LEB 320F Final Exam Unit 7-9 Vocab Terms

yes (The plant design clearly gives DuPont an advantage and is the kind of thing that can be protected as a trade secret. And, although DuPont did not have perfect security, it took a significant number of measures to keep prying eyes away from the construction site. It could perhaps have built a dome over the sight, but extreme measures are not required to meet the four- part reasonable security standard outlined before the example.)

(Adapted from a real case) DuPont was constructing a large refining plant designed to enable the use of its new, secret process for producing methanol. Someone who knows a great deal about such refining processes could figure out how DuPont's new process worked by seeing and studying the facility under construction, and so DuPont put security measures in place as the plant was under construction, including a privacy fence around the construction site, restricted access with locked gates, ID checks, and guards who patrolled the perimeter. But, a competitor rented a small airplane, flew over the construction site, and took aerial photographs. (In more modern times, drones would make this kind of thing much, much easier.) DuPont sued. The defendant competitor claimed that the plant design should not count as a trade secret because DuPont did not take reasonable steps to protect the design. Will the plant design be determined to be a trade secret? -No, because it is not the kind of thing that can be a trade secret. -No, because DuPont did not take reasonable measures to protect the design. -Yes

Watkins will probably win on a trademark infringement theory (t is fairly clear that Carroll has created a strong likelihood of consumer confusion and infringed on Watkins' trademark. However, it is not probable that Watkins' mark meets the required definition of "famous" and therefore it is likely ineligible for protection under anti- dilution statutes.)

(Based on a real case) Watkins Fuel Co. sued competitor Carroll Independent Fuel Co. for trademark infringement. Carroll registered the domain names of Watkins-fuel.com, watkinsfuel.net, watkinsfuel.org, and similar marks. Both firms sell heating oil, kerosene, and diesel oil. Watkins has long been the leader in these markets in Washington and Oregon, the states where it operates. Carroll also operates there, selling to the same high-end customers that Watkins targets. Plaintiff's name (Watkins Fuel Co.) is trademarked with the USPTO. Watkin's president found out about all of this when customers began asking him if his company had been purchased by Carroll. They wondered, because when they were on the Internet, the web address watkinsfuel.com (and others) landed them at Carroll's website. Watkins sued. Which of the following is true? -Watkins will probably win on a trademark infringement theory -Watkins will probably win on a trademark dilution theory. -Watkins will probably lose on both theories

Likelihood of confusion

1/2 trademark infringement ideas If a company secures trademark protection, it can take legal action if competitors make certain uses of the trademark. Before proceeding, it is important to make this opening point: if a trademark holder sues another company, the key standard is not merely whether the two words, phrases, symbols, or designs look the same, sound the same, or are spelled the same. In most infringement actions, the plaintiff trademark owner has the burden of proving that the defendant's mark is so similar to the plaintiff's that the defendant's use will produce a _________ __ _________ in buyers' minds as to the true origin of the goods or services.

Anti-dilution statutes

1/2 trademark infringement ideas If protected trademarks are deemed to be "famous," trademark rights can sometimes be asserted even when the goods or services are not similar and there is no likelihood of confusion. In 1995, Congress passed the Federal Trademark Dilution Act (FTDA), and it was written specifically to protect trademarks that a court determines to be famous. Example: Tiffany v. Boston Club, 231 F. Supp. 836 (D. Mass. 1964) involved the old and very well- known "Tiffany" trademark for jewelry, fine glassware, and related products. Over time, the mark has come to be associated with luxury and excellence. The defendant used the "Tiffany" name for a bar. The public is certainly not likely to believe that the owners of the "Tiffany" trademark were also responsible for the bar, and thus there would be no likelihood of confusion. The usual method of showing trademark infringement (demonstrating likely consumer confusion) would not have been useful to them. However, use of the name "Tiffany" on the bar may injure the holder of the "Tiffany" trademark in two ways. First, such use weakens the "Tiffany" mark by diminishing, or diluting, its distinctiveness. And if the bar is allowed to use the mark, others also would be able to use it for unrelated goods or services, thus having a cumulative effect of further dilution over time. Tiffany could sue for dilution because the strength and clarity of its mark would be diluted or "blurred" by these other uses. Second, this type of use may also undermine the positive image of the "Tiffany" mark if it is no longer restricted to luxury products. This type of dilution claim is called disparagement or tarnishment. In the end, the Tiffany bar had to change its name. In a similar case, a pornographic web site was not allowed to use the famous "Barbie" trademark because of ___________ laws. A final note: in 2006, Congress passed legislation that cleared up some lower court conflicts by stating that a mark is "famous" only if it is very widely known by the general American consuming public. For _____________ purposes, a mark is not famous if it is just widely known within a local geographic area or a niche market.

Disparate impact

1/2 ways that illegal discrimination can be proved In this type of case, a plaintiff begins by arguing that a company policy, rule, or practice impacts groups differently. Example: -Imagine that a company has a wooden cutout of a cartoon character from an amusement park outside its front door. -A sign next to it says, "Ya gotta be taller than the top o' my hat to work here!" -You know, the kind of thing that you see in front of a roller coaster. -The hat is 5 feet, 4 inches off the ground. -Now, a company policy to hire only applicants who are 5' 4" or taller would tend to exclude more women than men from consideration, because women's average height is less than men's. -The policy doesn't specifically exclude women from applying, but it would tend to negatively impact women more frequently than men, and thus create a _______ _______. -In the real world, firefighting departments have been challenged over strength tests, and many companies have been challenged over a variety of standardized tests that plaintiffs argue impacts groups differently.

arbitrary (fanciful)

1/4 categories of marks that deal with protectability common words used in a meaningless context. If your company sells apples, you have no chance to gain the exclusive right to call your product "apples," because apple is a generic term. But Apple has no problem enjoying trademark protection, because computers, iPhones, and the like have nothing to do with actual apples. Camel cigarettes and Shell gasoline are other examples of _________ marks. Fanciful marks consist of a new word that didn't exist before a company invented it, such as Xerox or Clorox.

Generic

1/4 categories of marks that deal with protectability describe an entire class of goods. Example: "water" is a generic term and cannot be trademarked. sometimes, trademarks are not initially deemed to be ________, but they become _______ terms over time. "Genericide" refers to a trademark losing its protection for this reason. -Aspirin, for example, was once a trademark owned by Bayer. But over time, it became commonly used to identify a class of painkillers in general, and so Bayer eventually lost ownership of the name. Companies are often very proactive in the steps they take to fight genericide, and to make sure that consumers understand that trademarked terms are the owner's brand rather than a general description of a type of good or service. -Kleenex, for example, fearing that its mark might one day be the victim of genericide, now identifies its product as "Kleenex Brand Tissues."

descriptive

1/4 categories of marks that deal with protectability identify a characteristic of a product, and they are sometimes protectable. True ________ terms (like Vision Center) and company names that use a geographic designation (East Coast Comics) or a person's name (J.C. Penny) can be trademarked only if they acquire a secondary meaning, which means that a "substantial" percentage of a population associates the term with a particular company. For example: Michael Dell's company bears his name. "Dell" is often not the kind of word that is eligible for trademark protection. But over time, most people have come to think of one particular company when they think of "Dell," and so the company name has acquired a secondary meaning and is protected.

suggestive

1/4 categories of marks that deal with protectability suggest, rather than describe, some particular characteristic of the goods or services to which they apply and require consumers to exercise their imagination in order to draw a conclusion as to the nature of the goods and services. "Coppertone" has been held __________ in regard to sun tanning products, as has "Roach Motel" for a roach bait device, and "Sleekcraft" for a motor boat.

novelty

1/4 requirements for a patent to be valid an invention must not be currently in use and not detailed in print Rules can be complicated when two inventors develop something in a similar timeframe; rules have recently changed under the America Invents Act US switched from first-to-invent system to first-to-file system There is an important exception to this rule in the US If the invention is publicly disclosed by the inventor or by someone who got the invention ideas from the inventor (whether with authorization or dishonestly), the inventor still has one year from the date of this disclosure to file a patent application Disclosure creates a "placeholder" for the inventor, and the inventor has this one year within which to file (one year "grace period") even if someone else then files a patent application covering an identical invention before this inventor does It is more descriptive to call the new US system a "first to file or disclose" system

Nonobviousness

1/4 requirements for a patent to be valid an inventor is not entitled to a patent on an invention if hypothetical ordinarily skilled practitioners in the art would have viewed the invention as representing only a trivial, obvious, advance the differences between the current invention and previous inventions must be more than purely intuitive to a person having ordinary skill in the field If there is evidence of so-called "objective factors" -evidence of what actually happened after a patented product or process was marketed- such evidence may help the court resolve the question Such evidence can take several forms, but it all focuses on the following questions: If X's invention was so obvious, then... a) Why was the product so commercially successful? b) Why had there been such a long-felt need for solving the problem that Inventor X solved? c) Why had others tried and failed after substantial efforts to find the solution that Inventor X found? d) Why did one or more competitors start copying X's invention rather than relying on their own solutions? If there is evidence to show that X's invention produced a result that was surprising or contrary to conventional teachings in the relevant area of technology, it very strongly points toward nonobviousness

Patentable Subject Matter

1/4 requirements for a patent to be valid must involve machines, man-made materials, products, and processes; one cannot patent natural materials like wood or scientific principles

Utility

1/4 requirements for a patent to be valid the invention must achieve a useful result Very low threshold; will almost always be fulfilled

Prima facie

A court in a Title VII disparate treatment case first seeks to determine whether the plaintiff has established a basic, or _____ _____ case. If it cannot do so, the plaintiff has not even created a genuine issue of fact. If the plaintiff does so, the case goes forward. In general, a _____ _____ case is established when the EEOC or an individual plaintiff proves facts that permit an inference that intentional discrimination on the basis of race, national origin, gender, or religion was the employer's motivation for a negative action.

Americans with Disabilities Act (ADA)

Act that provides protection against discrimination to persons with disabilities. includes provisions dealing not only with discrimination in employment, but also with problems of discrimination and access in public transportation, public accommodations (such as restaurants, hotels, and office buildings), and communications. Under the act, a person has a disability if he or she has a "physical or mental impairment that substantially affects one or more of the major life activities" of that person. expressly provides that a "current user" of alcohol or illegal drugs is not protected by the law The part of the law dealing with one who is "regarded" as having an impairment has as its main purpose the protection of those who face stereotypes

Yes (A backup copy is allowed, but it cannot be given to another person, including a family member. And since she copied the entire game and reduced the market for new copies (now her sister has no further need to buy her own copy), Alice has not made a fair use of the software.)

Alice buys a copy the game Elf War on CD-Rom. She makes a single backup copy and gives the copy to her sister. Has Alice violated the game's copyright? -No, because consumers are allowed to make a single backup copy. -No, because of the fair use defense. -No, for reasons A and B. -Yes

supervisor

As with other types of harassment, the employer can be held strictly liable if the harassment is committed by a ___________. An employee is a "_________" in this setting only if he or she is empowered by the employer to take tangible employment actions against the plaintiff.

The computer manufacturer (The church, as a religious organization, can discriminate in favor of members of its own faith. The dry cleaning business is too small - with fewer than 15 employees, it is exempt from Title VII. The computer manufacturer is acting illegally.)

Consider the following three businesses and organizations. A church requires that employees in its youth ministry be Christians. A large computer manufacturer requires that its employees be Christians. A small dry cleaners that employs 10 people requires that its employees be Christians. Which of these could be successfully sued under the Civil Rights Act? -The church -The computer manufacturer -The dry cleaners -B and C -A, B, and C

Carl only (Ann's firing happened before the Civil Rights Act existed. Ben's firing was not related to anything prohibited by the Civil Rights Act, and so under the employment at will doctrine his firing is acceptable. Carl has a valid claim.)

Consider the following three employees. Ann was fired in 1960 because of her religious faith. Ben was fired in 2018 for objectively poor work performance. Carl was fired in 2018 because of his religious faith. Which of them would have been in a good position to sue under the Civil Rights Act and win their case? -Ann only -Ben only -Carl only -A and C -B and C

trade secrets

Courts look at a combination of several factors if they must determine whether reasonable security standards are met for _______ _______: (1) How valuable is the information? (2) How much would additional protective measures cost? (3) How much would additional security efforts interfere with employees' ability to do their jobs? (4) How much additional protection would extra security measures actually provide?

reasonable accommodations

Even if a person is protected by the ADA, an employer is under no obligation to hire an applicant unless the person is qualified to do the job. However, if an individual would be qualified if the employer makes a "__________ ________" for the person's impairment, then the person is viewed by the law as being qualified. An adjustment of the work environment or schedules may be reasonable, or perhaps rearranging a job into different parts if such a change does not significantly affect efficiency. To meet the burden of making a _______ _________ for a person's disability, the employer is not required to incur an "undue hardship."

Defend Trade Secrets Act

Federal law was further injected into the realm of trade secrets in 2016 when Congress enacted the _______ _____ ______ ___. This act allows the owner of a trade secret to file a civil suit for damages in federal court when its trade secrets have been misappropriated. So, trade secrets are protected both civilly and criminally, potentially in federal court as well as state court.

Doctrine of equivalents (DOE infringement)

If defendant's product contains one or more elements that are similar but not identical to the corresponding element in the plaintiff's patent claim, there is no literal infringement but there could possibly be infringement under the _________ _________ ________. substantially equivalent Example: if defendant's product contains elements that are identical to a, b, and d, but substitutes something else for element c., the defendant's product may or may not infringe on plaintiff's patent. In such a case, the court will determine whether there is infringement by asking whether the element in the defendant's product that is similar to element c. in plaintiff's patent claim "performs substantially the same function in substantially the same way to achieve the same result."

literal infringement

If the defendant's product contains all of the elements in a patented product (even if defendant's product has one or more additional elements). identical

Co-worker

If the harassment is committed by a _______________, the employer can be liable only if a supervisor knows or should know about the harassment and fails to take prompt action to stop the harassment and prevent it from recurring.

Business necessity

If the plaintiff has established his or her basic claim for proving discrimination, the employer can seek to defend itself by proving that the policy being challenged amounts to a _________ _______. To meet this burden, the employer must prove that: (1) the challenged employment practice was necessary to achieve an important business objective (2) the practice actually achieves this objective.

sexual harassment

If you bring a ______ ________ lawsuit, you are suing your company and not the person who has been harassing you. Targeting a harasser directly in court requires a tort lawsuit.

patent

If you want rights to an idea that go beyond those offered by trade secret protection, then obtaining a _______ is an attractive option US Constitution authorizes Congress to protect inventions through _______ Inventors lock down exclusive rights to make use of certain types of information for defined periods of time

Disparate treatment

Illegal discrimination can be proved in either of two ways. First, the plaintiff may show that the defendant had engaged in intentional discrimination—sometimes referred to as ________ _________

Disparate impact

Illegal discrimination can be proved in either of two ways. Second, the plaintiff may show that some employment practice or policy of the defendant's has had a discriminatory effect—usually referred to as _________ ______.

No

Imagine that John Smith, in any year before 1964, was not hired. Let's say further that it was 100% clear that his race was the only reason he was not made an offer - perhaps the interviewer made racist remarks at the interview. Could John take the matter to court? Yes or no? Constitutional guarantees of equal protection under the law existed then, but those normally apply only when the government discriminates. If John had been turned away by a private company (a corporation, partnership, etc.) then Constitutional legal protections would probably not have applied to his situation.

Economic Espionage Act (EEA)

In 1996, Congress passed the _________ ________ ______ that for the first time made it a federal crime to steal trade secrets. The law punishes standard trade secret misappropriation, but also contains enhanced penalties when the trade secret theft constitutes economic espionage because it is meant to benefit foreign entities.

The screenplay (The copyright on the screenplay will expire in 95 years because it is a work for hire, so it expires in 2115. The copyright on the novel will expire 70 years after Ron's death, or in 2110.)

In January of 2020, Ron is hired by a television network to write a screenplay as a work for hire for an upcoming episode of one of their popular programs. He delivers the work, and the episode is filmed and airs later in the year. Also in 2020, Ron writes and publishes a science fiction novel. Ron passes away in 2040. Will the copyright on the screenplay or the novel expire first? -The screenplay -The novel -They will expire at the same time.

anti-harassment

In sexual harassment cases, the Supreme Court has created a special defense for employers even when the requisite degree of supervisory involvement exists. encourages employers to have _____________ policies in the workplace. For this defense to be applicable, 3 things must be proved: 1. The employee did not suffer a tangible job detriment, such as discharge, demotion, undesirable reassignment, and so forth. 2. The employer had adopted, publicized and enforced a company policy condemning sexual harassment that provided a clear procedure for employees to make complaints. The complaint procedure must provide a means for the employee to go over the head of a supervisor when the supervisor is the alleged harasser. -If the employee did not suffer a tangible job detriment, and the employer had a clear and well publicized policy against sexual harassment with adequate complaint procedures, the employer is not liable for the Title VII violation if the employee failed to use these complaint procedures. -With regard to the first element of the employer defense, there is still some uncertainty

joint authorship

It is relatively common for two or more people to be "joint authors," with each of them having all of the rights associated with copyright ownership. A single joint author can exercise these rights of ownership, such as granting licenses to use the copyrighted work, without the consent of the other joint author(s).

1964

It was never morally right to refuse to hire workers on the basis of race, or religious faith, or for similar reasons, but for a long time, it was legally acceptable. In _____, Congress passed the first of the modern laws that prohibits discrimination of certain types by most employers - the Civil Rights Act. This law prohibits discriminating on the basis on "race, color, religion, sex, or national origin".

Yes (The watch design checks all 4 boxes from the items listed above the example.)

Let's add some facts to the hypothetical we have used before. Walter makes watches. One summer, he invents a new configuration of gears that allows for a watch to keep track of multiple time zones in an entirely new way. He works alone for countless hours, and does not share his work with anyone. The new configuration was very difficult to dream up, and required a significant amount of expertise and imagination. He calls the new watch the "Neptune", and plans to start selling it in his shop. It starts selling very well very quickly. Is Walter's design the kind of thing that can be protected as a trade secret? -Yes -No

tangible job detriment

One question that several courts have had to face is whether an employee suffers a ______ ___ _________ when she submits to sexual demands because of a fear of losing her job. As long as it is clear that the sexual demands were unwelcome and the submission was coerced, courts have thus far treated the submission as a _______ ____ ________, thus depriving the employer of any defense to the Title VII violation.

Assignments

Regarding copyright _____________, whether by an independent contractor to an employer or in any other situation in which a copyright owner transfers ownership of a copyright to an "assignee," the rights of the assignee are less than those of an original owner, because the creator or her heirs can terminate the __________ at any point between 35 and 40 years after the ___________ was executed. This is true of any copyright ___________, not just one to an employer. Copyright ______________ transferring ownership must be in writing and signed by the assignor (transferor).

statutory damages

Registration can be accomplished by filling out a form and sending it to the Copyright Office, along with two copies of a published work or one copy of an unpublished work, and a modest fee. A work must be registered within three months after first publication in order for the copyright owner to be able to receive so-called "_________ ________" in an infringement lawsuit—these are damages that the court can award even without proof of actual economic loss within a range between $750 and $30,000 per infringed work. If a U.S.-national owner does not register within the first three months after publication, it can recover ________ _________ only for acts of infringement that occur after he or she actually does register and gives notice to the accused infringer. The right to recover ________ _________ is accompanied by a right to recover from the infringer an amount determined by the court to be a reasonable attorney fee.

None of the above (All elements must be copied for literal infringement to have occurred. And, since at least one element is not substituted with a substantial equivalent, Roger has not committed a doctrine of equivalents type infringement.)

Roger copies 6 of the 7 elements of Barbara's patent, but does not have anything that is the substantial equivalent of the 7th element in the patent. Which of the following is true? -Roger has literally infringed on Barbara's patent. -Roger has violated Barbara's patent under the doctrine of equivalents. -Both A and B. -None of the above

fair use

Section 107 of the Copyright Act of 1976 states: The ____ ___ of a copyrighted work, including such use by reproduction in copies, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. But teachers, reporters, and so on cannot make unlimited use of copyrighted material

provisional application

Since 1995, US law has permitted a "_________ ________" which can be especially advantageous for individuals, smaller businesses, and nonprofits (universities) It allows for the deferral of many patenting costs for up to a year Gives the applicant an all-important filing date but provides extra time to do things like seek additional funding and further explore market potential If the application files a regular application within one year and does not make any material change in the description, any resulting patent traces its filing date to the filing of the provisional Having as early a filing date as possible is important for many reasons

Injunction

Successful plaintiffs fighting infringement are entitled to an ________ and damages. Damages can be substantial, and can cover lost profits and royalties on the defendant's sales. If a defendant deliberately infringes on a patent, a judge may treble the plaintiff's damages and force the defendant to pay the plaintiff's attorney's fees.

Bona fide

The ADEA provides several statutory defenses for employers. An employee may always be discharged or otherwise penalized for good cause other than age. A _____ _____ occupational qualification defense also exists and closely resembles that under Title VII. ____ _____ seniority systems or employee benefit plans are also exempted from ADEA violation. Courts have interpreted these defenses somewhat more expansively, in the employer's favor, than in most cases decided under Title VII.

private

The Constitution does not apply to drug testing by _______ employers unless the testing is required by the government. Tort law does apply, however, if an employer conducts a test or uses the results in such a way that a tort is committed. If the employer intentionally reveals private information from the test to others who have no legitimate interest in receiving it, the employer may be liable to the employee for the tort of invasion of privacy. If the test produces a false positive result, and the employer reveals it to others without a legitimate interest in knowing it, the employer may be liable for defamation. In some cases, carelessness in the administration of the test or use of the results may cause the employer to be liable for the tort of negligence.

constructive discharge

The Supreme Court has also held that a ________ _________, which occurs when an employee voluntarily quits because working conditions are so bad that a reasonable person would find them to be intolerable, is actionable under Title VII. Either demands for sexual favors (quid pro quo) or a hostile sexual environment could justify a claim of _______ _______. However, the Supreme Court has also held that no matter what created the circumstances that justified the _______ ________ claim, the employer may assert the defense of having adopted, publicized, and enforced an adequate anti-harassment policy that the employee failed to utilize.

Copyright

The ________ Act enumerates several types of protected works: 1. Literary works. The term ''literary'' is used very broadly, and includes things like books, poems, stories, newspapers, magazines, web pages, computer software, etc. 2. Musical works and sound recordings. 3. Dramatic works, like a play. 4. Pictorial, graphic, and sculptural works. 5. Motion pictures. 6. Architectural works -protects all original works of authorship -works must be fixed in a tangible medium -facts are not protected with this The current term runs for the lifetime of the creator of a protected work plus 70 years A __________ might be passed down to younger family members in a will and benefit generations of an artist or author's family before it finally expires.

employment at will

The _________ __ ___ doctrine applies to the majority of American workers. Under it, companies can fire workers at any time for any reason, unless the company would violate a specific law in doing so. For example, a company cannot fire a worker because of his race, because such an action would violate the Civil Rights Act. But under ________ __ ___, a company need not wait for a "good reason" to terminate an employee.

thin copyright

The defendant's work must be virtually identical to the plaintiff's in cases where the plaintiff's copyrighted work has only a so-called "______ _________" such as the copyright in a map or directory or the compiler's copyright in the original selection and arrangement of a database. _____ ___________ protection exists in works in which there are relatively few copyrightable elements relative to uncopyrightable elements, which is often the case with a work that is highly functional in nature, with the main objective being to achieve something in an effective and efficient way. Such a work will often include some protectable original expression, but most of the work typically consists of uncopyrightable pure ideas, facts, expressions from the public domain, and so on. Examples would include instruction manuals, maps, and databases.

principal

The employer of an agent

patents

The following are true of __________: Stronger than trade secret protection -Solve for 20 years the "what if someone else develops my product independently" problem -If an idea is easily reverse engineered, then creator should rely on ________ protection, not trade secret protection -Inventor receives 20-year exclusive right to make, use, or sell the ________ invention 20 year _______ is not renewable -After expiration the item goes into the public domain (which means it cannot qualify as a trade secret); after this it can be made, used, or sold by anyone

Family and Medical Leave Act (FMLA)

The following situations are covered by what act? 1. the birth of a child and to care for the newborn child within one year of birth 2. the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement 3. caring for the employee's spouse, child, or parent who has a serious health condition 4. a serious health condition that makes the employee unable to perform the essential functions of his or her job

Intellectual property

The law of _______ ________ covers four such protections: -trademarks, trade secrets, patents, and copyrights. Has become more so in modern times because the value of intangible assets has increased tremendously when compared to the value of tradition assets. The total value of intangible assets substantially exceeds the value of physical assets.

work-for-hire

The term of copyright protection is different for a _________, in which a person or company hires another to make a creative work that will be owned by the purchaser, not the creator of the work. A work created by an employee while acting in the scope of her employment is a _____________, with ownership of the copyright automatically and immediately vesting in the employer. The current term of protection applied to a work for hire is 95 years from the date of publication or equivalent, or 120 years from the date of creation, whichever is shorter.

Title VII

There is a significant exception to _____ ___ coverage. -applies only to employers that have 15 or more employees. Smaller businesses are exempted. ex. a firm with, say, 10 workers cannot be sued under _____ ___. There might be state or local laws that would apply, but not the Civil Rights Act. Small businesses were exempted as part of a political compromise struck in 1964 that was designed to get a few more votes for the proposed law in a divided Congress and ensure that the bill would pass and become law.

Family and Medical Leave Act (FMLA)

This act allows workers with at least one year of service at companies with at least 50 employees to demand unpaid time off to handle certain medical situations. Act that places restrictions on the employment at will doctrine. provides eligible employees with up to 12 weeks of unpaid leave per year. The employer need not pay the employees during this time, but must preserve their jobs for them when they return. To be eligible, an employee must have worked for the employer for at least 12 months and at least 1,250 hours during the preceding year.

Age discrimination in employment act (ADEA)

This act prohibits discrimination based on age against anyone age 40 and over. Almost all age discrimination cases involve alleged disparate treatment of individual workers. the employer commits age discrimination if the employee's age is at least one significant reason (a motivating factor) for a firing, demotion, etc., even if there might also have been other reasons. In such a situation, the "favored" employee just has to be sufficiently younger than the "disfavored" employee so that an inference of age discrimination is logical.

Hostile work environment

This type of sexual harassment occurs when a supervisor, manager, or co- worker engages in sexually oriented language or conduct that is unwelcome and that is sufficiently "severe or pervasive" to alter the terms and conditions of employment for an employee who has been targeted. One attempted groping would likely be deemed "severe" enough to create this. Multiple sexual comments might not individually be severe but could cumulatively become "pervasive" and thereby also create this To be accepted by a court as severe or pervasive, the offensive conduct must qualify both subjectively (from the victim's perspective) and objectively (from the perspective of a reasonable person in the victim's position). It is not enough to demonstrate only one or the other. isolated dirty jokes and occasional crude remarks often do not amount to severe or pervasive conduct. A plaintiff may be able to argue, "The isolated remarks really bothered me," but may have more difficulty arguing that an average person in the same position would have been bothered by the same thing.

Scope of Protection

Title VII's prohibition against discrimination on the basis of race or color is very broad. -It protects African Americans, Hispanics, whites, or any other group against racial discrimination. The prohibition against national origin discrimination is violated if an employer discriminates on the basis of a person's country of origin. -It is sometimes not illegal, however, for an employer to require employees to be U.S. citizens. Title VII's prohibition against sex discrimination, which forbids unequal treatment based on gender, makes it illegal to engage in sexual harassment. -Title VII protects women from discrimination because of pregnancy or childbirth as well. Under President Obama, the EEOC and DOJ (government agencies that enforce antidiscrimination laws) both took the position that gender discrimination includes discrimination based on sexual orientation and gender identity, thus seeking to expand Title VII protection to LGBTQ individuals. -However, the issue is not yet settled in the courts. Although religious organizations may lawfully hire some employees based on their religious beliefs, other employers cannot make distinctions for religious reasons. -In addition to forbidding discrimination based on religion, the Civil Rights Act also requires an employer to make "reasonable accommodations" for employees' religious beliefs and practices. -Employers do not have to go to great lengths or incur significant expense in order to make reasonable accommodation, however.

copyright infringement

To prove __________ _________, the owner must: 1. prove that the defendant had access to the plaintiff's copyrighted work. 2. After proving access, in most cases the plaintiff can prove _____________ by showing that the defendant's work is "substantially similar" to the plaintiff's work. 3. In some cases, however, the test for ____________ is "virtual identity" rather than substantial similarity. 4. The defendant's work must be virtually identical to the plaintiff's in cases where the plaintiff's copyrighted work has only a so-called "thin copyright," 5. the plaintiff does not have to prove that a defendant intended to violate copyright law, or even had knowledge that the plaintiff's work was copyrighted. 6. Thus, an innocent infringer can be held liable.

arbitrary (The name "Neptune" as applied to the watch has no relationship to the planet Neptune or the mythical figure Neptune. As such, it is an arbitrary mark like Apple for electronic devices.)

To repeat the background facts from the last example: Walter makes watches. No smart watches, digital watches, or even battery powered watches for him - he works with tiny gears and makes old fashioned mechanical watches. One summer, he invents a new configuration of gears that allows for a watch to keep track of multiple time zones in an entirely new way. He calls the new watch the "Neptune", and plans to start selling it in his shop. What type of mark is "Neptune"? -generic -descriptive -suggestive -arbitrary

Sarah can receive a patent (Newly created substances are patentable, but naturally occurring substances are not.)

Tom discovers a new type of tree while exploring deep in a forest on a remote island. No one appears to have used it for anything before, and Tom would like exclusive rights to sell the wood. Sarah creates a new wood-like product in her lab. It is substantially stronger than any known natural wood. Can Tom and Sarah obtain patents that will cover their respective discoveries? -Tom can receive a patent -Sarah can receive a patent -Both Tom and Sarah can receive a patent -Neither Tom nor Sarah will receive a patent

The name of his new kind of watch: "Neptune" (product names are often trademarked. Designs and inventions are usually protected as trade secrets or with patents)

Walter makes watches. No smart watches, digital watches, or even battery powered watches for him - he works with tiny gears and makes old fashioned mechanical watches. One summer, he invents a new configuration of gears that allows for a watch to keep track of multiple time zones in an entirely new way. He calls the new watch the "Neptune", and plans to start selling it in his shop. Which of the following can Walter probably trademark? -The design for his new kind of gear movement -The name of his new kind of watch: "Neptune" -Both A and B

quid pro quo, hostile work environment

What are the 2 general situations which constitute illegal sexual harassment?

likelihood of confusion, anti-dilution statutes

What are the 2 trademark infringement ideas?

Literal Infringement, DOE Infringement (doctrine of equivalents)

What are the 2 types of infringement?

disparate treatment, disparate impact

What are the 2 ways that illegal discrimination can be proved?

generic, descriptive, suggestive, arbitrary or fanciful

What are the 4 categories of marks that deal with protectability?

utility, patentable subject matter, novelty, non-obviousness

What are the 4 requirements for a patent to be valid?

Trademarks, patents, trade secrets, copyrights

What are the 4 types of intellectual property protections?

20

With the ADEA, the minimum size of a covered company is __ employees.

Title VII

_____ ____ of the Civil Rights Act deals specifically with discrimination in employment The provisions of _____ ___ apply to employers, employment agencies, and labor unions. State and local governments are also within the definition of employer, and their employment practices are covered by ______ ___. In most instances, the federal government's employment practices are also covered.

Intellectual property

________ ________ law is based on several fundamental concepts: 1. intellectual property law protects certain types of knowledge, ideas, and expressions by granting rights to creators. 2. when someone else violates these rights, the violator is engaging in a type of competition that has been declared unlawful. 3. even though there is a general consensus that intellectual property laws benefit society in the long run, such laws can go too far. -If, for example, too many patents are granted on inventions that really don't deserve such protection, society pays the short-term price of less competition but does not receive the long-term benefits from genuine innovation. -The best system provides protection to intellectual property that is no greater than is necessary to create and maintain adequate incentives to innovate and create over time. -No system is ideal. No nation's intellectual property laws, including the United States', are perfect.

Harassment

_________ of an employee because of his or her race, sex, religion, or national origin is a particular form of disparate treatment discrimination under Title VII. Because of the special nature of __________ cases, the courts often do not follow the prima facie-rebuttal-pretext decision model.

independent contractor

a work created for the employer by an ___________ ___________ can be a work- for-hire if: (1) the employer and _________ __________ made a written agreement signed by both parties before the independent contractor started work, (2) the agreement ''specially commissioned the work as a work-for-hire'' (expressly using the term work-for-hire), and (3) the work was within one of 9 categories— -a contribution to a collective work -a part of a motion picture or other audiovisual work -a translation -a supplementary work -a compilation -an instructional text -a test -answer material for a test -an atlas. If there was no such agreement before work started, or if the work is not one of the specified types, the _________ _________ owns the copyright, although in such a case there will be an implied license allowing the employer to make use of the work without paying a royalty. In such a case, the employer also may acquire ownership by means of an assignment if the ____________ ___________ is willing to assign it.

Parody

a work which imitates another in a ridiculous manner form of criticism or commentary that is especially likely to be fair use not only because parodies enjoy a high level of First Amendment free speech protection, but they also usually hold up very well when the four-factor analysis above is employed.

Prima facie

an individual job applicant is rejected and has reason to believe that the employer's refusal to hire was motivated by unlawful discrimination. In a hiring situation such as this, a ______ ____ violation of title VII can be established by showing that the applicant is within a protected class, the applicant applied for a job and was qualified to perform the job, the applicant was not hired, and the employer either filled the position with an applicant who was not within the protected class or continued trying to fill it. If the claim of discrimination is based on a firing rather than a refusal to hire, a _____ ______ case can be established by showing that the plaintiff is withina protected class, the plaintiff was performing the job satisfactorily, the plaintiff was fired, and the plaintiff's work was then assigned to someone who was not within the protected class.

Trade secret

any type of knowledge that is not generally known and is not readily available through legal means, if the knowledge gives its owner a competitive advantage over rivals who do not have the knowledge.

implied license

it is possible for the parties' conduct to create an ______ _______ granting certain rights to use a copyrighted work, but it is impossible to create an implied assignment that transfers ownership because of the writing requirement.

quid pro quo

means "something for something" refers to the situation in which continued employment, a favorable review, promotion, or some other tangible job benefit is explicitly or implicitly conditioned upon an employee's positive response to a requested sexual favor. Although there is no rule that only supervisors can commit ____ ___ ____ harrasment, as a practical matter it is only one with supervisory or managerial authority who has control over job benefits and who is thus capable of committing this form of sexual harassment. The evidence must convince a court that the sexual advances were unwelcome. When the unwelcome request or demand for sexual activities causes the target to believe that a negative response will lead to adverse job-related consequences, and when the evidence shows that a reasonable person would also believe this, there is ____ ___ ___ harassment.

Trademarks

often have immense value to businesses. ex. Only one company can legally sell a shoe with a swoosh on the side and "Nike" written on the heel to the millions who desire such a product. allow consumers to know the source of things they purchase. ex. If you trust Microsoft to make reliable game systems, and if you buy an X Box at Best Buy, you can be reasonably confident that Microsoft manufactured your new gaming system.

Agent

person employed to act on behalf of another

Trademarks

the following 4 things are protected by what? -distinctive words -phrases, -symbols, -any devices adopted for the purpose of identifying the origin of goods or services available for sale.

copyrights

the following are exclusive rights granted to people with __________: -make copies -create "derivative works" (such as a new edition of a book, a sequel, a movie from a book, an action figure from a fictional movie character, and so on) -distribute copies of the work -display the work -perform the work.

trade secret

the following are factors to qualify as a _______ _______: (1) the extent to which the information is or is not known outside the company; (2) how easy or difficult it would be for someone else to independently develop the information or to acquire it properly; (3) the value of the information to the company; and (4) the amount of time and money it took the company to create the information.

Patent Application

the following requirements apply to what? 1. must be filed with the US Patent & Trademark Office (PTO) -Application specifies the names of the inventor(s) and who owns the ______ if the owner is someone other than the inventor(s) -"Assignee-at-issue" : corporation that employed the inventors (usually present) 2. Must contain a thorough and concise description of the invention and drawings of it -Description and drawings must describe the invention with sufficient thoroughness and conciseness to enable a hypothetical "person having ordinary skill in the art" to make the invention and pull it into practice without undue experimentation 3. Applicant is not required to have actually made the invention physically -However, physically making the invention is a practical necessity in some situations in order for the inventor to know that the invention works and to be able to write a description of the invention

fair use

these 4 factors determine whether the use made of a work is _____ ____: 1. whether such use is of a commercial nature or is for nonprofit educational purposes 2. the nature of the copyrighted work 3. the amount of the portion used in relation to the copyrighted work as a whole 4. the effect of the use upon the potential market for the copyrighted work. -a professor who uses three pages of a 500 page novel for a classroom exercise is probably making a ______ _____. -A news outlet that places an entire poem on its website and makes it unnecessary for poetry fans to purchase the poem from the poet is not making a _____ ____.

misappropriation

to be improperly acquired trade secrets are ____________ when: -information disclosed by former employees -conduct that is independently illegal -legal conduct that intentionally seeks to overcome reasonable security measures trade secrets are acceptable when: -independent research

true

true or false? In regards to employee drug testing: If the employer is a federal, state, or local government agency, the Constitution provides a measure of protection for the legitimate privacy interests of employees. Recall that Constitutional liberties like privacy and due process generally apply to government employers.

true

true or false? The Copyright Act provides for several defenses to copyright infringement. For example, a nonprofit library may make a copy of a work for archival purposes. An owner of a lawful copy of computer software may make a copy that is necessary for the software to be used (such as copying from a CD to the computer's hard drive), as well as one backup copy. Also, someone who has purchased or otherwise lawfully acquired a copyrighted work is allowed to resell or give away that copy. But, it is not legal to make copies of a software program, movies, or the like for friends and family.

true

true or false? The U.S. Copyright Office registers copyrights, but registration is not required for copyright protection. Although not required, registration is a very good idea. A copyright owner who is a U.S. national cannot file suit in federal court for copyright infringement unless the copyright has been registered.

true

true or false? When a trade secret consists of the solution to some problem, it is not just the final results of a knowledge- development effort that are protectable. In many cases, most of the time, money, and effort spent during research and development are expended in running into blind-alleys; in other words, a lot of the knowledge gained is in the form of figuring out what does not work. Often referred to as "negative know-how," such knowledge is also protectable as a trade secret.

true

true or false? Trade secret protection does not expire at any set time. So long as the conditions described in this module remain applicable, trade secret protection remains.

employment at will

under the ________ __ ___ doctrine, a company may fire an employee for: 1. a good reason (e.g., the employee is incompetent) 2. for no good reason (e.g., the employee is wearing a Cubs tie) 3. but not for a specifically banned reason (e.g., the employee is female)

patent

what option would business's choose if they want to protect their information as much as possible for now? granted by the government

trade secret

what option would business's choose if they want to protect their information for the longest time possible? no formal application or government approval required

infringement

when a patent owner sues for _________, he is alleging that the defendant infringed one or more of the claims in the patent The invention is defined most precisely in the claims in order for there to be ____________ all of the elements in the patent owner's asserted patent claim must be in the defendant's product, machine, process, or composition of matter

Disparate treatment discrimination

when an employer intentionally discriminates based on race or another factor covered by the Civil Rights Act Most Civil Rights Act cases are of this variety This is because punitive damages can be awarded in disparate treatment cases, which can significantly increase the amount of money a lawsuit generates