The High-touch Legal Services® Blog…for Startups!

© 2009-2021 Dana H. Shultz

Trade Dress Protection for Look and Feel

Logo of Ingrid & isabel, plaintiff in a case about trade dress protection of website look and feelIn How Can I Protect the Look and Feel of My Website?, I explained that the “look and feel” of a website – or a smartphone – can be protected as trade dress or by a design patent.

This post examines a recent case that discusses the elements of trade dress protection in detail. That case is Ingrid & Isabel, LLC v. Baby Be Mine, LLC, decided by the United States District Court for the Northern District of California. (more…)

Protecting Software: Keeping Trade Secrets while Registering Copyrights

Many software companies rely on a combination of copyright and trade secret protection for their products. There is a potential problem, however: The requirement to submit source code with a copyright registration is somewhat at odds with the confidentiality requirements of a trade secret.

Fortunately, the U.S Copyright Office offers some flexibility in its deposit requirements for software containing trade secrets. The applicant may deposit any of the following: (more…)

How Much Can My Product Look Like Another Company’s Product?

Logo for Quora, where Dana Shultz answered a question about "How much can my product look like another company's product?"This post discusses how much one company’s product can look like another company’s product without creating intellectual property problems. It largely copies a Quora answer that I wrote recently. Please see How much can my product look like another company’s product without infringing the other company’s intellectual property rights in that product? (more…)

How Can I Protect the Look and Feel of My Website?

U.S. Patent and Trademark Office Seal, symbolizing trade dress and design patent protection of website look and feel

This post discusses whether and how you can protect your website’s “look and feel.

The reason you would want such protection: Your website has particularly effective visual and interactive elements that help promote your business. You would not want another website to copy those elements, thus make your website and your business less special.

Look and Feel as Trade Dress

Look and feel falls in the category of trade dress, i.e., visual appearance that signifies the source of a product or service. You may be able to obtain a federal trademark registration for the non-functional elements of the website’s look and feel and bring suit against infringers based on that registration. (more…)

Non-solicitation Provision Overturned in California

Graphic with reference to California Business and Professions Code, referenced in a case upholding an employee non-solicitation provisionIt is common knowledge that California generally prohibits post-employment non-compete provisions. However, people know far less about law pertaining to post-employment non-solicitation provisions.

In this post, I will describe existing post-employment non-compete and non-solicitation case law. Then I will discuss a recent case that may signal a new direction.

Background – Non-competition Provisions Disfavored

Business and Professions Code Section 16600 is the statutory basis for California’s post-employment non-compete prohibition: (more…)

FTC Endorsement Guides FAQ Updated

Seal of the Federal Trade Commission, this post being about the FAQ for the FTC Endorsement GuidesSeveral years ago, I wrote about the FTC Endorsement Guides. (These are known more formally as the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising.) This post discusses a recent update to the FAQ for the FTC Endorsement Guides.

Scope of the FTC Enforcement Guides

The following excerpts from the Introduction to the FAQ provide a succinct overview of the scope of the FTC Endorsement Guides. (more…)

Negotiating Software Licenses – What Really Counts

Photo of shaking hands, which symbolizes negotiating software license agreementsThis post addresses the most important issues that are raised in negotiating software licenses.

I will assume that parties have agreed on pricing. (Otherwise, there is no point negotiating license terms!) In addition, I will ignore the lengthy legal “boilerplate” that appears in most software license agreements.

Four Critical Issues in Negotiating Software Licenses

In my experience, there are four issues that must be examined closely, and often result in much discussion, when negotiating software licenses. (more…)

What Must We Do if We’re Going to Be Acquired?

photo of document binders standing next to one another

A successful exit by acquisition is one of the great thrills of entrepreneurship. That exit does not come easily, however. This post discusses, by category, the most important documents and information that you will need to provide during the acquirer’s due diligence process.

Corporate Documentation

  • Articles of incorporation and bylaws, as amended
  • Minutes of board and shareholder meetings and actions
  • Share transfer ledger, including name and address of each shareholder
  • Agreements pertaining to shares and shareholders’ rights (buy-sell, voting rights, etc.)
  • List of holders of option or warrants and all applicable agreements

(more…)

Educate Employees about Online Endorsements – the FTC is Watching!

A few months ago, I posted Does your Employee Handbook address social media? This post discusses a specific social-media issue that is of great importance to every employer: Online endorsements of products or services by employees.

The Federal Trade Commission has published Guides Concerning the Use of Endorsements and Testimonials in Advertising. Actions that are inconsistent with the Guides may result in an FTC enforcement action.

(more…)

Commercial E-mail and CAN-SPAM: What You Need to Know

Seal of the FTC Bureau of Consumer Protection, which publishes a CAN-SPAM guide for businessesUnsolicited commercial electronic mail – “spam” – is the bane of the modern electronic existence. In an effort to limit this problem, the One hundred Eighth Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. This legislation, usually referred to as the “CAN-SPAM Act of 2003” or “CAN-SPAM”, took effect January 1, 2004.

The CAN-SPAM Act

CAN-SPAM has four main provisions, which together aim to make commercial email (including commercial content on websites) more truthful, more transparent and more avoidable.

(more…)

Intellectual Property Essentials for Start-ups

Intellectual Property Essentials for Start-ups” now is available as a Free Download on the Downloads page.

Here are some of the questions that the document addresses:

  1. Which types of intellectual property (IP) should a start-up be aware of?
  2. How can we be sure to own IP created by independent contractors?
  3. Are there special considerations if the contractor is located overseas?
  4. It is pretty easy to register a trademark online; where might I go wrong?
  5. A provisional patent application is inexpensive and can be filed quickly; are there any risks I should keep in mind?
  6. Money is tight; can we use another company’s form of agreement rather than paying to develop one of our own?
  7. Open source software is hot; does it bring along any special dangers?

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.

Securing IP Requires More than an NDA

Logo for Quora, where Dana Shultz answered a question about needing more than an NDA to secure intellectual propertyWhen it comes to protecting intellectual property (IP), non-disclosure agreements (NDAs) are ubiquitous. What many entrepreneurs fail to realize, however, is that securing IP requires more than an NDA. For an NDA to do its job, the company must actually own the IP in the first place!

The most serious ownership problems arise when there is no written agreement between the company and the individual developing the IP. Depending on the nature of the IP (for example, whether copyright or patent protection applies) and whether the developer is an employee of the company or an independent contractor, the developer may own the IP.  If this is the case, the company has, at most, a non-exclusive license.

(more…)

About Dana Shultz

Dana Shultz recently retired from the practice of law. As a lawyer, Dana dispensed as much business advice as legal advice. Accordingly, although he no longer is practicing law, Dana occasionally provides consulting services to owners and managers of small businesses.

If you need legal representation, Dana provides referrals to experienced business lawyers.

The remainder of this page is being retained online for archival purposes.


Dana Shultz is a business-savvy attorney with in-depth knowledge of law, business, technology, and the needs of startup and early-stage companies.

Dana develops close working relationships with clients based on a positive attitude and rock-solid dependability. He delivers High-touch Legal Services® (about which you may read many Client Testimonials) – thus the name of his blog.

Dana received an undergraduate degree with honors in Communication Sciences from the University of Michigan and a law degree from Boalt Hall School of Law (University of California at Berkeley). He is a member of the State Bar of California. (more…)