Thus, shares are to be bought and sold to or from the issuer, Vanguard, at prices determined by the net asset value, calculated as of the close of trading on the previous business day. The contract contains four clauses of preamble followed by twelve operative clauses "Articles". The third preamble clause recites Vanguard's continuing use of McGraw-Hill's trademarks and data under the license agreement, and incorporates and attaches the agreement. Vanguard's continuing use of the data in the Index Trust is recited in the preamble and referred to in other operative clauses: Article 9 Proprietary Rights , describing McGraw-Hill's efforts in developing the data; Article 10 Warranties; Disclaimers , disclaiming liability for accuracy and completeness of the data; etc.
Other Articles address the contract term, license fees, conditions for termination of the contract, rights upon termination, obligations of the parties to act in good faith and protect the value of the license, and the like. The agreement also contains an integration clause. Article 12 provides that the agreement is the "entire agreement Article 12 reads:.
At oral argument, McGraw-Hill represented that it cannot do so because of its other license agreements. My analysis of the trademark and associated intellectual property rights requires me to interpret the contracts that the parties executed in and to define their relationship. Since the contract purports to be the parties' "entire agreement", and "supersedes" the contract as to the "subject matter" of the agreement, I begin my analysis with the agreement.
Article I of the contract, the granting clause, defines the license being granted by McGraw-Hill.
Trademarks symbolize, and cannot be assigned separately from, the goodwill they represent, for "[a] trade name or mark is merely a symbol of goodwill; it has no independent significance apart from the goodwill it symbolizes. Green, F. Trademark rights "exist only in connection with a business or a product and can be transferred only along with that product or business or its goodwill. Nintendo Co. In the case before me, McGraw-Hill licensed its trademarks, that is, it gave a limited permit to Vanguard to use the marks.
The limited permit gave Vanguard a "supervised" right to use the McGraw-Hill trademark in connection with a specific product.
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See Universal City Studios, F. McGraw-Hill licensed trademark rights to Vanguard for a particular use and pursuant to a contract that provides McGraw-Hill with the requisite degree of control to protect its goodwill. In order to ascertain the intent of the parties, I look to their entire agreement, for "[i]t is a cardinal rule of contract interpretation that a court must construe the terms of an agreement as a whole and in a manner that gives effect to the mutual intent of the parties. United Way of America, No. See also Brooke Group Ltd. This is as much the case with trademark licensing agreements as with any other agreement.
See, e. Estate of Andy Warhol, F. That use was as per their pre-existing relationship, defined in the agreement and incorporated into the agreement. Thus, the third preamble clause of the agreement not only refers to the "License Agreement dated April 24, ," but incorporates and attaches it as well. The parties, in considering that they needed a new agreement for each new marketing activity, showed their understanding as to the scope of the license agreement, limiting the license to Vanguard's then-existing and continuing use. Thus, the parties would need a new agreement, and not an interpretive enlargement of an existing agreement, in order to encompass VIPERs.
That is the use to which Vanguard's trademark and data license is limited. Thus, the agreement provides that it is the "entire agreement As the cases cited above teach, I am to construe all parts of the agreement as a whole that which is incorporated and that which is stated afresh.
REED CONST. DATA INC. v. McGRAW-HILL COMPANIES
Where the meaning of a contract term may be discerned from the contract language, "courts are required to give effect to the contract as written and may not consider extrinsic evidence to alter or interpret its meaning. Jenner, F. However, the language of the agreement as to what is incorporated and what is superseded has sufficient ambiguity to allow me to look to parol evidence in an effort to clarify the ambiguity.
Insurance Co. Anesthesia Associates of Western Suffolk, P. The parol evidence from the period prior to the contract emphasizes this interpretation of the license as limited to a particular, defined usage. Commodity Exchange, Inc. Following additional discussions and exchanges of correspondence consistent with the above, Vanguard updated its prospectus attachment to that effective as of April 30, In a letter dated May 1, , Vanguard made clear that there were to be "no changes" in the Index Trust's "modus operandi;" clearly, that was to be the "modus operandi" that was to be licensed.
Vanguard's letter stated:. The license agreement was executed soon after Vanguard's May 1 letter and made effective as of April 24, Discover how to choose the right components, design and build circuits, use microcontrollers and IC devices, work with the latest software tools, test and modify your creations.
The navigation bar to the right is a very comprehensive list of topics in basic electronics and is listed in a suggested order.
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