BLaw Exam 3

trade secrets: secrecy requirement

"Secrecy" depends on the state of the art in the field and how "unique" the information is: If information would be DIFFICULT to replicate/duplicate, then trade secret protection is possible.

certification mark

"certifies" product/service characteristics like region of origin or produced by x, or quality, but owner of the mark does not actually own, manufacture, or sell the product

International Protection of IP: Paris Convention of 1883

*Allows parties in any of the approximately 180 member countries to file for patent and trademark protection in any of the other member countries.

Exceptions to Sovereign Immunity

*BUT Foreign governments are NOT immune from U.S. Jurisdiction I a. Foreign state waived immunity; b. Foreign state has engaged in "commercial activity" within U.S. or that has a direct effect on U.S. c. Foreign state has committed a tort or crime in the U.S. d. Foreign state has been designated a "state sponsor of terrorism"

First Sale Doctrine: Physical Object vs. IP embodied on the object

*Copyright Owner can determine how, when and where to distribution the FIRST sales of the work, but once a copy has been sold/distributed, the copyright owner no longer controls the physical object *HOWEVER, the copyright owner RETAINS rights to the copyright interest in the original creative expression EMBODIED on the physical object. Therefore, no additional "copies" of the work can be made.

Paraphrasing and Copyright

*Copyright includes BOTH verbatim copying AND mimicry of expression, presentation and organization of content, etc.

Actual damages for copyright infringement

*Copyright owner must establish proof of "actual damages"--how much loss did copyright owner actually suffer.

Copyrights in Digital Information

*Creation of Unauthorized copies = INFRINGEMENT of copyright holder's "Reproduction Right" *Sharing of Unauthorized copies = INFRINGEMENT of copyright holder's "Distribution Right" *Public Display of Unauthorized copy = INFRINGEMENT of Copyright holder's "Display Right"

International Protection of IP:ACTA—Anti-Counterfeiting Trade Agreement

*Goal is to increase international cooperation, create global law enforcement measures that are tougher than TRIPS, and provide a legal framework to combat counterfeiting

Registration of Copyright

*In the event an infringement lawsuit arises, a copyright owner who registers within the correct time period can be awarded statutory damages and/or attorneys fees *not mandatory

ORIGINALITY

*Independently Created by the author, not copied *At least some minimal degree of Creativity is required

NO copyright PROTECTION for the following:

*Individual words *Ideas *Work's theme *Work's Plot *Factual information *Other non-original "common" elements.

Meta Tags

*Key words a website owner inserts into a field. *Search engines search for these "key words" (meta tags). *Meta tags can be used to drive business to your site, but they can also be used inappropriately by others

3-D Build (Actual Constructed Building)

*Protected as "Architectural Works" *Copyright Protection ONLY for buildings constructed AFTER 1990 *only can copyright parts of the building that aren't visible to the public outside

Plans/Blueprints

*Protected as EITHER a)"Architectural Works" OR b)"Pictorial, Graphic, and Sculptural works"

what does the public display act not cover

*The public display right does NOT include phonorecords/sound recordings * "Public Performance Right."

TWO ICANN Arbitration Options

*UDRP ("Uniform Domain-Name Resolution Policy) *URS (Uniform Rapid Suspension System)

Types of Works Protected as Literary Works

*Virtually anything that is written. This includes software programs, video games, etc.

Public Display Right

- gives copyright owners the exclusive right to display/show their works to the public - An owner of a copy MAY display the copy to the public so long as 1.The copy is lawful 2.The display is either a DIRECT display or a display of the projection of a single image at a time 3.The display must be made to viewers PRESENT at the location of the copy (no transmissions permitted) ***Cant put the painting on the internet as a background ad to his store or put in the window so the people on the street can see it *Only an image displayed in PUBLIC can be infringed under the Public Display Right.

Employment at Will

-A common law doctrine under which either party may terminate an employment relationship at any time for any reason, unless a contract specifies otherwise -Traditional doctrine that governs Employment Contracts

processes/methods

-Any process, act, or method; -Primarily includes industrial or technical processes

You WANT your mark to receive the greatest protection possible, so. . .

-Avoid use of descriptive terms in the mark; -Do NOT advertise goods using terms used in the mark as descriptive -If your mark IS descriptive, make EVERY effort to avoid using the mark as a DESCRIPTION within any of your sales, ads, marketing, information literature or promos Ex: Boston duck tours- didn't police mark and other companies started calling their land/water tours duck tours. Ended up losing trademark because they used their trademark to describe what they sold and became a common household name associated with all land/water tours

How is Medicare Funded?

-BOTH employee and employer MUST contribute -There is no "cap" ceiling for wages taxed—your ENTIRE modified adjusted gross income (MAGI) is taxed. -High income earners must pay an additional tax on all earnings over $200,000 (employer DOES NOT PAY this)

COBRA

-Consolidated Omnibus Budget Reconciliation Act -Entitles employee who has lost job to continue health care coverage under the employer's health plan for up to 18 months -Employee is eligible if he is fired OR if he quits UNLESS employee is fired for "gross misconduct" -Employee MUST PAY ALL health plan premiums

Pictorial, Graphic, Sculptural Works

-Copyrightable so long as they contain original expression. -Cannot be a "Useful Object."

Google Books and Hathitrust

-Digitizing book databases (only small part of book released) -Authors sued both -1) Court ruled that it was so transformative and beneficial to society it was ok -4) Argued it wasn't infringing on author's book market

Internet Corporation for Assigned Names and Numbers (ICANN)

-Distributes domain names and keeps a registry (designates companies to do help) *Registration Fee for Domain Names *Annual Fee for Domain Name -Operates an arbitration system to resolve domain name disputes (more later . . .)

ECPA

-Electronic Communications Privacy Act -prohibits interception and disclosure of wire, oral, or electronic communications without employee Consent

ERISA

-Employee Retirement Income Security Act -Management Standards for private retirement plans 1) Record-Keeping; 2) Investment of Funds; 3) Vesting 4) Pension Benefit Guaranty Corporation

Private Retirement Plans

-Employers are NOT REQUIRED to establish private retirement plans (like pension plans, 401(k) plans, etc.) BUT -IF an Employer establishes a private retirement plan, the plan MUST comply with federal act (law) called "ERISA" (Employee Retirement Income Security Act)

Where does money come from for unemployment?

-Employers that are covered are taxed from paycheck -Self-Employed individuals are usually not entitled to unemployment benefits UNLESS their business paid unemployment tax.

FMLA

-Family and Medical Leave Act -Federal act that allows employees to take time off from work for family or medical reasons. (parents, spouse, children sick) (birth of child)

Income Security

-Federal and/or State Insurance Programs that help employees (and families) during critical life changing events: -Retirement -Disability -Death -Hospitalization -Unemployment

Medicare

-Federal health insurance program -You are eligible if you or your spouse is eligible to receive Social Security benefits AND you are A.65 years or older; OR B.under 65 IF you have certain disabilities C.Additional categories (not covered in class) *need 40 credits for this too

Minimum Wage

-Federal: $7.25 / hour -State: may have HIGHER minimum than federal- work is entitled to higher state minimum wage -Company: if Google has a company minimum wage of $10, you must at least get that even if higher than minimum wage (state/federal)

Edward Snowden

-He told news that NSA was invading public policy -He had signed a nondisclosure agreement -Left work with flash drive of information and is now working in Russia so kinda concerning

HIPAA

-Health Insurance Portability and Accountability Act -Establishes administrative requirements employer health care plans must meet; and -Mandatory policies and procedures to protect privacy and security of employee's private health information *cant discriminate against employer who has more medical problems than others

can you get workers comp and sue

-If employee accepts workers' compensation, the employee MAY NOT sue for injuries caused by employer's negligence. -(Conversely, employer may not claim traditional defenses to negligence like claims that employee assumed the risk or was contributorily negligent.)

Microsoft v. AT&T

-MICROSOFT LIABLE for Patent Infringement IN THE UNITED STATES when code was incorporated Into computers MADE or SOLD IN THE U.S. -MICROSOFT NOT LIABLE for Patent Infringement when code was incorporated into computers MADE or SOLD In FOREIGN COUNTRIES

OSHA

-Occupational Safety and Health Act -FEDERAL legislation imposes DUTY on Employers to keep workplace SAFE!! -An employer CANNOT fire or discriminate against an employee who does not work because (s)he believes the workplace is unsafe - must make employees aware of potentially dangerous situations

Statutory damages for copyright infringement

-Potential Damage Award for each infringement -innocent or willful (can get jail time)

First-Inventor-to-File (FITF)

-Protection begins on DATE OF FILING patent application -First-Inventor-To-File Receives Patent Protection as of DATE OF FILING for: 20 Years - Inventions and Plants 15 Years - Designs Ex: invention filed for patent on Jan 1 2020 will go till Jan 1 2040 even if patent wasn't approved until July 1 2020. ***AFTER term expiration, patent passes into the public domain

Private Companies exempt from EPPA (MAY require lie detector tests)

-Security companies -Companies that manufacture and distribute controlled substances -Employers who are investigating thefts (including embezzlement and theft of trade secrets)

Suggestive Marks

-Suggestive marks evoke or "suggest" a characteristic of the goods -Some imagination or thought may be needed to identify the nature of the goods -Suggestive marks are inherently distinctive and afforded a high degree of trademark protection ex: blue-ray=high def, greyhound=bus service

Generally, who is eligible to receive unemployment benefits?

-Those who have lost jobs due to no fault of their own -Must meet requirements for wages earned or time worked during a one-year period -Must claim benefits within x months of loss of job -Must remain willing, able, and available to work -You must actively search for work OR pursue education or training

PROPER USE OF A MARK to Secure Federal (and often state) Registration

-Trademark may only be registered when mark is "used" PUBLICLY "in the ordinary course of trade."

"Control Test"

-Traditional IRS test used to distinguish employees from IC's -Control Questions: Does Employer Control ex: location of work, finances, type of relationship - if yes=IC

Composition of Matter

-chemical compositions; -includes mixtures and new chemical compounds

collective mark

-indicates MEMBERSHIP in a group, association, or collective (some marks can be BOTH certification and collective marks) Ex: CPA certification, members are permitted to displace this mark

Manufacture

-refers to all articles that are made

Derivative Works

-takes a 1st generation work and recasts, transforms, or adapts that expression in an original way to create a new 2nd generation work -A second generation creator MUST get PERMISSION (a license) from the first generation author to create a derivative work

types of marks

-trademark -service mark -trade name -trade dress - certification mark - collective mark A mark Can be ALL THREE or any TWO of categories above: Example: IBM is used as a trademark, service mark, and a trade name

Meta Tags and Trademark Infringement

-unauthorized use of another's trademark in a meta tag can be trademark infringement Ex: sporting company metatag field- baseball, sneakers, etc. Cant include things like Nike or Adidas (trademark infringement and dilution) without permission

To prove the defendant "copied" the work, the plaintiff must prove EITHER

1) Direct evidence of copying OR 2) Indirect (circumstantial) evidence of copying proved by meeting both elements of the following test: A) Access AND B) Substantial similarity

Employee Polygraph Protection Act (EPPA)

1) MOST Private Employers with 2+ employees and $500,000 in business: -NOT PERMITTED to require or request that employees or applicants take lie detector tests 2) ALL Public Employers -EXEMPT from EPPA (and MAY require lie detector tests)

Purposes of Trademark

1) Source Indicator to Consumer!! 2) Quality Assurance 3) Symbol of Goodwill 4) Marketing and Advertising Device

REGISTRATION TIME PERIOD to Preserve Rights to claim Attorney Fees and Statutory Damages

1)BEFORE INFRINGEMENT OR 2)Within 3 months after the first publication of the work

Average purchaser standard DOES NOT INCLUDE

1)Side-by-side comparisons or 2)Perfect recall by the average purchaser

WHAT can you PATENT?

1-processes/methods 2-Manufacture 3-Composition of Matter

Federal trademark registrations certifications

1. 5-6 years after the INITIAL registration must file a certification of use in commerce; and 2. Registration must be renewed every 10 years and must include certification of use in commerce. ◦Exception: if initial registration was pre-1990, then renewal must occur every 20 years

Owner of Trade Secret must prove that the alleged infringer:

1. Knew or had reason to know that the information was a trade secret AND 2. a. the alleged infringer acquired the trade secret by "improper means" OR b. Used or disclosed the trade secret without the consent of the owner

Trade Secrets: Requirements

1. The kind of information protected must give the owner a COMPETITIVE EDGE over the competition 2. The owner must make a reasonable effort to keep the information secret

Two Tests Used to Determine Employee v. IC Status

1.Control Test (most commonly used) 2.Economic Realities Test (not on the exam)

Test for Overtime (for eligible employees)

1.Employee worked overtime but was not paid for the overtime hours; AND 2.Employer knew or should have known employee worked overtime hours

State Workers' Compensation Laws is financed how

1.Employer may purchase insurance OR 2.Employer may pay claims (a form of "self insurance"

Requirements for State Workers' Compensation Benefits

1.Existence of an Employment Relationship 2.An accidental injury that occurred "on the job" or "in the course of employment," regardless of fault. *doesn't matter if employee is negligent and causes injury 3.Prompt Notice by employee to a)Employer (30 days) and b)State (60 days - 2 years)

Plaintiff must prove defendant's mark creates a "likelihood of dilution" by proving:

1.Plaintiff owns a famous mark that is distinctive 2.Defendant using an identical or similar mark in commerce in manner that dilutes the plaintiff's famous mark 3.Similarity between Plaintiff's and Defendant's marks creates an association between the marks 4.The association is likely to impair the distinctiveness of the Plaintiff's mark (dilution by blurring) or harm its reputation (dilution by tarnishment).

Remedies for Copyright Infringement

1.Tort Damages 2.Injunctive relief (if monetary damages are deemed inadequate 3.Criminal fines and/or Imprisonment IF infringer is deemed "willful"

FMLA: Military

26 weeks of military caregiver leave within a 12 month period if family member is seriously injured or become ill as a result of active military duty. 12 weeks of qualifying exigency leave to take care of non-medical emergencies when a family member is called into active duty.

Frosty Treats sells frozen desserts out of ice cream trucks that are decorated with a picture of a clown. Twisted Metal, a video game series created by Twisted Metal Corp., included an ice cream truck driven by a clown character that was very similar to the Frosty Treats clown. In the last video game in the Twisted Metal series, the ice cream truck is labeled, "Frosty Treats." If Frosty Treats sues Twisted Metal for trademark infringement, which of the following statements is correct? A. Frosty Treats will lose if the court determines the term "Frosty Treats" is a descriptive term that has not acquired secondary meaning (as such, it is not distinctive) B. Frosty Treats will win if the court determines the mark is generic.

A

Frank downloaded 100 movies from the internet. Frank was aware that downloading movies from the sites he used was illegal. Assuming a court determines that Frank is a willful infringer, what are the maximum damages a court may order Frank to pay? A.100 x $150,000 = $15,000,000 B.100 x $30,000 = $3,000,000

A *charged for each movie (100) *charge range 750-150,000 *if innocent range 750-30,000

Descriptive

A Descriptive Mark either: 1.Provides information about the product/good -an ingredient, quality, characteristic, function, feature, component, purpose, etc. of the relevant good. OR 2.Uses a geographic term OR 3.Is a personal name

Medicaid

A STATE program (rules vary by state) Eligibility: generally for low income individuals

Act of State Doctrine

A doctrine providing that the judicial branch of one country will not examine the validity of public acts committed by a recognized foreign government within its own territory.

copyright

A form of property ownership that gives creators and owners of creative works the right to control and profit from use of those works

Trade Secret

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

are pictures copyrightable?

A photograph is copyrightable if it is original in A)rendition (angle of shot, light and shade, exposure, effects achieved by filters, and developing techniques; B)timing (selecting when to take the photograph; C)creation of the subject (choosing what to include in the picture)

Patent

A property right granted by the U.S. government that gives an inventor the "right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention

Trademark

A trademark is "any word, name, symbol, or device . . or any combination thereof. . . used . . . to identify and distinguish his or her goods . . . from those manufactured and sold by others and to indicate the source of the goods, even if that source is unknown."

Four Categories Used to Assess Distinctiveness of an intended or actual Trademark

A. Generic (DEADLY FOR A MARK!) ◦(least distinctive—no trademark protection) B. Descriptive (Must acquire "secondary meaning") C. Suggestive (very distinctive - protectable immediately ) D. Arbitrary or Fanciful (most distinctive—highest level of trademark protection - protectable immediately)

causes of action for trademark misuse

A. Infringement "Likelihood of Confusion Test" B. Dilution "Likelihood of Dilution Test"

To win a copyright infringement action, the copyright owner must prove:

A. Ownership of a valid copyright in the work that is the subject of the dispute B. Defendant copied the work C. The Defendant's copying was an improper appropriation

What forms and types of "marks" are protected under federal and state trademark protection statutes/laws?

All marks that identify and distinguish products of one company from products of another *many types ex: Design: Burberry check, numbers: Chanel #5, slogans: "just do it", shape: coke bottle, sound: NBC chimes, color(rare) T-Mobile shade of pink

Napster and Grokster cases

Allowed for full copy and downloading of music, deemed as copyright infrigment

Who is the "author"? Works Made for Hire

An employer owns the copyright in any work made by an employee within the scope of his/her employment. The employer is considered to be the "author," not the employee/creator.

Patents and Foreign Countries

An inventor from "Country A" who wants patent protection for a product made or sold in a foreign country ("Country B" ) must apply for and receive patent protection in Country B.

injunction

An order which legally prevents something -Usually temporary; -Can only be awarded a permanent injunction IF the patent holder proves 1) irreparable injury and 2) public would not be disserved by a permanent injunction

musical copies

Any material object (other than a phonorecord), in which a work is fixed. Example of a copy: written lyrics, written musical score, books, magazines, etc.

Items that are NOT Copyrightable

Anything NOT "fixed" in a tangible form Titles, names, short phrases, slogans; familiar symbols or designs; mere variation of typographic ornamentation, lettering, coloring; mere listing of ingredients or contents Works consisting entirely of information that is common property containing no original authorship Works authored by the U.S. government. Works that have passed into the public domain

COMPILATIONS of FACTS

Are copyrightable, but the compilation must be "original." ex: Chrissy Teigen's cookbook

is SS working in the future

At present, by 2034 the current funding scheme (payroll taxes) will only be enough to pay app. 77 cents for each dollar of scheduled benefits.

"Business-Extension Exception"

BUT the "Business-Extension Exception" to the ECPA states that the act DOES NOT APPLY TO ANY COMMUNICATIONS THROUGH DEVICES OWNED OR PROVIDED TO THE EMPLOYEE FOR BUSINESS USE!!!

copyright notice ex: "© 2019 Karen Maull"

Beneficial because: 1) Notice informs public work is protected, and identifies the year of first publication and the owner; 2) In the case of an infringement, the notice prevents infringer from raising defense of "innocent infringement." ***not required

Yong is employed by Fickle Corp. Who pays into the social security system to make sure Yong is eligible to receive benefits when he is 67?

Both Yong and Fickle Corp.

Skanky Sex Toys has made a series of mechanical "pleasure toys" that include a depiction of Mickey Mouse stamped on each product. Skanky did not receive a license from Disney to use the Mickey Mouse character. If Disney sues Skanky Video in court which of the following is likely correct: A. A court will hold that Skanky diluted Disney's trademark and, as such, Skanky IS liable for trademark dilution; B. A court will determine Skanky is NOT liable for trademark infringement because there is little likelihood consumers would confuse Skanky's product with Disney's product; C. Both A and B are correct

C

Generic words used In COMBINATION MAY NOT be "Generic" marks

Combining or blending of multiple "generic" terms MAY create a non-generic mark capable of receiving trademark protection. Court must consider the "phrase as a whole" to determine whether or not entire phrase is generic. Examples: Rent-A-Wreck (Car Rental) -- Descriptive EverReady (Batteries) - Descriptive or Suggestive Shoetique (Boutique for Shoes) -- Descriptive or Suggestive Roach Motel - (Insect trap) Suggestive

What are "Arbitrary and Fanciful" marks?

Common words applied in way that bears no logical relationship to the underlying good OR "Made-Up" words ex: kodak=camera, Xerox=copier, goggle=search engine, Levis= jeans

Copyright Infringement

Copyright infringement occurs when the defendant copies WHOLE OR PART of the copyrighted work without the copyright owner's permission

Expression

Copyright only protects the EXPRESSION of the author's idea when it is fixed in a tangible medium

What Creative Expressions Does Copyright Protect?

Copyright protection original works of authorship fixed in any tangible medium of expression Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

Starbucks Coffee V. "SamBucks" Coffee

Court held Sambuck's Coffee had 1) INFRINGED on Starbuck's TM AND 2) DILUTED (reduced the value of) Starbucks' trademark by blurring

You own a store that uses a highly stylized "+ " (a stylized image will be shown in class) sign for its logo. This logo is an original design. In addition, the logo for your store has become very well known -- when customers see this logo they immediately think of your store. You want to make sure no other store owner uses your logo. You wish to protect your IP rights. What form(s) of protection would be the most appropriate for you? (Choose all answers that apply.) A. Trademark B. Patent C. Copyright D. Both A and C are correct E.A, B, and C are correct

D

Descriptive Marks:"secondary meaning"

Descriptive marks are NOT inherently distinctive, so they must acquire secondary meaning in order to receive trademark protection. When consumers have learned to associate a mark with the source of origin, we say that mark has acquired "secondary meaning." ex: car freshener=car deodorizer, world book= encyclopedias

How does a mark acquire "distinctiveness"?

DistinctivENESS of a mark can be either: A. Inherent OR B. Acquired through "secondary meaning"

trade name

Distinguishes/identifies a company's NAME *cant have without already having a trademark or service mark or both

service mark

Distinguishes/identifies source of Service

Brianna's company sells hand cream. Brianna's company has received trademark protection for use of its mark on hand cream products in Pennsylvania. Drew's company also sells hand cream in Pennsylvania and has decided to use a mark that is virtually identical to Brianna's. If Brianna sues Drew in court, a court will likely hold what?

Drew is liable for trademark infringement

ESPN v. Quiksilver

EXPN sues Quilksilver for use of X in snowboarding because they use it for X Games ***A highly stylized LETTER can be an "Arbitrary or FanciFul" Mark

public policy

Employee cannot be fired if termination violates public policy

Implied Contract: What are contract terms?

Employee's "Reasonable Expectations"

when must a company provide leave time?

Employers with 50+ employees must provide up to 12 weeks of unpaid family or medical leave in any 12 month period for any employee who has worked for over 1 yr

What category of worker do "Employment laws" generally cover?

Employment laws generally cover "employees" NOT those doing work as "independent contrators."

Phoenix Corporation hired Erika to make whistles. Under the terms of the agreement, Erika was to be paid a fixed sum without benefits, she was to craft the whistles in her shop, she could use any suppliers she choose, and she had 3 months during which to complete the project. If a dispute arises and a court must determine Erika's employment status, which of the following is the most likely outcome?

Erika is an independent contractor

Terry Wells Playboy

Ex: Terry Wells, Playboy Playmate of the year, Terry made her own website and used meta tags with "Playmate of the Year" - Showed that her use was reasonably necessary and didn't show owner authorized use *Terry Wells won under nominative ruling

Coca-Cola Co. v. Koke Co. of America (1920): Likelihood of Confusion Test

Ex: can trademark terms customers made up even if company didn't even think of it itself (nickname Coke for coca cola) -Coke successfully sued Koke --didn't win trademark infrigment case on Dope soda company (not close enough)

Hasbro, Inc. v. Internet Entertainment Group, Ltd. The Candy Land Case

Ex: candyland.com registered as porn site, Hasbro sued for trademark dilution (not infringement because not selling competing goods) *Hasbro won

The Rights of Authors in Copyright

Exclusive right to: (1) to reproduce the copyrighted work (2) to prepare derivative works based upon the copyrighted work (3) sell or other transfer of ownership, or by rental, lease, or lending (4) to perform the copyrighted work publicly (5) to display the copyrighted work publicly (6) to perform the copyrighted work publicly by means of a digital audio transmission

Act of State Doctrine is sometimes used as justification for what?

Expropriation- having a reason to do it, legal AND/OR Confiscation- just taking it, illegal

True or False: All employers are required to provide retirement plans.

False

Social Security

Federal program that provides retirement benefits, survivors' benefits, and disability insurance.

Employee Privacy Rights and the First Amendment

First Amendment Free Speech protection: -ONLY applies to GOVERNMENT EMPLOYEES

International Protection of IP: Berne Convention of 1886

If a citizen of one of the approximately 169 signatory countries has copyright protection in his home country, all other signatory countries will recognize the copyright interest in their countries. Also, if a citizen of a non-signatory country first publishes a book in a signatory country, all other signatory countries will recognize the copyright interest in their countries.

operability

If a machine has been designed to perform a task, the machine must actually be able to perform that task to be deemed "useful."

Federal Trademark Protection Against Trademark DILUTION

If the Plaintiff's mark is FAMOUS, dilution prohibits unauthorized use of an identical or similar mark on -Directly COMPETING goods/services; OR -Non-competing but RELATED goods/services; OR -On non-competing and/or non-related goods/services WHEN consumers ASSOCIATE the original mark with the unauthorized mark. ****doesn't have to confuse the consumer (but may) it reduces value of mark in some way

Remedies for Patent Infringement

Injunction. Damages for royalties. Reimbursement for attorney's fees and costs.

What type of "property" does copyright law protect?

Intellectual PROPERTY

WIPO = "World Intellectual Property Organization"

International Treaty designed to provide greater international copyright protection.

Anticybersquatting Consumer Protection Act (ACPA)

It is ILLEGAL to "register, traffic in, or use" a domain name IF 1)The domain name is identical to OR confusingly similar to the trademark of another 2)IF the person registering, trafficking in, or using the domain name has a "bad faith intent" to profit from the trademark

What is one legal tool that would permit you to LEGALLY use the intellectual property rights owned by another?

License

FICA (Federal Insurance Contributions Act)

MANDATORY contributions: BOTH EMPLOYERS AND EMPLOYEES MUST contribute. Self-Employed persons MUST ALSO pay the tax. - don't split w/ employer so shitty

"Source indicator to Consumers"

MOST IMPORTANT FUNCTION OF A TRADEMARK -Prevent consumer confusion by prohibiting any confusing or misleading use of a name or symbol when the use may confuse consumers about the origin of the product ex: Nike Swoosh

Domain Names and Trademarks

Many trademark owners use their trademark as part of a domain name (part of an internet address). ex: http://psu.edu

Inherently Distinctive

Marks that are "arbitrary" or "fanciful" are considered HIGHLY DISTINCTIVE and are offered a very HIGH DEGREE of trademark protection.

PHONORECORD

Material object in which sounds are fixed (EXCEPTION: Music that accompanies a motion picture or other audiovisual work.) "Sound Recordings" are embodied on "phonorecords." Example: CD's, MP3's, cassette tapes, etc.

design patent

May be granted to anyone who invents a new, original, configuration, shape, or ornamental design for an article of manufacture Ex: apple home button design (originally protected) (design didn't change the utility)

Utility Patents

May be granted to anyone who invents or discovers any new and useful •Process •Machine •Article of manufacture Composition of matter

Child 14 - 15 Years

May work, but cannot be employed in hazardous jobs or jobs detrimental to health or well-being •Working time and Maximum hour restrictions apply

Burger King in Mattoon, Illinois

Mom and pop burger shop selling under the name Burger King before Burger King Corp. originally registered trademark. They didn't know mom and pop burger king existed because they never registered their name. Ruling by USPTO: Mom and pop given protection in their reign of Illinois. Rest of country Burger King Corp. got trademark protection.

Musical Works vs sound recording

Musical Works: Lyrics, music, melody, harmony, etc. Sound recording: literal recording

Generic

NO TRADEMARK for generic names/terms that function as the common/ordinary name for a product/good ****none of these examples were given TMs Ex: trademarking name "desk" or "soap" for desk or soap products Ex: Ohio State trademarking "THE" Ohio State Ex: Trump trademarking "you're fired!"

Gadget Co. had a new scooter in development. They had conducted studies on the safety of the scooter and on consumer interest. Gadget Co. wanted to keep its scooter a secret from competitors. By day they kept the scooter in a lab, but at night, Gadget Co. stored the scooter in an open public parking lot next to the company's headquarters. When Zippy Co. designed a scooter with a near identical look, Gadget Co. sued Zippy Co. for trade secret infringement. Will Gadget Co. likely win?

No, because Gadget Co. likely failed to take reasonable steps to protect the secrecy of the scooter.

Are sound recordings protected to the same extent as other works?

No. Sound recordings are offered less protection than other works.

"Intellectual Property"

PRODUCTS OF THE mind

Medicare: Basic Program

Part A: Hospital Insurance: -Automatic for most people if individual or spouse worked (paid for by Medicare taxes) *only thing you get with basic tax HA - Part B: Medical Insurance: -Must pay additional premium Part C: Medicare Advantage: -Permits you to opt to receive all your healthcare services through a provider organization. -You must opt in, and most plans require you to PAY - Part D: Prescription Drug Coverage: -You must opt in; plans are paid for by monthly premiums

International Protection of IP:TRIPS Agreement

Patents, Copyrights, and Trademarks for movies, computer programs, books, and music *States that each of over 100 signatory countries MUST: A. Enact domestic laws that provide broad IP protections (consistent with TRIPS standards) and effective remedies for violations; and B. Forbids member nations from discriminating against foreign IP rights owners in signatory countries In addition, TRIPS provides a dispute settlement procedure for member nations.

PBGC

Pension Benefit Guaranty Corporation -Independent federal agency created through ERISA legislation -GOAL: to provide "timely and uninterrupted" payment of private pension plan benefits

Lanham Act

Prohibits unauthorized use of an identical or similar mark likely to confuse a consumer on A. Directly COMPETING goods/services; OR Ex: two mascara companies B. Non-competing but RELATED goods/services; Ex: mascara company and makeup remover

FMLA Violation Remedies

Remedies Employer can be required to provide: 1.Damages to compensate employee for lost benefits, compensation, and actual monetary losses; 2.Job reinstatement; 3.Promotion (if employer denied a promotion) 4.Court Costs and Attorney fees (if employee wins suit) 5.2x damage award if employer engage in bad faith

Alternative Term: (for anonymous/ pseudonymous works AND works made for hire)

Shorter of a) 95 years from publication OR b) 120 Years from creation •select the year that arrives first

Non-Obviousness

Subject matter sought to be patented must be sufficiently different from what has been previously used or described, such that it would have been "nonobvious" to a person of ordinary skill in the area of expertise related to the invention.

Cybersquatting

The act of registering a domain name that is the same as, or confusingly similar to, the trademark of another and either 1) offering to sell that domain name back to the trademark owner OR 2) using that domain name in bad faith. ex: "typo squatting" registering a typo of Microsoft.com so people accidently go to the website

trade dress

The distinctive features of a product's packaging or the distinctive features of the product itself (image and overall appearance) that are protected under trademark law. Examples: Shape, Color, Texture *entire thing, not just particular logo Examples: UPS truck, Burberry plaid, shape of Pepperidge farm goldfish

One-Year Statutory Bar

The inventor only has ONE YEAR to apply for a patent from the date the invention is first 1)described in any publication available to the public 2)used publicly, or 3)placed on sale.

Likelihood of Confusion Test

The likelihood of confusion is evaluated from the perspective of the AVERAGE PURCHASER of that particular product. ***Who is the group considered to be an "average purchaser" of a particular product? Ex: toilet paper- everyone Welding product- specialized, only people who count in the average person test

Patent Infringement

The tort of patent infringement occurs if another makes, uses, or sells A) whole or part of another's patented 1) design or 2) product, or B) the entirety of another's patented 3) process C) without the patent owner's permission.

Conditions for Obtaining a Design Patent

To be patentable, a design must be A. An ornamental design embodied into or applied to an article of manufacture B. Novel (new) C. Non-Obvious (in light of prior discoveries) *cant get a utility and a design patent on the same specific aspect of a product

Conditions for Obtaining a Utility Patent

To be patentable, an invention must be •Useful •Novel (new) •Non-obvious (in light of prior discoveries)

International Protection of IP: Madrid Protocol

Trademark Application Process: Allows parties in any of the approximately 100 member countries to file for trademark protection in any of the other member countries by simply registering its application in the home country and designating other member countries where they would like to register the trademark as well

McGinley v. Franklin Sports, Inc.

Training Baseball with color-coded markings where fingers should be placed is "non-obvious" invention and patentable

DMCA (Digital Millennium Copyright Act)

U.S. law that implements the WIPO treaty *Limits the liability of ISP's (Internet Service Providers): *ISP is NOT liable for any copyright infringement by its customers UNLESS the ISP was AWARE of infringement AND failed to take steps to stop the infringement ex: flagging YouTube videos with copyright

Nominative uses

Use of another's trademark in a meta tag can be permissible IF the use is deemed nominative. Nominative uses are A. Reasonably Necessary (no good substitute exists) and B. Do not suggest the owner authorized or sponsored use

Line Drawing: descriptive vs. suggestive marks

VERY SUBJECTIVE LINE DRAWING!! Outcome of this "line-drawing" is hard to predict

Can a "Generic" word EVER be used as a trademark?

YES, as long as the word is "arbitrary" (has no meaning) when applied to a particular good. Example: Compare Word "Spoon" as Trademark for the following: a restaurant- its is not LITERALLY A SPOON

SS credits

You must earn CREDITS. *must work for 10 years to get SS Number of credits required for eligibility varies with age and type of benefit, but MOST people need 40 credits to qualify for Social Security benefits. As of 2020, every $1,410 in earnings earns one (1) credit. You can earn a MAX of 4 credits per year.

overtime

after 40 hours, paid time and half

Audio Home Recording Act (AHRA)

allow consumers to make digital copies of copyrighted music for private, non-commercial use using DIGITAL audio recordings

When Does Copyright Begin?

at the moment an original work is fixed in a tangible medium

Danielle lives in New York. Jessica lives in Los Angeles. The two have never met, do not share any acquaintances, and are unfamiliar with one another's work. If Danielle and Jessica independently create identical books, who can receive a copyright in the work?

both

Employment at Will exceptions

contract theory, tort theory, public policy

A mark must be WHAT to receive protection under the Lanham Act (Trademark Act)

distinctive

Doctrine of Sovereign Immunity

exempts foreign nations from the jurisdiction of the US courts

Contract Theory

if a contract exists, whether express or implied, that will control the employment arrangement

Drug Testing

if reasonable

Trade Secrets: POTENTIAL Duration of Protection

infinite

Duration of Copyright

life of author plus 70 years

Fair Use Doctrine

may use copyrighted material in certain situations The Four Factors (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.

You have worked for a company that provided benefits for your entire working life. You are now 65 and retired. Assuming you are not indigent, what federal program can you use to insure your medical care?

medicare

how many patents can a single item have?

multiple Example: MP3 Player— •Utility patent for a novel and non-obvious memory device + •Design patent for appearance

*Sumukh purchased Michael Jackson's "Thriller" album on CD. Sumukh made a copy of this CD for his personal use. Has Sumukh infringed on the Jackson estate's copyright in the CD?

no

After Kaan invented his widget on Jan. 1, 2019. He published a paper on his widget in a scientific journal on March 1, 2019. Thereafter, he gave public demonstrations and published additional papers on a regular basis. Kaan was so busy promoting his widget, however, that he did not file a patent application for his widget until July 1, 2020. Will the USPTO grant Kaan's patent application?

no

Anuja was injured on the job. Her injury occurred because her employer and a coworker had been negligent. She has filed a state worker's compensation claim and has begun receiving benefits, but she also wants to file litigation against her employer to obtain additional compensation for her injuries. Will Anuja be permitted to file a lawsuit?

no

Ben is an accountant. He works for a large accounting firm and earns a fixed salary. Ben usually works 40 hours per week, but for 8 weeks this year he worked 60 hours per week. Under the FLSA, is Ben entitled to 1.5 times his regular weekly wage for 20 hours per week for the 8 weeks during which he worked longer hours?

no

Bobby was hurt while commuting from his home to work on Monday morning. Can Bobby claim workers' compensation benefits for the injuries he received?

no

Dope Co. developed a new anti-aging beauty cream. They kept the formula closely guarded, but Eternal Life Co. bought a bottle of the product from Rite-Aid and reverse engineered a duplicate product. If Dope Co. sues Eternal Life Co. for trade secret infringement, will Dope Co. likely win?

no

is novelty required for copyright?

no

Matt is an improvisational comedian. His work is completely spontaneous, and he never writes down his jokes. Each performance is fresh and new. On Saturday night, Matt performed live at Eisenhower Auditorium. The performance was not recorded. Can Matt receive a copyright in the jokes he uses in the performance?

no -if audience member records show neither can use this to get copyright

Three years after Robert began working for his current employer, Robert's wife had a baby. Robert took off 8 weeks from work. Must Robert's employer pay Robert his regular salary during the time Robert took off? Assume large employer.

no-unpaid

ideas

not protected under copyright

Caveat to "Use": Intent-to-Use

o An applicant MAY file an "intent-to-use" application with the federal USPTO (to get claim on record and to establish a priority date), but mark is not secured until mark is publicly used—when mark is actually used publicly o Intent to Use: Mark must be placed in use within 6 months, but 6 month period MAY be extended by 30 months o Once actual public use occurs, registrant must file a "statement of use in commerce" following which the mark will be deemed registered as of date of filing of "intent to use" application

Principle of "Comity"

one nation will defer to and give effect to the laws and judicial decrees of another country, AS LONG AS those laws are CONSISTENT with the law and public policy of the accommodation nation

FLSA: Fair Labor Standards Act

regulates minimum wage, maximum hours & child labor laws

Tort Theory

termination could lead to a wrongful discharge claim

Three Types of Patents

utility, design, plant (not on exam)

Kaan invented a widget on Jan 1, 2019. This widget had never before been written about anywhere in the world, nor had anyone in the U.S. ever heard of such a thing. However, a small Amazon tribe deep in the jungle had invented and used a widget for over a thousand years. Does Kaan's widget meet the U.S. patent test for "novel/novelty" so that he may potentially patent his widget in the U.S.?

yes

Lydia created a beautiful drawing of the Bald Eagle forest in autumn. Lydia sold her drawing in stores downtown. Dylan loved Lydia's drawing, purchased a copy, then made a photocopy of the drawing. He hung the drawing in his bedroom and no one else ever saw the drawing. Has Dylan infringed Lydia's copyright?

yes

Matt was summoned for jury duty and was required to leave his job for two months. Upon his return, his employer said his position had been filled. Does Matt have a valid claim for wrongful discharge against his employer?

yes

Scientist created a product and claimed in the patent application that the product could "restore hair growth." When tested, the product improved hair growth by 25%. Would the patent examiners (USPTO) likely grant the patent?

yes

Types of Workers EXEMPT from Overtime 1.5 times pay (not entitled to additional pay)

•Administrative Employees •Executive Employees •Professional Employees *doctors/lawyers don't-make there own schedule *if you don't have digression over what you work you are entitled to overtime IF FIXED SALARY ON OUR EXAM=NO OVERTIME

Child under 14 Years

•Can only perform certain types of work like newspaper delivery, some agriculture, entertainment, work for parents: working times and hour restriction •Working time and Maximum hour restrictions apply

Employer is NOT required to pay wages BUT must:

•Continue Health Care Coverage; •After leave, reinstate employee to equivalent or better position (UNLESS employee is a "key employee"--pay falls within top 10% of employer's workforce)

Employer with 11 + employees must what under OSHA

•Keep record on every work-related injury or disease

NOT PATENTABLE list

•Laws of Nature •Physical Phenomenon •Abstract Ideas (includes algorithms) •Mere ideas or suggestions •Inventions created solely to utilize special nuclear material or atomic energy in an atomic weapon

State Workers' Compensation Laws

•Laws that establish an administrative procedure for compensation of workers for injuries that arise in the course of employment.

Child 16 - 18th Bday

•May work, but cannot be employed in hazardous jobs or jobs detrimental to health or well-being •NO restrictions on working times/max hours

Examples of common law "public policy" well-known mandates that limit the "employment at will" doctrine

•Refusal to Commit an Unlawful Act; •Fulfilling a Public Obligation •Exercising a Statutory Right •Whistleblowing in state that does not have a whistleblowing statute

Every Employer covered by OSHA MUST

•Report any work related death or 3+ hospitalizations within 8 hours of the incident *not including dying on job not because of workplace incident (ex: heart attack) •Report any other inpatient hospitalizations, amputations, or loss of an eye within 24 hours

How do you know what "public policy" is?

•Statutes (most often) •Common Law

novelty

•To be novel, prior to the date the inventor made the invention, the invention must NOT have: 1.Been known or used by others in U.S.; OR 2.Been described in a printed publication in ANYWHERE in the world

Examples of statutes that include "public policy" that limits the "employment at will" doctrine

•Whistleblowing Statutes Ex: can't get fired for reporting wrong doings •ADA (American's with Disabilities Act) Ex: can't fire someone if they become deaf without attempt to work around disability •FMLA (Family Medical Leave Act) Ex: childbirth, child gets cancer, ect. •OSHA Ex: if you feel unsafe at work, you cant be fired for not coming in (if you have a valid reason)