Blaw 243 Exam 3

fmla leave : what happens? 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)

drug testing and public employers

-Fourth Amendment to the U.S. Constitution applies and prohibits "unreasonable searches," so drug testing is limited -By federal statute, drug testing IS permitted in limited circumstances including: ---Transportation industries; ---If drug use in a particular job may threaten public safety; ---If there is a "reasonable basis" to suspect the government employee is using drugs

copyrighttt

-Protects Original creative expression fixed in a tangible medium -Duration of protection is currently Life plus 70 years for a natural person; Work made for hire shorter of 95 years from date of publication or 120 years from date of creation.

composition

-chemical compositions; -includes mixtures and new chemical compounds -New drugs

Drug testing and private employers

-is governed by STATE LAW -Generally, testing must simply be "reasonable" -Random tests are ok

Types of Marks: trademark laws protects all types

1. Trademark - Distinguishes/identifies source of Product - Dell, IBM 2. Service Mark - Distinguishes/identifies source of Service Macys, olive G 3. Trade Name - Distinguishes/identifies a company's NAME 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

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.

Medicaid

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

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." Trademarks and the Importance of Symbols: "The protection of trade-marks [sic] is the law's recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. . . ." (Cont. on next slide)

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

ANSWER: All marks that Identify and distinguish products of one company from products of another. - Marks don't have to be visual - smell, sound

Motion Picture and other Audiovisual Works

All are copyrightable so long as composition is Original and "fixed" in a tangible medium.

trade secret

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

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 66? A. Yong B. Fickle Corp. C. Both Yong and Fickle Corp.

C Both young and Kickle Corp

not patentable

CANNOT BE PATENTED: -Laws of Nature - cant patent gravity lol -Physical Phenomenon -Abstract Ideas -Mere ideas or suggestions -Inventions created solely to utilize special nuclear material or atomic energy in an atomic weapon

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

Remedies for Copyright Infringement 1. Actual damages

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

fixed in a tangible medium

Definition of "FIXED" found in § 101: "A work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the copyright owner, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."

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 IF THE MARK IS FAMOUS

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

Drew is liable for trademark infringement If drew sells anything else that's not hand cream or related to hand cream he would be fine to use mark

Private Pension plans and ERISA

ERISA = Management Standards for private pension plans -Record-Keeping; -Investment of Funds; -Vesting (Most common rules are below) --Employee contributions vest immediately; --Employer contributions vest after 5 years -Pension Benefit Guaranty Corporation

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

Employment laws generally cover "_Employees_", NOT those doing work as "_independent contractors"

OSHA: occupational safety and health act

FEDERAL legislation: - Imposes DUTY on Employers to keep workplace SAFE!! -Establishes safety standards for various industries - If employer CANNOT fire or discriminate against an employee who does not work because (s)he believes the workplace is unsafe.

Exceptions to Copyright Infringement

Fair Use Exception -if got permmission First Sale Doctrine (See Earlier Slides)

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

False

minimum wage

Federal: $7.25 / hour State: may have HIGHER minimum than federal

Four trademark categories

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

Derivative Works: Copyright Ownership and the Public Domain

If a first generation work enters the public domain, 2nd generation creators are free to use the first generation work without permission.

employer with 11+ employees must...

Keep Records on every work related injury or disease;

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.

state workers compensation laws

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

design patents

May be granted to anyone who invents a new, original, configuration, shape, or ornamental design for an article of manufacture.

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

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

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 Yes possible to use someone else's meta tag if it s "nominative" use -Play boy bunny poses in playboy -Terri wells won an award - won playmate of the year -Created a personal website and in website she mentions her award -In her meta tag field she also included play boy playmate of the year in 1983 -Playboy leanred that she used key words in her meta tag -Playby sue -Court says nominative -Why? -Cause if you were play boy playmate of the year, how would you say that without using those words? There is no way

Copyright Protection for Computer Software - not protectable

Overall "look and feel" of the computer program including: -Appearance -Command structure -Menu -Windows

a descriptive mark either:

Provides information about the product/good; OR an ingredient, quality, characteristic, function, feature, component, purpose, etc. of the relevant good. Uses a geographic term; OR Is a personal name

generic

Rule: NO TRADEMARK for generic names/terms that function as the common/ordinary name for a product/good Rationale: Public interest in encouraging competition and avoiding monopolies:

True or false: Employers must provide Notice when an absence will count as authorized FMLA leave.

TRUE

Unauthorized use of another's trademark in a meta tag can be trademark infringement. true or false?

True

DMCA

U.S. law that implements the WIPO treaty

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)

You, the consumer, can rent DVD's from Redbox. Each time you rent a DVD, do you have to pay the copyright owner?

no you just pay redbox

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."

Important test for infrinement

"LIKELIHOOD OF CONFUSION as to the SOURCE of the Product" (ie. Will the consumer be confused about WHO MADE THE PRODUCT??)

Private Pension Plans

"Pension Benefit Guaranty Corporation (PBGC)" -Independent federal agency created through ERISA legislation -GOAL: to provide "timely and uninterrupted" payment of private pension plan benefits ---How? PBGC Collects annual insurance premiums paid by the pension plans ---Insurance pays benefits IF plan becomes unable to pay

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.

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 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

copyright exclusions

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. (Exclusion has been interpreted to include facts, although facts are not explicitly listed). copyright never protects something with a "useful" intention

Control test questions

- When and where work is done; - Tools and equipment used; - Where supplies and services are purchased; - Who must perform specific work; - Order or sequence of work tasks

public policy - exception to employment at will

- employee cannot be fired if termination violates public policy

implied contract as an exception to employment at will

- employee's "reasonable expectations" - - Look for some way that employer notified you of termination policy but gave you reasonable expectation to believe that you could keep your job

forms of intellectual property

- trademarks -patents -copyrights -trade secrets

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 Grown in idaho Energy star rating Woolmark Good housekeeping Potatoes from idaho

derivative works

-A "derivative work" 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.

process

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

Standard for "Likelihood of Confusion"- Average purchaser

-Average consumer of toilet paper is everyone -If two different welding companies have similar logo, have to figure out if this will cause confusion to consumer -Have to ask consumers who weld a lot if they would be confused - in court

Important Provisions of DMCA

-Civil and criminal penalties for those who bypass antipiracy software protections; -Prohibits manufacture, import, sale, and distribution of technology and services that bypass antipiracy protections -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

Coke v Koke

-Competitor came and named product "KOKE" -Coca cola sued for trademark infringement -Other company argument: coca cola was based off of ingredient of coke -Try to claim that coca cola as a name was deceptive to consumers cause made it look like coke was still in it -Court say no matter -Now, every time you see coke logo you recognize it -Coke won -Similar logo -And consumers started calling it coke, so coke was given trademark protection Koke infringed on cokes trademark

paraphrasing and copyright

-Copyright includes BOTH verbatim copying AND mimicry of expression, presentation and organization of content, etc. (Note: Statutory Exception for sound recordings—mimicry is OK.) -When talking about copyright, when mimicking work, that is considered copyright infringement if underling work is copyrighted -I own copyrighted sound recording That means I own physical copy of mp3 file -If someone else cuts and pastes file into work, they infringe -If cover band were to take sound recording and perform sound on own, that's ok - they performed it live

statutory damages

-Copyright owner is entitled to damages award for EACH infringement. -For example, if an infringer infringes 22 songs, the copyright owner is entitled to statutory damages for at least EACH song. -In addition, depending on the type of infringement, the infringer may be liable for multiple acts of infringement in relation to EACH song. Example: Infringer violates copyrights holder's(or holders') Performance Right and Reproduction Right = TWO infringements

factors of "control test" - types of relationship:

-Does a written contract exist and does it DESCRIBE the relationship; -Does employer pay benefits; -Is relationship one-time or long term; -Are worker's services a critical part of employer's ongoing business

trade secret and heart valve

-Heart valve development company wants to protect valve and want employees to know that this heart valve belongs to your company --Tell all company that it is a trade secret --Only tell employees working on valve the info about the valve --All employees must know and sign non-disclosure causes ------Can uphold liable if secret is out --Example of things to claim- -----Research studies --Once working valve is developed, can claim parts as a trade secret, and may patent protect other parts due to trade secret drawbacks

workers comp v litigation Injury through employer's negligence:

-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, was contributorily negligent, or that injury was cause by a "fellow servant."

Copyright Protection for Computer Software - protectable

-Original "human-readable" code or story -Original binary language source code (computer readable) -Program structure, organization, sequence

Registration of Copyright is not REQUIRED, but can be beneficial

-Owner must register the copyright with the U.S. Copyright Office before filing suit. -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.

Dilution in the Online World

-Porno site created a site called candy land -Hasbro freaked out and filed a suit against them -Hasbro kids company won -Court said that hey. This is dillution -and that can happen online too -Their trademark was super super famous

employee privacy rights

-Privacy Protection for Employees of Private Employers: -Some protections for Employees exists under ---Tort Law (Tort of Invasion of Privacy) ---State Constitutions ---State and Federal Statutes

Term of patent protection under new "america invents act" First-Inventor-to-File (FITF)

-Protection begins on DATE OF FILING patent application for: ----20 Years - Inventions and Plants ----14 Years - Designs AFTER term expiration, patent passes into the public domain. -If I file patent today on November 28, any competitors out there who think there is a problem with my patent - you only have 9 months to challenge my patent

patents

-Protects inventions, discoveries and designs -Protected when FILED with USPTO if USPTO grants protection -Protected for 20 years for utility patents, 14 years for design patents but protection during those 20 years is most significant

trademarksss

-Protects word, name, symbol, or device to identify goods or services and distinguish them from those made or sold by others -First to use the mark owns the mark -Protected forever SO LONG AS a source indicates mark remains significant to public

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

how do you know what public policy is?

-Statutes (most often) -Common Law -Well-known Mandates - no law but it seems like getting fired for that reason shouldn't't be possible -If there is a law out there, which states employee who does what you did cant be fired, then that's not ok

tort theory - exception to employment at will

-Tort action an employee may file if an employer improperly discharges an employee. -In limited situations when employer's discharge is deemed abusive, the discharge of an employee may also lead to suits for: -Intentional Infliction of Emotional Distress (IIED) - employer yells at you at lunch in front of everyone -Defamation -Fraud

To be patentable, an invention must be

-Useful -Novel (new) -Non-obvious (in light of prior discoveries)

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

-Whistleblowing Statutes -ADA (American's with Disabilities Act) -FMLA (Family Medical Leave Act) -OSHA

financial questions of control test

-Who has greatest unreimbursed business expenses; -Who make investment in tools, etc.; -Whether services are offered to others; -How is worker paid; -Can worker make a "profit"

Anticybersquatting Consumer Protection Act (ACPA) (an amendment to Lanham Act) 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

Federal Trademark Registration RENEWAL 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

fmla violations: 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

Forms of marks

1. Design: burberry check 2. number: chanel no. 5 3. Slogan: just do it 4. shape: coke- shape of bottle is not functional 5. sound: NBC chimes 6. Color (rare): T-Mobile pink 7. Other: motion, hologram, 3D shape, scent

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. 3. Prompt Notice by employee to a. Employer (30 days) and b. State (60 days - 2 years)

Requirements of Trademark DILUTION:

1. Plaintiff owns a famous mark that is distinctive; 2. Defendant using 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) Mcdonalds What if, Mcdonalds arches start coming out on lots of other product not related to food Like we see on clothes and shit Whats gonna happen to mcdonalds? The arches will no longer be immediately associated with the restaurant Could be associated with a bunch of other places That's blurring Mcdonalds doesn't't want that - they don't want other business' to use it

Exceptions to doctrine at will

1. contract theory 2. tort theory 3. public policy -Say in contract that you can only be fired if embezzle - that is an expressed contract- only fired if do that thing - Employer less you go a few months ago and you didn't embezzle - You can claim you had contract with them that they breached

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?

100 x $150,000 = $15,000,000

In the year 2000, Maya wrote a book. Maya died in 2010. In what year will Maya's copyright protection expire? 2070 2080 2095 2120

2080

Penn State Motion Picture Studios hired Sebastian as an employee to create a film. Sebastian created the film "Penn State Memories" in 2000. The studio first distributed the film later in the same year. In what year will Penn State Motion Picture Studio's copyright in the film expire? 2070 2095 2120

2095 -Work made for hire -Motion picture owns copy right -Compare results of date of creation plus 120 -Then take date of publiction plus 95 years -Which first -2095 or 2120

reproduction right

A copyright owner has the exclusive right to reproduce (or to license others to reproduce) the copyrighted work.

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.

registration

A mark owner may BUT IS NOT REQUIRED TO REGISTER the mark in the appropriate federal or state trademark registry. (true false question on exam****) Registration carries BENEFITS to mark owner.

Trade Secrets: FEDERAL Protection

A. Economic Espionage Act (1996) Criminal ONLY B. Defend Trade Secrets Act (2016) -Amendment to EEA (above) -Civil

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. 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 is wrong cause no generic mark can be trademarked.. DUHHHHHH

causes of action for trademark misuse

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

Misuse of Trademark: SUMMARY of Causes of Action

A. Trademark Infringement -"Likelihood of Confusion Test": Infringement occurs when a "new" user's use of an identical or similar mark on directly competing or related goods/services is likely to "confuse" consumers about the origin of the product OR B. Trademark Dilution - "Likelihood of Dilution" test: If mark is FAMOUS, dilution occurs when a "new" user uses a mark in an unauthorized way that reduces the value of the mark (whether or not use is "likely to confuse" consumers)

Bill owns a U.S. factory that makes clothes. Can Bill hire Sally, a 12 year old girl, to work the sewing machines in his shop? (Sally is not related to Bill.) A.No, assuming clothing manufactures are not an industry that permits child labor; B. Yes, but Sally can only work during certain times of the day and for a limited number of hours

A.No, assuming clothing manufactures are not an industry that permits child labor;

Caveat to "Use": Intent-to-Use

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 Intent to Use: Mark must be placed in use within 6 months, but MAY be extended by 30 months 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; -if I can prove peeps don't associate your mark with your business, can lose a case -Intent to use gives you a grace period -If file this paper work, you have 6 months to start using the mark in commerce -As long as you starts to use It within that time you are fine -If someone else starts to use something similar, you had application in - you can sue

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.

what can you patent?

Any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent." -You can patent practically anything that is human-made and the process for making the product

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

ACPA

Applies to all domain name registrations of trademarks

Derivative Works: Copyright Ownership

Assuming the 2nd generation creator receives permission (a license) to create the derivative work, The copyright holder of the 1st generation work continues to own the copyright in all copyrightable elements from the 1st generation work. The creator of the 2nd generation work only owns copyright in his/her ORIGINAL creative contributions.

average purchaser

Average purchaser standard DOES NOT INCLUDE Side-by-side comparisons or Perfect recall by the average purchaser -Doesn't matter if cant exactly remmeber -Ex) jif peanut buttter - probs couldn't say what the exact color order is of stripes off top of head -Even upon quick look, the label would be confusing - that's all hat matters

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? A. Erika is an employee of Phoenix B. Erika is an independent contractor

B. Erika is an independent contractor

How is Medicare Funded?

BOTH employee and employer MUST contribute - Each pay 1.45% - Self-Employed pays 2.9% 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) -In social security there is a cap, but in medicare, your entire income is taxed- and then even more of a tax for those that earn a lot

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. Both are correct Disney owns mark skanky sex toys use version or mark - not a direct competing product BUT... This will make consumers blink and be like wtf and probs laugh

fixation: copies of copyright act

COPY 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.

Fair labor standards act

COVERS ALL EMPLOYERS ENGAGED IN INTERSTATE COMMERCE

child under 14

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

Examples of Non-Patentable Differences (too obvious)

Changes in color Changes in size

Critical provisions of fair labor standards act

Child Labor Minimum Wages Maximum Hours

Employer Failure to Comply with HIPAA-- don't need to know

Civil Penalties: Up to $25,000 / year Criminal Penalties: -Up to $250,000 in fines -Imprisonment for up to 10 years

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. (The original sale is deemed to exhaust the economic interest in the IP.) 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.

when does copyright begin?

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

literary works

Copyright granted to arrangement of words that author uses to express ideas. Types of Works Protected as Literary Works: Virtually anything that is written. This includes software programs, video games, etc. REMINDER: NO PROTECTION for the following: Individual words Ideas Work's theme Work's Plot Factual information Other non-original "common" elements.

Copyright Infringement

Copyright infringement occurs when a third party violates one or more of the copyright owner's exclusive rights listed in §106 (for a complete list of §106 rights, see earlier slide titled, "The Rights of Authors in Copyright §106") Copyright infringement occurs when the defendant copies WHOLE OR PART of the copyrighted work without the copyright owner's permission.

sound recordings

Copyright interest in SOUND RECORDING is SEPARATE from copyright interest in UNDERLYING MUSICAL WORK.

expression

Copyright only protects the EXPRESSION of the author's idea when it is fixed in a tangible medium -ideas are not protected expressions (protected by copyright)

The Distribution Right

Copyright owner have the EXCLUSIVE right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending."

architectural works

Copyright protection for architectural works is limited: Copyright in an architectural work that has been constructed does NOT include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

pictorial, graphic, sculptural works

Copyrightable so long as they contain original expression. Cannot be a "Useful Object." -Copyright cant protect useful objects -These things you create cant be useful

other works

Creator owns original copyright All § 106 Rights apply; Free to assign or transfer copyright interests Duration: Life of last surviving author plus 70 years

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." "Secondary meaning" makes the mark distinctive Purchasers do not need to know the NAME of the source of origin; purchasers need only know the product is associated with a single source.

Copyrights in Digital Information: One act of file sharing can constitute infringement of multiple rights

Each time a computer file is shared online, it must be "copied." -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"

eligibility for medicare

Eligibility (general rules): 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)

fixation of copyright act

Embodiment of the expression in ANY tangible object satisfies the fixation requirement.

test for overtime

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

employees and employers amount of money into ss (and self employed)

Employees: Paycheck is TAXED at 6.2% Max. earnings taxed: $127,200 ("wage base" for 2017) Employer: matches the tax paid by the employee Self employed: must pay self-employment tax to fund ss -12.4% tax on all earnings up to "wage base"

state workers compensation laws - Where does Money Come from?

Employer may purchase Insurance OR Employer may Pay Claims (a form of "self insurance"

Work Made for Hire

Employer, not Creator, owns original copyright § 106 Rights apply EXCEPT Termination Right § 203 (you are not required to learn about the Termination Right for this class) Free to assign or transfer copyright interests Duration: shorter of 1) 95 years from publication or 2) 120 years from creation

Private pension plans

Employers may provide PRIVATE pension plans: Employers are NOT required to establish private pension plans BUT IF an Employer establishes a private pension plan, the plan MUST comply with federal act (law) called "ERISA" (Employee Retirement Income Security Act) When looking for a job- often look for benefits packages available from employer

where does unemployment insurance come from?

Employers that are covered are taxed -To pay the tax, your Employer will deduct a portion of the tax from your paycheck Self-Employed individuals are usually not entitled to unemployment benefits UNLESS their business paid unemployment tax.

Affordable Care Act (ACA) "Obamacare"

Employers with 50+ employees MUST offer health insurance. The act established "state health insurance exchanges" - marketplaces where 1) employers and 2) individuals not covered by an employer plan could "shop" for health insurance coverage. Employed people cover for the insurance for those who aren't employed

fam and med leave act: coverage and applicability

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

COBRA

Entitles employee who has lost job to continue health care coverage under the employer's health plan for up to 18 months (if you get a job with someone else, you hop onto theirs) -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 -Normally- half comes out of your pocket, other half out of employer's Benefit because employer is a better bargainer ---Will be cheaper to use their plan with higher premium than to bargain on the open market

dilution

Erosion of value of a mark by "Blurring" or "Tarnishing" the mark -plaintiff's mark ust be famous

BK - equity:fairness

Example: burger king Little shop sells burgers in illinois Didn't register mark so only get to use it in the place they are A few years later, BK comes along This mom and pop group say, HEY we are burger king Big bk sue little bk Big bk had registered trademark Court say hey, mom and pop here first and well known in town Bk can have trademark in entire country EXCEPT the little town where little bk has its shop Used power of equity and fairness - court did

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

Executive Employees Administrative Employees Professional Employees

How is Social security funded?

FICA (Federal Insurance Contributions Act) MANDATORY contributions: BOTH EMPLOYERS AND EMPLOYEES MUST contribute.

trade secrets - 1st requirement

FIRST REQUIREMENT: 1. The kind of information protected must give the owner a COMPETITIVE EDGE over the competition: -Information must be OF VALUE to the owner -Cannot be information that is generally known --Other people can know what you do, but a finite group must know what is going on --Multiple companies can claim something as a trade secret- novelty is not required ----Once known by too many companies then not a trade secret

worker adjustment and retraining notification act (warn) (federal)

Federal Law requires large employers (100+ employees) to provide 60 days notice prior to any a) mass layoff (affect 1/3 of employees) OR b) plant closure that affects 50 or more full-time workers. Notice must be given to BOTH 1. worker (or worker's representative) AND 2. state and local gov't authorities

statutory protection of trademarks

Federal Statute: The "Lanham Act" (federal trademark law) AND State Statutes

family and medical leave act

Federal act that allows employees to take time off from work for family or medical reasons. Many states and employers also have private family-leave plans.

Income Security

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

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 Private Employers MAY restrict access to websites (government employers cannot restrict website access) - Rights to free speech don't apply to private employer

unemployment compensation

Generally, who is eligible to receive 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; (during the time that you are receiving benefits) You must actively search for work OR pursue education or training

Employer-Sponsored Group Health Plans and HIPAA

HIPAA—Health Insurance Portability and Accountability Act A. Establishes administrative requirements employer health care plans must meet; and B. Mandatory policies and procedures to protect privacy and security of employee's private health information

INNOCENT INFRINGERS

I. Tort Proceedings : -Award PER Infringement: Minimum: $750 (Court MAY reduce minimum to $200 IF infringer proves both innocence AND belief he had a RIGHT to use the material—very tough standard to meet) Maximum: $30,000 -Injunctive Relief possible

WILLFUL INFRINGERS

I. Tort Proceedings: Award PER Infringement: Minimum: $750 Maximum: $150,000 II. CRIMINAL PROCEEDINGS ALSO POSSIBLE: Fines and/or Imprisonment -Injunctive relief possible in EITHER tort or criminal proceedings

expression v idea

IDEAS ARE NOT Protected

Intellectual property vs property

IP = Intangible—an intellectual creation ("product of the mind") Example: the music you hear when you play a CD Property = Tangible (can feel, see, touch) Example: the actual CD disc on which the musical composition is embodied

min wage and tips

If employee receives tips, then employer is ONLY required to pay $2.13 / hour in wages AS LONG AS wage + tips = at least $7.25 (if amount of wage + tips is less than $7.25, employer must pay the difference)

originality

Independently Created by the author, not copied At least some minimal degree of Creativity is required Greater protection = fictionalized works less protection = works of facts novelty is NOT required

Trade Secrets: POTENTIAL Duration of Protection

Infinite Can't protect something as a trade secret and patent at the same time --For patent must send docs to US office to explain how it is to make your invention- anyone can take them and follow step by step- no longer secret Pros and Cons of patent v. trade secret -Patent = exclusive, complete protection for duration of patent ---Must give people permission to use design- can't take product form shelves and do experiment, but only for extended time -Trade secret- can protect forever, but if other people come up with same concept then it isn't a secret ---REVERSE ENGINEERING is perfectly okay Famous highly protected trade secrets... Google algorithm (cannot be protected through patent) Baseball rubbing mud Mrs. Fields chocolate chip cookies New York Times Best-Seller list Listerine WD-40 Twinkie recipe Krispy Kreme Donut Big Mac Special Sauce KFC recipe Coke

WIPO Treaty:

International Treaty designed to provide greater international copyright protection.

Conditions for Obtaining a Patent: Novel (Novelty)

Invention must be "novel" (new). 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

Lie Detector Tests Employee Polygraph Protection Act (EPPA)

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 UNLESS. . . 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)

Layoffs: state laws

Many states also have laws that require employers to give notice prior to mass layoffs. Some state laws are more strict than the federal WARN act.

arbitrary and fanciful : inherently distinctive

Marks that are "arbitrary" or "fanciful" are considered HIGHLY DISTINCTIVE and are offered a very HIGH DEGREE of trademark protection. Common words applied in way that bears no logical relationship to the underlying good OR "Made-Up" words -Hard rock café (generic words used on a restaurant) -Nike swoosh -Google -kodak

utility patents

May be granted to anyone who invents or discovers any new and useful --Process --Machine --Article of manufacture --Composition of matter --Or any improvement of any of the above

child 18-18th 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

child 14-15

May work, but not in hazardous industries Working time and Maximum hour restrictions apply

You have worked for a company that provided benefits for your entire working life. You are now 66 and retired. Assuming you are not indigent, what federal program can you use to insure your medical care? Social Security Medicare Medicaid

Medicare

Ben works at Three Mile Island (TMI), a nuclear power reactor. Ben noticed that his personal radioactivity sensor badge (that detects high levels of radiation) has registered abnormally high exposure levels, so Ben walked off the job and refuses to return until proper testing is conducted. Under OSHA, can TMI fire Ben for failure to perform his duties?

NO

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

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?

NO - Provides you to remain on employer health care plan, means that for most employees, once you are better your employer has to give job back, better job or job equivalent - HOWEVER you don't get paid your salary when on medical leave act

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 - jokes are original -jokes are expression

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 -Think about what bens position is -Worker that makes hourly wage? -Or is he considered and executive, administrative, professional worker who makes a salary -He is an accountant - so professional so NOT ENTITLED TO OVERTIME

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 -Yes she can file workers comp -Now ask, in addition can she file a lawsuit? -Choose workers comp or employee can sue employer -CANT DO BOTH

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

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.

An inventor created a "perpetual motion machine" which inventor argued could defy law of thermodynamics and produce energy output greater than energy input. When tested, the machine could not could not live up to this claim. Would the patent examiners (USPTO) likely grant the patent?

No, the patent examiners would likely DENY the patent.

OSHA inspections

OSHA Compliance Officers may inspect ANY establishment covered by OSHA at any time

Limitation on First Sale Doctrine that applies to SOUND RECORDINGS:

Ok to SELL your legally purchased copy of a sound recording, but not to RENT without authorization from the copyright holders. EXCEPTION: Libraries and not-for-profit institutions MAY rent/loan/lend phonorecords.

Public Display Right

Only an image displayed in PUBLIC can be infringed under the Public Display Right. (If an image is only displayed in private, no infringement of the "public display right" can occur.) Note: The public display right does NOT include phonorecords/sound recordings Note: the display right does NOT include showing images in the correct sequence BECAUSE showing images in correct sequence is a PERFORMANCE covered by the "Public Performance Right."

methods to protect your business/trademark cybersquatters.

Operates an arbitration system to resolve domain name disputes: TWO ICANN Arbitration Options: -UDRP ("Uniform Domain-Name Resolution Policy) -URS (Uniform Rapid Suspension System) -If you feel like someone is using your trademark name -And you try to nicely ask someone to ive it back -If it's a famous name and you have a trademark, you can go through this suspension system (4 days) -URS Other option -If more factial issues in dispute, you can do a formal arbitration -Could cost you $3500 to do, takes longer -UDRP

trade secret infringement

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 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 -Proving someone is liable for trade secret infringement -Person must have known it was a trade secret or they had reason to know -----i.e. nondisclosure or spoke with employees about protection or in mailings/handbooks

fixation: sound recordings of copyright act- phonerecord

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.

basic program of medicare

Part A: Hospital Insurance: - Automatic for most people if individual or spouse worked (and paid for by Medicare taxes) Part B: Medical Insurance: - Must pay additional premium

additional coverage options for medicare

Part C: Medicare Advantage: (don't need to know) -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

most important function of 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. - If other company uses nike swoosh for their product -I buy product with swoosh cause I thought nike -Everyone gonna be upset, -I wont know that its not nike

Federal Trademark Protection against trademark infringement : The "Lanham Act"

Prohibits unauthorized use of an identical or similar mark likely to confuse a consumer on A. Directly COMPETING goods/services; OR B. Non-competing but RELATED goods/services; -You've created a mark -Now, you are upset cause someone using exact same mark or really similar mark -When used by a user it will confuse consumer as to who the source of the good is -Ex) cool nights sheets (you have a cool logo) -Directly competing service would be someone makes sheets with a super similar mark -Non-direct competing would be using the similar logo on pillows or comforters (not sheets but related to sheets) -Id the mark is on a product that's not related, its ok as long as product un related and your mark isnt famous

OHSA: example of reporting

Report any work related death or 3+ hospitalizations within 8 hours of the incident

2nd requirement of trade secrets

SECOND REQUIREMENT 2. The owner must make a reasonable effort to keep the information SECRET. -Owner must take affirmative steps to keep information secret -Only relative secrecy is required -"Novelty" is not required Most highly protected trade secret in the world- Coke Formula

What can you Do if you feel another website has improperly used your Trademark in a Domain Name? ***

SUMMARY OF OPTIONS: 1. Contact owner and try to work out an agreement; 2. Complain to the domain name registrar; 3. File a Trademark Infringement or Dilution lawsuit under the Lanham Act; 4. Use ICANN's Arbitration process (Uniform Domain-Name Dispute Resolution Policy OR Uniform Rapid Suspension System); 5. File an anti-cybersquatting lawsuit under the ACPA; 6. If you are dealing with a cybersquatter, considering paying the asking price (can be cheaper and quicker than alternatives 2 - 5 above) -Trade marks can potentially last infinitely -As longs as mark keeps acting as a source to consumers -Mark continues to mean something to consumers - you can claim protection of mark -But, if lose connection with mark, lose protection

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

Same came up with a logo for your adventure sports company Called "extreme adventures" I write book and in my book I say, "we had some extremes adventures this summer" If he try to sue, cant sue if have not used your mark to sell a product, and use of phrase doesn't't create an association of your company when I use your mark Descriptive marks aren't protected immediately, but can become protected Trademarks are never protected Suggestive, and fanciful are protected

NOT a Copyrightable Design on a Useful Object

Sculptural or design elements are NOT SAPARABLE from the useful function of the object

Copyrightable Design on a Useful Object

Sculptural or design elements are SEPARABLE from the useful function of the object -Lamp with a sculpture on it -If take sculpture off it is useful -It can be copyrighted -If cant separate design form usefulness, then its not copyrightable because it is just useful

Public Display Right: Limitations on Copyright Owner's Rights

Section 109(c): A. 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)

descriptive mark examples

Show pic of honey baked ham- they sell honey baked ham Pic of pine tree car freshener - the look of it makes you know what the product is and what it will smell like "bufferin" - coating around pill to buffer See next slide Geographic or persons name automatically means descriptive The look of the mark describes your product example) Mark: honey-baked ham, woolrich Goods: ham, clothes made from wool

purpose of trademark

Source Indicator to Consumer!! (Extremely Important - see next slide) Quality Assurance: Symbol of Goodwill: Marketing and Advertising Device - customer service - trademark can act as symbol of goodwill

Potential remedies for infringement

State and Federal Remedies: -Injunction (most common) -Destruction of any goods that bear the unauthorized mark -Attorney's Fees: a)Federal: only IF mark has been properly registered b)State: depends on state statutes Federal "Lanham Act" Remedies: -Owner can recover actual damages plus profits that the infringer wrongfully received from unauthorized use of the mark

Conditions for Obtaining a Patent: 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. Training Baseball with color-coded markings where fingers should be placed is "non-obvious" invention and patentable.

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; inherently distinctive afford a high degree of trademark protection examples: Greyhound - suggest that they are fast Coppertone - sunscreen DQ - dairy products Habitat ( a store) - I would assume they sell home furnishings, and they do, that's why its suggestve

Use Trademark ™ and/or Registration Notice ®.

TM means owner claims term as a mark; -TM does not necessarily mean Federal Claim or Registration OR State registration; Alternative to TM symbol is use of an * redeemed by a legend or credit line (called a "redemption") Additional Alternatives: a) both TM and credit line or a TM, ® and credit line; (see next slide) -Language in redemption and credit lines can vary. any can claim a TM - doesnt mean they have paper mark

A company may monitor the electronic business communications of an employee made via the employer's e-mail system without violating the employee's privacy rights EVEN IF the employer DOES NOT INFORM the employee of the monitoring. True or false

TRUE

You own a store that uses a highly stylized "+" sign for its logo. This logo is very well known, and when potential customers see this logo they immediately think of your store. You want to make sure no other store owner uses your logo. What form of protection would be the most appropriate for you to use to protect your logo? a. Trademark b. Patent c. Copyright d. None of the above

TRademark -"highly stylized" would mean that it would be recognizable as a symbol, they would immediately think of your store -Could also protect design as a copyright

Non-exclusive list of Examples of Items that may be considered Trade Secrets

Technical Data Non-technical data Formula Process Pattern Compilation of Data Compilation of Information List of Suppliers (sometimes)

Audio Home Recording Act (AHRA): Exception to Reproduction Right

The "Audio Home Recording Act" allow consumers to make digital copies of copyrighted music for private, non-commercial use using DIGITAL audio recordings (CD's and MP3's).

Significant Limitation on Reproduction Right

The Compulsory License (§ 115): After the initial release of a song (a non-dramatic musical work), ANY user may record his own version of the song to distribute (not to broadcast) without infringing on the copyright owner's interest AS LONG AS the user PAYS a compulsory license fee.

first sale doctrine

The First Sale doctrine requires that: 1. the copy be lawfully made, and 2. that the initial public distribution be authorized. First Sale doctrine DOES NOT APPLY to illegal copies.

§ 107: Limitations on Exclusive Rights--Fair Use

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. **know these*** 1. TRANSFORMATIVE - take work and transform from a protected copyright to a completely new thing and society is better off to see his work - look to see if purpose and character use transformative AND is alleged making money 2. Was original work work of fact or fiction? Fact will be more likely fair use 3. Look at if they took heart and soul of original work, or if they only took parts of it - hook of song is heart and soul, so if other dong writer takes that hook, more likely viewd as copyright infrignment

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.

Conditions for Obtaining a Patent: Novel (novelty) Novelty and the 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.

public display right

The public display right gives copyright owners the exclusive right to display/show their works to the public. If I create a work, I own right to display to other peeps

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.

TIME PERIOD for REGISTRATION:

Time Period: No later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner learns of the infringement.

conditions for obtaining a design patent

To be patentable, a design must be An ornamental design embodied into or applied to an article of manufacture; Novel (new) - see previous slides; Non-Obvious (in light of prior discoveries)

remedies for copyright infringement

Tort Damages (Actual OR Statutory Damages); Injunctive relief (if monetary damages are deemed inadequate; Criminal fines and/or Imprisonment IF infringer is deemed "willful"

"use"

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

true or fals: Joel designed a software program and saved it on his hard drive. The ideas he expressed and embodied in the program are intellectual property, and the "physical" saved "copy" of these ideas is property.

True

Unemployment Insurance

Unemployment insurance is a system created by the FUTA (Federal Unemployment Tax Act) and administered by the states; Benefits, eligibility requirements, and length of time during which you can collect benefits vary by state -THROUGH NO FAULT OF YOUR OWN YOU LOSE YOUR JOB- i.e. not rehired or laid off or restructuring -If you have worked for a long enough period of time (25-30k) in the last 2 years at work- entitled to claim unemployment

Trade Secrets: STATE Protection

Uniform Trade Secrets Act (USTA) Civil AND Criminal -Can be protected at state and federal level -USTA is state level- legislators in states had to vote how they wanted to enact -Provides civil liability and criminal penalties

Visual Notice: Not Required, but may be beneficial

Use of visual copyright notice "© 2016 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." -Actual notice = the C sign -We know the perosn filed and paid fee

Conditions for Obtaining a Utility Patent: Useful (Usefulness) Invention must serve a USEFUL purpose;

Useful purpose includes "operability"; Example: If a machine has been designed to perform a task, the machine must actually be able to perform that task to be deemed "useful." -Invention has to do something -Test for usefulness using "operability" -Test to make sure invention does exactly what you describe -If it does something else, doesn't matter -Frug was supposed to cure cancer, but it cures something else - doesn't matter -Have to re submitt -Look to see what the inventor CLAIMED it would do -Then seee what ACTUALLY does -If match, then meet the tst of usefulness

three types of patents

Utility Patents (most common) Design Patents Plant Patents

Plaintiff may claim defendant's use of an identical or similar mark dilutes plaintiff's famous mark:

When Defendant's mark IS likely to confuse consumers about the source of the goods/services OR When Defendant's mark is NOT likely to confuse consumers about the source of the goods/services.

Starbucks vs Sambucks

When a company uses a similar logo or name of starbucks, starbucks goes after them Some lady names samantha buck Wanted to name sambuck's coffee Infringement: court thought that the logo for sambucks - said it was similar to starbs - also both sell coffee products (direct competing product) Thought that it would confuse consumer ALSO Starbs is a super famous mark Prove dilution: create association between the two trade marks - sambucks, you will automatically smile and think of starbs

items that are NOT copyrightable

Works consisting entirely of information that is common property containing no original authorship (examples: standard calendars, height and weight charts, tape measure and rulers, lists or table taken from public documents or other common sources) Works authored by the U.S. government. Works that have passed into the public domain

WIPO

World Intellectual Property Organization

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

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: (Pic of eating utensil) (Pic of Restaurant Logo)

Kaan invented a widget on Jan 1, 2015. 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

The owners of Google have a registered trademark in the name "Google." Google's CEO has just found a website called "Goohle.com" that offers the same type of goods and services that Google provides. If Google is unable to work out an amicable solution and Google does not want to enter arbitration proceedings under ICANN, is there anything else Google can do to stop Goohle.com from using this very similar domain name?

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, the patent examiners would likely GRANT the patent. -Scientist used broad terms, very smart -Said "restored" -So technically it restored hair growth

Social Security: Eligibility

You must earn CREDITS. 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 2017, every $1,300 in earnings earns one (1) credit. You can earn a MAX of 4 credits per year.

distinctivENESS of a mark can bE either...

_inherent oR Acquired through "secondary meaning"

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. Test to prove comping 1. Proved defendant work is substantially similar 2. is access, prove defended had access to work Example -I write song -street performer I- play my song and all the artist who go in they can hear my walk -Say one of those artists, drake -Drake creates song that sounds like mine -I can prove substantial similarity The could prove access

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? a. The first to create the work b. The first to register for a copyright c. Both Danielle and Jessica d. Neither Danielle nor Jessica

c. both danielle and Jessica

Which of the following forms of IP protection is most appropriate to protect a movie script that you wrote? a. Trademark b. Patent c. Copyright d. None—mere "ideas" cannot be protected.

c. copyright

protection of intellectual property

constitutional law - protect IP through consitution Statutory Law: Federal Statutes: 1. EXCLUSIVE Protection of Copyright (post 1978) and Patents 2. Non-exclusive "Protection" of Trademarks (in the form of benefits of registration) 3. Non-exclusive Protection for Trade Secrets State Statutes: 1. Non-exclusive Protection of Trademarks 2. Non-exclusive Protection of Trade Secrets -Federal court has exclusive right to copyright case -Copy right and patent = only federal -Other two can be both

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 abritration system to resolve domain name disputes (more later . . .) -Example = go daddy website -Middle man -Go to go daddy website -Pay a fee -Then can keep a list of domain names and you can find a domain name that is free and you can get it -Go daddy website transfers request to ICAN data base, tells you if you can use that domain name -They can only tell you if someone is using that exact name -Don't do a trademark search -Maybe its not taken as a domain name, but it could already have a trademark

Medicare

federal health insurance program

Many trademark owners use their trademark as part of a domain name (part of an internet address).

http://psu.edu domain = psu.edu

collective mark

indicates MEMBERSHIP in a group, association, or collective (some marks can be BOTH certification and collective marks) -Group holds mark, all member can use it -Example: rotary club -Labor union -"4 H" -"motion picture association of america"

What type of "property" does copyright law protect?

intangible property

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

license

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

After Kaan invented his widget on Jan. 1, 2015. He published a paper on his widget in a scientific journal on March 1, 2015. 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, 2016. Will the USPTO grant Kaan's patent application?

no -We care about whether or not the inventor described product -Critical date is march 1st -One year later passed -It is no longer novel so they WONT grant it

Intellectual property

products of the MIND -Should be protected just like real property -If come up with something, it is still protectable -Trademark is a form of intellectual property

ECPA (Electronic Communications Privacy Act)

prohibits interception and disclosure of wire, oral, or electronic communications without employee Consent 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!!! -Provides loop hole for main rule -If using equipment that employer gave to you, employer is always permitted to monitor those devices

manufacture

refers to all articles that are made

Trade Dress

the distinctive features of a product's packaging or the distinctive features of the product itself (image and overall appearance) of a product that are protected under trademark law. Examples: Shape, Color, Texture Brown Color of UPS truck Burberry Plaid Shape of Pepperidge Farm Goldfish olive g protects decor of restaurant as a trade dress

Control test

traditional IRS test used to distinguish Employees from IC's -has 3 categories - determine if worker is independent contractor or employee

A mark must be Distinctive to receive protection under the Lanham Act (Trademark Act). true or false?

true

True or False: Under the basic "at will" doctrine, "at will" employees can be terminated at any time without cause.

true

True or false: Either party may terminate an employment relationship ANY TIME FOR ANY REASON, absent prior agreement to the contrary

true!

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

Ray sat in Prof. Maull's course and took notes. Ray's notes paraphrase much of both the underlying text and Prof. Maull's powerpoints. In addition, the sequence of information presented in Ray's notes mirrors the sequence of the material presented in the course. Ray sells his notes to Nittany Notes. Has Ray infringed the copyright interests of PSU and the authors of the text?

yes

are public employers exempt from EPPA (and may require lie detector tests)

yes

You are an employer who is very concerned about ensuring that employees use electronic communications in a proper manner. Can you require employees to sign CONSENT forms that permit you to monitor BOTH their personal and business related electronic communications?

yes Can say that they only want nice things posted, showing company in good light at all times

"styles" tHAT indicate Federal Registration

®; -Reg. U.S. Pat. & Tm. Off.; -Registered in U.S. Patent and Trademark Office Use of statutory notice is not mandatory (above are all considered statutory notices), but either statutory notice or actual notice is required before a plaintiff can recover damages and profits in a federal trademark infringement suit. -R means it is registered -Actual notice: think someone infringed on mark, you call them and tell them they need to stop cause you have protection