Keith Law, PLLC Podcast: Recent Episodes
Jason Keith
Keith Law, PLLC is a Texas law firm focused on helping businesses protect and enhance their competitive advantages by assisting with trademark issues and identifying and protecting trade secrets. This podcast aims to provide helpful information to businesses—but should never be considered legal or other professional advice, a solicitation or advertisement, or establishing an attorney-client relationship.
In this episode, Jason talks about the basic differences between trademark, copyright, patent, and trade secret.
As always, you can schedule a call through Calendly, peruse past episodes, check out the Keith Law website, or contact me through my LinkedIn profile.
EPISODE-SPECIFIC LINKS:
- Supplementary materials (i.e., the related blog post)
- Ep001—Practical Trademark Protection
- Ep010—What is a Trade Secret, and Why Should I Care?
- Ep011—The Trade Secret Misappropriation Cause of Action.
- Ep012—Maintaining Your Registered Trademark with the USPTO
- Ep014—Trade Secret Misappropriation in the Context of McDonald’s Ice Cream Machine Drama
- Ep017—Forming an Entity Does Not Protect Your Trademark
- Ep018—Trade Secret Protection in the Absence of a Confidentiality Agreement with Employees
TIMESTAMPS:
00:00 — Overview of the basic differences between trademark, copyright, patent, and trade secret.
01:08 — Intro
01:32 — TRADEMARK—distinguishing the source of goods and services and avoiding consumer confusion.
02:19 — Generic terms are unprotectible
02:33 — Common law rights
02:38 — Registering with the USPTO gives rise to statutory rights.
02:43 — Duration of registration is unlimited, so long as use continues and registration is properly maintained.
03:05 — Tradenames are not automatically trademarks.
04:28 — COPYRIGHT
04:38 — "Author"
04:50 — "Writings"
05:21 — Scope of copyright has expanded over time and now extends to eight categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.
06:07 — Not names, logos, and slogans.
06:23 — Life of the author plus 50 years.
06:33 — PATENTS
07:03 — Duration: 20 years from filing the application for utility patents; 15 years for design patents.
07:18 — Public policy behind protecting patents.
07:37 — TRADE SECRETS
08:08 — Under Texas law, a trade secret is (1) a secret; (2) used by a business; that (3) gives the business a competitive advantage over those who don't know or use it.
08:35 — Comparing trade secrets to patents.
09:33 — Takeaways from this episode.
10:20 — Subscribe, check the show notes, and email or schedule a call with your questions.
10:54 — Outro
DISCLAIMER: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
In this episode, Jason talks about what is required for a noncompete to be enforceable under Texas law.
As always, you can schedule a call through Calendly, peruse past episodes, check out the Keith Law website, or contact me through my LinkedIn profile.
EPISODE-SPECIFIC LINKS:
- Supplementary materials.
- What is a "cause of action?"
- Do you know what "consideration" is, in the contract context?
- Ep021—What is a Contract? This is where you can find my discussion of "consideration."
- Ep001—Discussion of participatory liability.
- Ep010—What is a Trade Secret, and Why Should I Care?
- Ep011—The Trade Secret Misappropriation Cause of Action.
TIMESTAMPS:
00:00 — Two competing myths: "noncompetes are never enforceable in Texas," and "noncompetes are always enforceable."
00:20 — Intro
00:44 — Received wisdom can be wrong.
01:08 — Although many noncompetes are unenforceable, since 1989 noncompetes can be enforcible in Texas if they comply with the statute.
01:35 — To be enforceable, the statute requires a noncompete to be (1) ancillary to an otherwise enforceable agreement, (2) be reasonable in terms of time limit, geography, and scope of restriction, and (3) be supported by consideration reasonably related to the business interest sought to be protected.
02:25 — But first, some discussion of the competing public policies at play.
04:48 — Element 1—ancillary to an otherwise enforceable agreement.
06:22 — Element 2—reasonable in terms of time limit, geography, and scope of restriction.
07:44 — Element 3—supported by consideration reasonably related to the business interest sought to be protected.
12:12 — There are special rules for physicians and attorneys (not discussed in this episode).
12:36 — Why can noncompetes be important? They can help protect a business's competitive advantages.
13:12 — Third parties can have liability for employing someone who is violating a noncompete.
13:43 — Assignment of noncompetes in the context of sale of a business.
14:21 — Takeaways from this episode.
14:55 — Subscribe, check the show notes, and email or schedule a call with your questions.
15:30 — Outro
Disclaimer: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
This week, I thought about delving into a specific type of contract. But then, I figured it might make more sense to first go over the basics of what a contract actually is.
As always, you can schedule a call through Calendly, peruse past episodes, check out the Keith Law website, or contact me through my LinkedIn profile.
EPISODE-SPECIFIC LINKS:
- Supplementary materials.
- What is a "cause of action?"
- Do you know what a "contract" really is?
- Do you know what "consideration" is, in the contract context?
TIMESTAMPS:
00:00 — Do you really know what a contract is?
00:08 — Intro
00:31 — Check out the show notes for an outline of the episode.
00:48 — This episode is not a law school contracts course—it's only a basic overview and explanation of what constitutes an contract.
01:45 — Reminder of what a cause of action is.
02:23 — The breach of contract cause of action.
03:01 — This episode is focused on element 1—the enforceable contract.
03:42 — What does the term "enforceable contract" mean?
04:30 — The three most essential components of an enforceable contract—offer, acceptance, and consideration.
04:56 — Offer and its three elements.
06:09 — Acceptance and three of its elements.
07:05 — Consideration—"mutuality of obligation," "exchange of value," or "the bargained for exchange of promises."
08:57 — Does a contract have to be in writing? Not unless the statute of frauds says so.
10:10 — Defenses to a breach of contract cause of action.
11:24 — Takeaways from this episode.
11:57 — Subscribe, check the show notes, and email or schedule a call with your questions.
12:33 — Outro
Disclaimer: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
A statute of limitations establishes a time limit for a plaintiff to file a lawsuit based on a particular cause of action. In this episode, Jason outlines the questions that must be analyzed to determine whether a claim might be time-barred.
GENERAL LINKS:
• Calendly page to schedule a call: https://calendly.com/keithlawpllc/20minute
• Podcast Website: https://www.keith.law/category/podcast/
• Firm Website: https://www.keith.law/
• LinkedIn profile: https://www.linkedin.com/in/jason-keith-0736a931/
EPISODE-SPECIFIC LINKS:
• Episode's blog post: https://www.keith.law/business-disputes/explaining-statutes-of-limitation/
• General information on what a statute of limitation is: https://en.wikipedia.org/wiki/Statute_of_limitations
• Information on what a "cause of action" is: https://en.wikipedia.org/wiki/Cause_of_action
• EP008 (explaining laches in the trademark infringement context): https://www.keith.law/trademark/explaining-laches-an-equitable-defense-to-trademark-infringement/
• Information about the Lanham Act: https://en.wikipedia.org/wiki/Lanham_Act
• Texas Trademarks Act: https://statutes.capitol.texas.gov/Docs/BC/htm/BC.16.htm
• Texas Uniform Trade Secret Act: https://statutes.capitol.texas.gov/Docs/CP/htm/CP.134A.htm
TIMESTAMPS:
00:00 — 'SOL' stands for 'statute of limitations' in the world of civil justice.
00:10 — Intro
00:33 — Statutes of limitations are time-limit rules—deadlines for pursuing a lawsuit.
01:10 — Overview of the eight questions that should be asked to determine the latest a lawsuit should be filed.
03:14 — Question 1: what's the specific cause of action's statute of limitation?
--:-- — Question 2: not covered in this episode.
04:56 — Question 3: when did the claim accrue?
05:50 — Question 4: can the accrual date be legally deferred?
06:36 — Question 5: tolling—can the time-limit be paused? Seven general reasons that supports tolling of limitations.
09:08 — Question 6: can the defendant be estopped (prevented) from asserting the limitations defense?
10:00 — Question 7: is the plaintiff's claim cut off before it accrues through a statute of repose?
10:58 — Question 8: is plaintiff's claim subject to the equitable defense of laches which could serve as a time-limit prior to the end of the statute of limitations?
11:41 — This episode's takeaways.
12:20 — Please subscribe, check the show notes, and email or schedule a call with your questions.
12:46 — Outro
Disclaimer: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
Another of the equitable defenses is called "unclean hands." Although I mentioned the word in previous episodes, it might be helpful to explain what it means in more detail. So, in this episode, I'll try to describe the concept of unclean hands in more detail.
GENERAL LINKS:
- Calendly page to schedule a call: https://calendly.com/keithlawpllc/20minute
- Podcast Website: https://www.keith.law/category/podcast/
- Firm Website: https://www.keith.law/
- LinkedIn profile: https://www.linkedin.com/in/jason-keith-0736a931/
EPISODE-SPECIFIC LINKS:
- Episode's blog post: https://www.keith.law/trademark/explaining-unclean-hands-a-third-equitable-defense-to-trademark-infringement/
- EP001: https://www.keith.law/trademark/practical-trademark-protection/
- EP008: https://www.keith.law/trademark/explaining-laches-an-equitable-defense-to-trademark-infringement/
- EP016: https://www.keith.law/trademark/explaining-acquiescence-another-equitable-defense-to-trademark-infringement/
- Information on what a "cause of action" is: https://en.wikipedia.org/wiki/Cause_of_action
- General information about equitable remedies: https://en.wikipedia.org/wiki/Equitable_remedy
- General information about the unclean-hands doctrine: https://en.wikipedia.org/wiki/Clean_hands
- Information about the Lanham Act: https://en.wikipedia.org/wiki/Lanham_Act
- Texas Trademarks Act: https://statutes.capitol.texas.gov/Docs/BC/htm/BC.16.htm
- Texas Uniform Trade Secret Act: https://statutes.capitol.texas.gov/Docs/CP/htm/CP.134A.htm
TIMESTAMPS:
00:00 — Unclean Hands—a third equitable defense to trademark infringement.
00:07 — Intro
00:31 — What led to this episode topic, and the goal of this episode.
01:25 — Unclean hands and laches are equitable defenses available in both the trademark infringement and trade secret misappropriation context.
01:50 — Reminder of what a cause of action is.
02:55 — Most defenses have essential elements too—but that's not necessarily the case with unclean hands.
03:30 — Defendants may have equitable defenses to a plaintiff's trademark infringement cause of action.
04:00 — The definition of unclean hands (i.e., the clean-hands doctrine or the unclean-hands doctrine).
04:27 — Unclean hands is available under the Lanham act and unfair competition.
05:02 — The concept behind unclean hands.
05:32 — When courts will enforce the unclean-hands doctrine.
06:34 — Equitable defenses are personal defenses—meaning they are based on action or inaction with specific relation to the defendant, not with relation to the world in general.
07:25 — The party alleging unclean hands must establish personal harm or injury from the unclean hands behavior.
07:52 — The defendant also has to show a direct connection between the alleged bad behavior and the specific issue in front of the court.
08:20 — An example where unclean hands was alleged but denied by a court.
09:19 — Examples in which a trade secrets owner can be denied trade secret protection in the face of an unclean hands defense.
09:40 — A plaintiff can use the unclean-hands doctrine to prevent a defendant from benefiting from defenses that would otherwise prevent defendant's liability.
10:31 — This episode's takeaway.
11:15 — Please subscribe, check the show notes, and email or schedule a call with your questions.
11:41 — Outro
Disclaimer: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
This episode is aimed at answering the question of how protected a company’s trade secrets are in the absence of a confidentiality agreement, if at all.
GENERAL LINKS:
- Calendly page to schedule a call: https://calendly.com/keithlawpllc/20minute
- Podcast Website: https://www.keith.law/category/podcast/
- Firm Website: https://www.keith.law/
- LinkedIn profile: https://www.linkedin.com/in/jason-keith-0736a931/
EPISODE-SPECIFIC LINKS:
- Episode's blog post: https://www.keith.law/trade-secret/trade-secrets-and-former-employeeseffect-of-no-written-agreement/
- Texas Uniform Trade Secret Act: https://statutes.capitol.texas.gov/Docs/CP/htm/CP.134A.htm
- Information about the Defend Trade Secrets Act: https://en.wikipedia.org/wiki/Defend_Trade_Secrets_Act
- Information on what a "cause of action" is: https://en.wikipedia.org/wiki/Cause_of_action
TIMESTAMPS:
00:00 — What if your worker leaves with your trade secrets and you don't have a confidentiality agreement in place?
00:06 — Intro
00:30 — There is trade secret protection under TUTSA and the DTSA when the statutory requirements are satisfied.
01:01 — Both statutes require taking "reasonable measures" to keep the information a secret. A signed confidentiality agreement can be an example of a reasonable measure to keep the information a secret. But, a signed agreement is not absolutely necessary.
01:40 — The longer answer to the question.
01:43 — The essential elements of a trade secret misappropriation cause of action.
03:50 — What about misappropriation in the absence of a signed agreement? This is a question about element two of the cause of action.
04:26 — A discussion of the public policy balancing act to help understand why things are the way they are.
06:11 — Use of information acquired during employment.
07:40 — Important reasons to have confidentiality agreements with your employees.
09:45 — How a signed confidentiality agreement might stop a problem before a lawsuit becomes necessary.
11:38 — Why, as a practical matter, it's important to be able to attach liability to the new employer, if possible.
12:05 — Recovering attorney's fees in the context of a trade secrets misappropriation lawsuit under TUTSA and DTSA.
16:00 — Recovering attorney's fees in the context of a breached contract—including a breached confidentiality agreement.
16:57 — Other potentially available causes of action in a trade secrets misappropriation context.
19:07 — The takeaways from this episode.
20:03 — Outro
Disclaimer: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
I often hear business owners say that they they would eventually like to register their trademarks, but that they're already protected because they have a filing entity or assumed name registered with the Texas Secretary of State. This is not true.
GENERAL LINKS:
- Calendly page to schedule a call: https://calendly.com/keithlawpllc/20minute
- Episode's blog post: https://www.keith.law/trademark/forming-an-entity-does-not-protect-your-trademark/
- Podcast Website: https://www.keith.law/category/podcast/
- Firm Website: https://www.keith.law/
- LinkedIn profile: https://www.linkedin.com/in/jason-keith-0736a931/
EPISODE-SPECIFIC LINKS:
- Episode 1 (the overview episode): https://www.keith.law/trademark/practical-trademark-protection
- Episode 9 (Why Use a Business Entity?): https://www.keith.law/business-disputes/why-do-business-through-an-entity/
- Texas Secretary of State Trademark FAQs: https://www.sos.state.tx.us/corp/tradefaqs.shtml
TIMESTAMPS:
00:00 — Forming an entity does not protect your trademark!
00:06 — Intro
00:29 — Business owners often mistakenly think that they have trademark protection because they have an LLC in place
01:01 — This episode expands on the mention of this problem in episode 1 of the Keith Law, PLLC Podcast
01:09 — What about filing a formation document?
02:48 — What about filing an assumed name certificate or d/b/a?
03:44 — "So, how do I get trademark rights?"
04:50 — The effects of registering a trademark with the Texas Secretary of State
05:34 — When you can apply to register your trademark with the United States Patent & Trademark Office, and the effects of doing so
06:09 — Wrapping up (summarizing) this episode
07:20 — The most important take-away from this episode
07:35 — Check the show notes for more information or for how to ask questions
07:54 — Outro
Disclaimer: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
During part of episode 1 of the Keith Law, PLLC Podcast, I briefly touched on trademark infringement defenses, including equitable defenses. One of the equitable defenses is called "laches" (generally, unreasonable delay) and it was pointed out that, although I mentioned the word, It might be helpful to explain what it means in more detail. So, in episode 8, I tried to describe the concept of "laches" in more detail.
Another of the equitable defenses is called "acquiescence," and in this brief blog post and podcast episode, I will go over the elements of this defense to a trademark infringement claim.
GENERAL LINKS:
- Calendly page to schedule a call: https://calendly.com/keithlawpllc/20minute
- Episode's blog post: https://www.keith.law/trademark/explaining-acquiescence-another-equitable-defense-to-trademark-infringement/
- Podcast Website: https://www.keith.law/category/podcast/
- Firm Website: https://www.keith.law/
- LinkedIn profile: https://www.linkedin.com/in/jason-keith-0736a931/
EPISODE-SPECIFIC LINKS:
- Episode 1 (the overview episode): https://www.keith.law/trademark/practical-trademark-protection
- Episode 8 (the laches episode): https://www.keith.law/trademark/explaining-laches-an-equitable-defense-to-trademark-infringement/
- The referenced court case, Gibson Brand, Inc. v. Armadillo Distribution Enters.: https://casetext.com/case/gibson-brand-inc-v-armadillo-distribution-enters
TIMESTAMPS:
00:00 — What is "acquiescence" in the context of trademark infringement?
00:06 — Intro
00:30 — This quick episode follows up on the "what is laches?" episode—covering equitable defenses to trademark infringement.
01:14 — What are equitable remedies? An injunction is one type.
01:33 — The three elements of an acquiescence defense.
01:56 — Element 1: assurance
02:37 — A couple examples where acquiescence has been used
02:54 — Is silence enough to constitute assurances?
03:25 — Element 3: undue prejudice
04:05 — The takeaway from this episode
04:47 — Final thoughts and reminder to check the show notes
05:16 — Outro
DISCLAIMER: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
In episode six of the Keith Law PLLC Podcast, I explained how a business can address false negative online reviews. In that episode there was uncertainty about the effect of failing to send a timely request for retraction and correction. In this episode I go through a recent Texas Supreme Court opinion that (for now) answers the uncertainty expressed in episode six regarding the legal effect of failing to timely and sufficiently send the request for retraction or correction required by the Defamation Mitigation Act.
GENERAL LINKS:
- Episode's blog post: https://www.keith.law/reputation/update-effect-of-noncompliant-defamation-mitigation-act-request-for-correction-or-retraction/
- Podcast Website: https://www.keith.law/category/podcast/
- Firm Website: https://www.keith.law/
- Calendly page to schedule a call: https://calendly.com/keithlawpllc/20minute
- LinkedIn profile: https://www.linkedin.com/in/jason-keith-0736a931/
EPISODE-SPECIFIC LINKS:
- Texas Supreme Court's Plurality Opinion (Devine, Guzman, Lehrmann, and Busby): https://scholar.google.com/scholar_case?case=11575940537333814654&hl=en&as_sdt=6&as_vis=1&oi=scholarr
- Justice Boyd's Concurring Opinion: Agrees that the 9 new claims should not have been dismissed, but not for the reasons expressed in the plurality opinion.
- The Dissenting Opinion: (Hecht, Blacklock, and Huddle)
- Hogan v. Zoanni Texas Supreme Court Oral arguments: 18-0944, Lemuel David Hogan v. Stephanie Montagne Zoanni
- Court of appeals opinion (which the Texas Supreme Court reverses): https://scholar.google.com/scholar_case?case=10005498547995510988&q=Lemuel+David+Hogan+v.+Stephanie+Montagne+Zoanni&hl=en&as_sdt=4,44
TIMESTAMPS:
00:00 — What happens when you sue for defamation or business disparageent but fail to send the request for retraction or correction under the Defamation Mitigation Act? The Texas Supreme Court just answered this question.
00:21 — Intro
00:46 — Throwback to episode 6 question that the Texas Supreme Court just addressed this month in Hogan v. Zoanni
02:00 — Remember that sending a good DMA is still the best practice and the time limits are very strict
02:15 — Overview of the organization of this episode
02:40 — Factual background
03:35 — The procedural background
06:38 — The Texas Supreme Court's plurality opinion - abatement and loss of punitive damages permitted, but not dismissal
07:45 — Digging into the Texas Supreme Court justices votes in Hogan v. Zoanni (4-1-3)
09:27 — The practical effect of the plurality opinion for Hogan
09:44 — The legal effect of this plurality opinion based on the vote
11:05 — The concurring justice's opinion more closely aligns with the dissenting opinion
11:34 — The dissenting opinion
12:09 — What the practical outcome would be if the dissenting opinion was the rule
12:30 — The reason DMA requests should be focussed on
13:02 — Check the show notes for links
13:39 — Why it's important for businesses to have a sense of this information
14:25 — Outro
Disclaimer: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
In this episode I explain the unfolding drama pertaining to the notoriously unreliable ice cream machines at McDonald's restaurants and the lawsuit recently filed by Kytch, a company that developed technology aimed at solving these ice cream problems.
LINKS:
Episode's blog post: https://www.keith.law/trade-secret/mcdonalds-ice-cream-machine-drama/
Podcast Website: https://www.keith.law/category/podcast/
Firm Website: https://www.keith.law/
Calendly page to schedule a call: https://calendly.com/keithlawpllc/20minute
LinkedIn profile: https://www.linkedin.com/in/jason-keith-0736a931/
The Wired article: https://www.wired.com/story/they-hacked-mcdonalds-ice-cream-makers-started-cold-war/?fbclid=IwAR25i2srFysSg5sDHMSOuatD_rmWdLAJmKVziEz2pySRa1y0f0wjuwSDWDY
An applicable Techdirt article: https://www.techdirt.com/articles/20210420/19062946646/captive-markets-are-just-hostages-why-your-mcdonalds-never-seems-to-have-functioning-shake-machine.shtml
An applicable Eat This, Not That article: https://www.eatthis.com/news-mcdonalds-soft-serve-machines/
Episode 1 of the Security Ledger podcast with Kytch co-founder, Jeremy O'Sullivan: https://securityledger.com/2021/05/episode-215-1-jeremy-osullivan-of-kytch-on-the-tech-serving-mcdonalds-ice-cream-monopoly/
Episode 2 of the Security Ledger podcast with Kytch co-founder, Jeremy O'Sullivan: https://securityledger.com/2021/06/episode-215-2-leave-the-gun-take-the-mcflurry/
Kytch's lawsuit: https://securityledger.com/wp-content/uploads/2021/06/20210510-complaint-kytch-v-tyler-gamble-tfgroup-llc-and-taylor-company.pdf
Kytch's home page: https://kytch.com/landing
Kytch's terms of service: https://kytch.com/tos
McDonald's master franchise agreement available on SEC.gov: https://www.sec.gov/Archives/edgar/data/1508478/000119312511077213/dex101.htm
Wikipedia article on Taylor: https://en.wikipedia.org/wiki/Taylor_Company
TIMESTAMPS:
00:00 — Unreliable McDonald's Ice Cream Machine Lawsuit
00:08 — Intro
00:32 — Recent misappropriation of trade secret lawsuit related to unreliable McDonald's ice cream machines, and the company that tried to fix the problem
01:30 — Outline of the episode
01:45 — Factual background - a listener asked about this issue after listening to the misappropriation of trade secrets Keith Law, PLLC Podcast episode.
02:35 — Factual context for the lawsuit
06:05 — The "tangled web of contracts" in this situation
06:49 — The agreements between McDonald's and Taylor
08:38 — The McDonald's Master Franchise Agreement with its franchisees
09:59 — The Kytch contract with McDonald's franchisees using Kytch technology
10:52 — Kytch's lawsuit
11:20 — Breach of contract, the cause of action elements and allegations
12:13 — Tortious interference with contract, the cause of action elements and allegations
13:32 — Misappropriation of trade secrets, and the and allegations
14:35 — The court's docket for this lawsuit
15:10 — I'm looking forward to seeing the answers to the complaint
15:25 — McDonald's has not been made a party to the lawsuit, and speculation as to why
16:00 — Let me know if you're interested in my digging deeper into this situation
16:55 — How NDAs and confidentiality agreements work in practice
18:00 — Thank you for listening and letting me know your questions
18:30 — Outro
Disclaimer: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
In this episode Jason Keith explains the concept of legal duties with a focus on fiduciary duties, provides examples, discusses some fiduciary duties attorneys owe to their clients, lists the elements of a breach of fiduciary duty cause of action, and touches on participatory liability in the breach of fiduciary duty context.
LINKS:
Episode's blog post: https://www.keith.law/business-disputes/what-is-fiduciary-duty/
Podcast Website: https://www.keith.law/category/podcast/
Firm Website: https://www.keith.law/
Calendly page to schedule a call: https://calendly.com/keithlawpllc/20minute
LinkedIn profile: https://www.linkedin.com/in/jason-keith-0736a931/
Email: Jason@Keith.Law
TIMESTAMPS:
00:00 — What is fiduciary duty?
00:04 — Intro
00:29 — A listener asked this question and it's not simple to explain this "legalese" term
01:12 — Outline of the topics that I will cover in this episode
02:24 — Legal duties
03:52 — Terminology
04:26 — Fiduciary relationship explained briefly
04:45 — Fiduciary duties, not duty
05:14 — A nonexclusive list of fiduciary duties
05:55 — Formal fiduciary relationships - a list
07:10 — Informal fiduciary relationships - when they can arise
08:02 — The attorney-client relationship - one category of formal fiduciary relationship
08:21 — The concern of creating an attorney-client relationship by implication
09:00 — Why attorneys conduct conflict checks before being hired
09:30 — Attorney-client relationship - joint representation
10:02 — Breach of fiduciary duty cause of action - elements
11:03 — Participatory liability for breach of fiduciary duty
11:49 — How does it help to know what a fiduciary duty is?
12:23 — Final thoughts and recommendation to review the show notes
13:13 — Outro
Disclaimer: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
In this episode Jason Keith explains the requirements of maintaining a trademark registration with the USPTO - as well as an optional filing that strengthens the protection of your mark, and a scam warning.
LINKS:
Episode's blog post: https://www.keith.law/trademark/how-to-maintain-your-registered-trademark/
Podcast Website: https://www.keith.law/category/podcast/
Firm Website: https://www.keith.law/
Calendly page to schedule a call: https://calendly.com/keithlawpllc/20minute
LinkedIn profile: https://www.linkedin.com/in/jason-keith-0736a931/
USTPTO's scam warning site:
https://www.uspto.gov/trademarks/protect/caution-misleading-notices
TIMESTAMPS:
00:00 — Topic
00:10 — Intro
00:34 — Your USPTO trademark registration must be maintained
00:54 — Continued use in commerce
01:06 — Certain documents must be filed at certain time intervals
01:19 — The time intervals for filing the required documents
01:40 — Declaration of use and/or excusable non-use
03:15 — Application for renewal and another declaration of use
03:38 — Do that again every subsequent 10 years
03:55 — Grace period
04:11 — Consequence for failing to file timely
04:20 — Optional - declaration of incontestability
04:54 — The value of registering a trademark, and the added value of incontestability
05:50 — The exclusive infringement defenses as to the trademark's validity post-incontestability
07:47 — Scam warning!
08:40 — Best wishes and outro
Disclaimer: This audio and related video and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
In the previous blog post and Keith Law PLLC Podcast episode, we explored what a trade secret is. This post and related episode covers what trade secret misappropriation is, along with a real world example.
LINKS:
Episode's blog post: https://www.keith.law/trade-secret/what-is-trade-secret-misappropriation-and-a-real-world-example/
Podcast Website: https://www.keith.law/category/podcast/
Firm Website: https://www.keith.law/
Calendly page to schedule a call https://calendly.com/keithlawpllc/20minute
LinkedIn profile https://www.linkedin.com/in/jason-keith-0736a931/
TIMESTAMPS:
00:00 — Topic
00:07 — Intro
00:32 — This episode's vs. the previous episode's topic
00:40 — The real world example
03:40 — What a cause of action is
04:47 — The four elements of a trade secret misappropriation cause of action in Texas
05:35 — TUTSA's definition of "misappropriation"
06:55 — Element one - a trade secret exists
07:40 — Element two - improper acquisition
09:18 — Acquisition during employment
10:17 — Discovery of another person's trade secret
11:09 — Element three - unauthorized use or disclosure
12:25 — A few examples of "commercial use"
12:58 — The 5th Circuit's 2012 definition
13:29 — So many topics are beyond the scope of this episode
14:23 — The real takeaway from the episode
14:33 — Check the show notes
14:52 — Use these time stamps [they're tediously compiled]
15:15 — Preserve your potential evidence of trade secret misappropriation
15:45 — Use this information as a caution of things to avoid doing to reduce the chance of ending up a defendant
16:27 — Closing thoughts & Outro
Disclaimer: This audio and related video and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
In this episode I discuss a lot about what is (and is not) a trade secret and a little about how to protect this important type of intellectual property.
Trade secret is a type of intellectual property such as trademark, patent, or copyright—but different. You should care because your business's trade secrets provide a competitive advantage and will not be protected if mishandled by you.
LINKS:
Episode's blog post: https://www.keith.law/trade-secret/identifying-your-trade-secrets/
Podcast Website: https://www.keith.law/category/podcast/
Firm Website: https://www.keith.law/
Calendly page to schedule a call https://calendly.com/keithlawpllc/20minute
LinkedIn profile https://www.linkedin.com/in/jason-keith-0736a931/
TIMESTAMPS:
00:00 — Topic
00:04 — Intro
00:28 — On this episode, introductory information
02:05 — TUTSA definition of "trade secret"
03:25 — Simplified definition, and explanation
04:15 — The secrecy requirement
04:20 — Not patents, because patents aren't secret
05:22 — But, possibly undisclosed aspects related to a patent
06:00 — Not readily discoverable except through improper action
06:34 — A legal purchase followed by reverse engineering is permissible (except for patents)
06:50 — It's not a defense that reverse engineering was possible, in theory
07:25 — Courts ask "how did the defendant learn the trade secret information?"
07:40 — Must take reasonable steps to maintain secrecy
07:45 — Factors courts may consider to determine whether it's a secret
08:30 — A warning
09:22 — Factors courts may consider to determine whether it's a secret
10:13 — As an aside, novelty is not required
10:30 — Is use required? Not necessarily
11:05 — Competitive advantage is a fundamental aspect of a trade secret
11:44 — Categories of potential trade secrets
12:09 — Technical information examples (including "negative know-how" at 12:49)
13:26 — Customer lists as trade secrets (independent economic value and secrecy are still required)
14:55 — Other examples of business information that are potential trade secrets
16:20 — This episode only covers the basic definition of trade secret and the breadth of possibilities
17:00 — Check the show notes for lots of stuff
17:38 — Closing thoughts
18:45 — Outro
Disclaimer: This audio and related video and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
A "filing entity" can be a corporation, LLC (limited liability company), or other corporate form that serves as a liability veil, shield, or forcefield between claims of folks who interact with the business and the individuals who own and run the business.
LINKS:
Firm Website: https://www.keith.law/
Podcast Website: https://www.keith.law/category/podcast/
Episode blog post: https://www.keith.law/business-disputes/why-do-business-through-an-entity/
Calendly page to schedule a call: https://calendly.com/keithlawpllc/20minute
LinkedIn profile: https://www.linkedin.com/in/jason-keith-0736a931/
TIMESTAMPS:
00:00 — Topic
00:32 — "Filing entity" defined, some of the types, its basic purpose, and how it is treated legally
02:50 — Why not simply buy insurance? The "your work" exclusion example.
04:27 — Veil piercing and alter ego
05:40 — Tex. Bus. Org. Code 21.223(a) limitation in the contractual context
06:58 — Return to the subject of signing business contracts properly
07:42 — Return to the subject of personal guarantees
08:11 — Final thoughts, how to ask questions or read the related blog post, and outro
Disclaimer: This audio and related blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
During a portion of episode 001 of the Keith Law, PLLC Podcast, I briefly touched on trademark infringement defenses, including equitable defenses. One of the equitable defenses is called "laches" (generally, unreasonable delay) and it was pointed out that, although I mentioned the word, It might be helpful to explain what it means in more detail. So, in this episode, I'll try to describe the concept of "laches" in more detail.
LINKS:
Firm Website: https://www.keith.law/
Podcast Website: https://www.keith.law/category/podcast/
Episode blog post: https://www.keith.law/trademark/explaining-laches-an-equitable-defense-to-trademark-infringement/
Calendly page to schedule a call: https://calendly.com/keithlawpllc/20minute
LinkedIn profile: https://www.linkedin.com/in/jason-keith-0736a931/
TIMESTAMPS:
00:01 — Topic
00:41 — Laches, and why I'm focusing on it in this episode
01:10 — Statute of limitations for trademark infringement
01:50 — Monetary damages
02:05 — Injunctions
02:35 — Infringement can be considered a continuing tort in Texas
03:03 — Injunctions are equitable remedies, so equitable defenses apply
03:13 — The common equitable defenses
03:33 — What is "laches" and when does it apply?
04:15 — Delay (unreasonable and inexcusable)
05:57 — Undue prejudice
07:09 — The legal effect of laches
08:35 — As often with legal questions, it's not black or white, but falls on a spectrum of grey
09:11 — Check the show notes
09:28 — Protecting competitive advantages
10:08 — Best wishes and outro
Disclaimer: This audio and related blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
You formed your business entity for the protection of you and your family. Don't blow it by signing business contracts in your individual capacity!
Business entities are important for managing the risks of running a business. But many small business owners simply sign their individual names to business contracts, instead of signing on behalf of their business entity. This can cause problems down the road.
EXAMPLE SIGNATURE BLOCK:
XYZ, LLC
By: [signature of John Smith]
John Smith
Its: Manager [or whatever agency role John Smith holds with XYZ, LLC]
LINKS:
Firm Website: www.keith.law
Podcast Website
Calendly page to schedule a call
LinkedIn profile
TIMESTAMPS:
00:00 — Topic
00:33 — Why use a business entity, generally, and what is it's purpose?
01:08 — What I plan to talk about in this episode, and why it matters
02:39 — How a business contract should be signed
04:12 — How a business contract should be signed (really this time)
05:22 — Authority to sign for the business, and contexts in which it might be needed in writing
06:30 — Review of how the business contract should be signed
07:03 — Discussion of "risk management" - there are no guarantees
07:53 — Areas of law discussed: corporations law, agency law, and negotiable instruments statute
09:30 — Texas Business & Commerce Code 3.402 is complicated, but instructive
10:10 — Personal guarantees discussed, compared, and contrasted
11:48 — Discussion of trying to remove an individual as a defendant in a lawsuit in which a business contract was signed incorrectly
12:50 — Summarizing the episode
13:20 — Where to find more episodes of the Keith Law, PLLC Podcast
13:45 — Where to find the related blog post and how to submit questions
14:20 — Outro
Disclaimer: This audio and related video and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
It's common for many businesses to live and die by their online reviews. If you do enough business, there's a chance you will eventually run into someone who wants to damage your business reputation by posting negative online reviews. If the review is true, or merely opinion, freedom of speech will probably override any steps you can take to force the removal of the review unless the person posting has promised, in an enforceable contract, to never publish anything about your business. Otherwise, you have some tools in your toolbox to protect your online reputation by forcing the removal of negative reviews.
LINKS:
Firm Website: www.keith.law
Podcast Website
Calendly page to schedule a call
LinkedIn profile
TIMESTAMPS:
00:00 — Topic
00:30 — Online reviews are important
00:54 — Episode topic overview
01:42 — Overview of the governing law
03:18 — Two important Texas statutes
03:47 — DMA's requirement for letter demanding correction or retraction
04:55 — The TCPA
05:20 — Contractual contexts of note
06:24 — Angie's List
07:01 — The main takeaway of the episode
07:55 — Where the podcast episode and related blog post can be found
08:36 — If you have a question for me
08:53 — Outro
Disclaimer: This audio and related blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
In this episode I discuss the opportunity citizens have to bring their disputes of $20,000 or less to justice court. Tangents include appealing the outcome, mandatory free mediation, settlements, post-judgment collection including post-judgment discovery and writs of garnishment, judgments going dormant, and exempt property in Texas. See the timestamps, below, for more detail on the discussion.
LINKS:
Firm Website: www.keith.law
Podcast Website
Calendly page to schedule a call
LinkedIn Profile
TIMESTAMPS:
00:00 — Topic
00:27 — JP courts increased their jurisdictional limits to $20K
00:43 — What prompted this episode, and initial thoughts
02:20 — Either party can appeal "de novo"
03:00 — What "de novo" means
03:30 — Where to find the rules governing JP courts
04:15 — Generally, no discovery permitted in JP and why it matters
05:09 — Likely mandatory mediation on day of trial, and what it means
05:40 — What happens if you settle during the mediation
06:00 — What a settlement agreement is, and why it matters
07:15 — What happens if you get a judgment and the judgment debtor does not voluntarily pay (discussion of post-judgment collection, generally)
09:40 — General discussion of exempt property in Texas
11:10 — Judgments do not last forever without taking action
12:20 — Other post-judgment collection steps that can be taken
13:50 — Writ of garnishment, what it is, generally
14:45 — Entities do not own exempt property
15:30 — Why it might make sense to pursue your claim in JP court without a lawyer
16:10 — Treat everyone with dignity and respect and always ask questions for guidance
17:37 — If you get a judgment, ask about next steps for post-judgment collection (but they will not provide "legal advice")
18:40 — What has been your experience with JP court?
18:48 — What to do if you have a question for me
20:45 — Outro
Disclaimer: This audio and related blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
You performed work on a private construction project in Texas and you're wondering how long until you receive payment. In Texas, there are time limits and interest penalties on all private construction projects within the state. Chapter 28 of the Property Code governs this situation. It's called Prompt Payment to Contractors and Subcontractors.
Links:
www.keith.law
Calendly Page to Schedule a Call
LinkedIn Profile
Timestamps:
00:00 — Topic
00:35 — The governing statute
01:30 — Exceptions to the deadlines
02:00 — The penalties
02:19 — Government projects are different
02:35 — The takeaway—submit your invoices!
02:54 — Where to find the associated YouTube video, the blog post, etc.
04:05 — Outro
Disclaimer: This audio and related video and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.
Your commercial tenant abandoned the building; then you sold the building which was demolished by the buyer. Although you sent the required certified mail to your former tenant advising that the remaining property would be disposed of, you no longer have proof that you sent the certified mail. Now the tenant pops up claiming you wrongfully disposed of their property and that they are going to sue you if you don't pay. Should you pay?
LINKS:
Website: www.keith.law
Podcast Landing Page
LinkedIn Profile
Calendly Page to Schedule a Call
TIMESTAMPS:
00:00 — Topic
00:31 — The fact pattern
01:18 — Texas statute governing commercial tenancies
01:32 — The rules pertaining to landlord disposing of the former commercial tenant's property following abandonment.
01:58 — Brief definition of hearsay
02:05 — Analysis of the fact pattern; testimonial evidence to prove sending the certified mail
02:21 — Imaginary court room battle about hearsay and whether testimonial evidence should be permitted to prove sending the required certified letter
03:15 — Where to find my YouTube video with a much more in depth (rambling) analysis of the situation
03:45 — Where to find other Keith Law, PLLC Podcast episodes and related blog posts
04:05 — What to do if you have any questions
04:20 — Outro
Disclaimer: This audio is for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for listening to the Keith Law, PLLC podcast.
You had an arbitration provision in your agreement and you've obtained an arbitration award. What do you do now that the debtor has not paid and is located in Texas?
Website: www.keith.law
LinkedIn Profile
Calendly Page to Schedule a Call
Timestamps:
00:00 — Topic introduction
00:34 — The fact pattern
00:47 — Applicable law (CPRC ch. 171)
00:55 — How this should work in Texas, Generally
01:15 — Digging Deeper into the Statute
02:30 — Recovery of Attorney's Fees?
02:48 — Vacating, Modifying, or Correcting an Arbitration Award
04:14 — Where to File the Application to Confirm the Arbitration Award
05:08 — Two Things Every Applicant will Wish was Included in the Agreement to Arbitrate
05:46 — Some Takeaways from this Episode
06:25 — Digression about Debtor-Friendly Nature of Texas and Post-Judgment Collections
07:46 — Digression into TUFTA (Texas Uniform Fraudulent Transfer Act)
08:21 — How Arbitration Confirmation Proceedings can Go Sideways (and why a good attorney's fees provision in the arbitration agreement can be so important)
09:13 — Hopefully, the Debtor will become Interested in Paying (but if not, post-judgment discovery will allow you to investigate deeply)
09:57 — Conclusion
10:02 — Outro (and disclaimer)
Disclaimer: This audio is for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for listening to the Keith Law, PLLC podcast.
What to do if you own a bar, restaurant, or coffee shop and your servers decide to have a "[business name] reunion" at a competitor's establishment?
www.keith.law
LinkedIn profile
Calendly page to schedule a call
Timestamps:
00:00 — Topic
00:34 — Overview of the anticipated structure of the episode
00:51 — The fact pattern
01:30 — Potentially applicable law
01:48 — Trademark overview (and related tangents)
10:57 — What if I registered my LLC or assumed name with the Secretary of State?
12:20 — "Woulda, coulda, shoulda; and why"—i.e., what if the mark had been registered?
12:55 — A practical approach to the fact pattern
16:27 — Potential problems from failing to police a trademark
17:14 — Outro
Disclaimer: this audio is for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for listening to the Keith Law, PLLC podcast.
www.keith.law
LinkedIn profile
Calendly page to schedule a call
This episode introduces the podcast; the firm; my background; opinions about litigation and settling business disputes; and the primacy of business focus on creating value, making money, and protecting its intellectual property (trademarks and trade secrets); and how to contact me.
Timestamps:
00:00 — What is an "episode 0?"
00:34 — The purpose of this episode
00:44 — The purpose of the Keith Law, PLLC Podcast
00:58 — Things I plan to discuss on the Keith Law, PLLC Podcast
01:43 — How to contact Jason Keith (if you want to—not a solicitation)
02:01 — Who is Jason Keith as a lawyer?
03:00 — Discussion about business disputes; hiring lawyers, generally; and settlement
05:09 — Discussion about intellectual property—trademark.
06:42 — Discussion about intellectual property—trade secret.
07:45 — Closing statement
08:05 — Outro