Product counsels are lawyers who work with product managers and entrepreneurs to develop a product that gives consumers a unique and compelling user experience while managing the risks. Unlike other area specialists, a good product counsel needs to have experience in multiple practice areas in order to protect the product, the company and the consumer.
To be optimally effective, a product counsel can be expected to excel in five areas of law. These areas are commercial contracts, consumer protection, intellectual property, privacy, regulatory law.
Area #1: Commercial Contracts
Drafting and reviewing documents is an important part of the work of a reliable product counsel. Each interaction with an outside company is an opportunity to protect the company’s intellectual property, facilitate access to markets and secure the company’s opportunities to be profitable.
Contracts may include written agreements with suppliers, agreements with sales and marketing professionals and terms and conditions for the consumers of the product.
A good product counsel who drafts these contracts with the best interest of the company and product in mind. Many times, however, these contracts will be presented by other parties for the company to sign. In such cases, the counsel can review the documents to ensure that the terms and conditions protect the company and create an environment where the product can thrive.
Beware of using templated agreements that can be freely downloaded from the internet. These agreements and contracts are often too general and may not contain the protections and terms that specific companies and products require.
Area #2: Consumer protection
Every company has a responsibility to protect the well-being of the end consumer of its products. It is ideally the role of the product counsel to understand product liability law as it applies to the users of the product. This includes ensuring that the products are adequately labeled with usage instructions, warnings and disclaimers in the languages required by law or that are likely to be the languages of the end-users.
Lawyers with a background in consumer liability claims are uniquely positioned to protect companies as a product counsel. These lawyers understand the risks faced by companies as they launch products in new markets and have an intimate knowledge of the tactics used by personal injury attorneys who represent consumers who claim to be injured by the product.
Area #3: Intellectual property
Protecting the patents and copyrights owned by a company at an international level is another important area of practice for an effective product counsel. Across the United States, companies are protected in what is called a “first to use” system which protects a company’s intellectual property if that company is the first to use a certain patentable technology or copyrighted content. However, overseas manufacturing of the product may subject the product and its branding to international legal jurisdictions. Several of these jurisdictions are what are called “first to file” legal environments. A company in such a jurisdiction can file for the intellectual property of another company and then own the right to produce that other company’s product.
“Beware of using templated agreements that can be freely downloaded from the internet.”
This can severely compromise the ability of the original owner of the intellectual property to grow their market since another company with in-house manufacturing capabilities can now take over the ability to produce their product. It is highly recommended that any company that produces a product seek the advice of a knowledgeable product counsel before approaching a manufacturer or other outside party with prototypes of the product.
This is just one example of the types of intellectual property risks faced by companies that produce products. Having an experienced product counsel onside can help navigate the complexities of intellectual property law and reduce a company’s risk profile in that area.
Area #4: Privacy
Many products today involve the acquisition of personally identifiable information at some point in the product cycle. An experienced product counsel will be able to identify the risks involved with collecting and storing such data and have knowledge of ways to reduce these risks.
For example, many companies use marketing strategies that involve collecting emails, names, numbers and other data from consumers in order to solicit them later to purchase a product.
At the point of purchase, credit card information is often acquired from consumers sometimes along with their addresses. Later, warranties and product registration schemes sometimes require consumers to provide their names and other data in order to participate. Finally, some products such as electronic devices capture personal data, biological data (such as facial or fingerprint recognition) and even private data such as social security numbers, credit card information and passwords.
Data breaches caused by electronic hacking or human error can result in substantial fines and consumer lawsuits.
Companies managing a product that involves collecting personally identifiable information at any point in the product cycle would be wise to consult with an experienced product counsel to determine the risks involved and to develop methods to reduce those risks.
Area #5: Regulatory Law
Another area of expertise of experienced product counsels is regulatory law. This includes having a professional level of knowledge of the laws that govern every aspect of the product from the way a product must be shaped and sized to the way it is marketed and even down to the size of the font on the product’s disclaimer.
A product counsel with a good regulatory background can prevent the fines and other risks that may result from non-compliance with state and local laws. Also, a knowledge of regulatory law can help a company to influence local and federal laws via lobbying efforts to make the market environment friendlier to the type of product it produces.
South Florida Law
South Florida Law represents manufacturers of a broad range of products throughout the United States in state, federal and multidistrict matters. We achieve desirable results by working together with our clients to develop proactive measures to counter the risk of product liability claims.
If you or your company manages a consumer product, then contact South Florida Law today via our contact form or by calling (954) 900-8885.