Chapter 14 - Hot Topics
With which federal office do you register for protection under federal trademark law?
To register for protection under federal trademark law, a person must file an application with the U.S. Patent and Trademark Office in Washington, D.C.
What is the "Fair Use" doctrine? What are 6 purposes to which this doctrine applies?
An exception to liability for copyright infringement is made under the "fair use" doctrine. In certain circumstances, a person or organization can reproduce copyrighted material without paying royalties. The fair use of a copyrighted work, including such use by reproduction in copies or phono-records or by any other means specified by, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright
What 3 characteristics help make a trademark "strong"?
1. Fanciful - Inherently distinctive and include invented words, such as "Xerox" for copiers and "Google" for search engines. 2. Arbitrary - Use common words in an uncommon way that is non-descriptive, such as "Dutch Boy" as a name for paint. 3. Suggestive - Indicate something about a product's nature, quality, or characteristics, without describing the product directly. Require imagination on the part of the consumer to identify the characteristic. i.e. "Dairy Queen" suggests an association between its products and milk, but it doesn't directly describe ice cream. Marks that are fanciful, arbitrary, or suggestive are protected as inherently distinctive without demonstrating secondary meaning. These marks receive automatic protection because they serve to identify a particular product's source, as opposed to describing the product itself.
What are the requirements for a qualifying literary or artistic work to be copyright protected?
1. Literary works 2. Musical and accompanying words 3. Dramatic works and accompanying music 4. Pantomimes and choreographic works 5. Pictorial, graphic, and sculptural works 6. Motion pictures and other audiovisual works 7. Sound recordings 8. Architectural works
For utility (invention) patents, what is the duration of patent protection?
20 years.
What is a Copyright?
A copyright is an intangible property right granted by federal statute to the author or originator of a literary or artistic production of a specified type.
Do you need to place the © symbol, Copr. or Copyright on the work to be copyright protected?
A copyright owner no longer needs to place the symbol of the term Copr. Or Copyright on the work to have the work protected against infringement.
What is a patent?
A patent is a grant from the government that gives an inventor the exclusive right to make, use, of sell his or her invention for a period of twenty years.
What is "secondary meaning" and what does it do and to what?
A secondary meaning may arise when customers begin to associate a specific term or phrase (such as London Fog) with a specific trademarked items (coats with "London Fog" labels) made by a particular company. Once a secondary meaning is attached to a term or name, a trademark is considered distinctive and is protected.
What is a trade secret?
A trade secret is basically information of commercial value, such as customer lists, plans, and research and development. Trade secrets may also include pricing information, marketing methods, production techniques, and generally anything that makes an individual company unique and that would have value to a competitor.
What is a trademark?
A trademark is a distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known. A trademark is a source indicator.
What makes a trademark "distinctive"?
A trademark must be sufficiently distinctive to enable consumers to identify the manufacturer of the goods easily and to distinguish between those goods and competing products.
To what type of intellectual property does the Berne convention of 1886 apply?
Copyright. Under the Berne Convention of 1886, if a U.S. citizen writes a book, every country that has signed the convention must recognize the U.S. author's copyright in the book.
With what federal government office are copyrights registered?
Copyrights can be registered with the U.S. Copyright Office in Washington, D.C.
For trademarks registered before 1990, for how many years can a trademark be renewed?
Every 20 years for those trademarks registered before 1990.
In what way did the Federal Trademark Dilution Revision Act of 2006 (TDRA) further amend the Federal Trademark Dilution Act of 1995?
In 2006, Congress further amended the law on trademark dilution by passing the Trademark Dilution Revision Act (TDRA). Under the TDRA, to state a claim for trademark dilution, a plaintiff must prove the following: 1. The plaintiff owns a famous mark that is distinctive. 2. The defendant has begun using a mark in commerce that allegedly is diluting the famous mark. 3. The similarity between the defendant's mark and the famous mark gives rise to an association between the marks. 4. The association is likely to impair the distinctiveness of the famous mark or harm its reputation.
For design patents, what is the duration of patent protection?
Patents for designs, are given for a 14-year period.
For copyright protection to apply, are you required to place a copyright notice on the literary or artistic work? Or, is copyright protection automatic?
Protection is automatic.
For trademarks registered after 1990, for how many years can a trademark be renewed?
Registration is renewable between the fifth and sixth years after the initial registration and every ten years thereafter.
What is the primary distinction between the protections provided under the Lanham Act of 1946 versus the Federal Trademark Dilution Act of 1995?
The Lanham Act was enacted to protect manufacturers from losing business to rival companies that used confusingly similar trademarks. The act incorporates the common law of trademarks and provides remedies for owners of trademarks who wish to enforce their claims in federal court. Many states also have trademark statutes. The Federal Trademark Dilution Act allows trademark owners to bring suits in federal court for trademark dilution. Trademark dilution laws protect "distinctive" or "famous" trademarks (such as Rolls Royce, McDonald's, and Apple) from certain unauthorized uses even when the use is on noncompeting goods or is unlikely to confuse.
To what type of intellectual property does the Trade-Related Aspects of Intellectual Property Agreement (TRIPS Agreement) apply?
The agreement established standards for the international protection of intellectual property rights, including patents, trademarks, and copyrights for movies, computer programs, books, and music. The TRIPS agreement provides that each member country of the World Trade Organization must include in its domestic laws broad intellectual property rights and effective remedies for violation of those rights.
What is the initial number of years of trademark protection?
The applicant would have a total of three years from the date of notice of trademark approval to make use of the mark and file the required use statement.
If a publisher (or corporation) creates a work, either as a "work for hire" or through on or more of its employees, what is the duration of copyright protection of that publisher's (or corporation's) literary or artistic work?
The copyright expires 95 years from the date of publication or 120 years from the date of creation, whichever comes first.
What is the primary difference between trademarks, copyrights, and patents, on the one hand, and trade secrets, on the other?
The law of trade secrets protects some business processes and information that are not, or cannot be, patented, copyrighted, or trademarked against appropriation by competitors.
With what federal government office are trade secrets registered?
There is no registration of filing requirements for trade secrets.
What do trademarks, copyrights, and patents have in common?
Trademark - Any distinctive word, name, symbol, or device, or combination thereof, that an entity uses to distinguish its goods or services from those of others. Copyright - The right an author or originator of a literary or artistic work, other production that falls within a specified category, to have the exclusive use of that work for a given period of time. Patent - A grant from the government that gives an inventor exclusive rights to an invention.
What are the 4 primary forms of intellectual property?
Trademark, copyright, patent, and trade secret.
To what type of intellectual property does the Madrid Protocol, signed by the U.S. in 2003, apply?
Trademark. The Madrid Protocol is an international treaty that has been signed by eighty-six countries. Under its provisions, a U.S. company wishing to register its trademark abroad can submit a single application and designate other member countries in which the company would like to register its mark.
What is the duration of protection of a trade secret?
Unlimited, so long as not revealed to others. Once revealed to others, it is no longer a trade secret.
What is meant by the term "infringement"?
Whenever a trademark is copied to a substantial degree or used in its entirety by another, intentionally or unintentionally, the trademark has been infringed (used without authorization).
Under the Federal Trademark Dilution Act of 1995, can you be held liable for "unintentional" infringement of another's registered trademark?
Yes.
Besides trade names, what 4 other types of marks are protected under federal trademark laws? Name all four. Give an example of each, respectively.
1. Service Mark - A trademark that is used to distinguish the services (rather than the products) of one person or company from those of another. For example, each airline has a particular mark or symbol associated with its name. Titles and character names used in radio and TV are frequently registered as service marks. 2. Certification Mark - Used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services. For example, "Good Housekeeping Seal of Approval" and "UL Tested." 3. Collective Mark - When used by member of a cooperative, association or other organization, a certification mark is referred to as a collective mark. They appear at the ends of motion picture credits to indicate the various associations and organization that participated in the making of the films. The union marks found on the tags of certain products are also collective marks. 4. Trade Dress - Refers to the image and overall appearance of a product. Can include either all or part of the total image or overall impression created by a product, or its packaging. The distinctive décor, menu, layout, and style of service of a particular restaurant may be regarded as trade dress.
Under the America Invents Act of 2011, what is the time limit within which a patent must be challenged?
The new law established a nine-month limit for challenging a patent on any ground.
When does the period of patent protection begin?
The period of patent protection begins on the date the patent application is filed, rather than when the patent is issued.
What is the purpose of the Federal Trademark Dilution Act of 1995?
The purpose is to allow trademark owners to bring suits in federal court for trademark dilution.
What is a cyber mark?
A trade mark in cyber space.
What are "confidentiality agreements" and to which form of intellectual property do they apply?
Businesses generally attempt to protect their trade secrets by having all employees who use a process or information agree in their contracts, or in confidentiality agreements, never to divulge it.
When do geographic terms, geographic terms, and personal names become protectable trademarks? What are "generic" terms? Are they entitled to trademark protection?
Descriptive terms, geographic terms, and personal names are not inherently distinctive and do not receive protection under the law until they acquire a secondary meaning. Generic terms that refer to an entire class of products, such as bicycle and computer, receive no protection, even if they acquire secondary meanings. Aspirin and thermos were originally the names of trademarked products, but today the words are used generically. Other trademarks that have acquired generic use are escalator, trampoline, raisin bran, dry ice, lanolin, linoleum, nylon, and cornflakes.
What is the purpose of the Lanham Act of 1946?
Statutory protection of trademarks and related property is provided at the federal level by the Lanham Act of 1946. The Lanham Act was enacted to protect manufacturers from losing business to rival companies that used confusingly similar trademarks.
If an individual copyrights a work, what is the duration of copyright protection?
Works created after January 1, 1978, are automatically given statutory copyright protection for the life of the author plus 70 years.