Intellectual Property & Internet Law
owning intellectual property is about two rights:
1. right to control who uses the intellectual property 2. right to profit from the intellectual property
types of patents
1. utility patents 2. design patents 3. plant patents
TRIPS Agreement
1994, representatives from more than 100 countries signed establishes standards for the international protection of intellectual property rights
America Invents Act
2011, first person to file a patent application receives patent protection
Lanham Act of 1946
Congress has granted protection to manufacturers from losing business to rivals that use confusingly similar trademarks
copyrights are protected by:
Copyright Act of 1976
What is in the trademark registration application?
identifies the mark and how it will be used
When can a trademark be registered?
if it is already in use or if the mark will be used in interstate commerce with 6 months
copyright infringement
if the form or expression of an idea is copied or copied in part
suggestive mark
indirectly describes a product's function or association and bring to mind something about a product without describing the product
trade secret
information or a process that gives a business a commercial advantage over competitors that do not know the information or process
remedies for patent infringement
injunction, request damages for royalties and lost profits, reimbursement for attorneys' fees may be available in some circumstances, triple or what are called treble damages
copyright
intangible property right granted by federal statue to the author or originator of certain literary or artistic productions
example of suggestive mark
logo for national bus carrier Greyhound Lines includes a greyhound dog which may suggest what the company is in the transportation business
Economic Espionage Act
makes theft of trade secrets a federal crime
trade name
name used in commercial activity to designate a particular business, indicates part or all of a business's legal name
intellectual property
property resulting from intellectual, creative processes - the products of an individual's mind
utility patents
protect a product's function
copyright laws apply to:
protected expressions, which means work must be original and "fixed in a durable medium"
example of trade dress with Cracker Barrel
rocking chairs and checker boards on the front porch, country store goods and motif inside, employees with brown aprons
example of things on an iPhone protected by a patent
shape, inner circuitry, and other components
trademark dilution
situation where someone or a business uses a distinctive or famous trademark such as McDonald's or Apple from unauthorized use even if the use is on non-competing goods or is unlikely to confuse
example of things on an iPhone protected by copyright
software, apps
example of counterfeit goods
street vendor selling very cheap goods that have manufacturer's trademark, but may not be made by that manufacturer
example of first sale doctrine
the author can control the original sale of a book, but not whether you resell it
trademark infringement
the unintentional or intentional substantial copying of a mark
example of what a copyright does not protect
the written mystery novel, but not the idea for the novel
Why is the protection of trademarks important?
to protect manufacturers from losing business to rival companies
trademark registration
to receive federal trademark registration under the Lanham Act, the owner must file an application with and pay a fee to the US Patent and Trademark Office
collective mark
used by members of a coop, association, union, or other organization
certification mark
used by one or more persons, other than the owner, to certify the region, materials, or other characteristics of specific goods or services
plant patents
valid for 20 years, protect a new type of plant that is reproduced asexually through grafting, not by planting of seeds
patent iinfringement
when a business makes, uses, or sells another inventor's patented design, product, or process without permission
example of a secondary meaning
LONDON FOG is associated with trademarked coats containing "London Fog" labels made by a particular company
example of utility patent
Michael Jackson shared ownership of a utility patent for a special shoe with a slot in the heel to lean forward in his performance
example of a design patent
Prince had a design patent for a portable electronic keyboard that only protected the appearance
SCMGA
Stop Counterfeiting in Manufactured Goods Act criminalized the intentional trafficking in counterfeit goods and imposes penalties for counterfeiting
example of service mark
UPS or Fed Ex
copyrights are registered with:
US Copyright Office
example of certification mark
Underwriters Laboratories, uses a mark UL in a circle, manufacturers send products to UL and they test them, if they meet their standards they will place their logo on it
example of fanciful mark
Xerox and Kodak
injunction
a court order directing the offending party to stop infringing on the owner's rights
first sale doctrine
copyright owner no longer has the right to control the distribution of a copy of the work once he or she gives away or sells a copy of that work
Copyright Act excludes
copyright protections for and "idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied" protects tangible expression of an idea, but not the underlying idea itself
example of generic terms
could not obtain a trademark for the mark COMPUTER for use on a computer
example of trade dress
distinctive decor, menu, and style of service of a restaurant
trademark
distinctive word, symbol, sound, or design that identifies the manufacturer as the source and distinguishes its products from other
service mark
distinguishes services
generic terms
entitled to no protection
arbitrary mark
existing words that do not describe the product or service
Computer Software Copyright Act
extended copyright protection to include computer programs in the list of creative works protected by federal copyright law
strong marks
fanciful, arbitrary, or suggestive trademarks are most distinctive
patent
government grant that gives the inventor the exclusive right to make, use, and sell an invention for 20 years
example of things on an iPhone protected by a trademark
Apple logo, iPhone name
example of arbitrary mark
Apple uses an apple, but not apples or apple products
example of a collective mark
Girl Scouts and Boy Scouts
Uniform Trade Secrets Act
adopted by 47 states, protects trade secrets
Federal Trademark Dilution Act
allows trademark owners to sue in federal court for trademark dilution
to be patentable:
an invention must be an item that is novel and not "obvious" exception of the laws of nature, natural phenomena, and abstract ideas can be for improvements of existing machines
Berne Convention
applies to copyrights
Patent Cooperation
applies to patents
Madrid Protocol
applies to trademarks
design patent
apply to new, original, and ornamental design protect the appearance of a product rather than the function
secondary meaning
arises when customers associate a specific term of phrase with specific trademarked items
What does intellectual property include?
books, computer files, apps, movies, music, patents, trademarks, and copyrights
trade dress
broad concept that can include all or part of the total image or impression created by a product of its packaging
remedies for trademark infringement
can sue for damages, but the most common remedy is an injunction
copyright "fair use" exception
certain persons or organizations can copy materials without penalty applies to materials used for education, new, and research
penalties for copyright infringement
civil remedies of actual or statutory damages of a set amount, and potential criminal prosecution
example of things trademark protects for Pepsi and Coca-Cola
colors and fonts
Where does trademark protection come from?
common law at the state level, and statutory protection under federal law
fanciful mark
words that give no indication of the good or service