Business Law : Lec 7
Why is it important?
its an important asset.
are trademarks International protected?
nope. US PTO only protects in the US... not the world Must file for protection in each country ->Every country may have different trademark regulations
utility patent
protects the functionality of an invention -composition of matter is important -most patents are utility patents -*valid for 20 years* -date runs from time patent filed _____________________________________________________________ Invent, discover or improve, a new process, useful machine, device, manufactured item, or composition of matter (i.e. chemical compound)
Trademarks: *What can't be trademarked?*
-flags(US or any state, municipality or foreign nation) -generic names & names that have become generic names -immoral/scandalous marks -geographic names standing alone -marks resembling existing registered marks
copyright duration
*Authors/individuals*: *your lifetime +70 years* *Publishers/businesses*: the shorter of *95 years after publication* or *120 years after creation* After these periods, anyone can publish/sell
Mickey Mouse and Copyrights
- they were able to extend their copy rights and patents by rereleasing movies for commercial usage and they also slightly change their characters over time.
What can't be patented?
-abstract/scientific principles (Einstein's theory of relativity) -public use doctrine
design patent
-appearance -a patent that may be obtained for the ornamental nonfunctional design of an item -*valid for 14 years* -Example: design of chair, doorknob, perfume bottle
No Electronic Theft Act (NET Act) ( sn)
-makes it a crime for a person to willfully infringe on a copyright
Digital Millenium Copyright Act (DMCA) ( sn)
-prohibits unauthorized access to copyrighted digital works by circumventing encryption technology or the manufacture and distribution of technologies designed for the purpose of circumventing encryption protection of digital works
plant patents
-roses have the most
Patents: Infringement
-unauthorized use of another's patent -a patent holder may recover damages, harm, preventing further use, and destruction of ones currently being wrongfully used
Lanham (Trademark) Act
1) establishes the requirements for obtaining a federal mark and 2) protects trademarks from infringement
when patents have been infringed , an owner can do the following:
1. *Compensatory damages *- equal to royalty rate of the infringed articles + Other damages to compensate for damages from infringement (e.g. loss of customers) 2. *Order to destroy* all infringing articles 3.*Injunction preventing* infringer from such action in the future
Trade Secrets: Remedies
1. Civil action 2. Economic Espionage Act 3. Reverse engineering is okay
Copyright: Infringement Remedies
1. Profits made from copyright infringement 2. Any damages suffered by plaintiff 3.Order requiting destruction all infringing works Injunction preventing infringer from future infringement
Registration with United States Copyright Office
1. Registration of copyright is voluntary 2. Protection is automatic once in tangible form. *To prosecute a copyright violation: must register with U.S. Copyright Office.*
Uniform Trade Secrets Act (UTSA)
1.Provides statutory protection to trade secrets 2.Adopted by majority of states -> States that have not adopted have state common law providing protection
what can be patented?
1.design patents 2.plant patents 3.utility patnet
Trademark Requirements
1.*Distinctive*, OR 2. *Have acquired a secondary meaning *(brand name that has evolved from an ordinary term) *Must be used in commerce (i.e. actually used in the sale of goods or services)* ex: Fedex, Google ex: Nike, Just Do It, McDonald's I'm Lovin' It
patent requirements ( all three needed)
1.*Novel* - Has not been invented or used in the past 2.*Useful* - Has some practical purpose 3. *Non-obvious or apparent to a reasonable person*
Copyright: *Criminal Copyright Infringement*
1.Crime to willfully infringe on copyrighted material for a financial gain where retail value of copyrighted work exceeds *$1,000. * 2.* Imprisonment for up to 5 years and fines up to $100,000*
Source of Trademark Law
Congress enacted the *Lanham Act providing *federal protection to trademarks State law can provide additional trademark protections
one-year "on sale" doctrine ( *public use doctrine)*
A patent may not be granted if the invention was used by the public for more than one year prior to the filling of the patent application
TM
A symbol that designates an owner's legal claim to an unregistered mark that is associated with a product
SM
A symbol that designates an owner's legal claim to an unregistered mark that is associated with a service
provisional application ( SN)
Application that an inventor may file with the PTO to obtain three months to prepare a final patent application
Civil Action-Misappropriation of a Trade Secret
Available if trade secret obtained through unlawful means Recovery includes: (1) *p*rofits made by offender (2) *d*amages against offender and (3) *i*njunction prohibiting offender from continuing to use trade secret Note: -state court
*Trade dress* ( other type of trade mark)
Distinctive décor, menu, or style or type of service ( think in-n-out)
*Economic Espionage Act (EEA) of 1996*
Federal crime to steal another's trade secret for their own benefit. (Congress very broadly defines a trade secret) *Penalties:* up to 15 years jail for each violation and $10million/each act _______________________________________________________________ -federal court
Trademarks: Infringement
File a trademark infringement suit Plaintiff must prove: 1.Mark is used in an unauthorized manner 2.Use is likely to cause confusion, mistake, or deception of the public as to the origin of the goods or services Plaintiff can recover: 1.Profit made from trademark infringement 2.Any damages suffered by plaintiff 3.Order requiring impoundment and destruction of the infringement works 4.Injunction preventing infringer from such action in the future 5.*Treble damages* (triple actual compensatory damages) where intentional infringement is found
Patent Application
Filed with PTO - very complicated and detailed procedure
*Patent*
Grants a property right to the inventor with *exclusive rights to use* and exploit their patents for a* limited amount of time. * Issued by the Patent and Trademark Office ("PTO") ( federal government) -authorized monopoly of your product
Copyright:* Contributory Copyright Infringement*
Illegal to assist another party in copyright infringement ex: think of the guy selling fake purses and his landlord knew.
Patent period
Inventions are protected for 20 years Note:(design patents are for 14 years) Period begins to run from date patent application is filed Once period expires, the invention or design becomes public domain and can be produced and sold without paying the patent holder
Trademarks
Is any distinctive word, design,logo, phrase, symbol or device (image or appearance) or combination , that *identifies or distinguishes one's goods or products from others. * = it ids a product with a business -Example: Coca Cola -registered with PTO -last 10 years, but entitled to renewing them for unlimited 10 year periods (essentially forever) - *for product*
*Servicemark*
Is the same as a trademark except that it identifies and distinguishes the source of a service - *for services* -ex: fedex
Copyright: *Berne Convention*
Law eliminated the need to place the © or the word copyright on a copyrighted work.
Trademark duration
Original mark is valid for 10 years *Can be renewed for an unlimited number of 10 year periods*
Copyright: *Fair use doctrine*
Permits use of copyrighted material without consent for limited uses (e.g. scholarly work, parody, satire (e.g. SNL), news quotes). -permits certain limited use of a copyright by someone other than the copyright holder without the permission of the copyright holder examples: (1) quotations (2) use in parody (3)brief quote in news report (4)use by teacher or student in small part of lesson (5)incidental reproduction in a newscast (6) use in legislative or judicial proceeding
Trade Secrets
Proprietary, confidential business information that sets a business apart from its competitors ( *gives competitive advantage*) anything a business would want to keep confidential e.g. product formulas, patterns, compilations, program device, method, technique, or processes Note: ->Trade secrets may also be subject to patents, copyrights or trademarks. ->*Protection lasts indefinitely * Examples: Coca Cola recipe, KFC batter 11 herbs and spices what protects trade secrets? -> *UTSA ( United trade secrets act)
*Copyright*
Protection provided to the authors of original works including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. *Protects only tangible items* (artworks, writings, photographs, movies, etc.) _____________________________________________________ -a legal right -gives the author of qualifying subject matter, and who meets other requirements established by copyright law... -the exclusive right to publish, produce, sell, license, and distribute the work -it HAS to be tangible -ex: artwork, writings, photographs, movies -anything written, drawn, produced, recorded
Trademarks: Federal Dilution Act
Protects famous marks from dilution, erosion, blurring, or tarnishing Requirements: -Mark must be famous -Use of other party *must be commercial* -Use must cause dilution of the distinctive quality -*No harm is required*
Intellectual Property (IP)
Refers to "creations of the mind, -literary and artistic works - designs - symbols -patents -copyrights -trademarks -trade secrets - names and images * used in commerce* -Federal and state laws *protect* intellectual property rights from misappropriation and infringement
Trade marks: Registration with United States Patent and Trademark Office ("PTO")
Registration provides nationwide effect Registrant is entitled to use ® symbol (but its use is not mandatory)
Owners of a trade secret must:
Take all reasonable precautions to prevent that secret from being discovered by others -Reasonable in light of what the trade secret is -Precautions an owner can take: 1. Non disclosure agreements 2. Covenant not to compete 3.Restricting access to and physical segregation of information 4.Mark documents with warnings and remind of confidentiality *Failing to do above, owner may lose protection of unfair competition laws* i.e. if the information is public knowledge
Certification marks ( other type of trade mark)
Used to certify that a good or service* meets a certain quality or originates* from a particular region
Source of Patent Law?
U.S. Constitution Art. I, Sect. 8: Congress shall have the Power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" *No state statutes on patents (Federal preemption) * - i.e its a federal thing.
Source of Copyright Law
U.S. Constitution Art. I, Sect. 8: Congress shall have the Power to "To promote the Progress of Science and useful Arts, by securing for limited Times to *Authors and Inventors *the exclusive Right to their respective Writings and Discoveries" No state statutes on copyrights (Federal preemption) i.e a federal law.
Priority of patents
US follows a first-to-file rule i.e meaning how ever files for it first gets it.
*Collective Marks* ( other type of trade mark)
a mark that indicates that a person has *met the standards set by an organization* and is a member of that organization Example: CPA is certified public accountant
example:
effiel tower night lightening: protected by copyright! Mike Tyson's Facial Tattoos- copy right Cadbury Chocolate? trademark Statute of Liberty- copy right? Google Search Algorithm- patents and trade secrets Starbuck's Coffee Logo- copyright.
