TWC451 Final

Assuming that a trademark qualifies for protection, rights to a trademark can be acquired in one of two ways:

(1) by being the first to use the mark in commerce; or (2) by being the first to register the mark with the U.S. Patent and Trademark Office ("PTO")

ownership of a copyright or any exclusive rights under a copyright, is distinct form ownership of any material object in which the work is embodied.

True

For works published after 1977, if the work was written by a single author, the copyright will not expire until _______ years after the author's death. If a work was written by several authors and published after 1977, it will not expire until 70 years after the last surviving author dies.

70

In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including:

: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent.

the owner of a famous mark to seek additional remedies in an action if the person against whom the injunction is sought:

first used the mark or trade name in commerce after the date of enactment of this act; willfully intended to trade on the recognition of the famous mark; or willfully intended to harm the reputation of the famous mark.

ShareAlike (sa)

is a copyright licensing term, originally used by the Creative Commons project, to describe works or licences that require copies or adaptations of the work to be released under the same or similar licence as the original.

Digital rights management, or DRM,

is a general term used to describe any type of technology that aims to stop, or at least ease, the practice of piracy

dilution by tarnishment, including:

(1) any fair use of a famous mark by another person other than as a designation of source for the person's own goods or services, including for advertising or promotion that permits consumers to compare goods or services, or identifying and parodying, criticizing, or commenting upon the famous mark owner or the owner's goods or services; (2) all forms of news reporting and news commentary; and (3) any noncommercial use of a mark.

Most fair use analysis falls into two categories:

(1) commentary and criticism, or (2) parody.

In deciding whether a mark is famous, the courts will look to the following factors:

(1) the degree of inherent or acquired distinctiveness; (2) the duration and extent of use; (3) the amount of advertising and publicity; (4) the geographic extent of the market; (5) the channels of trade; (6) the degree of recognition in trading areas; (7) any use of similar marks by third parties; (8) whether the mark is registered.

when determining whether a mark or trade name is likely to cause dilution by blurring, including:

(1) the degree of similarity; (2) the degree of inherent or acquired distinctiveness of the famous mark; (3) the extent to which the owner of the famous mark is engaging in substantially exclusive use of the mark; (4) the degree of recognition of the famous mark; (5) whether the user of the mark or trade name intended to create an association with the famous mark; and (6) any actual association between the mark or trade name and the famous mark.

First, trademark law is designed to protect consumers These include:

whether the trademark is being used on competing goods or services (goods or services compete if the sale of one is likely to affect the sale of the other) whether consumers would likely be confused by the dual use of the trademark, and whether the trademark is being used in the same part of the country or is being used on related goods (goods that will likely be noticed by the same customers, even if they don't compete with each other).

Work for Hire Doctrine

· a work prepared by an employee within the scope of his or her employment · a work specially ordered or commissioned for use

Nonexclusive licensing agreement needs to be writing

false, oral permission is sufficient. a exclusive licensing does.

trademark, a mark must be

-- that is, it must be capable of identifying the source of a particular good.

exclusive license

a license that grants the licensee exclusive rights to use informational rights for a specified duration

According to the law of most U.S. states, a trade secret may consist of any formula, pattern, physical device, idea, process or compilation of information that both:

1. provides the owner of the information with a competitive advantage in the marketplace, and 2. is treated in a way that can reasonably be expected to prevent the public or competitors from learning about it, absent improper acquisition or theft.

"stare decisis,"

A Latin phrase meaning "let the decision stand." Most cases reaching appellate courts are settled on this principle. this involves lower courts making decisions that are consistent with decisions of higher courts in the same jurisdiction or area.

Trademark:

A distinctive word, phrase, logo or other graphic symbol that is used to distinguish one product, company or organization from another. Trademarks seek to protect against customer confusion.

Nonexclusive licensing agreement

A licensing arrangement in which several people or companies are granted licensing rights to products and services by the licensor

Fair Use Doctrine

Allows a user to make a copy of all or part of a work within specific parameters of usage, even if permission has not been granted.

Executive Agreement:

An agreement between the President of the United States and the leader of a foreign country that has not been ratified by Congress. An executive agreement is binding as federal law only where it is not inconsistent with any other federal law

Treaty:

An agreement between the United States and one or more foreign countries that has been ratified by the Senate. A ratified treaty has the full force of federal law in American law.

Patent Electronic Filing System:

An electronic system for submitting patent applications, and pre-grant publication submissions to the USPTO via the Internet. The system was developed and is maintained as part of the USPTO's website.

The Digital Millennium Copyright Act of 1998 makes disabling a DRM system illegal in the United States, but many people actively seek and publish methods to bypass DRM restrictions.

True

The law of patents provides significant, broad protection for a limited period of time in order to provide an incentive for invention.

True

Works published in the U.S. after 1923 but before March 1, 1989

Generally, if a work was published without copyright notice under the authorization of the copyright owner and the law does not provide an exception for the omission, the work is in the public domain

Fair Use Considerations

Has the material you have taken from the original work been transformed by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

Which of the following are true about ICANN?

ICANN is the central repository for IP addresses ICANN coordinates the Internet's naming mechanism. Created by a government organization

Work for hire conditions

Control by the employer over the work. For example, the employer determines how the work is done, has the work done at the employer's location, and provides equipment or other means to create the work. 2 Control by employer over the employee. For example, the employer controls the employee's schedule in creating the work, has the right to have the employee perform other assignments, determines the method of payment, or has the right to hire the employee's assistants. 3. Status and conduct of employer. For example, the employer is in business to produce such works, provides the employee with benefits, or withholds tax from the employee's payment.

The most common and most effective way to protect trade secrets is through use of nondisclosure agreements (NDAs).

Courts have repeatedly reiterated that the use of nondisclosure agreements is the most important way to maintain the secrecy of confidential information

NonCommercial (NC)

Creative Commons licensing. Means you can use work in your own creative work as long as you don't charge for it.

Derivative Works Exception

Even if a transfer is terminated, a derivative work made before termination can continue to be used by the transferee

The other way to acquire priority is to register the mark with the PTO with a bona fide intention to use the mark in commerce Applications for registration are subject to approval by the PTO. The PTO may reject a registration on any number of grounds

True

Developing nations want greater IP protection.

False

Trade Secret:

Confidential information regarding the process, method or design that a manufacturer or seller uses to design, market or otherwise develop a product.

The US has always granted copyrights to foreign authors.

False

The law demands intermediaries such as YouTube to take down content immediately in response to a notice, without evaluating the claim for reasonableness or accuracy, or considering the fair use rights of users. If YouTube doesn't abide by the notice, it loses its immunity and subjects itself to copyright liability.

DMCA

Copyright Registration

Establishes a public record. Establishes prima facie validity of copyright. Is a prerequisite for an infringement suit. (although can register after the infringement, but then only sue for actual damages, not statutory damages) Allows owner to register with U.S. Customs Service for protection from importation of infringing copies.

Works published in the U.S. before 1924

In the public domain

Works published in the U.S. after 1923 but before 1964

Initial term of 28 years. If not renewed during the 28th year, the work falls into the public domain.

Thousands of works published in the United States before 1964 fell into the public domain because the copyright was not renewed in time under the law in effect then.

True

Today, federal law provides the main, and by and large the most extensive, source of trademark protection, although state common law actions are still available.

True

Trademark rights can also be lost through genericity. Sometimes, trademarks that are originally distinctive can become generic over time, thereby losing its trademark protection

True

Dilution is therefore different from trademark infringement,

because trademark infringement always involves a probability of customer confusion, whereas dilution can occur even if customers wouldn't be misled.

The Digital Millennium Copyright Act (DMCA) contains two main sections that have been a source of particular controversy since they went into effect in 2000.

The "anti-circumvention" provisions (sections 1201 et seq. of the Copyright Act) bar circumvention of access controls and technical protection measures. The "safe harbor" provisions (section 512) protect service providers who meet certain conditions from monetary damages for the infringing activities of their users and other third parties on the net.

The CCE

The CCE is, basically, printed and bound volumes of copyright registration and renewal records. Like a card catalog in print, if you will. The Copyright Office published the CCE in printed format from 1891 through 1978. From 1979 through 1982 the CCE was issued in microfiche format. The catalog was divided into parts according to the types (classes) of works registered.

Intellectual Property:

Ownership interest by an individual or entity in creations of the human mind that may be protected under the law.

Joint Authorship

Prepared by two or more authors with intention that the contributions be merged into inseparable or interdependent parts of a unitary whole has the right to use/profit without permission of the other authors

Patent:

Protection provided by the law for the inventions or discoveries of a person or entity or for the procedures developed by such person or entity.

Copyright:

Protection provided by the law to an individual or entity for original works produced by that author. Copyright law protects the authors of original works.

United State Patent and Trademark Office:

The agency in the United States Department of Commerce which provides patent and trademark protection to inventors and businesses for their inventions and product identification.

Receiving a patent, however, is hard work, and often involves a lengthy back-and-forth process between the applicant and the PTO patents go through a screening process before being granted statutory protection.

True

Library of Congress:

The largest library in the world, with more than 130 million items on approximately 530 miles of bookshelves. In addition, it serves as the research arm of Congress. It houses copies of every work ever duly registered with the copyright office.

Independent Discovery:

The occurrence of a person developing a process or product on his or her own that is already patented by somebody else.

Reverse Engineering:

The process of taking a product apart and analyzing its components, for the purpose of designing or building a new product that does the same thing as the original one.

ICANN

To reach another person on the Internet you have to type an address into your computer - a name or a number. That address has to be unique so computers know where to find each other. ICANN coordinates these unique identifiers across the world. Without that coordination we wouldn't have one global Internet.

2019, copyright has expired for all works published in the United States before 1924.

True

Acknowledgment of the source material (such as citing the photographer) may be a consideration in a fair use determination, but it will not protect against a claim of infringement.

True

Copyright law does not protect ideas; it only protects the particular way an idea is expressed

True

Copyright law does not protect the titles of books or movies, nor does it protect short phrases such as, "Make my day." Copyright protection also doesn't cover facts, ideas, or theories. These things are free for all to use without authorization

True

Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

True

Creative Commons licenses are drafted to be enforceable around the world, and have been enforced in court in various jurisdictions

True

However, CC licenses are not revocable once granted unless there has been a breach, and even then the license is terminated only for the breaching licensee.

True

Intellectual property right enforcement is the responsibility of the right holder, although in some cases it can be reported to US federal agencies.

True

Modifications to a public domain work may be protected by copyright and cannot be used without permission.

True

Often an author creates a work by selecting various public domain components and grouping them together. If the selection, coordination, and arrangement of the material is unique, it will be protected as a copyrightable compilation.

True

collective works

Where a work consists of separate, independent, individual works of authorship. Each of the authors in a collective work enjoy copyright in their individual work.

Dilution occurs when someone uses a famous mark in a manner that blurs or tarnishes the mark. In other words, dilution diminishes the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of:

competition between the owner of the famous mark and other parties, or likelihood of confusion, mistake, or deception (15 United States Code, Section 1527).

The only categories of works for which CC does not recommend its licenses are

computer software and hardware

noderivatives (nd)

You let others copy, distribute, display and perform only original copies of your work. If they want to modify your work, they must get your permission first.

Open-Source License

a type of license for computer software and other products that allows the source code, blueprint or design to be used, modified and/or shared under defined terms and conditions.

Derivative Work

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work".

compilations

a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship

Noncompete agreements

agreements that prohibit individuals who leave an organization from working with an employer in the same line of business for a specified period of time

CC licenses

copyright licenses, and depend on the existence of copyright to work. CC licenses are legal tools that creators and other rights holders can use to offer certain usage rights to the public, while reserving other rights. Those who want to make their work available to the public for limited kinds of uses while preserving their copyright may want to consider using CC licenses.

public domain"

creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it.

There are five important elements in a nondisclosure agreement:

definition of confidential information exclusions from confidential information obligations of receiving party time periods, and miscellaneous provisions

A digital rights management scheme operates on three levels:

establishing a copyright for a piece of content, managing the distribution of that copyrighted content and controlling what a consumer can do with that content once it has been distributed. To accomplish this level of control, a DRM program has to effectively define and describe three entities -- the user, the content and the usage rights -- and the relationship between them.

Defendants in a trademark infringement or dilution claim can assert basically two types of affirmative defense:

fair use or parody.

Trade secrets

intellectual work or product belonging to business, not in the public domain

government works

is not available for any work of the United States government. officer of employee of the US government. not to independent contractor

The phrase "All Rights Reserved"

is often used by owners to indicate that they reserve all of the rights granted to them under the law.

Design patents

patents that are granted when someone has invented a new and original design for a manufactured product

plant patents.

patents that recognize the discovery of new plant types that can be asexually reproduced

Utility patents

protect useful processes, machines, articles of manufacture, and compositions of matter.

United States Copyright Office:

provides expert assistance to Congress on intellectual property matters. advises Congress on anticipated changes in U.S. copyright law. analyzes and assists in drafting copyright legislation and legislative reports. provides and undertakes studies for Congress. offers advice to Congress on compliance with international agreements.

Fair Use

the conditions under which you can use material that is copyrighted by someone else without paying royalties

four common ways that works arrive in the public domain:

the copyright has expired the copyright owner failed to follow copyright renewal rules the copyright owner deliberately places it in the public domain, known as "dedication," or copyright law does not protect this type of work.

First Sale Doctrine

the doctrine that allows purchasers of a copyrighted work to resell it or rent it out

Some examples of potential trade secrets include:

the formula for an energy drink survey methods used by professional political pollsters recipes for cookies a new invention for which a patent application has not yet been filed marketing strategies manufacturing techniques, and computer algorithms.

Instruction and rules

the functional elements of such works are not protected, but their purely expressive elements are protected.

Licensing

the legal process whereby a licensor allows another firm to use its manufacturing process, trademarks, patents, trade secrets, or other proprietary knowledge

The four factors judges consider are:

the purpose and character of your use the nature of the copyrighted work the amount and substantiality of the portion taken, and the effect of the use upon the potential market.

Copyright Notice

the word Copyright, Copr., ©, the year of publication, and the name of the copyright holder - Copyright © 2001 Joe Doakes; not required under agreements of the Berne Convention.

Attribution (BY)

this license lets others remix, tweak, and build upon your work even for commercial purposes as long as they give credit for there work

transformative uses

those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

You do not register with the government to secure your trade secret; you most simply keep the information under wraps. Trade secret protection lasts for as long as the secret is kept confidential without any statutory limitations period.

true

copyright protection does not require registration

true. a work is copyrighted when it is fixed in tangible form.