Good evening,

We would need to start looking at the original franchise agreement that she signed with Sell-It Real Estate. A few things to note that would be of interest within this agreement would be the intellectual property rights which would have been the restricted license to use its logo, trademark, and business operating system for a period of time (Franchise direct 2022) Now since Bonnie created the logo and the name in exchange for waiver of the franchise fees for 7 years, this would be something that will need to be looked into since Bonnie has owned the business for the past 30 years. What was the agreement after the 7 years? If there is nothing Bonnie should investigate having the logo and the Bon Sell-It Real Estate. brand name Trademarked. Brand names and logos are IP assets which are worth protecting. By registering the trademark, this will give a business 15 years of exclusive rights to use it, and it can be renewed indefinitely, if they are still using the trademark. (Gov of Canada 2016) The rest of the agreement will look at items such as post-term requirements, advertising, and marketing.

When it comes to the magazines and vases, her employees are the ones who created the work while employed with Bonnies company, in this case the employer is the first owner of the copyright. These fall under copyright protection even if not registered. If Bonnie does not register this work, the company will still receive basic copyright protection against infringement and her or the new owners can collect damages. But as her lawyer, I would guide her towards registered copyright which covers original works of authorship to include literary, dramatic, musical and artistic work. (copyright gov 2022)

Building Considered real property it is fixed, immovable and attached to the land. Bonnies sister and her husband own this property. The new buyer of the Franchise will either need to outright purchase this property from Bonnies sister or enter into some type of lease agreement. I would assume after 30 years the building could be close to paid off, this would be a great investment opportunity. 

Bonnie needs to clean up the software which is currently vulnerable to open-source code. Open-source code is openly shared with anyone. Anyone can freely success, distribute and modify this software. There are some pros and cons to this route, such as there is and was no upfront start up costs, its highly reliable, open source is always evolving, and is more secure. Some cons to this, if Fred decides he is done, he now has the companys 30 years of information, customer information which could be detrimental to the business. He could easily just shut it down; anyone could tamper with the source code. Bonnie would need to look at turning this into a proprietary Software which would consider the software copyright, and the source code as not available. A Proprietary Software License Agreement, non-disclosure agreement and non-Solicitation agreement should all be drafted and signed off by her son and Fred.

References:

Franchise Direct (2022) Franchisee Checklist The Franchise Agreement, www.franchisedirectcanada.com

Government of Canada (2016), Canadian Intellectual Property Office, Patent, copyright, trademark, Patent, copyright, trademarkDo you have these business assets? – Canadian Intellectual Property Office

Copyright.gov (2022) U.S Copyright Office, Copyright in General, Copyright in General (FAQ) | U.S. Copyright Office

Investintech, (2022) Pros and Cons of Open Source in Business, Pros & Cons of Open Source in Business (investintech.com)

SUBJECT AT HAND: 

Your boss, Bonnie, is thinking of selling her real estate brokerage business, Bon Sell-It Real Estate. She has come to you for help sorting out all the documentation relating to the use and license of tangible and intangible property by the company. Bonnie and Aggie (the company accountant) need to have a list of the types of agreements that should be in place and the correct parties to these agreements.

You have worked for Bonnie and the company for 30 years since the beginning and are considered the company historian. You have pulled together the following information and you now must figure out which pieces of information are relevant to your mission. 

Everybody works from the office at 1 Maiden Lane.

The building is owned by Bonnies sister, Sassy, who bought it together with her husband, Harry, 31 years ago, just in time for when Bonnie was looking to start the business.  

The brokerage is a franchise of Sell-It Real Estate and Bonnie is very proud of the logo (that looks like ET calling home). Bonnie is also very proud of the name of the brokerage (also her creation), which she had allowed the franchise to use in exchange for a waiver of the franchise fees for 7 years. The old name of the franchise was We Sell Properties which Bonnie thought was , but she wanted to stay with the franchise because of the other support she gets from the franchisor.  

There are 7 real estate salespeople in the company, all women with various degrees of experience. They are employees of Bonnie and do not have to compete with each other for business. They are a tight knit, friendly group and every month they bring together their creative talents in drawing and poetry to put together a company newsletter which is sent out to former and potential clients as part of community building and marketing efforts.  

The front room of the office is called the trophy room, as it hosts the ceramic treasures of the business. These are prototypes of small vases, handcrafted by one of the employees each Christmas, that are selected to go into production and distribution to clients who have given business to the company that year. Each vase has worked the ET logo into the design and is a real selling point for walk-in customers who are drawn to the store by the beautiful vase creations. Bonnie reckons that 32% of her business is generated from walk-in traffic! The vases are the talk of the town (its a small town).  

Bonnies son, Sonny, got his diploma in computer science last year and talked Bonnie into bringing the company into the 21st century. Together with his friend, Fred, he digitized the entire database of client and accounting information for the company using software that Fred wrote as a school project. Sonny was at first reluctant to use Freds software solution because it was heavy on open-source code and other stuff of unknown origin but at the presentation to the company, the employees thought that Freds look and feel was cuter than Sonnys plan (which was essentially to use some off-the-shelf software product). Besides, Sonny offered off-site backup of the data (which they thought was risky).

Given what youve collected about the history and activities of the company, what sort of formal agreements do you think ought to be drawn up for the company to be legally covered? Is there anything in the current arrangements that seems questionable?;