Business Law Chapter 8

patent

- a grant from the government that gives an inventor the exclusive right to make, use, or sell his or her invention for a period of twenty years -patents for designs are given a period of 14 years

License

- an agreement, or contract, permitting the use of a trademark, copyright, patent, or trade secret for certain purposes

patent infringement

- if a firm makes, uses, or sells another's patented design, product, or process without the patent owner's permission - may occur even though the patent owner has not yet put the product into commerce

remedies for patent infringement

- if infringed, the patent holder may sue for relief in federal court - can seek injunction against the infringer and request damages for royalties and lost profits - the court may grant the winning party reimbursement for attorney's fees and costs. - if the infringement was willful, the court can triple the amount of damages awarded

"fair use" exception

- in certain circumstances. a person or organization can reproduce copyrighted material without paying royalties - criticism, news reporting, teaching, scholarship, or research

copyright

- intangible property right granted by federal statute to the author or originator of a literary or artistic production of a specified type - works created after 1978 are automatically given statutory copyright protection for the life of the author plus 70 years - for copyrights owned by publishing houses, the copyright expires 95 years from the date of publication, or 120 years from the date of creation, whichever comes first - when copyright ends, works enter public domain, belonging to everyone - books, music, dances, playwrights -NOT ideas

Remedies for copyright infringement

- liable for damages or criminal penalties - range from actual damages or statutory damages. imposed at court's discretion, to criminal proceedings for willful violations - statutory damages don't exceed $150,000 - criminal proceedings may result in fines or imprisonment

Trade secrets

- marketing strategies, ways of business - extends to both ideas and their expression - no registration of filing

Copyright infringement

- whenever the form or expression of an idea is copied, an infringement of copyright has occurred - reproduction does not have to be exactly the same as the original, nor does it have to reproduce the original in its entirety

Counterfeit Goods

-imitate trade marked goods, but they are not genuine -stop counterfeiting in manufactured goods act (SCMGA) made it a crime to traffic intentionally in or attempt to traffic in counterfeit goods or services, or to knowingly use a counterfeit mark on or in connection with goods or services. -people found guilty of violating SCMGA may be fined up to $2 million or imprisoned up to 10 years, the defendant must forfeit the counterfeit products and pay restitution to the trademark holder -the united states can't prosecute foreign ocunterfeiters

trade name

-indicates part of a business's name, whether the business is a sole proprietorship, a partnership, or a corporation -may be protected by a trademark if the trade name is also the name of the trademarked product, like Coca-Cola

Under the Trademark Dilution Revision Act, a plaintiff must prove

1. The plaintiff owns a famous mark that is distinctive. 2. The defendant has begun using a mark in commerce that allegedly is diluting the famous mark. 3. The similarity between the defendant's mark and the famous mark gives rise to an association between the marks. 4. The association is likely to impair the distinctiveness of the famous mark or harm its reputation.

trademark

is a distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known.

service mark

is essentially a trademark that is used to distinguish the services (rather than the products) of one person or company from those of another. For instance, each airline has a particular mark or symbol associated with its name. Titles and character names used in radio and television are frequently registered as service marks.

certification mark

is used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services.

trade dress

refers to the image and overall appearance of a product. Subject to the same protection as trademarks.

LFP, IP V. Hustler Cincinnati, Inc

Issue: defendant paid licensing fees to use the "HUSTLER" mark, but then stopped paying the fees. Plaintiff sued for trademark infringement and the court issued an injunction to stop the defendant's use of the "HUSTLER" mark. Later, defendant opened a store called "FLYNT Sexy Gifts". LFP claimed that there was a likelihood of confusion with the "LARRY FLINT" mark. the court modified the injunction to limit Jimmy's use of the "FLYNT" name without "JIMMY". Jimmy appealed. Rule: none of the district court's factual findings are clearly erroneous. the defendant provided evidence of consumer confusion. as the defendent noted, "jimmy and larry flynt, in this market area, is somewhat synonymous with hustler or flynt. you are not going to get around that" Conclusion: affirmed

trademark infringement

Whenever that trademark is copied to a substantial degree or used in its entirety by another, intentionally or unintention- ally, the trademark has been infringed. The most commonly granted remedy for trademark infringement is an injunction to prevent further infringement. Under the Lanham Act, a trademark owner that successfully proves infringement can recover actual damages, plus the profits that the infringer wrongfully Intellectual Property Rights 153 received from the unauthorized use of the mark.

Winestead V. Jackson

Issue: did Curtis Jackson, 50 Cent, infringe the copyright of Winestead's book? Rule: Not all copying is infringement... A court compares the allegedly infringing work with the original work, and considers whether a lay observer would believe that the copying was of protectable aspects of the copyrighted work.... Is there substantial similarity? TEST: A court must determine whether the allegedly infringing work is similar because it appropriates the unique expressions of the original work, or merely because it contains elements that would be expected when two works express the same idea or explore the same theme Application: A lay observer would not believe that Jackson's album/cd and film copied protectable aspects of Winstead's book. Although the book and Jackson's works share similar themes and settings, the stories of an angry and wronged protagonist who turns to a life of violence and crime have long been a part of the public domain and are therefore not protected by copyright law. Winstead argues that a protagonist who asks for God's help when his father dies, cutting drugs with mixing agents to maximize profits and complaining about relatives who are addicts and steal the product are protectable, but these are not unique. To the extent that Jackson's works contain these elements, they are to be expected when two works express the same idea about the streets or explore the same theme. Words and short phrases do not enjoy copyright protection. Conclusion: the district court's order dismissing the complaint is affirmed. (NOTE: The decision is per curiam).

Coca-Cola Co. V. Koke Co.

Issue: is Coca-Cola entitled to protection as a trademark even thought the term does not accurately represent the product? Rule: at common law, a symbol or mark used to identify a business or product was protected in the use of that trademark. By using another's trademark (or similar trademark), a business could lead consumers to believe that its goods were made by the other business application: coca cola probably means to most persons the plaintiff's familiar product to be had everywhere, rather than a compound of particular substances. it would be going too far to deny the plaintiff relief against a palpable (readily evident) fraud because possibly here and there an ignorant person might call for the drink with the hope for incipient cocaine intoxication. the plaintiff's position must be judged by the facts as they were when the suit was begun, not by the facts of a different condition and an earlier time. Conclusion: the trial court's injunction against the Koke company of America was reinstated