legal environment of business chapter 5 parker

Statutory projections of trademarks

- 1946 Lanham Act - enacted in part to protect manufactures from losing business to rival companies that used confusingly similar products - 1995 - Federal Trademark Dilution Act amended Lanham Act - created a federal cause of action for trademark dilution - trademark dilution laws protect "distinctive" or "famous" trademarks (such as Jergens, McDonalds, RCA, and Macintosh) from certain unauthorized uses of the marks regardless of a showing of competition or a likelihood of confusion -More than half the states have these trademark dilution laws. Some courts required proof that the D's use would cause an "actual lessening" of selling power, whereas other courts required only a showing of a "likelihood of dilution."

Intellectual property protection

- article 1 section 8 of the co constitution authorized congress to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and old discoveries.

Strong marks

- fanciful, arbitrary, or suggestive trademarks are generally considered to be the most distinctive and strongest trademark - these provide the best means of distinguishing one product from another ( outside the context of the particular trademark) Fanciful - Xerox, Kodak Arbitrary - English leather - after shave -no literal connection to the product Suggestive - Dairy Queen - suggest some about a product without describing the product directly

Generic terms

- generic terms - such as a bicycle or computer receive no protection even if they acquire a secondary meaning. - problems arise when a trademarked item acquires generic use - ex - aspirin, escalator, dry ice, lemonade, corn flakes, etc. are not trademarked now because they are perceived as generic terms - a generic term will not be protected even if the term has acquired a secondary meaning -AOL "you've got mail," AT&T email says something

Distinctiveness of mark

- only trademarks that are sufficiently distinctive from all competing trademarks will be protected - trademark must be sufficiently distinct to enable consumers to identify the manufacturer of the goods easily and to differentiate among competing products

intellectual property and internet law

- probably the most important asset for a business to protect is its intellectual property rights. - intellectual property is property resulting from an intellectual, creative process ( your mind). - includes information in books - computer file - movies - music - today the value of the worlds intellectual property exceeds the value of the worlds physical property ( real estate, machines, etc.)

Trademark infringement

- registration with the U.S. patient and trademark office gives nationwide notice that the trademark belongs exclusively to applicant ® - mark has been registered - whenever a trademark is copied in its entity or to a substantial degree , the trademark has been infringed (used without permission) - a person does not have to register a trademark to sue for trademark infringement but registration will establish a date of the beginning of the trademark's use - internet and linking - advertising - linking v. framing - puts another page up.

Trademarks and related property

- trademark - a distinctive mark, motto, device or emblem that a manufacturer stamps, prints, or otherwise offices to the goods it produces so that they may be identified on the market and their - origins made known. - once it is registered, its owner is entitled to its exclusive use.

Trademark registration

- trademarks may be registered with the state or the federal government, to register for protection under federal trademark laws, a person files an application with the U.S. patent and trademark in Washington D.C., a mark can be registered if : - it is currently used in commerce - applicant intends to put mark into commerce

Copyright Protection for software

-1980-Computer Software Copyright Act. -Computer programs are classified as "literary works." Computer programs are defined as a "set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." -Copyright protection extends not only to the parts of a computer program that can be read by humans (such as the high level language of a source code), but also to the binary- language object code of a computer program, which is readable only by the computer. -General trend has been not to extend copyright protection to the "look and feel" (general appearance, etc.) of computer programs.

Cyber marks

-A Trade Name in Cyber-space.

International Protection

-Trips Agreement (Trade-Related Aspects of International Property Rights) -Signed by over 100 nations in 19944, this sets out standards for the international protection of patents, trademarks, and copyrights for movies, computer programs, books, and music. -Each member country must have broad domestic laws protecting intellectual property rights. -Under this, each signatory must give the same protection to noncitizens as citizens. -Software piracy-Buying one copy of product-over 90% of software in Russia, China and Pakistan consists of pirated copies.

2. Cyber squatting

-When a person or business registers a domain name that is the same as, or confusingly similar to, the trademark of another, and offers to sell the domain name back to the trademarked owner. -1999 Congress passed the Anti-Cyber squatting Consumer Protection Act. - This act makes it illegal to"register, traffic in, or use a domain name... a. If the name is identical or confusingly similar to the trademarks of another, and... b. If the one registering, trafficking in, or using the domain name has a "bad faith" intent, to profit from that trademark. -Factors that may show bad faith. -trademark rights of others. -is there an intent to divert consumers in a way that could cause the goodwill represented by the trademark. -is there an offer to sell the domain name to trademarked owner... (ran off page

Copyright Infringement

-Whenever the form or expression of an idea is copied, an infringement of copyright occurs. -Reproduction does not have to be exactly the same as the original, nr does it have to reproduce the original in its entirety. *-An exception to liability for copyright infringement is made under the "Fair Use" doctrine. -Under this someone can reproduce copyrighted materials without paying royalties. -Section 107 of Copyright Act-Fair Use. -Criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. -Factors to determine whether something is "Fair Use" includes. 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantially 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 copyrigt

What is protected expression?

-includes books, records, films, art, architecture plans, menus, music videos, product packaging, computer software. -To obtain protection under the Copyright Act, a work: a. must be original b. fall in one of the following categories: 1. literary works 2. musical works 3. dramatic works 4. pantomimes and choreographic works 5. pictorial, graphical, and sculptural works 6. films and other audiovisual works 7. sound recordings c. must be "fixed in a durable medium" from which it can be perceived, reproduced, or communicated. d. protection is automatic; registration is not required.

Trademark dilution in cyberspace

-remember that in trademark dilution cases there does not have to be a connection between the unauthorized use and the mark. -also products do not have to be similar. -first case involving trademark dilution on the internet

3. Meta Tags

-search engines compile results by looking through a web site's key words field. -meta tags or key words, can be inserted into the key word field even if the meta tag or words have nothing to do with the content of the web site. -people do this to increase the hits on the site. -may be more advertising dollars. -using another's trademark in a meta tag without the owner's permission constitutes trademark infringing.

Trade Dress

-the image and overall appearance of a product. Ex- Coke Bottle Shape For example, the distinctive decor, menu, layout, and style of service of a particular restaurant maybe regarded as a restaurants' trade dress. Another example, a golf course's layout if one is sufficiently distinct. -Trade Dress is basically subject to the same protection as trademarks. -A major consideration in such cases is whether consumers are likely to be confused by the allegedly infringing use.

Secondary meaning

Descriptive and geographical terms and personal names are not inherently distinctive and do not receive protection until they argue a secondary meaning. - secondary meaning arises when people begin to associate a specific term or phrase with specific trademark items - ex London fog - coats - whether a secondary meaning becomes attached to a term or name depends on - how extensive product is advertised - the market for the product - number of sales

2. Patents

-A government grant that gives an inventor the exclusive right or privilege to make, use, or sell his or her invention for a limited time period. -inventions---20 years. -designs--- 14years. -For either a regular or design patent, the applicant must demonstrate (to the U.S. Patent and Trademark Office) that the invention, discovery, process, or design is genuine, novel, useful, and not obvious in light of a new technology. -Patent holder puts Patent or Pat. plus the Patent number on the product. -U.S. patent protection is given to the first person to invent a product or process, even though someone else may have been the first to file for a patent on that product or process. -Many computer programs are not of themselves patentable because many software products simply automate procedures that can be performed manually. The basis for much software is often a mathematical equation or formula and these are not patentable. However, U.S. Supreme Court has held it is possible to obtain a patent for a process that incorporates a computer program.—provided that the process itself is patentable. -Use of a patented product without permission is the tort of patent infringement. -very expensive to monitor, detect, and prosecute. -Business process patents are hard, but not impossible to get. -Computer systems and software applications have generally been denied patents because these have traditionally been viewed as not to be for useful processes, machines, articles of manufacture, or compositions of matter.

Copyrights

-An idea alone is not copyrighted. -What is copyrighted is the particular way in which the idea is expressed. -Anything that is not an original expression is not copyrightable. -The key is originality. -Facts widely known to the public are not copyrightable. -Page numbers and mathematical calculations are not copyrightable. -Compilations of facts are copyrightable. -A compilation is "a work formed by the collection and assembling of preexisting materials of data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.- Ex: White pages are not copyrightable when the information is not selected, coordinated, or arranged in an original way.

Copyrights in Digital information

-Copyright protection is very important on the internet because much of the material on the internet involves works of authorship. -It is also important on the internet because materials have to be "copied" to be transferred online. -Under the Copyright Act of 1976 -The loading of a file or program into a computer's random access memory, or RAM constitutes the making of a "copy" under copyright laws. -One issue-Freelance writers sell articles to newspapers, magazines, etc. If not covered in the contract, may the publisher include the article in an e-database or CD-ROM without the approval of the author? -Supreme Court said no, author must give permission

1. Domain Names

-Domain names are part of an internet address. "http://www.domain name.com, .net, .org, .gov, .edu. " More have been approved. -Domain Name rights has been a big issue. Ex. www.cocacola.com , www.coke.com. -it is estimated that a business must spend an average of $70,000 a year to maintain a domain name strategy to protect their trademarks. {Domain Names are currently viewed as a trademark}—margin note.

2. Patents (cont)

-In a 1998 case, however, a court ruled that only 3 categories of subject matter are unpatentable: -The laws of nature. -Natural phenomena -Abstract ideas

Trade Secrets

-Information or processes that give a business an advantage over competitors that do not know the information or processes. -Trade secrets consist of customer lists, plans, research and development, pricing information, marketing techniques, etc. -1996-Congress passed the Economic Espionage Act making theft of trade secrets a Federal crime. -Basically anyone in a position in a business to production of its trade secrets will have to sign a confidential agreement agreeing never to divulge the information. -Further many of the employees will also be subject to noncomplete clauses in their employment contracts too.

Mp3 and File-Sharing Technology

-MP3 technology made the sharing and transferring of music over the internet much easier. -Peer to Peer (P2P) Networking-technology that allows an internet user to access file on other internet user's computers. -Distributed Network- a network that can be used by persons located around the country or even globally to share computer files.

Further developments in copyright laws

-Prior to 1997-criminal penalties for copyright violations only applied if copies were exchanged for financial gain. -But many just gave copyrighted material away free so congress changed this in 1997. -No Electronic Theft (NET) Act of 1997. -Criminal penalties apply: 1. Even if no financial gain occurred. 2. Even if the copying is for personal use (This alters the Fair Use Doctrine). -Penalties for violating the act are as high as 250,000 and up to 5 years for each taking

Service, certification and collective marks

-Service mark - similar to a trademark but is used to distinguish the services of one person or company from those of another. Ex - each airline has a particular mark - certain titles and character names used in radio and television - certification mark - used by one or more persons other than the owner to certify the region, materials, mode of manufacture quality or accuracy of the owner's goods or services. - when used by members of a cooperative, association, or other organization it is referred to as a collective mark. - ex - collective marks appear at the end of movies in credits to show the associations and organizations that participated in the making of the movie

3. Copyrights

-The exclusive right of "Authors" to publish, print, or sell an intellectual production for a certain statutory period of time. A copyright is similar in nature to a patent or trademark but differs in that it applies exclusively to works of art, literature, and other works of authorship. (including computer programs.) Works created after Jan. 1 1978 are given statutory copyright protection for the life of the author plus 70 years. -Copyrights owned by publishing houses: 95 years from publication or 120 years from the date of creation, whichever is first. {if more than 1 author,then70 years after the last author dies}—margin note {no longer need a "©" to have protection}—margin note

Trade Names

-Trademarks apply to products. -Trade Name - used to indicate part or all of a business' name. Generally, a trade name is directly related to a business and its reputation and good will. -Trade names may be protected as trademarks if the name is the same as the product. Ex. Coca Cola. -Other trade names are not registered but are protected under common law if the words are unusual or fanciful as previously discussed. Ex. Safeway has protection as a trade name for a food-store chain.