Ch.14 - Intellectual Property Rights

**Trademark

-A distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they may be identified on the market and their origins made known. Once a trademark is established (under the common law or through registration), the owner is entitled to its exclusive use.

**Patent

-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. The word patent usually refers to some invention and designates either the instrument by which patent rights are evidenced or the patent itself. -To be patentable, the applicant must prove that the invention, discovery, process, or design is novel, useful, and not obvious (in light of current technology). -Online database: www.uspto.gov

Collective Mark

-A mark used by members of a cooperative, association, or other organization to certify the region, materials, mode of manufacture, quality, or accuracy of the specific goods or services. Examples of collective marks include the labor union marks found on tags of certain products and the credits of movies, which indicate the various associations and organizations that participated in the making of the movies.

Certification Mark

-A 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, such a mark is referred to as a collective mark. Examples of certification marks include the "Good Housekeeping Seal of Approval" and "UL Tested."

Service Mark

-A mark used in the sale or the advertising of services, such as to distinguish the services of one person from the services of others. Titles, character names, and other distinctive features of radio and television programs may be registered as service marks.

Trade Names

-A term that is used to indicate part or all of a business's name and that is directly related to the business's reputation and goodwill. Trade names are protected under the common law (and under trademark law, if the name is the same as the firm's trademark).

Distinctiveness of the Mark

-A trademark must be sufficiently distinctive to enable consumers to identify the manufacturer of the goods easily and to distinguish between those goods and competing products. -Strong Marks: Fanciful, arbitrary, or suggestive trademarks are generally considered to be the most distinctive (strongest) trademarks. -Secondary Meaning: Descriptive terms, geographic terms, and personal names are not inherently distinctive and do not receive protection under the law until they acquire a secondary meaning.

Fair Use Doctrine

-An exception to liability for copyright infringement is made urn the Fair Use Doctrine, using material for criticism, comment, news reports, teaching, scholarship or research do not count as copyright infringement.

Counterfeit Goods

-Counterfeit goods copy or otherwise imitate trade-marked goods, but they are not the genuine trade-marked goods. The importation of goods that bear counterfeit (fake) trademarks poses a growing problem for U.S. businesses, consumers, and law enforcement. -In addition to the negative financial effects on legitimate businesses, certain counterfeit goods, such as pharmaceuticals and nutritional supplements, can present serious public health risks.

Patent Infringement

-If a firm makes, uses, or sells another's patented design, product, or process without the patent owner's permission, that firm commits the tort of patent infringement. Patent infringement may occur even though the patent owner has not put the patented product into commerce. -Patent infringement may also occur even though not all features or parts of a product are copied.

Remedies for Patent Infringement

-If a patent is infringed, the patent holder may sue for relief in federal court. The patent holder can seek an injunction against the infringer and can also request damages for royalties and lost profits.

Copyright Protection for Software

-In 1980, Congress passed the Computer Software Copyright Act, which amended the Copyright Act of 1976 to include computer programs in the list of creative works protected by federal copyright law

Trademark Dilution

-In 1995, Congress amended the Lanham Act by passing the Federal Trademark Dilution Act, which allowed trademark owners to bring suits in federal court for trademark dilution. In 2006, Congress further amended the law on trademark dilution by passing the Trademark Dilution Revision Act (TDRA) -Under the TDRA, to state a claim for trademark dilution, a plaintiff must prove the following: 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.

Anti-Counterfeiting Trade Agreement

-In 2011 Australia, Canada, Japan, Korea, Morocco, New Zealand, Singapore, and the United States signed the Anti-Counterfeiting Trade Agreement (ACTA), an international treaty to combat global counterfeiting and piracy. -Intention to increase international cooperation

Licensing

-In the context of intellectual property, a contract permitting the use of a trademark, copyright, patent, or trade secret for certain purposes. In the context of real property, a revocable right or privilege of a person to come on another person's land.

**International Protection for Intellectual Property

-International agreements in this area include the Berne Convention, the Trade-Related Aspects of Intellectual Property Rights (known as the TRIPS agreement), the Madrid Protocol, and the Anti-Counterfeiting Trade Agreement.

Intellectual Property

-Property resulting from intellectual, creative processes. Patents, trademarks, and copyrights are examples of intellectual property.

Trademark Infringement

-Registration of a trademark with the U.S. Patent and Trademark Office gives notice on a nationwide basis that the trademark belongs exclusively to the registrant. The registrant is also allowed to use the symbol ® to indicate that the mark has been registered. -Whenever that trademark is copied to a substantial degree or used in its entirety by another, intentionally or unintentionally, the trademark has been infringed (used without authorization).

TRIPS Agreement

-Representatives from more than one hundred nations signed the TRIPS agreement in 1994. The agreement established, for the first time, standards for the international protection of intellectual property rights, including patents, trademarks, and copyrights for movies, computer programs, books, and music. -The TRIPS agreement provides that each member country of the World Trade Organization must include in its domestic laws broad intellectual property rights and effective remedies (including civil and criminal penalties) for violations of those rights.

First Sale Doctrine

-Section 109(a) of the Copyright Act provides that "the owner of a particular copy or phonorecord lawfully made under [the Copyright Act], or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord." This rule is known as the first sale doctrine.

Madrid Protocol

-The Madrid Protocol is an international treaty that has been signed by eighty-six countries. Under its provisions, a U.S. company wishing to register its trademark abroad can submit a single application and designate other member countries in which the company would like to register its mark. The treaty was designed to reduce the costs of international trademark protection by more than 60 percent.

**Copyright

-The exclusive right of authors to publish, print, or sell an intellectual production for a statutory period of time. A copyright has the same monopolistic nature as a patent or trademark, but it differs in that it applies exclusively to works of art, literature, and other works of authorship, including computer programs.

Trade Dress

-The image and overall appearance of a product—for example, the distinctive decor, menu, layout, and style of service of a particular restaurant. Basically, trade dress is subject to the same protection as trademarks.

Remedies for Copyright Infringement

-Those who infringe copyrights may be liable for damages or criminal penalties. These range from actual damages or statutory damages, imposed at the court's discretion, to criminal proceedings for willful violations.

**Trade Secrets

-Trade Secret: Information or a process that gives a business an advantage over competitors who do not know the information or process. -State and Federal Trade Secrets: Under Section 757 of the Restatement of Torts, those who disclose or use another's trade secret, without authorization, are liable to that other party if: 1. They discovered the secret by improper means, or 2. Their disclosure or use constitutes a breach of a duty owed to the other party. -Trade Secrets in Cyberspace: Computer technology is undercutting many business firms' ability to protect their confidential information, including trade secrets.

Trademark Registration

-Trademarks may be registered with the state or with the federal government. To register for protection under federal trademark law, a person must file an application with the U.S. Patent and Trademark Office in Washington, D.C. Under current law, a mark can be registered 1. if it is currently in commerce or 2. if the applicant intends to put it into commerce within six months.

Berne Convention

-Under the Berne Convention of 1886, if a U.S. citizen writes a book, every country that has signed the convention must recognize the U.S. author's copyright in the book. Also, if a citizen of a country that has not signed the convention first publishes a book in one of the 165 countries that have signed, all other countries that have signed the convention must recognize that author's copyright. -Copyright notice is not needed to gain protection under the Berne Convention for works published after March 1, 1989. -In 2011, the European Union agreed to extend the period of royalty protection for musicians from fifty years to seventy years.

Copyright Infringement

-Whenever the form or expression of an idea is copied, an infringement of copyright has occurred. The reproduction does not have to be exactly the same as the original, nor does it have to reproduce the original in its entirety. If a substantial part of the original is reproduced, the copyright has been infringed.

Protected Expression

Section 102 of the Copyright Act explicitly states that it protects original works that fall into one of the following categories: 1. Literary works (including newspaper and magazine articles, computer and training manuals, catalogues, brochures, and print advertisements). 2. Musical works and accompanying words (including advertising jingles). 3. Dramatic works and accompanying music. 4. Pantomimes and choreographic works (including ballets and other forms of dance). 5. Pictorial, graphic, and sculptural works (including cartoons, maps, posters, statues, and even stuffed animals). 6. Motion pictures and other audiovisual works (including multimedia works). 7. Sound recordings. 8. Architectural works.