Posts from: October 2017

Updates to Construction Contracts

As is its custom every ten years, the American Institute of Architects (AIA) has released updated versions of many of its industry standard construction documents commonly used by owners, architects and contractors.  The A101 (Standard Form of Agreement between Owner and Contractor) and A201 (General Conditions of the Contract of Construction) – which constitute the most commonly used owner/contractor construction forms – contain a number of notable changes.  Some of the more important substantive changes that owners and contractors will need to consider are as follows:

  • Owner Termination for Convenience – The 2007 A101 and 2007 A201 provided that if an owner terminates the contractor for convenience (as opposed to a termination on account of the contractor’s default), than the contractor may recoup projected overhead and profit for anticipated work that had not yet been performed as of the termination date.  The 2017 versions contemplates a stipulated termination fee which will need to be negotiated by the parties.
  • Owner Financial Information – The 2017 A201 version has provided the contractor the express right to refuse to proceed with the work or stop work in progress if the owner fails to provide reasonable evidence that the owner has made sufficient financial arrangements to fulfill its payment obligations under the contract.
  • Warranties – The 2017 A201 version now provides that all warranties issued in connection with the work, such as warranties from material or equipment providers, must be issued in the name of the owner or provide that they are transferable to the owner.
  • Owner/Contractor Communications – The 2007 A201 stated that owners and contractors shall “endeavor” to communicate through Architect.  The 2017 version now contemplates that owners and contractors will communicate directly and will keep the architect informed of the nature and substance of those communications.
  • Minor Changes in the Work – The 2007 A201 provided that the architect may order minor changes in the work that do not adjust the contract sum or contract time.  The 2017 revisions now incorporate a mechanism for the contractor to register its objections to the architect’s proposed changes and the right not to proceed with the changed work until the objection is resolved.
  • Lien Waivers – Subcontractor and supplier lien waivers now must be included in each draw request.
  • Contractor Lien Indemnification – The 2017 A201 now provides that so long as the owner has funded its payment obligations, the contractor must indemnify the owner for lien claims and other claims for non-payment by such contractor’s subcontractors or suppliers.

Many of these changes are intended to approximate the types of modifications that owners and contractors negotiate when entering into construction contracts using the AIA forms.  Nevertheless, it is important for the parties to take note of these provisions when using the forms without specific consideration of these issues.

For further information regarding construction contracts and the construction process, please contact:

Jeffrey M. Galkin at:

312-368-0100 or jgalkin@lgattorneys.com.

Trademarks for Apps

If you are a typical person today, you’ve likely used at least three different apps before 9 am.  You get up in the morning and click on your weather app of choice to figure out what to wear and whether to take your umbrella.  Then you grab an UBER® to get to the office and during the ride, you order your coffee so it is ready for you as you breeze through the building on the way to the elevator.  No sense in waiting for the coffee, as this is a needless waste of time.  With more and more people relying on apps, app design, branding, marketing, and protection are more important than ever.

The number of mobile apps is exploding. In June 2016, Apple® reported approximately 2,000,000 total apps in its app store.  By May 2017, that number had increased by approximately 200,000.  Mobile apps may be discussed in three categories – mobile web apps that enhance web browsing, apps that offer users a new service not previously available via a smart phone, and traditional brands whose business is widely known (such as WALGREENS®).  With all of the competition in the marketplace, companies must consider how to protect their app brand as a trademark, before it launches the new app into the marketplace.

To be “protectable” as a U.S. trademark, an app must have a few key characteristics.  First, consider the name of the app.  Does it describe a feature or function of the app?  If so, the owner may want to reconsider, as the U.S. Patent & Trademark Office typically does not allow registration of descriptive marks.  Instead, the owner of the app will need to come up with a name that is either merely suggestive of the service the app provides or is arbitrary.  Arbitrary names of apps are those that do not describe or suggest anything about the app.  APPLE® itself is a good example of an arbitrary trademark, as APPLE® is a trademark for computers, pads, phones and other goods and services, all having nothing to do with fruit.  Suggestive trademarks may be the happy medium where the function of the app is not outwardly described, but the app name hints at the meaning.  For example, ENLIGHT® is a photo editor app and would be considered suggestive because it suggests something about photo editing but does not describe it.

In considering the name of the app, owners will also want to pay attention to the color and icon they will use with the app.  Will these elements convey a unique design that may lend itself to trademark protection?  While color is sometimes not claimed as part of a design trademark in the trademark application or emphasized in a typical enforcement setting, in the app setting it is important to claim color, as it is one mechanism to set the app apart from others.

Registration of an app name and design provides many benefits.  The most important benefit is having the presumption that the owner has the right to use the name, design, and color of the app nationwide over all others, subject to certain exceptions.  Another important benefit is that when the app name or design (or both) is a registered trademark, all others are put on notice of the owner’s rights.  That is, all others are held to know about the registered app, even if they did not actually know about it.  Finally, federally registered trademarks may obtain relief from an infringer without a lawsuit.  If the owner simply wants the infringer to stop using the confusingly similar name, design and/or color scheme, the owner need only submit proof to the marketplace on which the app is available, and the marketplace, such as the Apple® App Store, will assist in removing the infringing app.

For further inquiries pertaining to apps and trademark protection and related questions regarding your intellectual property, please contact:

Natalie A. Remien at:

312.368.0100 or nremien@lgattorneys.com.

*UBER®, WALGREENS®, APPLE®, and ENLIGHT® are all registered trademarks of their respective owners.

(Please note that we are not endorsing any products or services mentioned in this blog).

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