BLAW Exam 3

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What are the two exceptions to copyright infringement?

Fair use exception First sale doctrine

A mark requires __________ to be protected by the Lanham Act

Distinctiveness

Trademark

Distinguishes / identifies source of a product

FLSA (Fair Labor Standards Act) critical provisions:

Child labor Minimum wages Maximum hours

For enforcement of international law, other countries may only take __________ action

Coercive

Is a compilation of facts copyrightable?

Sometimes, only if original expression exits within the work.

Arbitrary and fanciful marks definition

Common words applied in a way that bears no logical relationship to the underlying good (arbitrary) OR Made-up words (fanciful)

To determine trademark infringement, we use the likelihood of _________ test

Confusion

Distribution Right

Copyright owner has the exclusive right to distribute copies or phonirecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending.

What constitutes originality for copyright?

- independently created by author, not copied - at least some degree of creativity is required

- must be original expression - must be fixed in a tangible medium - now known or later developed - can be perceived, reproduced or otherwise communicated - directly or with the aid of a machine or decide

Test for overtime

1. Employee worked overtime but was not paid for the overtime hours and 2. Employer knew or should have known employee worked overtime hours

Requirements for workers' compensation benefits

1. Existence of an employment relationship 2. An accidental injury that occurred on the job or in the course of employment, regardless of fault 3. Prompt notice by employee to employer (30 days) and state (60 days - 2 years)

How can the U.S. control exports?

1. Export quotas 2. Restrictions on technology exports 3. Incentives and subsidies

What kinds of products may not be imported in the U.S.?

1. Goods from nations designated as enemies of the U.S. 2. No import of illegal drugs or money, or agricultural products that may damage domestic crops 3. No import of goods that violate patents (ITC investigates)

What does a "descriptive" mark usually contain in the name? (3)

1. Information about the product or good (ingredients, function, feature, etc.) 2. A geographic term 3. A personal name

A plant patent may be granted to anyone who

1. Invents or discovers and 2. Asexually reproduces any distinct and new variety of plant

Trade secret infringement requirements

1. Knew or had reason to know that the information was a trade secret AND The alleged infringer acquired the trade secret by improper means OR Used or disclosed the trade secret without the consent of the owner (ie breach of duty)

What must a copyright owner prove to win a copyright infringement action?

1. Ownership of a valid copyright in the work that is the subject of the dispute 2. Defendant copied the work (direct evidence or indirect evidence meeting access and substantial similarity elements) 3. The defendant's copying was an improper appropriation

What can be patented? 3 things

1. Process Any process, act or method, including industrial or technical processes 2. Manufacture All articles that are made 3. Composition of matter - chemical compositions - includes mixtures and new chemical compounds

Exceptions to Doctrine of Sovereign Immunity

1. State has waived its immunity, either explicitly or impliedly 2. State has engaged in commercial activity within the U.S. or has a direct effect in the U.S. 3. When foreign state has committed a tort in the U.S. or violated international laws 4. When state is designated a state sponsor of terrorism

Benefits of trademark registration

1. Sue in federal court 2. Prevents registration of a similar mark 3. Ability to bar importation of infringing goods

What are the four factors of fair use?

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit / educational purposes 2. The nature of the copyrighted work 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole and 4. The effect of the use upon the potential MARKET FOR OR VALUE OF the copyrighted work

1. Tort damages (actual or statutory) 2. Injunctive relief 3. Criminal fines and/or imprisonment if infringer is deemed "willful"

What section of the Copyright Act covers the rights of authors?

106

How many years are utility and plant patents protected for?

Over what income do earners pay additional Medicare tax?

200,000. Not matched by employer.

How many years are design patents protected for?

FMLA: Military

26 weeks of military caregiver leave within a 12 month period if family member is seriously injured or become ill as a result of active military duty. 12 weeks of qualifying exigency leave to take care of non-medical emergencies when a family member is called into active duty.

File sharing often infringes on how many copyright rights?

3. Reproduction right, distribution right, display right

Federal trademark registration renewal timeline

5-6 years after INITIAL registration, must file a certification of use in commerce Registration must be renewed every 10 years (unless registration was before 1990, then it is every 20 years) and must include certification of use in commerce

Employees an employers each pay ____% social security tax

6.2 Wage base capped at 142,800

FLSA minimum federal wage

7.25. States may have higher minimum, but not lower.

McGinley v. Franklin Sports, Inc. A training baseball with colour-coded markings for finger placement is... A. Non-obvious and patentable B. Obvious and patentable

Micrylex Corp. (a U.S. corporation) signs a sales contract with Freiers, S.A. (a French company) in which Micrylex agrees to sell Freiers $15,000 worth of Micrylex products. This is an example of: A. Direct exporting B. Franchising C. Technology licensing D. Manufacturing abroad

Once an employee files a claim under the Whistleblower Act, it is their: A. Exclusive remedy B. One of multiple torts and remedies available

Scientist created a product and claimed in the patent application that the product could "restore hair growth." When tested, the product improved hair growth by 25%. Would the patent examiners (USPTO) likely grant the patent? A. Yes, the patent examiners would likely GRANT the patent. B. No, the patent examiners would DENY the patent.

The America Invents Act specifies that patent protection begins on: A. Date of filing B. When the invention takes physical form C. When the invention is first sketched / planned D. When the invention is first thought of

What are the minimum and maximum awards for "Willfull" copyright infringers? A. 750, 150,000 B. 400, 50,000 C. 700, 100,000 D. 850, 150,000

The Madrid Protocol

A company of a member-country wishing to register its trademark abroad can submit a single application and designate other countries it would like to register. Applies to TRADEMARKS

Reproduction Right

A copyright owner has the exclusive right to reproduce or license to others to reproduce the copyrighted work.

Can images displayed in private be infringed under the Public Display Right? A. Yes B. No

A third party violates one or more of the copyright owner's exclusive rights listed in §106

An invented machine meant to flip burgers turns out to not be good at that but instead at cleaning dishes. If a patent application was submitted for a utility patent on a burger flipping machine, would the patent be granted? A. No, it must be operable, or perform the task deemed useful B. Yes, since it serves some kind of useful purpose.

Apple Car Dealerships uses an logo somewhat similar to Apple, Inc, a famous computer company. It's been found that the mark is not likely to confuse consumers about the source of the goods, however they may associate the mark with Apple, Inc's mark. Apple, Inc could claim: A. Apple Cars is causing trademark dilution by blurring B. Apple Cars is causing trademark dilution by tarnishing C. Apple Cars is committing trademark infringement D. There is no claim to make

At what point does copyright begin? A. The moment an original work is fixed in a tangible medium B. The moment someone thinks of an original idea C. When someone submits a copyright application with the US Copyright Office D. When someone attempts to infringe the copyright

Brianna's company sells hand cream. Brianna's company has received trademark protection for use of its mark on hand cream products in Pennsylvania. Drew's company also sells hand cream in Pennsylvania and has decided to use a mark that is virtually identical to Brianna's. If Brianna sues Drew in court, a court will likely hold: A. Drew is liable for trademark infringement B. Both are eligible for trademark protection C. Drew is not liable for trademark infringement D. Brianna is liable for trademark infringement

Coke sues Pepsi alleging their logo and packaging is too similar to Coke's. A study finds that the average consumer can tell the difference between the two only when studied side-by-side. What should coke argue to win the case against Pepsi? A. Trademark infringement B. Trademark dilution C. Patent infringement D. Theft of trade secrets

Electronic Imports, a U.S. company enters into a contract with E Manufacturing, a company based in China. Both companies have a sign agreement with an arbitration provision, that in the event of any disputes, the matter will be arbitrated in the United States. An issue arises that causes E Manufacturing to breach its agreement with Electronic Imports, and E Manufacturing files suit in a court in China. Electronic Imports would rely on which of the following to enforce its arbitration provision in the agreement? A. The New York Convention B. The North American Free Trade Agreement C. Section 1 of the Sherman Act D. The Alien Tort Claims Act

Employees have more benefits and protections than contractors A. True B. False

Employment at will means that either party may terminate an employment relationship at anytime without cause A. True B. False

Frank downloaded 100 movies from the internet. Frank was aware that downloading movies from the sites he used was illegal. Assuming a court determines that Frank is a willful infringer, what are the maximum damages a court may order Frank to pay? A. 100 x 150,000 = 15mil B. 100 x 30,000 = 3mil

Frosty Treats sells frozen desserts out of ice cream trucks that are decorated with a picture of a clown. Twisted Metal, a video game series created by Twisted Metal Corp., included an ice cream truck driven by a clown character that was very similar to the Frosty Treats clown. In the last video game in the Twisted Metal series, the ice cream truck is labeled, "Frosty Treats." If Frosty Treats sues Twisted Metal for trademark infringement, which of the following statements is correct? A. Frosty Treats will lose if the court determines the term "Frosty Treats" is a descriptive term that has not acquired secondary meaning (as such, it is not distinctive) B. Frosty Treats will win if the court determines the mark is generic. C. Frosty Treats will lose if the court determines the mark is suggestive D. Frosty Treats will win if the court determines the mark does not have secondary meaning

John mimics, but doesn't copy, a sound recording from The Rolling Stones when he creates his own recording. Is he in violation of copyright? A. John may be in violation of the musical work, but an exception exists for sound recordings. B. John is in violation both of the musical work and the sound recording. C. John is not in violation of the musical work as an exception exists, but he may be in violation of the sound recording. D. John cannot be in violation of either.

Juan wants to start selling a new nail file that is self-cleaning called "Disinfectable." Can he acquire trademark for this name? A. No, it is generic and NOT arbitrary to the function of the nail file B. Yes, as long as it acquires second meaning C. No, because it is generic and generic names can never be used for trademarks

Kaan invented a widget on Jan 1, 2012. This widget had never before been written about anywhere in the world, nor had anyone in the U.S. ever heard of such a thing. However, a small Amazon tribe deep in the jungle had invented and used a widget for over a thousand years. Does Kaan's widget meet the U.S. patent test for "novel/novelty" so that he may potentially patent his widget in the U.S.? A. Yes B. No

Ken enters a building built in 2010 and takes unauthorized pictures of non-public parts of it, publishing them online. Could Ken be in violation of copyright? A. Yes B. No

The government of Bolivia passes a law stating that no U.S. dollars are allowed to enter the country. Americans traveling to Bolivia therefore may not bring dollars with them, nor may anyone else bring dollars into the country. All dollars have to be exchanged for the Bolivian domestic currency at any border crossing, airport, or train station. Laura, a U.S. citizen, files a lawsuit against Bolivia in a U.S. court challenging the legality of this law. Laura will most likely A. Not prevail because of the act of state doctrine B. Prevail because the law clearly violates the U.S. Constitution C. Not prevail because Laura has sovereign immunity. D. Prevail because of the doctrine of comity

Under the basic "at will" doctrine, "at will" employees can be terminated at any time, without cause. A. True B. False

What is the duration of a copyright for non-anonymous, independent authors? A. Life of the author + 70 years B. Life of the author + 30 years C. 95 years from publication D. 120 years from creation

Three years after Robert began working for his private employer, his wife had a baby. He decides to take 10 weeks of leave. At the end of his leave, his employer says his position has been replaced and offers him a much lower paying job. What remedies can Robert pursue?

A. Damages for lost benefits, compensation and losses B. Job reinstatement C. Court costs and attorney fees D. 2x damage if employer engaged in bad faith

Michael creates a new company and wants to attract quality employees, so he establishes a retirement plan. The law regulating this activity is: A. ERISA B. FISA C. FDIC D. UNESCO

A. ERISA

Amy Mendoza is a local radio personality who goes by the name "Amy in the AM" on the air. She also uses that label in print ads to help radio listeners distinguish her show from the other morning radio shows in her town. Amy would be most likely to register her name as a: A. Service mark B. Collective mark C. Trade name D. Certification mark

A. Service mark

Alpha Corp. creates a syrup that is flavored with coffee and chocolate and sells it under the name of MochaMerge. Beta Co. begins to sell a similar product under the name MokaMerge. This is most likely a matter of: A. Trademark infringement B. Copyright infringement C. Trade dress infringement D. Patent infringement

A. Trademark infringement

Joan decides to write a sequel to the Harry Potter series. She does not obtain a license from J.K. Rowling. Is she infringing? A. Yes B. No

A. Yes

Lydia created a beautiful drawing of the Bald Eagle forest in autumn. Lydia sold her drawing in stores downtown. Dylan loved Lydia's drawing, purchased a copy, then made a photocopy of the drawing. He hung the drawing in his bedroom and no one else ever saw the drawing. Has Dylan infringed Lydia's copyright? A. Yes B. No

A. Yes, only sound recordings have the private use exception.

Exceptions to at-will based on public policy examples

ADA, whistleblower statute, OSHA, FMCA

Types of Workers EXEMPT from Overtime 1.5 times pay (not entitled to additional pay):

Administrative employees Executive employees Professional employees

An owner of a trade secret must take __________ steps to keep information secret

Affirmative

What forms of marks are protected under federal and state trademark protection laws?

All marks that identify and distinguish products / services of one company from those of another.

Paris Convention of 1883

Allows parties in one country to file for patent and trademark protection in any other of the member countries

Limitations on Public Display Right

An owner of a copy may display the copy to the public as long as 1. The copy is lawful 2. The display is either a direct display or a display of the projection of a single image at a time 3. The display must be made to viewers PRESENT at the location of the copy

Trade secret definition

Any information that a business possesses and that gives the business an advantage over competitors (including formulas, lists, patterns, plans, processes, and programs)

Copies §101 of Copyright Act

Any material object, other than a phonorecord, in which a work is fixed.

Trademark definition

Any word, name, symbol or device (or combination) uses to identify and distinguish goods from those manufactured and sold by others and to indicate the source of the goods.

What part of the constitution enables copyright?

Article I section 8 clause 8

Can the U.S. constitutionally tax exports? A. Yes B. No

Ben is an accountant. He works for a large accounting firm and earns a fixed salary. Ben usually works 40 hours per week, but for 8 weeks this year he worked 60 hours per week. Under the FLSA, is Ben entitled to 1.5 times his regular weekly wage for 20 hours per week for the 8 weeks during which he worked longer hours? A. Yes B. No

B. No (he is a professional and is exempt from overtime pay)

Catherine works for BlueCorp, which has an employee handbook stating that employees will be terminated for good cause. Catherine's manager fires her one morning and when asked the reason, states that he does not need a reason since they live in a state that has employment at will. If Catherine wins her lawsuit against BlueCorp, it is because of the: A. Public policy exception to employment at will B. Contract exception to employment at will C. Illegal termination statute D. Tort exception to employment at will

A service mark A. Distinguishes / identifies source of a product B. Identifies / distinguishes source of a service C. Distinguishes / identifies a company's name

After Kaan invented his widget on Jan. 1, 2015. He published a paper on his widget in a scientific journal on March 1, 2015. Thereafter, he gave public demonstrations and published additional papers on a regular basis. Kaan was so busy promoting his widget, however, that he did not file a patent application for his widget until July 1, 2016. Will the USPTO grant Kaan's patent application? A. Yes B. No

Amanda started working at Apple on March 13th, 2020. In June, she requests 12 weeks of unpaid family leave. Is Apple required to provide her the leave without firing or replacing her? A. Yes, because Apple has over 50 employees. B. No, because Amanda started less than 1 year ago. C. No, because 12 weeks is over the FMLA maximum. D. Yes, because federal employees are guaranteed leave.

An inventor created a "perpetual motion machine" which inventor argued could defy law of thermodynamics and produce energy output greater than energy input. When tested, the machine could not could not live up to this claim. Would the patent examiners (USPTO) likely grant the patent? A. Yes B. No

Bobby was hurt while commuting from his home to work on Monday morning. Can Bobby claim workers' comp benefits for the injuries? A. Yes B. No

Cindy wrote and published an original fictional book. She has not yet registered the copyright with the U.S. Copyright Office. If she wants to sue someone infringing on her copyright, can she immediately? A. Yes, protection began when her original work became fixed in a tangible medium. B. No, she must first register her copyright and then she may file suit. C. No, she lost her protection since someone else copied her D. Yes, she can always sue for copyright.

Employment law is focused on: A. Independent contractors B. Salaried employees

For something to be a trade secret, it must be novel. A. True B. False

George draws up a height and weight chart to find BMI. He wants to copyright protect this work, can he do so? A. Yes B. No

Jack registers a trademark for a new video player called "Blu-Ray", which is determined to be a suggestive mark. Jack has protection for this mark: A. Once consumers associate his mark with his company as a source B. Immediately C. Once it establishes secondary meaning D. Once he files a trademark application with the U.S. Trademark Office

John invents a new type of automobile-tracking system on January 1 and files a patent application for it on June 30. On March 10, Susan invents a very similar system and files a patent application on March 15. Under the America Invents Act, who holds the valid patent? A. John, because the most recent application is valid B. Susan, because she filed her patent application first C. Susan, because she filed a patent within ten days of inventing the system D. John, because he was the first to invent the system

John opens a restaurant in the Atlanta Airport and decides to name it "Spoon." Is this eligible for trademark protection? A. No, it is generic and not eligible B. Yes, it is a generic term, but arbitrary to the service / goods provided C. No, it does not have an established secondary meaning

Medicaid is provided A. Federally B. By the state

Novelty is required for copyrighted works. A. True B. False

Penn State Motion Picture Studios hired Sebastian as an employee to create a film. Sebastian created the film "Penn State Memories" in 2000. The studio first distributed the film later in the same year. In what year will Penn State Motion Picture Studio's copyright in the film expire? A. 2070 B. 2095 C. 2120

Quiksilver wishes to get trademark protection for a highly stylized letter "Q" that will represent their brand. Will it be protected? A. No, an entire letter cannot be protected. B. Yes, since it is highly stylized, it can be classified as arbitrary and fanciful.

Rachel has just finished the business plan for a franchise that she expects to have international appeal. She is concerned about protecting the trade name of the business. Which of the following provides her an avenue for registering a trade name internationally? A. The Anti-Counterfeiting Trade Agreement B. The Madrid Protocol C. The Berne Convention D. The TRIPS agreement

Sarah takes pictures of private, non-public areas of a building built in 1980. Is she in violation of copyright? A. Yes B. No

Simon takes a picture in front of the facade of a building built in 2005 and publishes the picture online. Is he in violation of copyright? A. Yes B. No

Sound recordings are protected to the same extent as other works. A. True B. False

Steven copies the structure and paraphrases large parts of a copyrighted book. The first page of the book contains a visual copyright notice. Can Steven claim a defense of innocent infringement? A. Yes B. No

The Rollerblade company holds a trademark on the word "Rollerblades" for their product of wheeled street skates. Should the Rollerblade company describe their product as a "rollerblade" in advertising if they want to boost their trademark protection? A. Yes, this makes it clear the term describes their product B. No, they risk making their mark a generic term and losing protection

Three years after Robert began working for his current private employer, Robert's wife had a baby. Robert took off 8 weeks from work. Must Robert's employer pay Robert his regular salary during the time he took off? A. Yes B. No

What kinds of marks are not protected immediately, but can be once second meaning is acquired? A. Generic B. Descriptive C. Suggestive D. B and C

Who is considered the "author" or owner of a copyright of a work made by an employee in the scope of his employment? A. The employee B. The employer C. Both

Yakov downloads a movie onto his laptop without permission from the movie provider. Yakov has violated: A. Trade distribution law B. Copyright law C. Cybersquatting law D. Trademark law

B. Copyright law

You, the consumer, can rent DVD's from Redbox. Each time you rent a DVD, do you have to pay the copyright owner? A. Yes B. No

B. First sale doctrine

Matt is an improvisational comedian. His work is completely spontaneous, and he never writes down his jokes. Each performance is fresh and new. On Saturday night, Matt performed live at Eisenhower Auditorium. The performance was not recorded. Can Matt receive a copyright in the jokes he uses in the performance? A. Yes B. No

B. It is not fixed in a tangible medium

You have worked for a company that provided benefits for your entire working life. You are now 65 and retired. Assuming you are not indigent, what federal program can you use to insure your medical care? A. Social security B. Medicare C. Medicaid

B. Medicare

Anuja was injured on the job. Her injury occurred because her employer and a coworker had been negligent. She has filed a state worker's compensation claim and has begun receiving benefits, but she also wants to file litigation against her employer to obtain additional compensation for her injuries. Will Anuja be permitted to file a lawsuit? A. Yes B. No

B. No

Sumukh purchased Michael Jackson's "Thriller" album on CD. Sumukh made a copy of this CD for his personal use. Has Sumukh infringed on the Jackson estate's copyright in the CD? A. Yes B. No

B. The Audio Home Recording Act permits consumers to make digital copies of copyrighted music for private, non-commercial use using DIGITAL audio recordings.

When Kimberley begins work for Pharmco Industries, the company tells her that at a future date, after so many years of employment with the company, she can receive her retirement pay. Her rights on that date to receive pay upon retirement would be considered. A. Sheltered B. Vested C. Accrued D. Conferred

B. Vested

How is Medicare funded?

Both employer and employee must contribute. Each pay 1.45% No cap for wages taxed

Contract theory breach types

Breach of express contract Breach of implied contract

Brett is concerned his job activities are unsafe. He is fired by his employer for not working. Is this lawful? A. Yes, because Brett broke the implied contract with the employer B. Yes, because the FMLA doesn't cover safety procedures C. No, because OSHA prohibits firing or discriminating against employees who believe workplace is unsafe. D. No, because it is a violation of U.N. Human Rights laws.

Apple wants to register a trademark for a new speaker it is releasing, however it is not yet being publicly sold. Can Apple still file an application to register the mark? A. No, only after it is being publicly sold. B. Yes, they can gain protection as soon as the application is filed. C. Yes, they can file an "intent to use" as long as they being publicly selling / advertising within 6 months and file an additional "statement of use in commerce."

Carissa writes a novel but does not register a copyright for it. Carissa emails a copy of the novel to her friend Kevin. Carissa: A. Does not have a valid copyright because novels are not copyrightable B. Does not have a valid copyright because she did not register it. C. Has a valid copyright on the novel even though she didn't register it D. Has a valid copyright on the novel after Kevin opened the email

Choice is the largest employer in the Pacific Northwest. It is covered by numerous federal employment laws. As such, it is required by the Family and Medical Leave Act of 1993 to provide employees with up to: A. Ten weeks of unpaid family or medical leave during any twelve-month period B. Five weeks of unpaid family of medical leave during any twelve-month period C. Twelve weeks of unpaid family or medical leave during any 12 month period D. Twenty-four weeks of unpaid family or medical leave during any 12 month period

Danielle lives in New York. Jessica lives in Los Angeles. The two have never met, do not share any acquaintances, and are unfamiliar with one another's work. If Danielle and Jessica independently create identical books, who can receive a copyright in the work? A. The first to create the work B. The first to register for a copyright C. Both Danielle and Jessica D. Neither Danielle nor Jessica

Greg gets a license from the original author to create a sequel to his favourite novel. Greg writes the sequel. Which is correct? A. The original author has ownership of both the original work and the sequel, Greg only has ownership of the sequel. B. Greg now has ownership rights to both works. C. The original author has ownership of the first work, Greg has ownership of his original creative contributions in the second work. D. None of the above

Hot Products owns a patent for a fan motor that it uses in ceiling fans. Allied Electric uses a fan motor that is identical to Hot's in the air conditioners it manufactures. Allied does not have Hot's permission to use the motor. Can Hot win a patent infringement case against Allied? A. No, unless consumers are confused. B. Yes, if Allied and Hot are competitors C. Yes, because Allied infringed on Hot's patent D. No, unless Hot has sold the motor in the marketplace

In the year 2000, Maya wrote a book. Maya died in 2010. In what year will Maya's copyright protection expire? A. 2070 B. 2095 C. 2080 D. 2120

Roger McDonald decides to open up a series of liquor stores in his home state. He calls his chain McDonald's and uses a large, blue, curvy M as his logo. McDonald's Corporation, the famous fast food restaurant chain, wants him to stop using the curvy M, as it resembles McDonald's Corporation's famous golden arches. Assuming that the association with a liquor store would likely harm McDonald's Corporation's reputation, McDonald's Corporation wants to stop Roger from using the blue M. Which statement is true? A. McDonald's can stop Roger from using the blue M only if there is a substantial likelihood of confusion by consumers B. McDonald's cannot stop Roger from using the blue M because McDonald's cannot trademark an entire letter of the alphabet C. McDonald's can stop Roger from using the blue M if the similarity between the marks creates an association between them. D. McDonald's cannot stop Roger from using the blue M because it is not identical

Shanky Sex Toys has made a series of mechanical pleasure toys that include a depiction of Mickey Mouse stamped on each product. skanky did not receive a license from Disney. If Disney sues Skanky in court which of the following is likely correct: A. A court will hold that Skanky diluted Disney's trademark and, as such, is liable for trademark dilution B. A court will determine Skanky is not liable for trademark infringement because there is little likelihood consumers would confuse Skanky's product with Disney's product C. Both a and b

Susan makes 10 unauthorized copies of Celine Dion's new 10-song album. Susan distributes the 10 copies and plays all 10 songs in Time Square for the public to hear. How many individual charges of damages could Susan face? A. 10 B. 20 C. 30 D. 40

Which is most correct? A. Generic marks have weak protection, but descriptive marks have no protection. B. Suggestive marks have the strongest protection. C. Arbitrary and fanciful marks have greater protection than descriptive marks. D. Descriptive marks have stronger protection than suggestive marks

Which of the following forms of IP protection is most appropriate to protect a movie script that you wrote? A. Trademark B. Patent C. Copyright D. None-mere ideas cannot be protected

Xerox is a type of: A. Generic name B. Suggestive mark C. Arbitrary and fanciful mark D. Descriptive mark

Yong is employed by Fickle Corp. Who pays into the social security system to make sure Yong is eligible to receive benefits when he is 65? A. Yong B. Fickle Corp. C. Both Yong and Fickle Corp D. Neither, the government pays.

Yummy Donuts, an American company, signs a contract with Olivia who will use Yummy's secret recipes to produce and sell doughnuts in Romania. Olivia is required to protect the secrecy of the recipe and to pay Yummy Donuts a percentage of the income generated by the Romanian company. The type of business arrangement Olivia and Yummy Donuts have is most likely: A. An international partnership B. A joint venture C. A license D. A subsidiary

When the timber industry in Montana experiences an economic slump, Superior Logging Co. is forced to lay off a number of its employees, including Larry Kurzyniec. Larry, who had been logging for over eighteen years, suffers from heart disease, high blood pressure, and diabetes. His wife is worried that the family's health insurance coverage, which is through Superior Logging, will be cancelled. Larry learns that he has a right to extend his insurance benefits, however, if he pays the premiums under: A. FUTA B. FICA C. COBRA D. HIPAA

C. COBRA

On the Border Mexican restaurants all have the same terracotta and turquoise color scheme, with posters of bullfighters and maps of Mexico on the walls. The restaurants also have identical furniture and menus, the wait staff wear similar types of clothing, and the same music plays in the background. The restaurants have a unique ambience, known in legal terms as their: A. Trade name B. Trade secret C. Trade dress D. Trademark

C. Trade dress

Ron reserves the domain name www.wamart.com before Wal-Mart does, which directs users to a website he has set up that sells retail goods online. Ron's action is known as: A. Meta tagging B. Cybersquatting C. Typosquatting D. Goodwill infringement

C. Typosquatting

Trade secret protection would be possible if information is __________ to replicate.

Difficult

To determine trademark dilution, we use the likelihood of ___________ test

Dilution

A photograph is copyrightable if it is original in: A. Rendition (angle of shot, light and shade, exposure, effects achieved by filters, and developing techniques.) B. Timing (selecting when to take the photograph) C. Creation of the subject (choosing what to include in the picture) D. All of the above

Ashley is an eighteen year old clerk in a store that sells bird seed. She earns minimum wage. Her boss, Trina, often expects her to stay and work as many as three hours longer than her schedule shift. Trina never pays Ashley for these hours. Ashley is: A. Entitled to be paid overtime for all the time she works beyond her scheduled hours B. Not entitled to be paid for any time she chooses to stay beyond her scheduled hours. C. Entitled to be paid minimum wage for the additional hours, and she cannot work more than 40 hours in a week. D. Entitled to be not only paid for the additional hours, but also to be paid overtime if she works more than 40 hours a week.

BKS Incorporated has a research and development (R&D) facility in the Arizona desert. Only authorized persons are allowed in the facility, and all employees and guests must sign a non-disclosure agreement. BKS likely considers the ideas of the people in their R&D division to be: A. Copyrighted B. Patented C. Trademarked D. Trade secrets

Harry is creating a new movie called "The Fall" and he wants to prevent someone from stealing his idea. He wants to protect the title, general plot and themes of the movie. How can he gain this protection? A. Copyright B. Trademark C. Patent D. None of the above - these elements are not protected

In 2014, Mugaba wrote her memoirs, My Life in the Congo. Mugaba did not register a copyright. Under federal copyright law, Mugaba's book: A. Is protected forever B. Is protected for ten years C. Is not protected at all D. Is protected for her life plus seventy years

Karl's Cabinets is a local cabinet installer that isn't well-known. Another company, Kerry's Crabs, a local seafood vendor, begins using a similar logo on packaging and advertising. Karl can sue for: A. Trademark dilution B. Trademark infringement C. A and B D. Neither

Under FICA (Federal Insurance Contributions Act) A. Employees must contribute B. Employers must contribute C. Self-employee people must contribute D. All of the above

What are the minimum and maximum awards for "innocent" copyright infringers? (Fine is PER WORK) A. 500, 30,000 B. 400, 25,000 C. 350, 28,000 D. 750, 30,000

What changes would be too obvious and not patentable? A. Changes in colour B. Changes in design C. Changes in size D. A and C

What is required to obtain a utility patent? A. Must be useful B. Must be novel C. Must be non-obvious D. All of the avove

When must Cindy register her copyright so that she may recover statutory damage and/or attorneys fees? A. Before infringement B. Before publication C. Within 3 months after first publication D. A and C

You own a store that uses a highly stylized "+" sign for its logo. This logo is an original design. In addition, the logo for your store has become very well known — when customers see it they immediately think of your store. You want to make sure no other store owner uses your logo. What forms of protection would be most appropriate for you? A. Trademark B. Design patent C. Copyright D. Both A and C are correct E. a, b, and c are correct

Russell reserves the domain name "juliaroberts.com" and creates a fan website dedicated to Julia Roberts. Russell eventually sends Ms. Roberts a letter offering to sell her the domain name. Which term defines Russell? A. Tortfeasor B. Cyber stalker C. Typosquatter D. Cybersquatter

D. Cybersquatter

Buster invents a new camp grill that he names Buster's Burger Blaster. He writes specific instructions about how to use it in a manual that comes with every grill. Buster can obtain a trademark for: A. The manual only B. The grill only C. The grill, the name and the manual D. The name only

D. The name only

Conditions for a design patent are: A. An ornamental design embodied into an article of manufacture B. Non-obvious C. Novel D. Non-useful in itself E. All of the above

How is workers' compensation funded?

Employers purchase insurance or pay claims themselves

OSHA reporting requirements

Employers with 11+ employees must keep records on every work related injury or disease

Family & Medical Leave Act (FMLA)

Employers with 50 or more employees must provide up to 12 weeks of unpaid family or medical leave in any 12 month period for any employee who has worked for over 1 yr.

Public Display Right

Gives copyright owners the exclusive right to display / show their works to the public EXCLUDES phonorecords/sound recordings

The Anti-Counterfeit Trade Agreement

Goal is to increase international cooperation and enforcement and provide a legal framework to combat counterfeiting. Applies to physical and digital goods. Member nations required to conduct border searches for counterfeit imports/exports Goods may remain in custody until the owner proves items are authentic

Granted to arrangement of words that author uses to express ideas. Virtually anything that is written, including software programs, video games, etc.

What does Medicare Part A cover?

Hospital insurance

Lanham act on infringement: prohibits unauthorized use of an ______ or ______ likely to confuse a consumer on directly ____________ goods/services OR non-competing but __________ goods/services.

Identical, similar, competing, related

Berne Convention

If someone publishes a book in a signatory country, every other country that has signed the convention must recognize the author's copyright to the book

Doctrine of Sovereign Immunity

Immunizes foreign governments from jurisdiction of U.S. courts, except under certain circumstances.

What is the potential duration of a trade secret?

Infinite

Distinctiveness of a mark can be either ________ or acquired through __________ _________

Inherent , secondary meaning

In limited situations when employer's discharge is deemed abusive, the discharge of an employee may also lead to suits for:

Intentional infliction of emotional distress Defamation Fraud

What is the DMCA?

It implements the WIPO treaty in the U.S. - civil and criminal penalties for those who bypass anti piracy protections, - prohibits manufacture, import, sale and distribution of technology and services that bypass anti piracy protections - limits the liability of ISPs

What is one legal tool that would permit you to LEGALLY use the intellectual property rights owned by another?

License

Phonorecord definition

Material object in which SOUNDS are fixed (exception: music accompanying a movie or audiovisual work)

Children 16-17 years

May work but not hazardous jobs No restrictions on working times / max hours

What does Medicare part B cover?

Medical insurance, requires additional premiums

Lie Detector Tests and Employee Polygraph Protection Act

Most private employers are prohibited from requesting polygraph tests from employees / applicants Exceptions: Security companies Companies producing controlled substances Employers who are investigating theft

Children under 14 years old may hold what kind of jobs?

Newspaper delivery, some agricultural tasks, work for parents, NOT hazardous jobs and working time and max hour restrictions apply

Children 14-15 years can hold what kinds of jobs?

No hazardous jobs or jobs detrimental to health Working time and maximum hour restrictions apply

Statutory notice (TM or R symbol, message)

Not mandatory but either statutory notice or actual notice is required before plaintiff can recover damages and profits

Employers must provide ___________ when an absence will count as authorized FMLA leave.

Notice

An inventor has _________ year(s) to apply for a patent from the date the invention is first: 1. Described in any publication available to the public 2. Used publicly, or 3. Placed on sale

ONE

OSHA inspections

OSHA compliance officers may inspect any establishment covered by OSHA.

Federal Employee Paid Leave Act (FEPLA)

Offers many federal employees up to 12 weeks of PAID leave for the birth, adoption, or foster care placement

First Sale Doctrine

Once a copyright owner sells a copy of a work, the new owner may possess, transfer or otherwise dispose of that copy without the copyright owner's permission, however they can not modify or create copies

Principle of Comity

One nation accepts the laws and decrees of another as long as they are consistent with the law/public policy of the accommodating nation.

Most important function of a trademark is to...

Prevent consumer confusion. To serve as a source indicator of goods.

Requirements for an invention to be "novel"

Prior to the date the inventor made the invention, the invention must NOT have: 1. Been known or used by others in the U.S. OR 2. Been described in a printed publication ANYWHERE in the world

ECPA (Electronic Communications Privacy Act)

Prohibits interception and disclosure of wire, oral or electronic communications without employee CONSENT UNLESS communication is through devices owned or provided to employee for business use

Act of State Doctrine

Provides that the judicial branch of one country will not examine the validity of public acts committed by a recognized foreign government within its own territory.

ERISA (Employee Retirement Income Security Act) establishes requirements for

Record keeping Investment of funds Vesting Pension Benefit Guaranty Corporation

Exceptions to at-will based on common law

Refusal to commit an illegal act Fulfilling a public obligation (jury duty) Exercising a statutory right

What damages can be awarded for patent infringement?

Royalties and lost profits Attorney's fees (only sometimes)

Pension Benefit Guaranty Corporation (PBGC)

Set up by ERISA to insure payment of benefits in the event that a private-sector defined benefit pension plan terminates with insufficient funds to pay the benefits.

The TRIPS Agreement (Trade Related Aspects of Intellectual Property Rights)

States that each country must adopt broad intellectual property rights and remedies for violations. Includes patents, trademarks and copyrights. Forbids member nations from discriminating against foreign owners of IP.

Implied contract terms

Terms are employee's reasonable expectations. Information must come from an established authority on management / HR.

When does the timer of protection begin for patents?

The date of filing

General eligibility requirements for Unemployment Benefits

Those who have lost jobs due to no fault of their own Must meet requirements for wages earned or time worked during one year period Must claim benefits within x months of loss of job Must remain willing, able, and available to work You must actively search for work OR pursue education or training

Tort theory: Action for wrongful discharge

Tort action an employee may file if an employer improperly discharges and employee

Dope Co. developed a new anti-aging beauty cream. They kept the formula closely guarded, but Eternal Life Co. bought a bottle of the product from Rite-Aid and reverse engineered a duplicate product. If Dope Co. sues Eternal Life Co. for trade secret infringement, will Dope Co. likely win? A. Yes B. No

Trade secret =/ patent

If patent infringement is deemed willful, plaintiff may receive __________ damages

Treble

What could Kleenex or Band-Aid do to improve the protection of their trademarks?

Use the trademark name with a generic term. Ex: Kleenex Brand Tissue, Band-Aid Brand Bandage

Expropriation

When a government seizes a privately owned business or goods for a proper public purpose and awards just compensation

Secondary meaning definition

When consumers have learned to associate a mark with the source of origin, we say that mark has acquired "secondary meaning."

When is an ISP liable for copyright infringement by its customers?

When the ISP is AWARE of infringement AND failed to take steps to stop it.

Patent infringement occurs when another makes, uses or sells

Whole or PART of another's patented DESIGN or PRODUCT The ENTIRETY of another's patented PROCESS Without owner's permission

What is the WIPO and what is its purpose?

World Intellectual Property Organization, designed to provide greater international copyright protection.

Confiscation

a government's taking of a privately owned business or personal property without a proper public purpose or an award of just compensation

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