GB 110 Chapter 8 Intellectual Property

Federal Copyright Act of 1976

"copyright owners have the right to prevent unauthorized copying of original works that are 'fixed in any tangible medium of expression'" prevents piracy, "prevent the public distribution, performance, or display of a work, such as the unauthorized uploading of a document or video to the Internet."

Descriptive

"describe a product or service and can be registered only if the term as acquired secondary meaning" example: The Scooter Store, Crabapple Juice, The Container Store describes the store exactly hard to trademark, must prove

Plant Patents

"may be obtained for any distinct and new variety of plant that may be asexually reproduced" 20 years

Design Patents

"may be obtained for any new, original, and ornamental design for an article of manufacture" 14 years

Maintenance Fees

"must be paid to the USPTO at 3.5 years, 7.5 years, and 11.5 years after issuance of the patent or the invention will fall into the public domain."

Intellectual Property Rights (IPR)

"negative right to exclude others"

Certification Marks

"organizations that certify the products or services of others" examples: Orthodox Union

Economic Espionage Act of 1996 (EEA)

"organizations that misappropriate trade secrets may be fined...and individuals may be imprisoned" "significant harm from the theft of information, including manufacturing process information and pricing data...violation committed to benefit a foreign business or government"

Anticybersquatting Consumer Protection Act (ACPA)

"prohibits registering in bad faith a domain name that is identical or confusingly similar to the trademark of another and allows trademark owners to recover between $1,000 and $100,000 per wrongfully registered domain name."

Trademark

"provides the right to prevent other from using a confusingly similar symbol to identify competing products or services." "'any word, name, symbol, or device...used by a person...to identify and distinguish his or her goods...from those manufactured or sold by others...'" brands "serves to distinctly identify the products or services of one company"

Copyright

"provides the right to prevent others from copying an original work of authorship" examples: books, films, musical recording, works of art "protects creative works of expression" long duration 70 years

Patent

"provides the right to prevent others from using an invention" "exclude other from making, using, selling, or importing an invention" must be new, useful, and non obvious expensive to get a patent, only lasts 20 years, only inventors can file for a patent utility patent, place patents, design patents

Service Mark

"serve to distinguish one service provider from another." Example: State Farm

Suggestive

"suggest but do not describe a product or service" example: Roach Motel, Apple Healthplan suggests that it deals with rodents more easily trademark able

Domain Names

"the address for a website" "Businesses or others can acquire the ability to use domain names from entities called 'domain name registers,' which are accredited by a nonprofit organization known as the Internet Corporation for Assigned Names and Numbers (ICANN)."

Piracy

"the intentional copying of entire works without any lawful pretext"

Eminent Domain

"the power of government to take private property for public use upon the payment of just compensation"

Lanham Act of 1946

Federal Trademark Act, provides protection "established nationwide rights...enables criminal prosecution for counterfeiting, and may allow businesses to recover more money should a judgement be rendered against an infringer."

Limited in Duration

patents expire after 20 years after that time, "anyone can use the patented information without compensation or even notification to the former patent holder."

Intellectual Property

patents, copyrights, trademarks, and trade secrets

Statutory Damages

"$750 t0 $30,000 per infringed work" if registered before infringement

Nonrivalrous

"IP...can be simultaneously used by multiple parties without diminishing the amount available to others." Example: Coca-Cola formula can be used in any of their factories to make the syrup

Likelihood of Confusion

"Trademark infringement occurs when someone other than the mark owner uses an identical or confusingly similar mark in connection with similar products or services" there is confusion with the products product market and geographic location are relevant (Trademark Electronic Search System (TESS))

Work made for Hire

"Where a work is prepared by an employee within the scope of employment...and the copyright belongs to the employer rather than the employee."

US Patent and Trademark Office (USPTO)

"a federal administrative agency" where you go to register a trademark or patent

Genericide

"a mark can become so successful and well known that it becomes the generic term for a product, and trademark rights will then be lost" more advertisements can stop generic terms

Fair Use

"a statutory right that expressly permits use of a copyrighted work without authorization under certain circumstances" examples: criticism, comment, news reporting, teaching, scholarship, research Fair Use Factors: 1. purpose and character of use 2. nature of the work 3. amount of the work used and copied 4. "effect on the market for the copyrighted work"

Typosquatting

"a subcategory of cybersquatting, the registration of domain names that contain intentional misspellings of other distinctive trademarks in order to divert Internet traffic" example: Microsof.com

Actual Damages

"amount equal to either the loss caused by the infringement or the infringer's profits deriving from the infringement" for unregistered copyrights at the time of infringement

Patent Trolls

"an informal and pejorative term for a business that does not itself manufacture products but instead owns patents and asserts them against alleged infringers."

Trade Secret

"any secret and valuable business information" Examples: product formula, customer list, codes, Coca-Cola formula "any information that is valuable because it is not generally known to competitors"

Uniform Trade Secrets Act (USTA)

"businesses can obtain both money damages and injunctions to prevent competitors from using secret information that has been wrongfully misappropriated, such as by industrial espionage. Businesses may also be able to enjoin a former employee from departing to work for a competitor, if that employee would necessarily use or cycles trade secrets in the new position."

One-Year On-Sale Bar

"businesses must file a patent application within one year of selling or otherwise disclosing an invention, or the invention falls into the public domain."

Fanciful

"consist of words coined for the purpose of creating a trademark and do not have a separate ordinary meaning" examples: Exxon and Kodak

Arbitrary (Fanciful)

"consists of a common word used in an unfamiliar way" strongest marks and easy to trademark/register example: Ivory soap (random), Apple Computer

Public Domain

"consists of information or works that are not covered by IP protection. After a copyright or patent expires, the creation or invention becomes a part of the public domain and be freely used by anyone."

Secondary Meaning

"consumers recognize the term as denoting a particular company or source rather than being merely descriptive"

Collective Mark

"to protect their names"

Derivative Works

"works based upon a preexisting work" examples: translation, version of a movie Copyright allows authors to create this

Purpose of Trademarks

1. "protect the goodwill and reputation of a business by...preventing" imitations, "palmed off" 2. "protect the public by ensuring that consumers are not deceived or confused into purchasing products other than the ones they expect and want to buy."

Intangible

IP is even though it is "embodied in tangible objects"

Trademark Dilution

another company feeds off a famous brand and dilutes the brand value of it Chewy Vuton dog toy

Prosecute

apply for a patent at USPTO, usually attorneys apply

Generic

cannot be trademarked because the word is used too often a common word used in a familiar way example: Ivory cannot be used in the elephant business, Apple Orchard for a brand of apple juice, aspirin because it is common and familiar in that market impossible to trademark

Enjoin

eBay v. MercExchange case made it hard for patent owners and trolls to get a court to enjoin or prohibit infringing activities

Unusual Trademarks

examples: word, sounds, touch, scent (toothbrushes), color, shape (Pepsi bottle)

First-to-File

if two people have the same invention, the first to file for a patent will receive the patent

Assign

the inventor can get a patent and then transfer "the resulting patent rights to the entrepreneur."

Cybersquatting

type of conflict over rights to a domain name "the bad-faith registration of an Internet domain name that contains the trademark of another, with the intent to free-ride off of the goodwill associated with that trademark."