For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Wednesday, 10 June 2009

Not such a good idea after all?

The IPKat's still not terribly certain what Firebox is, apart from something that isn't quite the same as Firefox. His attention was however caught by an email from an anxious lawyer, who sent him this link to Firebox Inventor.

The blurb introducing Firebox Inventor is very upbeat and lovey-dovey. It opens:

"Calling all creative geniuses, visionaries, mad scientists, tinkerers, ponderers and garden shed inventors:

We’ve teamed up with Stuff, the World’s best-selling gadget magazine, to launch Firebox Inventor: a national search to find the next must-have product for 2010 and it might just be your idea that makes it onto our shelves! It could be a cool new toy, handy gadget, or something else entirely: if it’s original and it fits our quirky range, we want to hear about it.

You don’t need to have an expensive prototype, polished business plan, or to take part in a scary formal pitch. You can send your entry to us in any format you like and there isn’t a Dragon in sight.

We’ve assembled an expert panel of judges from across the technology, toy and product development industry to pick out the very best idea from the bunch".
The website then lists the members of the expert panel and continues:

"The Prize

The winning idea will be developed, manufactured and sold by Firebox on our award-winning website. [this, presumably, is Firebox's prize] What’s more; the winner will receive 50% of our profits for the lifetime of the product! [this holds out an expectation of further details in the Terms and Conditions, which only specify that the profits are net of all costs, taxes etc. Obligations regarding accounts? Payable in £, $ or Mongolian tögrög?]

How to enter

There is no age limit to this competition [there is, actually: no under 18s may enter] and no experience necessary. Your product suggestion could take the form of a drawing, photo, video, or doodle on a beer mat. Whether it’s a long email, a short tweet or arrives by carrier pigeon; any entry format goes [except that the T&Cs say you have to enter the competition via YouTube, following it up with a notificatory tweet]".

The Firebox Inventor Terms & Conditions contain some fascinating legal prose. Naturally they require the winner to assign to Firebox all IP rights in the winning entry. Among its various provisions the terms specify:
"It is a condition of entry that you agree to enter into a release with Firebox in relation to the use of your Competition Entry and ancillary materials (including your name, likeness, photographs and any other material available to Firebox) [whoops, there goes privacy and publicity]. Firebox reserves the right to publish details of your Competition Entry and ancillary materials either on the Firebox website or to provide such details to the media [If an entrant does not want their entry published they should make this clear when submitting their entry] [if you can give notice that you don't want your entry published, the release isn't much of a condition of entry, is it?].

By submitting your Competition Entry you agree ..
* that your Competition Entry may be used for any and all purposes related to Firebox [and not merely to the competition?];
* that your name and likeness may be advertised and used in connection with your Competition Entry and this competition throughout the world;
* to grant to Firebox the non-exclusive, irrevocable, worldwide, perpetual, royalty free right and licence to use your Competition Entry for all purposes connected with the competition, in all media and to give all other consents (if any) which Firebox requires for such use;
* that the content of your Competition Entry is your own original work and is not copied from any third party;
that no other person has (nor will have) any rights in the Competition Entry that are inconsistent with these terms;
* that you have not granted any other person any rights that are inconsistent with the licence granted above [since Firebox only asks for a non-exclusive licence, the chance of another grant being inconsistent with this one must be quite real];
* to waive any so called moral rights and any right to equitable remuneration for the purposes of any rental or lending rights that may be deemed to be in existence in relation to the Competition Entry, so that Firebox may use the Competition Entry in any way it deems fit;
* the Competition Entry contains nothing which is unlawful or legally restricted;
* the use of the Competition Entry by Firebox in connection with this competition will not give rise to any liability to Firebox;
* that no third party owns any copyright or other rights in your Competition Entry and has no right or interest in it;
* to indemnify Firebox in connection with any liability, claims, costs or damages arising as a result of your breach of these terms;
* that it may not be possible to give a credit in relation to your Competition Entry;
* to sign all documents necessary for this release and licence, on request".
Those terms related to the entry itself; more terms apply to the invention or innovation itself. Thus Firebox -- which reserves the right to modify or discontinue product development or product sale for any reason and at its absolute discretion -- continues:
"It is a condition of entry that you agree to enter into an assignment
agreement with Firebox should your Competition Entry be picked for the Prize.
Such assignment agreement shall formally assign all ownership and intellectual
property rights (including copyright, design right, patent rights and trade mark
rights) in the Competition Entry and any product derived therefrom [does this include improvements?] to Firebox in exchange for a royalty of 50% of the profits earned by Firebox in respect of the Product only. Such profits shall be the revenue generated less applicable taxes, development and production costs for the lifetime sales [whose lifetime -- that of Firebox, the competition winner or the product itself?] of the Product by Firebox.

Firebox reserves the right to disqualify any Competition Entry where the entrant has supplied untruthful, inaccurate or misleading information and/or is in breach of the terms herein [does this include retrospective disqualification, if the entrant is in breach of a warranty of non-infringement?].

... There is no alternative to the Prize as stated and such Prize is not transferable.

All entrants must disclose to Firebox in writing full details of any and all criminal or civil proceedings or actions pending against them and/or convictions unspent as of the date of entry [let's hope that Firebox's data protection regime is fire-proof, then].

... No entrant will, without Firebox’s prior written consent, publicise or discuss with any third party any information in relation to their involvement in the competition
(including without limitation any information in relation to Firebox or any associated companies or affiliates) save where such information is already public knowledge [so the entrant needs consent before seeking legal advice?].

... Firebox reserves the right to modify or cancel the competition should circumstances deem it necessary. In such a case, no indemnity or compensation will be given to the participants involved. [That's handy, isn't it?]

... It is the entrant’s responsibility to ensure their Competition Entry is protected by any relevant copyright or other intellectual property rights as appropriate [the IPKat hopes the worldwide patenting costs come to more than the 50% royalty ...]. Firebox will not be held responsible for any claims of intellectual property infringement whether made by an entrant or any third party" [perhaps the entrant might like to consider a litigation insurance policy too].
Now let's look at the Submission Terms:

"The following terms reflect Firebox’s policy regarding the submission and disclosure to it of any ideas, concepts, inventions, materials, designs or information (“Submissions”).

Unless agreed otherwise in writing and signed by You and a director of Firebox the Submissions shall not be deemed confidential and no part shall be subject to any duty of confidence or any similar or equivalent obligation.

Firebox is involved in the creation, research and development of software, technology, ideas and concepts relevant to the gifts industry and receives proposals and information internally and from various external sources. Accordingly, Firebox may receive, review, devise or develop ideas, works, materials and information which are the same as or similar to Your Submissions and/or have done so already. No use, research, development or disclosure of such works, materials and/or information shall be deemed a breach of nor infringe any rights You have in any Submission.

... Submissions may be evaluated by Firebox or by third parties. You agree that Firebox may disclose the Submissions to such third parties for this purpose and that the terms of this Agreement apply equally to such disclosure. Firebox makes no representations or warranties of any kind regarding the evaluation of any Submissions by Firebox or by any third party.

You warrant and represent that Your Submission and its disclosure or delivery to Firebox will not breach any agreement You may have with any third party (including without limitation any confidentiality, non-disclosure, secrecy or licence agreement) nor will it, nor its use, hereunder infringe any third party proprietary rights.

This Agreement constitutes the complete and only agreement between You and Firebox with respect to the Submissions and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein and its terms shall have effect regardless of whether or not Your Submissions are marked "confidential", “private” or "proprietary" or have any other notices or indications. This Agreement and the terms applicable to Submissions shall not be varied by You or Firebox except in writing signed by You and a director of Firebox".

The IPKat doesn't fancy entering this competition after all ...

3 comments:

Anonymous said...

If you have to enter the competition via YouTube as the article says, isn't this going to be novelty destroying for most patent and some registered design rights?

The rest of the agreement is just stunning, and I was only sightly surpirsed there was not a clause claiming the your first born or the virginity of any daughters..

goldenrail said...

ummm... can you waive moral rights?

Anonymous said...

Only when they are "so called", apparently.

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