by eclewis | May 6, 2015 | IP Law
Non-Compete Agreements in CO
Simply put, non-compete agreements are contractual agreements that generally provide for individuals not to compete with their employer while they are employed and for a period of time after leaving the company. Even the sandwich company, Jimmy John’s, has been under fire for its broad non-competes for its low-level employees including sandwich makers and delivery drivers not to compete with any restaurant that sells sandwiches for two years.
Generally speaking, all states require non-competes to be “reasonable” to be valid, but some states go even further. California considers almost all non-competes to be invalid by default, which some claim sparked the economic boom in Silicon Valley by fostering competition.
Here in Colorado under C.R.S. § 8-2-113, non-competes must fit within four particular exceptions to be upheld in court as valid and enforceable.
These specific exceptions include:
- Contracts for the purchase and sale of a business or its assets
- Contracts for the protection of trade secrets
- Contracts providing for the recovery of education and training expenses of an employee who has served an employer for less than two years
- Executive and management personnel and officers and employees who constitute professional staff to executive and management personnel
If the non-compete does not fit within one of these statutory exceptions, then it is not considered to be valid in the State of Colorado. However, even if it may appear to fit within an exception, there are still fact-specific considerations and other reasonableness concerns as to the specific applicability and terms of the agreement that need be considered. So before you have your employees sign a non-compete or think about starting your own business when you have already signed a non-compete, be sure to speak with a knowledgeable attorney first to find out more about its enforceability.
Even if it looks like it would be considered unenforceable by the courts, there is always some level of risk in taking it to court. Additionally, there is a lot of time, money, and stress involved in that process, so it may still be a good idea to wait out the agreement or even try negotiating a settlement between you and the company. With these other considerations in mind, the importance of discussing the options with an experienced attorney is even more vital.
If you would like help in drafting or reviewing a non-compete for you, reach out to the Law Office of E.C. Lewis, P.C., home of your Denver business attorney, Elizabeth Lewis at 720-258-6647 or by email at elizabeth.lewis@eclewis.com.
by eclewis | Apr 29, 2015 | IP Law
Balancing Trademark Protection and Public Relations
Originally posted April 29, 2015. Updated October 8, 2025.
Overview:
Trademarks exist to prevent consumer confusion, but asserting those rights is as much a business decision as a legal one. Left Hand Brewing’s bid to trademark “Nitro” for beer—met with swift resistance from major brewers and the craft community—shows how a defensible legal move can still damage brand perception. Before filing, weigh costs, competitors’ reactions, and customer sentiment. Smart branding protects names and logos—and reputation, too.
How to Balance Public Relations and Trademark Protection
Business is business, and the law is the law. Sometimes the combination of these two are unavoidable, even necessary, such as when it comes to business entity formation, contracts, licensing, permits, and the list goes on. In today’s electronic and technology-driven economy, intangible or intellectual property is becoming even more valuable than ever. When it comes to businesses, a lot of this comes down to their brand, their name, their slogans, which often use trademark protection to solidify and help protect these intangibles.
Trademarks as a system, were fundamentally designed to help avoid consumer confusion. That is ultimately the purpose. Trademark rights and protections are designed to prevent other businesses from coming up with products that use other business’ names, phrases, and sometimes even look and feel, sound, or color, which can cause consumers to buy something they thought was made by someone else because they were confused. Imagine a world without trademark protection. You’d probably never know for sure if those shoes with the Swoosh on them were actually made by Nike or not!
In an interesting local trademark story, a while back, Longmont-based craft beermaker, Left Hand Brewing Company, tried to register the trademark for the word “Nitro” as it relates to beer, after it came out with its Milk Stout Nitro beer. This is not the first time we have talked about craft brewery trademark issues, and it likely won’t be the last. Craft brewery trademark disputes are becoming more and more common.
In this case, the company wanted to use the word Nitro to distinguish its nitrogenated beers. It may seem like a harmless thing to do, but boy did it bring the company a lot of trouble. Other companies took action when they saw Left Hand trying to trademark the word, maybe you’ve heard of some of them, they include the makers of Budweiser, Samuel Adams, and Guinness!
Left Hand claimed it was doing it to prevent a bigger beermaker from ultimately registering the trademark, but due to the legal action from other brewers and the upset from the craft beer community over Left Hand’s actions, the company ultimately withdrew its efforts. Craft beer drinkers were upset that Left Hand was trying to essentially “own” the word Nitro as it relates to beer. Other brewers use nitrogen in their products too, and being such a clear choice for a descriptive word, it only makes sense to use it to differentiate it from traditionally carbonated products.
Let this be a lesson. Whenever your business is thinking about asserting intellectual property rights or trademarks over something, it is important to think of it not only as a legal decision but a business decision as well. Businesses must think about how these actions will impact their competitors and how they might respond. Additionally, the way existing and potential consumers of your business’ products may respond to the news is critical to consider too.
Even if you may have a valid legal claim to something, it may not always be the best business decision to pursue it to the fullest. Cost-benefit analysis is key to situations like this, and it is clearly a good idea to consider both the business and legal ramifications of the different courses of action available to you. Branding is about more than logos, names, trademarks, etc. It is about the image your portray as a company, and a growing component of that is how litigious the company is, especially if it can be perceived as an “unfair” or “unnecessary” use of the legal system.
Contact Denver business attorney Elizabeth Lewis
If your business needs help regarding a trademark, other intellectual property, or other business legal needs, do not hesitate to reach out to the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.
by eclewis | Dec 18, 2014 | IP Law
Copyright Infringement and Billing the Federal Government
Recent developments coming to light regarding the use of music in torture by the CIA in Guantanamo indicated that Canadian industrial band Skinny Puppy’s music was one of the artists whose music was being used. As a semi-serious response, Skinny Puppy has since invoiced the Federal Government for $666,000 for the use of their music without permission or licensing from the group and is considering a lawsuit.
Skinny Puppy’s self-described “unsettling” music being used in torture was not surprising to them, but they were not very happy about it. It is interesting given the group’s history as well. Skinny Puppy has been a long-time proponent for animal rights and against animal dissection and other practices that Skinny Puppy considers akin to torture of animals.
While there have been numerous reports over the years of different music from Metallica to Sesame Street being used in such ways, nobody has appeared to try and take legal action for it yet. Nevertheless, it would likely end up being a long and unsuccessful road trying to fight the Federal Government against these practices.
Owners of copyrights have the exclusive rights to all of the following under 17 U.S.C. § 106, and if you do one of the following without being an owner then it would classify as copyright infringement:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Since there is no evidence the government copied or distributed Skinny Puppy’s music, it looks like the big question is whether or not using the music in a prison in Cuba would constitute a “public performance” under the law or if the government is otherwise protected in its use. It will be interesting to see how much further this action goes.
If you have questions about copyright or other intellectual property rights for your music or business, contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Lawyer, Elizabeth Lewis, 720-258-6647 or email her at Elizabeth.Lewis@eclewis.com.
by eclewis | Nov 6, 2014 | IP Law
After you have researched whether or not your business name or idea is being used by anyone else, see How to Research Your Business Name and How to Research Your Business Idea, it is important to take measures to protect it appropriately.
If the idea is an invention, or improvement to an existing one, that is useful, novel, non-obvious, adequately described or enabled, and claimed by the inventor in clear and definite terms, then it may be patentable, and you should speak with an attorney right a way to discuss the patent application process. You may also consider applying for a provisional patent, which can protect your idea for the first twelve months and allow you to use the phrase “Patent Pending.”
If the idea is of the artistic or creative variety such as a painting, novel, or movie, then you should sit down with an attorney to discuss whether or not it is protected by copyright and whether or not it is a good idea to have the copyright registered with the U.S. Copyright Office. This is usually a straightforward process that can be done electronically.
If your idea is a name, slogan, symbol, sound, or other identifier for your business or its goods and services, then it may be protectable as a trademark. Trademark protections can exist under common law, state law, or federal law, so you should be sure to discuss what is most appropriate and cost-effective for your business with an attorney. Federal trademarks can be especially difficult and expensive to obtain and keep, so this will require some careful deliberation. You may also need to consider whether or not your business needs to be formed a particular way or if a trade name should be filed in order to help protect the name or aspects of the business idea.
If you are thinking about discussing or pitching your idea to others, you should seriously evaluate whether a Non-Disclosure Agreement or other form of confidentiality protection is suitable. These can help protect you from having your idea copied by those you discuss it with, but it can be a delicate issue to raise in front of friends, family, or potential business partners.
Remember that if you do not protect yourself, you could wind up finding yourself in a lengthy and costly court battle to stop someone from profiting off of your idea, and you still might lose. This business idea could be the livelihood of you and your family, so why risk losing it? Do not let this happen to you.
If you have questions about or need help with protecting your business name or idea, contact the Law Office of E.C. Lewis PC, home of your Denver Business Lawyer, Elizabeth Lewis, 720-258-6647 or email her at Elizabeth.Lewis@eclewis.com.
by eclewis | Oct 22, 2014 | IP Law
As part of our series on open source software licenses, we have already discussed the GNU General Public License, the GNU Lesser GPL, and the Apache License. This time, we will discuss two other popular open source software licenses that are much shorter and simpler. However, while these licenses are arguably the most unrestricted licenses available, they can still be important in protecting you from legal liability.
Both the MIT License and the BSD License discussed below, like the Apache License, do not impose any of the “copyleft” tactics found in the GPL and LGPL that restrict use of the software to only other open source and freely distributable software. Like Apache, MIT and BSD do not require the source to be distributed with the software, but unlike Apache, GPL, and LGPL, the MIT and BSD Licenses do not require notation of modifications or prevent people from acquiring patents based on your original work.
The BSD and MIT Licenses do still protect you by disclaiming warranties and limiting liability, as well as make sure you are credited for the original work.
BSD License
The newer BSD Licenses are short and come in two varieties, a three-clause or two-clause version. The three-clause version is seen below and the two-clause version simply eliminates clause three to allow for use of the copyright holder’s name in advertising of derivative works. If you do not wish to have your name associated with such works, you should use the three clause version and also avoid the MIT License below, since it does not offer such limitation.
Copyright (c) <YEAR>, <OWNER>
All rights reserved.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
3. Neither the name of the copyright holder nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
The MIT License (MIT)
The MIT License is an even shorter license, that is very similar to the two-clause version of BSD. The entirety of this license is seen below.
Copyright (c) <year> <copyright holders>
Permission is hereby granted, free of charge, to any person obtaining a copy
of this software and associated documentation files (the “Software”), to deal
in the Software without restriction, including without limitation the rights
to use, copy, modify, merge, publish, distribute, sublicense, and/or sell
copies of the Software, and to permit persons to whom the Software is
furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in
all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE
AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER
LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM,
OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN
THE SOFTWARE.
If you have any questions about deciding on a license or creating specialized license for your software, contact the Law Office of E.C. Lewis, PC, home of your Denver Small Business Lawyer, Elizabeth Lewis at 720-258-6647 or email her at elizabeth.lewis@eclewis.com.
by eclewis | Oct 15, 2014 | IP Law
We’ve already discussed the most popular open source software license, the GNU General Public License (GPL), as part of our series on open source software licenses, but this time we will review a common variation of the GPL known as the Lesser GPL and the Apache License.
As a reminder, open source software licenses generally allows users to make use of, change, and share the software with others without limitation, while also providing the complete source code to the user.
The GNU Lesser General Public License (LGPL)
The LGPL is essentially the same as the GPL and it will keep the LGPL licensed software free, but there is one critical distinction. It allows users of the LGPL software to combine it with other software, whether it is free or proprietary. This is done in a relatively simple fashion by taking the original GPL and adding permissions to it (this is done by removing section 3 of the GPL and replacing it with the LGPL language).
If you want to permit your software to be combined with proprietary software, use the LGPL, if you want to restrict it to being combined with freely distributable software, go with the GPL. To release software under the LGPL, simply add “Lesser” before “General” in all three places found in the instructions to the GPL, and include the text of the LGPL in addition to that of the GPL with the software and source code.
Apache License
Apache is another popular open source software license that is used for the Apache Web Server software, which is and has been the most popular web server on the internet since 1996. It is also the license used by Google for the Android mobile operating system.
The Apache License is different from the GPL in that it does not use any “copyleft,” meaning it does not require modifications or derivative works of the software to also be licensed under the same terms as the original software. You are also not required to provide the source code when you distribute the software to others.
Like the GPL and LGPL, the Apache license disclaims warranties, protect you from liability and others patenting your work, and requires them to give you credit in their future works, as well as note any modifications to it. Therefore, if you are not interested in “copyleft” limitations, the Apache license may make sense for you.
This is the language you use to apply the Apache License to your software, which includes a link to the full language:
Copyright YEAR NAME OF COPYRIGHT OWNER
Licensed under the Apache License, Version 2.0 (the “License”);
you may not use this file except in compliance with the License.
You may obtain a copy of the License at
http://www.apache.org/licenses/LICENSE-2.0
Unless required by applicable law or agreed to in writing, software
distributed under the License is distributed on an “AS IS” BASIS,
WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied.
See the License for the specific language governing permissions and
limitations under the License.
Need An Attorney to Create a License for Software?
Elizabeth Lewis is an experienced software licensing attorney in Denver. If you have questions about how to create a license for a software, Contact the Law Office of E.C. Lewis today!
