CB radio service. Normally the license is valid for one year, after which it must be renewed for further use. If caught using the license for illegal activity, the agency may cancel the license. http://www.information-finers.com http://www.auto-tips-tools.com ]]> Codes Of Conduct Affecting The National Basketball Association http://www.artwoo.com/article/codes-of-conduct-affecting-the-national-basketball-association http://www.artwoo.com/article/codes-of-conduct-affecting-the-national-basketball-association#comments Sun, 12 Aug 2007 03:15:03 +0000 nba gamenba arenaexpectationscontactnba gamesnba productsaware that there http://www.artwoo.com/article/codes-of-conduct-affecting-the-national-basketball-association expectations in place to ensure that every fan is entertained when they go to a game or come in with anything associated with the NBA. Some of those expectations are applied to the people who provide and services and others expectations apply to the players when they are on and off the court.

The expectations that surround fans are covered under the Fan Code of Conduct. This Code affects any fan that attends an and was created to ensure that certain standards were in place that would let fans know how they are expected to act when they go to an NBA game. The expectations extend to how security forces are dispersed at an and the expectations for sales of alcohol.

Avid fans might be aware of some of these expectations because they may have heard some of them on the public address system during a game. The announcements serve as a friendly reminder only, but should be taken seriously because failure to comply could cost someone their right to stay at the game, or might go so far as affecting the validity of their season tickets.

Some fans might not be is an expectation in place that limits the sale of alcohol during a game. If the 3rd quarter is coming to an end and a fan wants to buy a refreshing beer, they have until the start of the 4th quarter to purchase one. They may be disappointed when to go to buy a beer if someone can determine that they have already purchased two that evening. The expectations on beer consumption limit fans to 2 beers that total 24 ounces during an NBA game.

The expectations also extend to the arena management too. They are expected to maintain a designated driver program at every NBA arena. Fans are happy of course, to learn about these expectations because they can now visit and have a good time watching the games and not have to watch people try to control their consumption of alcohol. The NBA arena staff is happy to do this small service for them.

Of course, the players have their own expectations to adhere to and those are the Rules and Regulations of the National Basketball League. These rules ensure that every player knows what is expected of them when they don a team jersey. No player wants to violate those policies because the violation could prove detrimental to them getting their contract renewed or having to pay a fine for their transgression.

The NBA has many expectations in place that apply to the vendors that have a licensee agreement with the NBA. The Licensee and Supplier Code of Conduct establish expectations for their employment practices, ethical standards and any environmental requirements that they must adhere to. All of these Codes of Conduct are in place to allow everyone to have a quality experience when they are exposed to the NBA in any way, shape or form. James Brown writes about http://www.nbagearshop.com ]]> Air Cars: Fuel For Free (Well Almost) http://www.artwoo.com/article/air-cars-fuel-for-free-well-almost http://www.artwoo.com/article/air-cars-fuel-for-free-well-almost#comments Tue, 26 Aug 2008 11:29:32 +0000 zero pollutionconversion techniquesair emissionscombustion enginefuel alternativesair carsenergy conversion http://www.artwoo.com/article/air-cars-fuel-for-free-well-almost fuel alternatives, rate up high on the efficiency vs. clean fuel alternative ratio. Although in the past people have bantered around the idea of an air car, the ultimate clean air car may be closer than you think. 

How does it work?

An electric pump compresses air into a tank at high pressures and stores energy. As the air escapes, it pushes against the pistons, similar to a . Compressed air is stored in large cylinders underneath the car, and the only emission into the environment is cold air. In fact, the tailpipe will be cleaner than the air going in since the air is run through carbon filters to remove dust, dirt and other impurities that could curb engine performance. This makes the car especially attractive to emissions activists, worried over global warming. Not only that, but the energy it does use is minimal compared to other future cars such as hybrids or bioethanol, which employ still controversial energy that can have an adverse effect on the environment and economy. 

Motors, the U.S. licensee of Luxembourg-based Motor Development International, has an air car scheduled for production in the U.S. in late 2009 or early 2010. To fill up, just stop by your local compressed air service station for a few minutes, or plug into an electrical outlet at home for four hours. At speeds over 35 mph this particular air car uses small amounts of fuel to heat air inside a heating chamber and allows the car to get to an estimated top speed of 96 mph. 
Infrastructure.

No major infrastructure is necessary to support the air car, other than a high pressure recharger around 300 psi. This of course makes the Air Car very attractive since most of our stumbling blocks when it comes to finding an alternative to petroleum are infrastructure changes. Clearly, service stations could change system configurations to accommodate widespread needs for compressed air. While fossil fuels are still needed to generate electricity to recharge, there will still be a net energy savings and reduction in CO2 emissions and pollutants.  Of course as wind and solar energy are used more and more as primary energy generators then the electricity used to run the car's electric pump will also be from clean sources.

Air cars have a promising future and are one of the major hopes for an easier than expected transition into a new clean fuel era. It is going to be exciting to watch these early air car prototypes transform and grow into viable vehicles for the 21st Century.Andrew Beckers writes about information that is helpful to humanity. He contributes to many socially conscious web sites. For more information on air cars.]]> Palm Pilot - Boon Or Curse? http://www.artwoo.com/article/palm-pilot-boon-or-curse http://www.artwoo.com/article/palm-pilot-boon-or-curse#comments Wed, 26 Jul 2006 12:27:11 +0000 http://www.artwoo.com/article/palm-pilot-boon-or-curse Palm-top computers or Personal Digital Assistants (PDA) have found their way into innumerable coat pockets across the country, having replaced the revered authority of the paper based agendas and index cards. The Palm Corporation produces a number of Personal Digital Assistants, which run the Palm operating system. Palm pilot was the name given to the first two generations of PDA manufactured by Palm Computing in 1996; which was then a division of US Robotics, then of 3Com and finally a standalone corporation.

Palm Pilot was the brainchild of Jeff Hawkins, Donna Dubinsky and Ed Colligan who were the founders of Palm Computing. The first machines were Palm Pilot 1000 (RAM size 128 K) and Palm Pilot 5000 (RAM size 512 K). Though provided with a serial port, they did not have infrared ports, backlights or flash memory. After the first two attempts, Palm Pilot Personal (RAM size 512 K) and Palm Pilot Professional (RAM size 1024 K) were introduced which had a backlight but no infrared ports or flash memory as yet. Meanwhile, Palm Computing, which was a subsidiary of 3Com, became upset on not having enough control over the palm pilot and founded Handspring in June 1998, which due to the efforts of Hawkins became the first Palm OS licensee.

Handspring later produced 'Handspring Visor', a clone of the Palm Pilot that included a hardware expansion slot. A standard feature of all Palm Pilots is to have 8 megabytes of memory and internal rechargeable batteries. Handspring merged with Palm to form palmOne in 2003. The whole idea of Palm Pilot had developed from Palm Computing's original ambition to create a handwriting recognition software for other devices; a process which convinced them that they could create better hardware as well. Toy Robots Initiative and Manipulative Lab created the design of the Palm Pilot with the purpose of enabling just about anyone to start building and programming mobile robot at a modest cost.

In 1998, when Pilot Pen Corporation brought on a trademark infringement lawsuit, handheld devices from Palm venue as Palm Connected Organizers officially and as 'Palms' more commonly. However palm pilot had entered the vernacular as a synonym for PDA. The Palm Pilot is bestowed with many advantages. It is small enough to be carried during just about every waking moment, so that useful bits of information may have no need to find place in your already cluttered brain. Also, it is a fully functioning computer where the contents can be searched, as you want. Turn it into what you like -- patient-tracking device, calculator, repository of information, built-in calendar, address book, to-do list, memo pad or almost anything else. What's more? This five inches, six ounces Palm Pilot is an easy fit in any shirt pocket and runs for weeks on two AAA batteries.

However, theoretical drawbacks like "the Palm Pilot traces you wherever you are" has not stopped it from being an enormous success. The latest entry, the Palm VII brings us a step closer to the 'Total Connectedness' scenario of the future. Tyson J Stevenson is a prolific writer of useful articles on a variety of topics. Related resources are: http://www.my-palm-pilot.info http://www.hubbuh.info http://www.buhhub.info ]]> Boise, Idaho Flat Fee MLS http://www.artwoo.com/article/boise-idaho-flat-fee-mls http://www.artwoo.com/article/boise-idaho-flat-fee-mls#comments Thu, 16 Oct 2008 12:29:19 +0000 real estate boomreal estate licenseecalifornia home salesintermountain mlsboise areacanyon countiesbroker members http://www.artwoo.com/article/boise-idaho-flat-fee-mls real estate boom as well as some real estate deflation afterwards. After all, who in Boise is not familiar with someone who deployed their plentiful proceeds into a Boise-area home or investment property? Likewise, some of the same investors who were buying properties in Arizona and Nevada moved on next to Boise. Years of low interest rates also allowed many more people to get into the housing market, and at higher prices than before.

Understanding Boise flat fee MLS programs requires you to first understand how real estate brokerage works in and around Boise. Brokers in Ada and are members of the system. (The system is actually quite large and extends to even areas outside of these counties such as Twin Falls) This MLS system provides brokers a place to list their properties for sale. It also allows brokers the ability to offer compensation to other broker-members if they represent a buyer that purchases a listing. Being a member in this system is the main reason that a becomes a RealtorŪ and joins the local association in the first place.

Because the MLS gives agents and buyers the ability to know exactly what is for sale, what is under contract, and what has recently sold, it has become the de facto marketplace for any and all real estate for sale. Someone looking for a 4 bedroom home in Kuna, over 2000 square feet, but under a particular price point can do a targeted search and find exactly that. They can also use the MLS to see recent comparable sales in determining what they want to offer for a property.

Most Boise home sellers still hire a traditional, full commission agent to get their property on the MLS. A few, however, have discovered the fact that you can hire a flat fee MLS company to list your home on the MLS for a flat fee and no listing commission. While they are licensed by the State of Idaho as real estate brokers, they operate on a low cost, high volume model that allows them to provide this service. Sellers in Boise and virtually every submarket including Eagle, Meridian, Kuna, Caldwell, Nampa, Middleton, Star and others have successfully sold homes through these programs. The trend clearly shows an increase in these types of listings and these sorts of brokers have gotten all sorts of positive encouragement from the United States Department of Justice which is interested in increasing competition in the real estate brokerage sector. Even sellers who engage a traditional agent to sell their home will benefit from flat fee MLS programs in Boise because their agent will need to provide proof of extensive services being provided to justify the higher fees. Look for flat fee MLS listings in Boise and throughout Idaho to increase in the coming years.Boise Flat Fee MLS Listings can be found at Congress Realty (http://www.congressrealty.com). Congress Realty's founder, Donald Plunkett, authored this article and has been licensed as a real estate broker in Idaho for many years.]]> Protecting Your Domain Name: Understanding The Anti-Cybersquatting Consumer Protection Act http://www.artwoo.com/article/protecting-your-domain-name-understanding-the-anti-cybersquatting-consumer-protection-act http://www.artwoo.com/article/protecting-your-domain-name-understanding-the-anti-cybersquatting-consumer-protection-act#comments Tue, 16 Oct 2007 04:25:02 +0000 uniform domain namebusiness domain namesacpafact that thiscybersquattingconsumer protection actinstances http://www.artwoo.com/article/protecting-your-domain-name-understanding-the-anti-cybersquatting-consumer-protection-act instances, the owners of trade or service marks use their marks as part of their . Nonetheless, there are many instances in which someone else may take advantage and start using the trade or service mark as part of another domain name. With this well in mind, it is incumbent upon trade and service mark owners to monitor to make certain that others are not misusing their intellectual property in the registration of other domain names.

No matter how the domain name usage actually is discovered, trade or service mark owners have two basic options for resolving disputes over domain names. First, a person or company can take action under the Dispute Policy. The benefits of this process is that it is relatively fast and relative inexpensive. There are drawbacks that include the process is not available to all domain names, it is not appropriate for license disputes and damages and attorney fees cannot be recovered through this process.

The other alternative available to a person or company who believes it has been wronged or violated in terms of a domain name related issue is the Anti- (""). The ACPA was enacted in 1999 and was designed to prevent cybersquatting on the Internet.

Cybersquatting generally is considered the use of domain names that are confusingly similar to trademarks and service marks owned by other business enterprises or individuals. The ACPA can impose liability on the registrant of such a domain name (or its licensee) if that person or entity has done the following:

(i)has a bad faith intent to profit from the mark; and,

(ii)registers, traffics in, or uses a domain name that is identical or confusingly similar to the mark and the mark (or dilutive if the mark is famous) was distinctive (or famous) at the time of the domain name registration.

The ACPA does establish a set of nine nonexclusive factors that a court may utilize in working to determining whether a person or entity has acted in bad faith, has a bad intent, in regard to a domain name registration. The ACPA states that "Bad faith intent . . . shall not be found in any case in which the court determines that the person believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful."

For example, the actual trade or service mark owner must demonstrate that the challenged domain name is confusingly similar to its own trade or service mark. Only the challenged domain name and the trade or service mark will be compared under the ACPA. According to the ACPA, the proper inquiry is whether the defendant's domain name is so similar to the plaintiff's trade or service mark that the two could be confused by a third party.

If the mark owner is successful in the action, the court may order the forfeiture, cancellation or transfer of the domain name. Moreover, the mark owner may recover the defendant's profits, any damages sustained by the owner of the trademark and its costs of the action.

Pursuant to the statute, the owner of the mark may elect to recover statutory damages, in lieu of actual damages and profits. The court can award statutory damages in an amount between $1,000 and $100,000 per domain name.

Claims that are made under the ACPA and UDRP are two options available to trade and service mark owners who are trying to protect their mark from being used by others in bad faith. Robert Masud, Esq. is the principal of Masud and Company LLC, a law firm for the world of business, finance and the internet. Find out how we can help you at http://www.masudco.com ]]> Is A Person Who Has A Services Company Entitled To Relief Under S 106 Of The Industrial Relations Act (NSW)? http://www.artwoo.com/article/is-a-person-who-has-a-services-company-entitled-to-relief-under-s-106-of-the-industrial-relations-act-nsw http://www.artwoo.com/article/is-a-person-who-has-a-services-company-entitled-to-relief-under-s-106-of-the-industrial-relations-act-nsw#comments Sat, 10 Mar 2007 06:27:05 +0000 unfair contractsemployment contractssystem contractsindustrial relations actindustrial relations commissionemployer organisationrelevant parties http://www.artwoo.com/article/is-a-person-who-has-a-services-company-entitled-to-relief-under-s-106-of-the-industrial-relations-act-nsw
Early forms of provisions were aimed at simply protecting the arbitration system. Contracts had to have a distinctive industrial 'flavour' before the courts or commissions would intervene. Over time a more expansive and liberal approach attitude towards the review of unfair contracts developed. Such a broad response acted as a springboard for the of NSW to intervene in a wider variety of commercial transactions.

Strictly speaking, the scope of s 106 is to be restricted to contracts that lead directly to performance of work in an "industry." However the term "industry" may be broadly interpreted. It appears though that the "industry" component is satisfied by doing the work in an industry.

The section is designed to protect citizens from unfair consequences of . However more recently there has been a growing willingness to indirectly allow the jurisdiction to operate as an alternative to actions for a breach of contract.

The question of whether a person who has a services company is entitled to make a claim under s 106 depends greatly upon the width that the Commission is prepared to afford the section.

Who can apply?

Section 108 of the Act contains a list of persons that may apply for relief under s 106. Generally speaking, any person who is party to a contract can apply under s 106. This includes anybody whose status is a:

- Natural person or company - An employer - An employee - Contractor - Licensee - Trade union official - s

The general rule that a person must be party to a contract is subject to exceptions. For example, s 108 allows that a union or employer organisation that is not party to a contract arrangement could be an applicant without express requirement for consent by the . This is an important operation of the . It gives effect to one of the key policy considerations, that is, broader public interest and industrial concerns. However, an association that employs contractors, drivers and carriers who are registered under Chapter 6 of the Act can apply for relief under s 106 only in the event that a party to the contract is a member of that association.

Width of jurisdiction under s 106

Historical analysis of relevant decisions demonstrates that the jurisdiction of the Commission regarding unfair contracts is sufficiently wide to include agreements between sub-contractors, contractors and principals. The interpretation and application of s 106 has become increasingly liberal and flexible.

The decision of the High Court in Stevenson v Barham confirmed that the Commission's unfair contract jurisdiction is not limited to agreements that subvert industrial relations or contracts of employment.

There is potential for sub-contracting arrangements to be implemented under the pretext of "flexibility" but which in actual fact are intended to disadvantage workers by avoiding obligations that would exist if the relationship were one of employment.

Furthermore, s 106 has been invoked in many other areas and is now regularly used in relation to franchise agreements, partnerships, commercial leases, share farming agreements and copyright agreements. There have also been numerous claims from independent contractors that have provided those workers with some protection in circumstances where they have been excluded from the protection of awards with some protection in circumstances where they have been excluded from the protection of awards and many statutory entitlements that applied to employees.

In the case of the AOS Group Australia Pty Ltd (In Liq) v Arrongate and Ors, the Full Bench of the Commission built upon the notion that the jurisdiction under s 106 enables the Commission to order that damages be paid by parties who were associated with the unfair contract - even if they were not part of the contract.

The result in the case lead to the inevitable conclusion that s 106 empowers new contracts to be created. This decision has great ramifications for not only liquidators and administrators but also participants on labour hire and other forms of indirect labour arrangements.

More recently allegations have been levelled at some applications that appear to be bringing claims under s 106 that are in actual fact more akin to unfair dismissal claims -- found in Division 3, Part VIA of the Industrial Relations Act.

Unfair dismissal claims are designed to address a distinctly different circumstance and type of claim. Considerable claim must be taken in relation to the facts and pleadings if matters are to be brought under the jurisdiction of s 106. This is also the case if a person who has a services company seeks to bring an action. This is particularly important as the Commission will only determine jurisdiction at the end of the trial. Frank Egan is the Chief Executive Officer of LAC Lawyers Sydney http://www.laclawyers.com.au and has over 27 years of experience as a lawyer. ]]> Taxation Law - Goods And Services Tax http://www.artwoo.com/article/taxation-law-goods-and-services-tax http://www.artwoo.com/article/taxation-law-goods-and-services-tax#comments Sun, 27 May 2007 02:15:00 +0000 gst legislationgoods and services tax actcontravenefbttax system goods and services tax act 1999input tax creditsservices tax act 1999 http://www.artwoo.com/article/taxation-law-goods-and-services-tax FBT, ICT, GST, LCT and PAYG (earn/withholding). At this stage this paper will only deal with . The main piece of GST legislation is a new tax system ( 1999) which came into operation on 1 July 2000 and is payable only on supplies and importations made on or after that date. GST is charged at the rate of 10% on most goods and services consumed in Australia. It is important to keep in mind that the manipulation of GST is an offence which is punishable by fine, penalty, criminal sanction and may amount to a false or misleading claim which may the Trade Practices Act 1974.

Where ambiguities arise they have been traditionally resolved in favour of the taxpayer, however the pendulum has swung to look at the purpose or intent of the legislation in its overall context.

It is fair to say that GST applies to most businesses. Most businesses should have an ABN and be registered for GST so that they can charge either their customers or clients for goods and services. Effectively GST can be claimed by all of those involved in the supply chain except the final consumer. There are a number of GST-free goods which include a number of hospital, medical, child care, religious, charitable, state-based services, education courses and duty free goods to name but a few.

Registration is central with the imposition of GST however problems can arise as there are basically three categories of potential registrants:

1 those who cannot be registered;

2 those who can be registered but do not have to be;

3 those who are required to be registered.

In order to be registered you must be carrying on an enterprise and it is mandatory where your annual turnover exceeds $50,000.

Issues arise in a GST context depending upon your status e.g. employer and employee; employer and independent sub-contractor; principal and agent; partners, licensor/licensee and joint venturers.

In the vast majority of cases in order to overcome any conflict the entity should have an ABN and be registered for GST provided they are carrying on an enterprise.

Complications can arise where both goods or services are sold, however the problem becomes more complicated in the services sector for some participants. An entity is liable to pay GST where it makes a taxable supply or importation. A taxable supply covers a wide range of transactions. It sounds trite to say but for there to be a taxable supply there must be a supply and this occurs when something passes from one entity to another in certain circumstances. There are mixed and composite supplies and to some extent this depends upon whether the parts of the supply may be separately identified. With mixed supplies there has to be apportionment. There has to be a consistent identifiable methodology which is adopted when dealing with these matters. Where goods are partly taxable and partly GST-free then any additional service has to be dealt with in the same way.

Ever since the introduction of the GST there have been a number of attempts by a number of tax-payers to avoid paying GST. The ATO looks strictly at the basis of the relationship between the taxpayer and any other party with whom they are dealing. For example, contractors who are service providers or putative or deemed employees. This examination goes not only to the issue of GST non-compliance but to whether or not PAYGW obligations have also been met. The following quote was taken from an ATO information bulletin with respect to the latter point: "Establishments that pay service providers are reminded of their withholding obligations, particularly the no-ABN withholding obligations where the service provider is a contractor. If the service provider does not quote their ABN or provide a statement by a supplier =96 reason for non-quoting an ABN to an enterprise form, the establishment must withhold 48.5% of the total payment and send the amount withheld to the Tax Office." Of course any PAYGW obligation is now satisfied at 46.5% as against the 48.5% stated above. Of course all enquiries precipitated by the Tax Office will also extend to SGL and when they are not satisfied with the so-called contractor as an independent sub-contractor they will be made accountable for any shortfall in the superannuation guarantee component.

The status of the worker is all important. The Tax Office often describe persons engaging in a particular activity as a worker and this pervades the whole approach to this area including GST, PAYG (EandW) and SGL. Questions could arise as to whether the entity is acting as an agent for the service provider for not making GST supplies to clients or could be making taxable supplies to workers for example including facilities or administrative services. One of the key questions in this area is whether or not A or B are entities which are running separate and distinct enterprises involving the supply of services? Obviously it is better for the tax office if A is an employer as it streamlines the analysis and leads to the ready identification of what taxes have to be paid where the taxpayer is non-compliant. Alternatively much the same could be said where A is the principal and B the agent or vice-versa. Alternatively some of the same arguments could be used where A is the employer and B is a contractor. However, difficulties arise where the ATO encounters licensors and licensees; lessors and lessees; and bailors and bailees in their respective industries. The question of tax compliance or non-compliance is in part tied up with the question of exploitation by B of any available asset which they have a right to use or occupy. It is further complicated by whether or not separate payments have been received or where one of the parties accepts a group payment on behalf of both.

This is a complicated area which requires the detailed attention of a pure tax lawyer to ensure you are properly advised before you commit to a course of action or have any dealings with the ATO especially where you may be or are tax non-compliant. Frank Egan is the Chief Executive Officer of LAC Lawyers Sydney http://www.laclawyers.com.au and has over 27 years of experience as a lawyer. ]]> Intellectual Property Protection In China http://www.artwoo.com/article/intellectual-property-protection-in-china http://www.artwoo.com/article/intellectual-property-protection-in-china#comments Thu, 30 Nov 2006 16:27:04 +0000 ip environmentip registrationip lawyersprotecting intellectual propertychinachinaslegal regime http://www.artwoo.com/article/intellectual-property-protection-in-china legal regime is deficient -- it's enforcement that's lacking. For the present at least, is a net importer of intellectual property. A relatively lawless is advantageous to China's short-term interests, just as a strictly enforced IP environment suits the interests of net IP exporters such as the United States. This issue has been constant irritant in relations between China and Western nations, as well as Japan. Nevertheless, China's enforcement of intellectual property has steadily improved in recent years.

(IP) in China requires a multi-pronged strategy including registration, workplace security, employee contracts, commercial contracts and enforcement.

Registrations

China's regimes are more or less consistent with international standards.

Trademarks - are protected on a first-to-file basis, with an exception for well-known trademarks. Do not rely on the "well-known" exception, however (unless you are Coca-Cola), because whether a particular trademark is "well-known" or not is a time-consuming argument that keeps in business all over the world. If a trademark uses words, the Chinese language equivalent should also be registered.

China has adopted the international Classification of Goods and Services under the Nice Agreement, and has also adopted the international registration regime under the Madrid system.

FIE Business Names -- must be in Chinese and registered with the local Administration of Industry and Commerce before an application to set up a Foreign Invested Enterprise can be submitted (see this site's Company Startup Guide for details on company name registration). Since China does not have a national register of business names, registrations are valid only within a particular locality (and an FIE business name cannot be registered in any location except its location of establishment). Trademark registrations offer better protection in this respect.

Patents and Designs - are protected on a first-to-file basis. China is a member of the Paris Convention, so filings in a member country within applicable time limits can also gain priority in China. More ominously, compulsory licenses may be granted (i) to qualified enterprises if the owner of the patent fails to license the patent on reasonable terms, and (ii) in the event of a national emergency. Because of this, many foreign companies do not register patents for sensitive technology in China. See Technology Transfers and Licensing for related information.

Copyrights - Copyrighted material may be registered with the China National Copyright Administration. As in the United States, copyrights are not granted on a first-to-file basis. Registration does serves as useful evidence of ownership of a copyrighted work, but it is not a legal precondition to enforcement.

Software -- is considered copyrighted material and may be registered with the China National Copyright Administration. Registration requires the filing of source code (with some code blacked out). As a consequence, many foreign companies refuse to register their software in China.

Domain Names - are protected on a "first-to-file" basis. A foreign company must have an FIE or Representative Office in order to register a ".cn" domain name in China.

Workplace Security

It is strongly advised to create a "plumbing" system to control IP leakage in the workplace.

IT systems and any hard copies of IP should be kept in an access-restricted, secure location.

Confidential information should be distributed on a strict "need to know" basis.

Confidential material should be marked "Confidential Information" in Chinese in anticipation of possible litigation in Chinese courts.

Employees

Independently investigate the reputation and trustworthiness of applicants for sensitive positions during the recruitment process.

Labor contracts should be prepared carefully. You should consider including the following in all labor contracts:

Confidentiality obligations

Non-compete clauses - Post-termination non-competition clauses should be limited to a reasonable geographic area and time limit. Compensation is also required to be paid during the period of non-competition.

Assignment -- Although China recognizes the work-for-hire principle, the labor contract should clearly assign ownership of intellectual property created in the course of employment; otherwise IP rights may prove practically impossible to enforce against an employee who creates an IP-related work for hire.

Product Selection

Despite the additional tax breaks and incentives available, think carefully before manufacturing products that require new and sensitive technology in China. Components requiring new and sensitive technology may be imported into China in a secure manner for integration with the rest of the product.

Commercial Contracts

Since many commercial arrangements, even sourcing materials and components, can necessitate an exchange of intellectual property, adequate protections should be included in the contracts and associated documentation.

Administrative Enforcement Action

Various government organs have the power to take administrative action against IP infringers:

National Copyright Administration - The NCA is the "big gun" of the Chinese IP enforcement arsenal and is endowed with broad enforcement powers. They may order cessation of the infringing activities, confiscate illegal income, confiscate and destroy illegal copies, and impose fines.

State Administration of Industry and Commerce - The SAIC and its local AICs have a reputation for efficient trademark enforcement action, including investigations and raids. The SAIC also handles disputes regarding business names, registered trademarks, trade secrets, and passing off activities.

Customs - may confiscate products that infringe trademarks, copyrights and patents.

China Patent Office - may help with patent enforcement through investigation, mediation and raids.

General Administration of Quality Supervision, Inspection and Quarantine - may get involved if product quality and health issues are at issue.

Administrative enforcement is a relatively inexpensive and efficient alternative to litigation, and it is easier to win a conviction.

Litigation

If administrative action fails to bring the desired result, litigation may have to be resorted to. Chinese courts can issue injunctions and award damages, although in practice their enforcement powers are typically weaker than in Western nations.

Criminal Prosecution

Criminal liability, including imprisonment, can be imposed for IP violations, although successful prosecutions are rare. Financial thresholds that must be met before criminal liability can be assessed can be difficult to prove. These thresholds include:

RMB50,000 turnover for knowingly selling goods with counterfeit registered trademarks

RMB50,000 turnover or RMB30,000 profits if trademarks are applied to goods without authorization

International Enforcement

Products that infringe intellectual property rights can be interdicted by customs at the destination port. It is also possible to seize the overseas assets of infringers located in China.

Technology Transfers and Licensing

Foreign investors often license technology and intellectual property such as trademarks, patents, copyrighted material and trademarks to the FIEs they invest in. A foreign party may also license technology to unaffiliated Chinese companies, such as in manufacturing or management contracts. Unlike joint venture contracts, licensing contracts can be governed by foreign law.

Proper licensing will help the foreign party control its technology and secure the payment of royalties (registration is required for the latter). Only the brave, however, will dare to license sensitive technology to an entity which the foreign party does not control.

Technology transfers are understandably less common than licensing and are usually used as part of the foreign investor's contribution of technology to a Foreign Invested Enterprise as Registered Capital.

Technology Restrictions

Chinese foreign trade law recognizes three categories of technology: Permitted, Restricted, and Prohibited. These are contained in a catalogue that lists specific technologies.

Permitted technology is simply technology which has not been classified as Restricted or Prohibited.

Restricted technology may not be imported without a license, and is generally related to the chemical, petrochemical, biochemical, biological, and petroleum refining industries.

Prohibited Technology is technology that is considered to endanger national security, the public interest, or public morals by placing people's lives or health at risk or destroying the environment.

Paperwork

A license for restricted technology must be approved by and registered with the Commission of Foreign Trade and Economic Cooperation (COFTEC). COFTEC will adjudicate a license application within 30 days. Licensing contracts for Restricted technology are effective only after COFTEC issues the corresponding Technology Import License.

Prohibited technology may not be brought into China.

Certain types of Permitted technology, while not subject to licensing requirements, are still subject to filing with COFTEC.

Technology transfers relating to certain major projects must be registered with and approved by the Ministry of Commerce. Trademark licenses must be filed with the China Trademark Office within three months of execution in order to remit royalties out of China. Foreign trademarks must be recorded at the China Trademark Office in order to remit royalties out of China. Trademark recordation takes about a year and a half.

Improvements

A foreign company may not prohibit a licensee from improving the licensed Technology, and these improvements become the property of the improver.

Technology as FIE Capital Contributions

Technology may be contributed as part of an FIE's Registered Capital; however, the FIE will then become the owner of the technology and the foreign contributor will have to license the technology from the FIE if it wants to use it.

Technology contributed as capital is required to be appraised upon importation and should also be appraised by the Ministry of Commerce or the relevant local COFTEC as soon as the FIE is approved.

Since the Company Law requires 30% of the Registered Capital of an FIE to be contributed in currency (20% of the initial installment of Registered Capital), it follows that alternative forms of contribution, including technology, cannot total more than 70% and 80%, respectively. David Carnes is licensed to practice law in California. He speaks and reads Mandarin Chinese and has several years experience working with Chinese law firms and Sino-American joint ventures. His website, China Legal Bulletin, is at http://www.lunaticwisdom.com/blog1. ]]>