In the world of commercial contracts, “boilerplate” means certain routine clauses that appear in nearly all business agreements. They typically address the mechanics of the contract, such as what law governs a dispute and if a catastrophic event will suspend performance obligations. It is a common misconception that boilerplate provisions are generic and nonnegotiable, which is one reason they are often overlooked. However, it is important to understand that while “boilerplate” refers to standard types of clauses, the terms in those clauses are not standard, and they are negotiable. Because these terms may significantly impact the parties’ rights and obligations under the contract, understanding them is vital.

As previously discussed, use of another company’s trademarks, including those of a competitor, is sometimes possible, even without the owner’s express permission, if the marks are used in a truthful, non-deceptive way as a means of referring to the company which owns the trademarks. Such use is known as “nominative fair use,” which is an affirmative defense provided under U.S. trademark law.

Companies that sell data during the course of their business do not always realize that they are considered a “data broker” under some U.S. state laws, and that their data broker activities may require registration with some states. With increased attention being paid to individual privacy rights and the recent enactment of new state privacy laws in the U.S., it is an opportune time for companies to determine whether they are data brokers so that they can focus their compliance efforts on the various requirements, if applicable.

Trademarks are valuable assets that help companies distinguish their products and services in the marketplace. Their value is so significant that trademark owners will often pursue legal action against others who use their marks without express permission. However, there are situations where third parties can use another company’s trademarks, including those of a competitor, without infringing on the owner’s rights. After all, how else can people refer to trademark owners and their products and services without using the trademarks themselves?

Outside GC Partners Lakshmi Sarma Ramani and Anita Drummond have co-authored a new article for the ACC Docket's Non-Profit Knowledge column, in which they review the Colorado Privacy Act and its applicability to non-profit organizations. 

In the course of my career, I have observed a familiar pattern relating to technological innovation. A novel technology sparks an industry-wide shift in business practices, leaving the law to play catch-up thereafter. We saw this in the 1980s, following the introduction of videocassette recording technology and the ensuing legal challenges by the film industry. Although the 1984 Betamax decision dealt an initial blow to the industry, it ultimately opened the door to the huge home-video market. Later, in the early 2000s, a new technology, the MP3 file sharing format, disrupted the music business when Napster utilized it to offer free music to consumers. After trying unsuccessfully to litigate this model out of business, the music industry finally adapted by embracing the streaming model, led by Spotify; and now record labels are enjoying massive profits after suffering several decades of losses.

The clock is ticking! The deadline for switching to the new EU Standard Contractual Clauses (SCC) for data transfers between the EU and non-EU countries is December 27, 2022. As of that date, data controllers and processors around the world that process the personal data of EU residents will no longer be able to rely on the old SCCs without violating the General Data Protection Regulation (GDPR). In other words, companies are legally obligated to replace all previously used SCCs with the new ones, and should be able to demonstrate having done so in case of an audit.  

Remote and hybrid work arrangements are now a fixture in the U.S. workplace. Creating a great remote workplace, however, can be a tall order. How does an employer build a cohesive-feeling corporate culture when employees are spread out around the country and often only see each other on computer screens? What are best practices for monitoring remote employees and ensuring that they are doing their best work? How do employers ensure that they remain compliant with the state and local laws where employees are now living and working?