Chapter 8

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

(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 substantiality 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 copyrighted work

Trademark

A distinctive word, symbol, or design that identifies the manufacturer as the source of particular goods and distinguishes its products from those made or sold by others.

trade secret

A formula, device, idea, process, or other information used in a business that gives the owner a competitive advantage in the marketplace.

service mark

A mark that is used to distinguish the services of one person or company from those of another.

Collective Mark

A mark used by members of a cooperative, association, union, or other organization to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services.

Certification Mark

A mark 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 Name

A name that a business uses to identify itself and its brand. A trade name that is the same as the company's trademarked product is protected as a trademark, and unique trade names are protected under the common law.

Patent

A property right granted by the federal government that gives an inventor an exclusive right to make, use, sell, or offer to sell an invention in the United States for a limited time.

Licensing

An agreement by the owner of intellectual property to permit another to use a trademark, copyright, patent, or trade secret for certain limited purposes

The U.S. Patent and Trademark Office requires that a registered trademark or service mark be put into commercial use within six months. Extensions can be granted but the mark must be put into commercial use within three years after the application has been approved. Why do you think the federal government established this requirement?

It is because some organizations take trademark registrations, but never use them and other companies in the need of appropriate trademark face many problems in selecting their trademarks. To serve the purpose of representation, it is necessary to implement the trademark .

A mark can be registered when:

(1) if it is currently in commerce (2) if the applicant intends to put it into commerce within six months.

interllectual property

Property resulting from intellectual and creative processes.

The 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. The agreement provides that each member country of the World Trade Organization must include in its domestic laws broad intellectual property rights, as well as effective remedies (including civil and criminal penalties) for violations of those rights

You will need to be aware the following of a brand or other product identification often qualify for trademark protection.

1. Catchy phrases—Certain brands have established phrases that are associated with them, such as Nike's "Just Do It!" Note, though, that not all phrases can become part of a trademark or service mark. When a phrase is extremely common, the courts normally will not grant trademark or service mark protection to it. 2. Abbreviations—The public sometimes abbreviates a well-known trademark, and that abbreviation may be protected. For example, Budweiser beer is known as Bud and Coca-Cola as Coke. 3. Shapes—The shape of a brand name, a service mark, or a container can take on exclusivity if the shape clearly aids in product or service identification. Just about everyone recognizes the shape of a Coca-Cola bottle. 4. Colors—Color combinations can become part of a service mark or trademark. For instance, FedEx established its unique identity with the use of bright orange and purple. 5. Designs—Symbols and designs associated with a particular mark are normally protected. A good example is the small red tag on the back pocket of Levi's jeans. 6. Sounds—Protection can also be afforded to sounds, such as the familiar roar of the Metro-Goldwyn-Mayer lion.

To determine a mark's strength—that is, its distinctiveness—courts classify it along a spectrum ranging from strongest to weakest.

1. Fanciful and arbitrary marks are the strongest types and trigger the highest degree of trademark protection. 2. Suggestive marks are in the middle of the spectrum. 3. The two weakest categories are descriptive marks and generic terms.

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, catalogs, 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.

Generally, copyright owners are protected against the following:

1. Reproduction of the work. 2. Development of derivative works. 3. Distribution of the work. 4. Public display of the work.

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

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 either of the following is true:

1. They discovered the secret by improper means. 2. Their disclosure or use constitutes a breach of a duty owed to the other party.

The Berne Convention

1. Under the Berne Convention, an international copyright agreement, if a U.S. citizen writes a book, every country that has signed the convention must recognize her or his copyright in the book. 2. if a citizen of a country that has not signed the convention first publishes a book in one of the 169 countries that have signed, all other countries that have signed the convention must recognize that author's copyright.

Copyright

The exclusive right of an author or originator of a literary or artistic production to publish, print, sell, or otherwise use that production for a statutory period of time.

The Anti-Counterfeiting Trade Agreement

The goals of ACTA are to increase international cooperation, facilitate the best law enforcement practices, and provide a legal framework to combat counterfeiting. The treaty has its own governing body.

Trade Dress

The image and overall appearance ("look and feel") of a product. Basically, trade dress is subject to the same protection as trademarks.