BLAW 341 Exam 3
no (July 2020 was over one year from March 2019)
After Kaan invented his widget on Jan 1 2019, he published a paper on his widget in a scientific journal on March 1 2019. 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 2020. Will the USPOT grant Kaan's patent application?
No (the patent examiners would likely DENY the patent)
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 live up to this claim. Would the patent examiners (USPTO) likely grant the patent?
true
IDEAS ARE NOT PROTECTED; you can only protect an expression of an idea in a fixed tangible medium
copyright
a form of property ownership that gives creators and owners a creative works the right to control and profit from the use of those works
defined benefit plan
pension plan that guarantees a specified level of retirement income employer bears the risk -- usually less risky than contribution plan since employer will invest in safer assets
medicaid
A federal and STATE (different from medicare) assistance program that pays for health care services for people who cannot afford them. eligibility: generally for low income individuals
intellectual property
A product of the intellect/mind such as an expressed idea or concept, that has commercial value. Constitution protects it accounts for 52% of all US merchandise exports and 12.30% of total US private services exported forms: - trademarks - patents - copyrights - trade secrets
employees (not independent contractors)
what category of workers do "employment laws" generally cover
patent
A property right granted by the federal government that gives an inventor an exclusive right to make, use, sell, or offer to sell an invention in the United States for a limited time. exclude others from importing invention
no (he is a professional and earns a FIXED salary)
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?
both
Danielle lives in New York. Jessica lives in LA. The two have never met, do not share any acquaintances, and are unfamiliar with one another's work. If Daniella and Jessica independently create identical books, who can receive a copyright in the work?
Notice
Employees must provide __________ when an absence will count as authorized FMLA leave
private retirement plans
Employers are NOT REQUIRED to establish private retirement plans BUT IF an employer establishes a private retirement plan, the plan MUST comply with federal act (law) called "ERISA" --- standards, record-keeping, investment of funds, vesting (employee contributions vest immediately; employer contributions in 5 years), pension benefit guaranty corporation
COBRA
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 canceled. Larry learns that he has a right to extend his insurance benefits, however, if he pays the premiums under:
employment at will
either party may terminate an employment relationship ANY TIME FOR ANY REASON, absent prior agreement to the contrary Doctrine is HARSH, so a number of exceptions apply: - contract theory - tort theory - public policy
originality
element for copyright that considered to be independently created by the author (not copied) at least some minimal degree of CREATIVITY is required Greater protection: fictionalized works (Harry Potter) Less protections: works of fact (research report of Lincoln) Novelty is NOT REQUIRED (as long as you independently did it even if it is super similar or identical to something else)
COBRA
entitles employee who has lost job to continue health care coverage under the employer's health plan for up to 18 months employer must permit you to participate in their health care plan when you lose your job; however they no longer have to share health care plan costs with you, your own your own to pay the health care plan employee is eligible if he is fired OR if he quits UNLESS employee is fired for "gross misconduct" employee MUST PAY ALL health plan premiums
suggestive marks
evoke or suggest a characteristic of the goods Some imagination or thought may be needed to identify the nature of the goods are inherently distinctive and afforded a high degree of trademark protection; you can immediately use it as a trademark (unlike descriptive) ex: Greyhound buses (greyhound dogs are known for their racing) very subjective to determine descriptive or suggestive marks
tort theory
exception to Employment at Will where an employer improperly/wrongfully discharges an employee 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
public policy
exception to Employment at Will where statues or common law prohibit an employer from firing an employee ex: whistleblowing statutes, American's with Disabilities Act, Family Medical Leave Act, OSHA well known mandates also include: - refusal to commit an unlawful act - fulfilling a public obligation - exercising a statutory right - whistleblowing in states that does not have a whistleblowing statute
HIPAA
federal law establishes administrative requirements that employer health care plans must meet; and mandatory policies and procedures to protect privacy and security of employee's private health information employer does not have access to your private medical information -- there is a Chinese wall between employer and insurance firm
social security
federal program that provides retirement benefits, survivor's benefits, and disability insurance funded by FICA: both employers and employees must contribute; self-employed persons MUST ALSO pay the tax Employees - Paycheck is taxed at 6.20% - May taxable earnings cap: *$142,800* ("wage base": 100% of your wage will be taxed to fund social security, if you make $180,000, only the first $142,800 dollars will be taxed to fund social security) Employer - matches the tax paid by employee Self-Employed - must pay self-employment tax to fund SS - 12.40% tax on all earnings up to "wage base"
true
it is impossible to get both a utility patent and a design patent on the same invention because utility is for use and design is for ornamental
State Workers' Compensation Laws
laws that establish an administrative procedure for compensation of workers for injuries that arise in the course of employment 1. Employer may purchase INSURANCE (usually from the state but doesn't have to be) 2. Employer may PAY CLAIMS (a form of "self-insurance") *Requirements for benefits*: 1. existence of an employment relationship 2. an accidental injury that occurred "on the job" or "in course of employment", regardless of fauly 3. Prompt notice by employee to a. employer (30 days) and b. state (60 days- 2 years)
true
registration is OPTIONAL for trademarks; it is not required. You can claim protection for your mark as long as it is distinctive and you continue to use the mark (does not need to be registered)
defined contribution plan
retirement plan in which the employer sets up an individual account for each employee and specifies the size of the investment into that account you know the formula that the company will use to determine how much money you will put in once the money goes into the plan, you aren't guaranteed to pull it out at retirement; you employee bear all of the risk of investing ex: 401k
phonerecord, copy
everything can either be categorized as saved as a _______ : material object in which sounds are fixed (exception: music that accompanies a motion picture) --- sound recordings, mp3 or ________: material object in (other than a phonerecord), in which a work is fixed
contract theory
exception to Employment At Will which includes *breach of express contract* ex: "contract stating explicitly they will not fire you unless you commit a crime at work" and then they fire you for being late = breach of contract, not enforceable, employee will be able to keep job and *breach of implied contract* reasonable expectation that you could only be fired; terms = employee's reasonable expectations ex: "employee handbook says that employees will only be fired if they commit a crime"
utility patents
patents that are granted for the invention or discovery of any new and useful process, product, or machine inventions and plants 20 year protection AFTER term expiration, patent passes into the public domain
no (you can only choose between worker's comp or filing a lawsuit; unless you were injured by an intentional act, not negligence)
Anjura was injured on the job. Her injury occurred be chase her employer 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 for her injuries. Will Anuja be permitted to file a lawsuit?
Patentability
Any person who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent *process*: any process, act, or method; primarily includes industrial or technical processes *manufacture*: refers to all articles that are made *composition of matter*: chemical compositions; includes mixtures and new chemical compounds you can patent practically anything that is human-made and the process for making the product
trademark
Any word, name, symbol, device, or any combination thereof adopted and used by manufacturers or merchants to identify their goods and distinguish them from those manufactured or sold by others and to indicate the source of goods, even if that source is unknown purposes: 1. Source indicator to consumer 2. Quality assurance 3. Symbol of goodwill 4. Marketing and Advertising Device MOST IMPORTANT FUNCTION: *prevent consumer confusion*; by prohibiting any confusing or misleading use of a name or symbol when the use may confuse consumers about the origin of the product
federal trademark registration renewal
Assuming you continue to use your distinctive mark in commerce, you can claim protection of that mark potentially forever however, If your mark loses distinctiveness, it loses protection or if you fail to complete filings, you lose your federal registration (but mark would likely still be protected under common law) --- need a federal registration to get into federal court tho
contract exception to employment at will
Catherine works for BluCorp, 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 BluCorp, it is because of the: a. illegal termination statute. b. contract exception to employment at will. c. tort exception to employment at will. d. public policy exception to employment at will.
Trademark Infringement
"Likelihood of Confusion test" -- will the consumer be confused about WHO MADE THE PRODUCT? The likelihood of confusion is evaluated from the perspective of the AVERAGE PURCHASER of that particular product -- average purchaser standard DOES NOT INCLUDE 1. Side-by-side comparisons or 2. Perfect recall by the average purchaser (you don't need a photographic memory - as long as the logo is similar enough to cause confusion) ex: you have to be an average purchaser of the product; I would not be considered as an average purchases of a blast helmet
Trademark Dilution
"Likelihood of Dilution test" If the Plaintiff's mark is FAMOUS, dilution prohibits unauthorized use of an identical or similar mark on A. Directly COMPETING goods/services; OR B. Non-competing but RELATED goods/services; OR *C. On non-competing and/or non-related goods/services* -- could be completely unrelated goods WHEN consumers ASSOCIATE the original mark with the unauthorized mark dilution offers broader protection for famous trademark owners than infringement
copyright notice
"© 2020 Karen Maull" Beneficial because: 1. Notice informs public work is protected, and identifies the year of first publication and the owner 2. In the case of an infringement, the notice prevents infringer from raising defense of innocent infringement"
term employee, at will employee
(if you are hired for a certain length; ex: 3 years) (if you are hired and can be terminated at any time without cause)
Yes (the patent examiners would likely GRANT the patent)
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?
has a valid copyright on the novel even though she didn't register it
Carissa writes a novel but does not register a copyright for the novel. Carissa e-mails a copy of the novel to her friend, Kevin. Carissa: a. has a valid copyright on the novel after Kevin opens the email. 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. does not have a valid copyright because novels are not copyrightable
true
Copyright begins AT THE MOMENT original work is fixed in a tangible medium (Copyright notice and registration are NOT required but do offer benefits)
true
Copyright interest in SOUND RECORDING is SEPARATE from copyright interest in the underlying MUSICAL WORK Quentin Miller, Drake's ghostwriter (musical work) vs Drake's performance (sound recording)
Copyright Infringement Remedies
1. Tort Damages (Actual OR Statutory Damages) a. statutory = $30,000 max for innocent infringer, $150,000 max for willful infringer --- copyright owner is entitled to damages for EACH infringed work 2. Injunctive relief (if monetary damages are deemed inadequate 3. Criminal fines or Imprisonment IF infringer is deemed "willful"
Act of State Doctrine
A doctrine providing 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. Courts of Country A will not examine the validity of public acts committed by a recognized foreign government (Country B) within the Country B's government own territory Sometimes used for justification for EXPROPRIATION (government compensates private business for taking their property; legal) OR CONFISCATION (illegal, government seizes property without pay) (OPEC and Saudi can set oil price at whatever they want and U.S. doesn't have a say)
confiscation
A government's taking of a privately owned business or personal property without a proper public purpose or an award of just compensation is:
No (But US can impose export quotas, restrict types of exports, provide incentives and subsidies)
Does the U.S. Constitution permit the U.S. government to impose taxes on exports?
no
Dope developed a new anti aging beauty cream. They kept the formula closely guarded, but Eternal Life bought a bottle of the product from RiteAid and reverse engineered a duplicate product. If Dope sues Eternal Life for trade secret infringement, will Dope likely win?
one act of file sharing can constitute infringement of multiple rights
Each time a computer file is shared online, it must be "copied" Creation of Unauthorized copies = INFRINGEMENT of copyright holder's "Reproduction Right" Sharing of Unauthorized copies = INFRINGEMENT of copyright holder's "Distribution Right" Public Display of Unauthorized copy = INFRINGEMENT of Copyright holder's "Public Display Right"
true (employer's vest in 5 years tho)
Employee contributions to pension plans vest immediately. Under Employee Retirement Income Security Act (ERISA), generally all employee contributions to pension plans vest immediately and employee rights to employer contributions vest after 5 years of employment.
false
Employers are required to establish retirement plans for their employees.
false
Employers are required to establish retirement plans for their employees. (The Employee Retirement Income Security Act (ERISA) specifies standards for employers to follow in managing the employer's pension plan. It does not however require employers to establish a pension plan.)
Section 106
Exclusive rights in copyrighted works: -- *to reproduce*: a copyright owner has the exclusive right to reproduce (or license others to reproduce the copyrighted work) --- only time someone infringes sound recording is if they copy and paste it into a youtube video pretty much --- exception: Audio Home Recording Act allows consumers to make digital copies of copyrighted music for private, non-commercial use -- *to prepare derivative works*: takes a first generation work and recasts, transforms, or adapts that expression in an original way to create a new 2nd generation work ----- a second generation creator MUST get PERMISSION (a license) from the first generation author to create a derivative work ----- the creator of the 2nd generation work only owns copyright in their ORIGINAL creative contributions ----- If a first generation work enters the public domain, 2nd generation creators are free to use the first generation work without permission -- *to distribute copies*: copyright owner has the EXCLUSIVE right to distribute copies or phone records of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending ---------- if you did distribute, your rights are limited (First Sale Doctrine: you only have exclusive rights over the INITAL sale of work, but once a copy has been sold, the copyright owner no longer controls the physical object) HOWEVER, the copyright owner RETAINS rights to the copyright interest in the original creative expression EMBODIED on the physical object
WIPO (World Intellectual Property Organization)
A specialized agency of the United Nations and attempts to resolve international commercial disputes about intellectual property between private parties. Designed to provide greater international copyright protection DMCA was the domestic U.S. law that implemented the WIPO treaty --- Civil and criminal penalties for those who bypass anti-piracy software protections --- prohibits manufacture, import, sale, and distribution of technology and services that bypass anti-piracy protections --- limits the liability of ISP's (Social media networks are NOT liable for any copyright infringement by its customers UNLESS the ISP was AWARE of infringement AND failed to take steps to stop the infringement
false
All unemployed workers are eligible for unemployment compensation.
true
An employee may file an action for wrongful discharge against an employer who discharges the employee in violation of an employment contract.
ACTA (Anti-Counterfeiting Trade Agreement)
Goal: increase international cooperation, create global enforcement measures that are tougher than TRIPS, and provide a legal framework to combat counterfeiting; Applies to physical goods and pirated copyrighted works Key initiatives: - requires member nations to establish more stringent border search measures - allows member nations, in accord with domestic law, to order ISP's to surrender information about suspected trademark and copyright infringers
is protected for her life plus seventy years
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 her life plus seventy years. c. is not protected at all. d. is protected for ten years.
no (was not a phonerecord or copy; not fixated within a tangible medium)
Matt is a comedian. His work is completely spontaneous, and he never writes down his jokes. Each performance is fresh and new. On Saturday, Matt performed live at Eisenhower Auditorium. The performance was not recorded. Can Matt receive a copyright in the jokes he uses in the performance (even if someone with a cell phone recorded his jokes, Matt could not get copyright because he did not approve of the recording prior; the bootlegger couldn't either because it isn't his original work)
yes
Matt was summoned for jury duty and was required to leave his job for two months. Upon his return, his employer said his position had been filled. Does Matt have a valid claim for wrongful discharge against his employer?
Microsoft v. AT&T
Microsoft used AT&T's patented codes and shipped a copy of AT&T's code to subsidiaries in foreign countries. Foreign subsidiaries were making computers with AT&T's code. AT&T sued Microsoft The U.S. Court states that they could hold Microsoft liable for selling codes in the U.S., but could not hold Microsoft liable for selling codes overseas (the U.S. courts don't have jurisdiction)
diret exporting
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:
true
Musical work = written music or sheet music --- underlying work (you can read but can't hear anything) Sound recording = actual sounds of music A completed song is protected both through musical work and sound recording
trade secrets theft
Peak Corporation hacks into Quality Data Company's computers and downloads confidential business data. There is no contract between Peak and Quality regarding the data. This is:
2095 (2000 + 95 < 2000 + 120)
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?
dilution
Plaintiff may claim defendant's use of an identical or similar mark diluted plaintiff's famous mark 1. When defendant's mark IS likely to confuse consumers about the source of the goods/services; OR 2. When defendant's mar is NOT likely to confuse consumers about the source of the goods/services 3. Similarity between Plaintiff's and Defendant's marks creates an association between the marks 4. The association is likely to impair the distinctiveness of the Plaintiff's mark (dilution by blurring) or harm its reputation (dilution by tarnishment) --- dont need confusion like infringement, just need association to sue
the madrid protocol
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. What provides her an avenue for registering a trade name internationally?
regardless of whether TEC copies the press in its entirety or sells it
Standard Factory Machinery, Inc., obtains a patent on a drill press. Total Equipment Company (TEC) copies the design. This patent is infringed: a. only if TEC copies the press in its entirety and sells it. b. regardless of whether TEC copies the press in its entirety or sells it. c. only if TEC copies the press in its entirety. d. only if TEC sells the press in the market.
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?
not prevail because the act of state doctrine
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. prevail because of the doctrine of comity. b. not prevail because Laura has sovereign immunity. c. prevail because the law clearly violates the U.S. Constitution. d. not prevail because of the act of state doctrine.
comity
The principle by which one nation defers to and gives effect to the laws and judicial decrees of another nation is referred to as:
trade secrets law
The process behind the production of "Fast Pace," a racecar video game, is protected by:
No (he works for a private company but gets to continue to participate under the affordable health care act)
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 Robert took off?
true
U.S. patent law ENDS AT THE BORDERS OF THE UNITED STATES Someone overseas who infringes upon your patent can't be liable in U.S. If if you have an invention that you want protected internationally, you need to file protection for each county you want (just having U.S. protection does not grant you protection in Europe)
enforcement
What is a common problem faced when a nation refuses to comply with international law?
license
What is one legal tool that would permit you to LEGALLY use the intellectual property rights owned by another?
true
You cannot get copyright protection for a useful object (that would be a utility patent)
works made for hire, other works
___________: employer, not creator, owns original copyright -- 106 Rights apply ECEPT termination right 203 -- free to assign or transfer copyright interests -- duration shorter of 95 years from publication or 120 years from creation ____________: creator owns original copyright -- all 106 rights apply -- free to assign or transfer copyright interests -- duration life of last surviving author plus 70 years
duration of copyright
basic term (independent creator): life of author + 70 years (when a creator dies, or the last remaining creator out of the group dies, you add 70 years to it) is when the copyright expires When creator of work was not an independent but an employee for Disney (work made for hire): -- Disney owns the copyright -- know when copyright was produced and when Disney published it --- 95 years from publication OR 120 years from creation --- select the year that arrives first; the copyright for a work made for expires in the earlier of the two years
TRIPS Agreement
established standards for the international protection of intellectual property rights; most important international protection for IP States that each of over 100 signatory countries MUST: A. Enact domestic laws that provide broad IP protections (consistent with TRIPS standards) and effective remedies for violations B. Forbids member nations from discriminating against foreign IP rights owners in signatory countries In addition, it provides a dispute settlement procedure for member nations
true
even if you were negligent and messed up, you can still file for worker's compensation
Public Display Right
gives copyright owners the exclusive right to display/show their works to the public Limits Copyright Owner's Rights A. An owner of a copy MAY display the copy to the public so 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 (no transmissions permitted) Only an image displayed in PUBLIC can be infringed under the Public Display Right (if an image is only displayed in private, no infringement of the public display right can occur)
trade barriers
government-imposed regulations that increase the cost and restrict the number of imported goods ex: prohibitions, quotas, tariffs, antidumping duties
true
individual words, idea, work's theme and plot are no able to be copyrighted for literary works
architectural works
plans/blueprints: protected a EITHER A. "Architectural Works" OR B. "Pictorial, graphic, and sculptural works 3-D Build (actual building) is protected as "Architectural Works" -- copyright protection ONLY for buildings constructed AFTER 1990 (you need to get building owner's approval to take photos of interior building, anything not visible from the public) *Copyright protection for architectural works is limited*: Copyright in an architectural work that has been constructed does NOT include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place
Principle of Comity
provides that a country will honor and enforce within its own territory the judgments and decisions of foreign courts, with certain limitations "Out of respect, one nation will defer to and give effect to the laws and judicial decrees of another country, AS LONG AS those laws are CONSISTENT with the law and public policy of the accommodation nation"
First Sale Doctrine
the doctrine that allows purchasers of a copyrighted work to resell it or rent it out 1. the copy be lawfully made, and 2. that the initial public distribution be authorized
intangible property
What type of "property" does copyright law protect?
Paris Convention (1883)
Only applies to the protection patents and trademarks Allows parties in any of the approximately 180 member countries to file for patent and trademark protection in any of the other member countries
false
Patent infringement occurs only if an invention is copied in its entirety.
false (Patent infringement may occur even though not all features or parts of the invention are copied.)
Patent infringement occurs only if an invention is copied in its entirety.
Exception to copyright infringement
*Fair Use Doctrine*: encourage creative activity that may enrich society -- you can use copyrighted protected materials in your scholarly essay, news, research -- Four Factors 1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational 2. The nature of the copyrighted work 3. The amount and sustainability 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 ex: Google Books and Hathitrust (factor 1 and 4 were critical factors)
Examples of Enforcement of International Law
-Diplomacy; -Various international legal and arbitration bodies; -Trade Barriers (tariffs, sanctions, boycotts) -Severance of diplomatic relations; -LAST RESORT—military action
true
A personal name is protected under trademark law if it acquires a secondary meaning.
true
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)
trade secrets
BROAD: a formula, device, process, idea, or other information used in a business that gives the owner a competitive advantage used for general stuff that you can't apply to other intellectual property can potentially last forever (INFINITE) as long as the information gives you a competitive edge and you keep info secret Risk = anyone can recreate your secret if they figure it out ex: technical data, non technical data, formula, process, pattern, compilation, software program, device, product, method, drawing *Requirements*: 1. The kind of information protected must give the owner a COMPETITIVE EDGE over the competition --- information of VALUE to the owner --- cannot be information that is generally known 2. The owner must make a reasonable effort to keep the information SECRET --- owner must take affirmative steps to keep info secret --- only relative secrecy is required; novelty is not required - "Secrecy" depends on the state of the art in the field and how unique the information is - If Information would be DIFFICULT to replicate, then trade secret protection is possible Reasonable secrecy measures: covenants not to compete, labelling TS on all info, confidentiality agreement
true
Collective marks are used by members of cooperatives, associations, and labor unions.
false
Confiscations by a foreign government are considered legal under principles of international law
true
File sharing and P2P networking/cloud computing MAY CONSTITUTE COPYRIGHT INFRINGEMENT if sharing is not authorized by copyright owner ex: Napster and Grokster
no (Gadget failed to take reasonable steps to protect the secrecy of the scooter)
Gadget had a new scooter in development. They had conducted studies on the safety of the scooter and on consumer interest. Gadget wanted to keep its scooter a secret from competitors. By day they kept the scooter in a lab, but at night, Gadget stored the scooter in an open public parking. When Zippy designed a scooter with a near identical look, Gadget sued Zippy for trade secret infringement. Will Gadget win?
copyright infringement
In the event an infringement lawsuit arises, a copyright owner who registers within the correct time period can be awarded statutory damages and/or attorney fees TIME PERIOD: 1. before infringement OR 2. Within 3 months after the first publication of the work
2080 (2010 + 70)
In the year 2000, Maya wrote a book. Maya died in 2010. In what yer will Maya's copyright protection expire?
Berne Convention (1886)
International protection for Intellectual Property focusing on copyrights If a citizen of one of the ~169 signatory countries has copyright protection in his home country, all other signatory countries will recognize the copyright interest in their countries If a citizen of a non-signatory country first publishes copyright protected material in a signatory country, all other signatory countries will recognize the copyright interest in their countries
Madrid Protocol
International protection for Intellectual Property focusing on trademarks Allows parties in any of the ~100 member countries to file for trademark protection in any of the other member countries by simply registering its application in the home country and designating other member countries where they would like to register the trademark as well
has infringed on Jami's patent rights (since its a patent, Loiusa cannot copy and sell her version -- if it was a trade secret and she reverse engineered, that's a different story)
Jami invents a new machine that automatically weeds small gardens. He obtains a patent for his invention from the U.S. government. Louisa buys one of Jami's machines, pulls it apart, copies his work, and starts producing and selling her own version of the amazing "Weed Eater." Louisa: a. has violated Jami's trade dress. b. has committed a wrongful appropriation. c. has infringed on Jami's patent rights. d. has done nothing wrong--competition is a part of our market economy.
Susan (she filed the patent application and got approved first)
John invents a new type of automobile-tracking system on January 1, but does not file a patent application for it until June 30. Meanwhile, on March 10, Susan invented a very similar system and filed a patent application on March 15. Under the America Invents Act, who holds the valid patent?
novel, useful, and not obvious
Juan develops a new bike lock to prevent theft of bicycles on college campuses. In order to protect his invention, he must file a patent. In order to file that application, he must show that his bike lock is: a. original, functional, and market tested b. made of a material not previously used in bike locks c. creative, documented, and authentic. d. novel, useful, and not obvious.
Doctrine of Sovereign Immunity
Jurisdictional law that states that a foreign government cannot be sued in the U.S. courts if certain conditions are met. (ex: A Russian ambassador can't be sued in US) BUT Foreign governments are NOT immune from U.S. Jurisdiction IF a. foreign state waived immunity b. foreign state has engaged in 'commercial activity' within U.S. or that has a direct effect on U.S. c. Foreign state has committed a tort or crime in the U.S. d. Foreign state has been designated a 'state sponsor of terrorism' and is sued for death or injury caused by an act of torture or a related act of terrorism
trademark dilution
Lucille owns a cookie shop in Boston called "Cookie Time" that her father started in 1946. The shop makes small batches of delicious, high quality cookies. In 2009, Burt Crank started a cookie delivery business called "It's Cookie Time!" The company's cookies are of fairly low quality, but the delivery service is convenient for customers. Burt created a website under the domain name itscookietime.com that people use to place their orders. What claim might Lucille's company have against Burt's?
yes (doesn't matter if nobody saw it)
Lydia created a drawing of a bald eagle. Lydia sold her drawing in stores downtown. Dylan loved Lydia's drawing, purchased a copy, then made a photocopy of her drawing. He hung the drawing in his bedroom and no one else ever saw the drawing. Has Dylan infringed Lydia's copyright?
trade secret infringement
Owner of trade secret must prove that the alleged infringer: 1. Knew or had reason to know that the information was a trade secret AND a. the alleged infringer acquired the trade secret by improper means (stole it) OR b. used or disclosed the trade secret without the consent of the owner (breach of duty)
true
Parodies are considered HIGHLY TRANSFORMATIVE. They do not have an effect upon the potential market or value for the copyrighted work And thus, the Little Mermaid and SNL parodies are not copyright infringement
true
Registration of Copyright is not REQUIRED but Owner MUST register the copyright with the U.S. Copyright Office before filing suit
Rita and USA
Rita copies Sam's book, Two for the Show, in its entirety and sells it to USA Books, Inc., without Sam's permission. USA publishes it under Rita's name. Sam's copyright is infringed by:
expropriation cases
The act of state doctrine is frequently employed in:
copyright infringement
To win a _____________ action, the copyright owner must prove: A. Ownership of a valid copyright in the work that is the subject of the dispute B. Defendant copied the work (direct evidence of copying OR indirect evidence that defendant had access AND substantial similarity C. The Defendant's copying was an improper appropriation
true
Trade dress has the same legal protection as trademarks.
false
Trademark dilution requires proof that consumers are likely to be confused by the unauthorized use of the mark
benefits of federal trademark registration
(in the principal register) - constructive notice of registrants ownership claim with a single registration - nationwide rights (with certain qualifications) - prevents another's registration of a confusingly similar mark - presumption of registrant's nationwide mark ownership, registration, validity, right to use mark in commerce, and continuous use of mark in commerce - *right to file in infringement suit in federal court regardless of diversity of citizenship jurisdiction* -- able to file lawsuit in federal court - statutory remedies in counterfeit cases (including triple damages award in court's discretion) - ability to bar importation of goods that bear confusingly similar marks makes it easier for people to avoid legal intanglements with trademarks since they can see i
statutory law protection of intellectual property
*Federal statutes*: 1. EXCLUSIVE federal protection of copyright and patents 2. Non-exclusive "protection" of trademarks (in the form of benefits of registration) 3. non-exclusive protection of trade secrets *State statutes*: 1. Non-exclusive protection of trademarks 2. Non-exclusive protection of trade secrets trademarks and trade secrets are non-exclusive: you have the option of either filing in state court or federal court whereas copyright and patents can only be filed in federal court
types of marks
*trademark*: distinguishes/identifies source of product -- ex: apple *service mark*: distinguishes/identifies source of service -- ex: pwc, e&y *trade name*: distinguishes/identifies a company's name --- a mark can be ALL THREE or any TWO of categories above , can only claim trade name protection if you use a trade mark or service mark; trade name cannot be protected alone ---- ex: IBM is used as a trademark, service mark, and a trade name *trade dress*: the distinctive features of a product's packaging or the distinctive features of the product itself (image and overall appearance) that are protected under trademark law. ----ex: shape, color texture (brown color of UPS truck, shape of Pepperidge Farm goldfish) *certification marks*: "certifies" product/service characteristics like region of origin or produced by x, or quality, but owner of the mark does not actually own, manufacture, or sell the product *collective mark*: indicates MEMBERSHIP in a group, association, or collective (some marks can be BOTH certification and collective marks)
not patentable
- laws of nature - physical phenomenon - abstract ideas - mere ideas or suggestions - inventions created solely to utilize special nuclear material or atomic energy in an atomic weapon
types of patents
1. *utility*: may be granted to anyone who invents or discovers any new and useful -- invention must be: A. *useful*: operability test - invention does what the inventor says it does (must be same as the claim it does) B. *novel*: must be new; the invention must NOT have been known or used by others in the UNITED STATS OR been described in a printed publication in ANYWHERE in the world --- the inventor only has ONE YEAR to apply for a patent from the date the invention is first described in any publication available to the public, used publicly, or placed on sale C. *non-obvious*: subject matter must be sufficiently different from what has been previously used or described, such that it would have non-obvious to a person of ordinary skill in the area of expertise related to the invention --- changes in color and size are too obvious and will not be patentable 2. *design*: may be granted to anyone who invents a new, original, configuration, shape, or ornamental design for an article of manufacture (the design doesn't help or enhance the actual use of the product or serve as a useful purpose, just a unique shape or ornament) -- to be patentable, a design must be: A. an ornamental design embodied into or applied to an article of manufacture (ex: iPhone's curved edges) B. Novel C. Non-obvious 3. *plant*: invents or discovers and asexually reproduces any distinct and new variety of plant
Remedies for patent infringement
1. Injunctions -- usually temporary; can only be awarded a permanent injunction IF the patent holder proves irreparable injury and public would not be dissolved by a permanent injunction 2. Damages for royalties and lost profits 3. Attorney's fees 4. Treble damages
descriptive marks
1. provides information about the product/good; OR an ingredient, quality, characteristic, function, feature, component, purpose of the relevant good 2. Uses a geographic term; OR 3. Is a personal name __________ marks are NOT inherently distinctive, so they must acquire secondary meaning in order to receive trademark protection --- when consumers have learned to associate a mark with the source of origin, we say that mark has acquired "secondary meaning" which makes the mark distinctive ex: 'honeybaked' hams, 'woolrich' clothes
apple v Samsung
2012: Apple claimed Samsung was infringing their patents and copyrights. Samsung copied Apple's trade dress, trademark protections, patents
medicare
A federal program of health insurance for persons 65 years of age and older - Part A: hospital insurance -- automatic for most people if individual or spouse worked (paid for by Medicare taxes) - Part B: medical insurance -- must pay additional premium - Part C: Medicare Advantage - Part D: Prescription Drug Coverage if you receive social security you are also eligible to receive these benefits Funded by Both employee and employer - each must pay 1.45% (self-employed pays 2.90%) There is no "cap" ceiling for wages taxed --- your ENTIRE modified adjusted gross income is taxed High income earners must pay an additional tax on all earnings over $200,000 (employer DOES NOT PAY this) eligibility: a. 65 years or older; OR b. under 65 IF you have certain disabilities c. Additional categories
No (assuming clothing manufactures are not an industry that permits child labor)
Bill owns a U.S. factory the makes clothes. Can Bill hire Sally, a 12 year old girl, to work the sewing machines in his shop? (Sally is not related to Bill)
true
All trademarks that identity and distinguish products of one company from products of another
no (workplace isn't safe)
Ben works at Three Mile Island (TMI), a nuclear power reactor. Ben noticed that his personal radioactivity sensor badge (that detects high levels of radiation) has registered abnormally high exposure levels, so Ben walked off the job and refuses to return until proper testing is conducted. Under OSHA, can TMI fire Ben for failure to perform his duties
no
Bobby was hurt while commuting from his home to work on Monday morning. Can Bobby claim worker's compensation benefits for the injuries he received?
drew is liable for trademark infringement
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. drew is not liable for trademark infringement
twelve weeks of unpaid family or medical leave during any twelve-month period
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. twelve weeks of unpaid family or medical leave during any twelve-month period. c. twenty-four weeks of unpaid family or medical leave during any twelve-month period. d. five weeks of unpaid family or medical leave during any twelve-month period.
Occupational Safety and Health Administration (OSHA)
FEDERAL legislation: imposes a duty on employers to keep workplace safe - establishes safety standards for various industries - an employer CANNOT fire or discriminate against an employee who does not work because they believe the work place isn't safe (must be reasonable) - mandatory notices, record keeping and reports Keep record on every work related injury or disease every employer by OSHA must report any work related death or 3+ hospitalizations within 8 hours of the incident report any other inpatient hospitalizations, amuptations, or loss of an eye with 24 hours OSHA compliance officers may inspect ANY establishment covered by OSHA (often happens in restaurants, factories)
true
FMLA Leave: employer is NOT required to pay wages BUT must: - continue health care coverage - after leave, reinstate employee to equivalent or better position (UNLESS employee is a "key employee" -- pay falls with top 10% of employer's workforce)
Family and Medical Leave Act (FMLA)
Federal act that allows employees to take time off from work for family or medical reasons Many states and employers also have private family-leave plans Employers with 50+ 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 year or more --- FEDERAL EMPLOYEES are granted up to 12 weeks of PAID leave for the birth, adoption, or foster care placement of a child; other businesses do not have to PAY Military: 26 weeks of military caregiver leave with 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
Fair Labor Standards Act (FLSA)
Federal law that establishes a minimum wage and requirements for overtime pay and child labor Covers ALL EMPLOYERS ENGAGED IN INTERSTATE COMMERCE *Child Labor*: - Child under 14 years can only perform certain types of work like newspaper deliver, some agriculture, entertainment, work for parents; cannot be employed in hazardous jobs or hobs detrimental to health or well-being; working time and maximum hour restrictions apply - Child 14-15 years may work, but cannot be employed in hazardous jobs or hobs detrimental to health or well-being; working time and maximum hour restrictions apply - Child 16 - 18 years may work, but cannot be employed in hazardous jobs or hobs detrimental to health or well-being; NO restrictions on working times/max hours *Minimum Wage*: A. Federal: $7.25 / hour B. State: may have HIGHER minimum than federal ex: you are always entitled to the highest minimum wage available to you *Overtime*: - "Normal" Hours = 40 hours week = regular hourly wage - Additional hours (beyond 40 hours) = 1.5 times regular hourly wage ----- eligibility: 1. employee worked overtime but was not paid for the overtime hours AND 2. employer knew or should have known employee worked overtime hours *Workers EXEMPT from overtime 1.5 times pay (not entitled to additional pay): executive employees, administrative employees, professional employees
true
For trademark infringement, an owner of a trademark can either be famous or not famous to sue someone but for trademark dilution, an owner of a trademark must be famous in order to sue
Frosty Treats will lose if the court determines the term "frosty treats" is a descriptive term that has no acquired secondary meaning
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, what will happen?
true
In order for your mark to be protected under the Lanham Act, it must be DISTINCTIVE (cannot be generic)
true
In order to protect the brand, you should educate them with an alternate generic term to describe your product instead of referring to it as your brand
Coca-Cola Co. v. Koke Co. of America
In this case, the defendant contended that the plaintiff's trademark was a fraudulent representation. The Supreme Court ruled that the plaintiff's position must be judged by current facts and not previous ones. Thus, Plaintiff won. This case made it clear that trademarks and trade names (*and nicknames*) that are in common use receive protection under the common law. Coca-cola has valid trademarks of 'Coke' and Koke infringed Coca-cola's trademark because it was too similar ('Dope' did not infringe however)
yes
Kaan invented a widget on Jan 1 2019. This widget had never before been written bout 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.?
The Copyright Act
Law that Congress came up with to define for us what exactly copyright protects Copyright *protects* original expression fixed in a tangible medium; not known or later developed, can be perceived, reproduced, or otherwise communicated, not limited but can include: - literary works, motion pictures, photographic works, sound recordings, etc. -- even compilation of facts if expression in original (like a phone book coordinating names by career) *Anything NOT "fixed" in a tangible form is NOT copyrightable* (speaking aloud without being recorded, titles, slogans, non-original expression like ingredients or lists of contents, procedure, process, principle, bare facts, works authored by the U.S. government or have passed into the public domain)
True
Nobody who earns more than $35,568 per year is entitled to overtime pay (new amendment effective Jan 2020); FLSA does not protect you However, if your company still pays you overtime when you make more than $35,568, that works and it is binding if you signed the contract with them
generic marks
Rule: No trademark for generic names that function as the common/ordinary name for a product rationale: public interest in encouraging competition and avoiding monopolies ex: if you are a soap company, you cant get the trademark for the word soap a generic word can be used as a trademark as long as the word is "arbitrary" (has no meaning) when applied to a particular good: like if u set up a restaurant that is called 'Spoon' also combining or blending multiple generic terms MAY create a non-generic mark capable of receiving trademark protection
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. Independent deferral agency created through ERISA legislation GOAL: to provide 'timely and uninterrupted' payment of private pension plan benefits PBCG collects annual insurance premiums paid by the pension plans; insurance pays benefits IF plan becomes unable to pay
c (this is a dilution by tarnishment case)
Skanky Sex Toys has made a series of mechanical "pleasure toys" that include depiction of Mickey Mouse stamped on each product. Skanky did not receive a license from Disney to use the Mickey Mouse character. 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 such, Skanky 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 are correct
true
TM and SM do not necessarily mean that the mark has been registered (federally) TM = owner claims term as a trademark SM = owner claims term as a service mark
America Invents Act
The first person to file an application receives protection. There is a 9 month limit for challenging a patent. Protection begins DATE OF FILING patent application; whoever filed first and receives a patent protection from the USPTO will be awarded the patent (first-inventor-to-file) --- once protection is approved, the protection will be backdated to when it was first filed (ben files in march but is only granted until November, the patent will be effective and backdated to march)
U.S. Constitution, statutes, International protections
The three different places where we can find protection for intellectual property
Intent to use
This provides the owner with trademark protection until the mark can meet full ownership requirements. an applicant MAY file an intent-to-use application with the federal USPTO (to get claim on record and to establish a priority date) but mark is not secured until mark is publicly used -- when mark is actually used publicly Intent to use: mark must be placed in use within 6 months, but 6 month period MAY be extended by 30 months -- if u use mark within 6 month period, ur protection is backdated to when you filed it (so if u filed in January but started selling in April, someone who infringed ur mark in February would be liable) Once actual public use occurs, registrant must file a statement of use in commerce following which the mark will be deemed registered as of date of filing of intent to use application
patent infringement
This tort occurs if another makes, uses, or sells A. Whole or part of another's patented design or product OR B. the entirety of another's patented process without the patent owner's permission (must be the entire process; if you only copy 100 out of the 500 steps, you did not infringe)
yes (FEPLA grants paid leave to public workers)
Three years after Robert began working for his current federal 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 Robert took off?
true
Use of statutory notice is NOT mandatory (like ©, Reg U.S. Patent, or Registered in U.S. Patent and Trademark Office), but either statutory notice or actual notice is required before a plaintiff can recover damages and profits in a federal trademark infringement suit
copyright (expressed in a tangible medium)
Which form of IP protection is most appropriate to protect a movie script that you wrote?
true
Worker's Comp: - Pros: quick and easy payment, you don't have to argue about it - Cons: potentially could receive less than you could get in lawsuit Lawsuit: - Pros: Potentially get more money than if you filed for worker's comp - Cons: longer duration, could lose
both Yong and Fickle Corp
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 67? (67 is the age when benefits can be realized)
medicare
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
social security eligibility
You must earn CREDITS Number of credits required for eligibility varies with age and type of benefit, but MOST people need 40 credits to qualify for Social Security benefits. Must also be age 67 As of 2021, every $1470 in earnings earns one credit. You can earn a MAX of 4 credits a year As present, by 2035 the current funding scheme (payroll taxes) will only be enough to pay ~$0.79 cents for each dollar of scheduled benefits
true
You only have mark protection for use of the mark on the particular goods and services that you use the mark on in commerce you must identify all the goods and services you intend to use it in commerce (and only those goods are protected by the trademark)
trademark, copyright
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 this logo they immediately think of your store. You want to make sure no other store owner uses your logo. You wish to protect your IP rights. What form of protection would be the most appropriate for you? (logo is used for commerce in your store) (logo is fixed in a tangible medium) *logo has not been incorporated into a physical object so design patent does not work*
Lanham Act
a 1946 law that spells out what kinds of marks (including brand names) can be protected and the exact method of protecting them FEDERAL LAW (states also protect trademarks) If your trademark has been infringed, you can either file in federal court or state court prohibits unauthorized use of *identical or similar* mark likely to confuse a consumer on A. Directly COMPETING goods/services; OR B. Non-competing but RELATED goods/services
unemployment insurance
a hybrid federal-state program created by the FUTA and administered by the states eligibility: - those who have lost jobs due to no fault of their own - must meet requirements for wages earned or time worked during a one-year period - must claim benefits within x months of loss of job - must remain willing, able, and available to work - must actively search for work OR pursue education or training employers that are covered are taxed; to pay the tax, your employer will deduct a portion of the tax from your paycheck self-employed individuals are usually not entitled to unemployment benefits UNLESS their business paid unemployment tax
distinctiveness
can either be A. INHERENT or B. ACQUIRED THROUGH "SECONDARY MEANING" -- like a catch phrase four categories used to assess distinctiveness of an intended or actual trademark: - *Generic* (DEADLY FOR A MARK): least distinctive - no trade mark protection - *Descriptive*: must acquire "secondary meaning" - *Suggestive*: very distinctive - protectable immediately - *Arbitrary or Fanciful*: most distinctive - highest level of trademark protection - protectable immediately
design patents
patents that are granted when someone has invented a new and original design for a manufactured product 15 year protection
copyright, trademarks, patents
three forms of intellectual property: (protects original creative expression in a tangible medium; protection begins at moment of fixation; duration of protection: life plus 70 years) (protects word, name, symbol, or device to identify goods or services and distinguish them from this made or sold by others; protection begins when mark is deemed distinctive as a source indicator and "used" in commerce; protected forever SO LONG AS a source indicates mark remains significant to the public) (protects inventions, discoveries, and designs; protected begins on date of FILING with USPTO if USPTO grants protection; protected for 20 years for utility patents; 15 years for design patents)
use
trademark may only be registered when mark is used PUBLICLY in the ordinary course of trade
Arbitrary or Fanciful marks
trademarks that are inherently distinctive because they describe the source of a good and not the actual good itself HIGHLY DISTINCTIVE common words applied in ways that bears no logical relationship to the underlying good ex: Google, Spoon for a restaurant, Xerox, Kodak, Nike, Hard Rock Cafe
false
true or false: all employers are required to provide retirement plans
true
true or false: under the basic "at will" doctrine, "at will" employees can be terminated at any time without cause