Intellectual Property & Internet Law

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owning intellectual property is about two rights:

1. right to control who uses the intellectual property 2. right to profit from the intellectual property

types of patents

1. utility patents 2. design patents 3. plant patents

TRIPS Agreement

1994, representatives from more than 100 countries signed establishes standards for the international protection of intellectual property rights

America Invents Act

2011, first person to file a patent application receives patent protection

Lanham Act of 1946

Congress has granted protection to manufacturers from losing business to rivals that use confusingly similar trademarks

copyrights are protected by:

Copyright Act of 1976

What is in the trademark registration application?

identifies the mark and how it will be used

When can a trademark be registered?

if it is already in use or if the mark will be used in interstate commerce with 6 months

copyright infringement

if the form or expression of an idea is copied or copied in part

suggestive mark

indirectly describes a product's function or association and bring to mind something about a product without describing the product

trade secret

information or a process that gives a business a commercial advantage over competitors that do not know the information or process

remedies for patent infringement

injunction, request damages for royalties and lost profits, reimbursement for attorneys' fees may be available in some circumstances, triple or what are called treble damages

copyright

intangible property right granted by federal statue to the author or originator of certain literary or artistic productions

example of suggestive mark

logo for national bus carrier Greyhound Lines includes a greyhound dog which may suggest what the company is in the transportation business

Economic Espionage Act

makes theft of trade secrets a federal crime

trade name

name used in commercial activity to designate a particular business, indicates part or all of a business's legal name

intellectual property

property resulting from intellectual, creative processes - the products of an individual's mind

utility patents

protect a product's function

copyright laws apply to:

protected expressions, which means work must be original and "fixed in a durable medium"

example of trade dress with Cracker Barrel

rocking chairs and checker boards on the front porch, country store goods and motif inside, employees with brown aprons

example of things on an iPhone protected by a patent

shape, inner circuitry, and other components

trademark dilution

situation where someone or a business uses a distinctive or famous trademark such as McDonald's or Apple from unauthorized use even if the use is on non-competing goods or is unlikely to confuse

example of things on an iPhone protected by copyright

software, apps

example of counterfeit goods

street vendor selling very cheap goods that have manufacturer's trademark, but may not be made by that manufacturer

example of first sale doctrine

the author can control the original sale of a book, but not whether you resell it

trademark infringement

the unintentional or intentional substantial copying of a mark

example of what a copyright does not protect

the written mystery novel, but not the idea for the novel

Why is the protection of trademarks important?

to protect manufacturers from losing business to rival companies

trademark registration

to receive federal trademark registration under the Lanham Act, the owner must file an application with and pay a fee to the US Patent and Trademark Office

collective mark

used by members of a coop, association, union, or other organization

certification mark

used by one or more persons, other than the owner, to certify the region, materials, or other characteristics of specific goods or services

plant patents

valid for 20 years, protect a new type of plant that is reproduced asexually through grafting, not by planting of seeds

patent iinfringement

when a business makes, uses, or sells another inventor's patented design, product, or process without permission

example of a secondary meaning

LONDON FOG is associated with trademarked coats containing "London Fog" labels made by a particular company

example of utility patent

Michael Jackson shared ownership of a utility patent for a special shoe with a slot in the heel to lean forward in his performance

example of a design patent

Prince had a design patent for a portable electronic keyboard that only protected the appearance

SCMGA

Stop Counterfeiting in Manufactured Goods Act criminalized the intentional trafficking in counterfeit goods and imposes penalties for counterfeiting

example of service mark

UPS or Fed Ex

copyrights are registered with:

US Copyright Office

example of certification mark

Underwriters Laboratories, uses a mark UL in a circle, manufacturers send products to UL and they test them, if they meet their standards they will place their logo on it

example of fanciful mark

Xerox and Kodak

injunction

a court order directing the offending party to stop infringing on the owner's rights

first sale doctrine

copyright owner no longer has the right to control the distribution of a copy of the work once he or she gives away or sells a copy of that work

Copyright Act excludes

copyright protections for and "idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied" protects tangible expression of an idea, but not the underlying idea itself

example of generic terms

could not obtain a trademark for the mark COMPUTER for use on a computer

example of trade dress

distinctive decor, menu, and style of service of a restaurant

trademark

distinctive word, symbol, sound, or design that identifies the manufacturer as the source and distinguishes its products from other

service mark

distinguishes services

generic terms

entitled to no protection

arbitrary mark

existing words that do not describe the product or service

Computer Software Copyright Act

extended copyright protection to include computer programs in the list of creative works protected by federal copyright law

strong marks

fanciful, arbitrary, or suggestive trademarks are most distinctive

patent

government grant that gives the inventor the exclusive right to make, use, and sell an invention for 20 years

example of things on an iPhone protected by a trademark

Apple logo, iPhone name

example of arbitrary mark

Apple uses an apple, but not apples or apple products

example of a collective mark

Girl Scouts and Boy Scouts

Uniform Trade Secrets Act

adopted by 47 states, protects trade secrets

Federal Trademark Dilution Act

allows trademark owners to sue in federal court for trademark dilution

to be patentable:

an invention must be an item that is novel and not "obvious" exception of the laws of nature, natural phenomena, and abstract ideas can be for improvements of existing machines

Berne Convention

applies to copyrights

Patent Cooperation

applies to patents

Madrid Protocol

applies to trademarks

design patent

apply to new, original, and ornamental design protect the appearance of a product rather than the function

secondary meaning

arises when customers associate a specific term of phrase with specific trademarked items

What does intellectual property include?

books, computer files, apps, movies, music, patents, trademarks, and copyrights

trade dress

broad concept that can include all or part of the total image or impression created by a product of its packaging

remedies for trademark infringement

can sue for damages, but the most common remedy is an injunction

copyright "fair use" exception

certain persons or organizations can copy materials without penalty applies to materials used for education, new, and research

penalties for copyright infringement

civil remedies of actual or statutory damages of a set amount, and potential criminal prosecution

example of things trademark protects for Pepsi and Coca-Cola

colors and fonts

Where does trademark protection come from?

common law at the state level, and statutory protection under federal law

fanciful mark

words that give no indication of the good or service


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