Bus Law Ch 4 (kv)

The Madrid Protocol

which was signed into law in 2003, may help to resolve difficulties in protecting U.S. trademarks internationally that was time consuming and expensive to apply for trademark registration in foreign countries. The filing fees and procedures for trademark registration vary significantly among individual countries.

Copyrights

1. A copyright is an intangible property right granted by federal statute to the author or originator of certain literary or artistic productions. The Copyright Act of 1976, as amended, governs copyrights. 2. Copyright infringement occurs whenever the form or expression of an idea is copied without the permission of the copyright holder. An exception applies if the copying is deemed a "fair use." 3. In 1980, Congress passed the Computer Software Copyright Act, which amended the Copyright Act to include computer programs in the list of creative works protected by federal copyright law.

Forms of Intellectual Property

1. Patent 2. Copyright 3. Trademark (service mark and trade dress) 4. Trade Secret

Trademark

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

Trade Secret

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

Why is the protection of trademarks important?

At common law, the person who used a symbol or mark to identify a business or product was protected in the use of that trademark. Clearly, if another company used the trademark, it could lead consumers to believe that its goods were made by the trademark owner. The law seeks to avoid this kind of confusion.

Trade Dress

The image and overall appearance of a product.

Trademark Dilution

The unauthorized use of a distinctive and famous mark in a way that impairs the mark's distinctiveness or harms its reputation.

Fair Use guidelines

are very broad, the courts determine whether a particular use is fair on a case-by-case basis.

Patents

1. A patent is a grant from the government that gives an inventor the exclusive right to make, use, and sell an invention for a period of twenty years (fourteen years for a design patent) from the date when the application for a patent is filed. To be patentable, an invention (or a discovery, process, or design) must be genuine, novel, useful, and not obvious in light of current technology. Computer software may be patented. 2. Almost anything is patentable, except the laws of nature, natural phenomena, and abstract ideas (including algorithms). Even artistic methods and works of art, certain business processes, and the structures of storylines may be patentable. 3. Patent infringement occurs when someone uses or sells another's patented design, product, or process without the patent owner's permission. The patent holder can sue the infringer in federal court and request an injunction but must prove irreparable injury to obtain a permanent injunction against the infringer. The patent holder can also request damages and attorneys' fees. If the infringement was willful, the court can grant treble damages.

Trademarks

1. A trademark is a distinctive word, symbol, or design that identifies the manufacturer as the source of the goods and distinguishes its products from those made or sold by others. 2. The major federal statutes protecting trademarks and related property are the Lanham Act of 1946 and the Federal Trademark Dilution Act of 1995. Generally, to be protected, a trademark must be sufficiently distinctive from all competing trademarks. 3. Trademark infringement occurs when one party uses a mark that is the same as, or confusingly similar to, the protected trademark, service mark, trade name, or trade dress of another party without permission when marketing goods or services.

Collective Mark

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

Certification Mark

A mark used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services.

Trade Name

A name that a business uses to identify itself and its brand. A trade name is directly related to a business's reputation and goodwill and is protected under trademark law.

Patent

A property right granted by the federal government that gives an inventor an exclusive right to make, use, sell, or offer to sell an invention in the United States for a limited time (20 years). What can be patentable. CASE EXAMPLE 4.10 Monsanto, Inc., has sold its patented genetically modified (GM) seeds to farmers to help them achieve higher crop yields using fewer pesticides. Monsanto has required farmers who bought GM seeds to sign agreements promising to plant the seeds for only one crop and to pay a technology fee for each acre planted. To ensure compliance, seventy-five Monsanto employees are assigned to investigate and prosecute farmers who use the GM seeds illegally. Monsanto has filed lawsuits against nearly 150 farmers in the United States and has been awarded more than $15 million in damages (not including out-of-court settlement amounts).

Service Mark

A trademark that is used to distinguish the services (rather than the products) of one person or company from those of another.

License

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

The First Sale Doctrine

Doctrine Section 109(a) of the Copyright Act provides that "the owner of a particular copy or phonorecord lawfully made under [the Copyright Act], or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord." This rule is known as the first sale doctrine. Under this doctrine, once a copyright owner sells or gives away a particular copy of a work, the copyright owner no longer has the right to control the distribution of that copy.

Domain Name

Part of an Internet address, such as "cengage .com."

What laws protect authors' rights in the works they create?

The Copyright Act of 1976,21 as amended, governs copyrights. Works created after January 1, 1978, are automatically given statutory copyright protection for the life of the author plus 70 years. For copyrights owned by publishing companies, the copyright expires 95 years from the date of publication or 120 years from the date of creation, whichever is first. For works by more than one author, the copyright expires 70 years after the death of the last surviving author.

Copyright

The exclusive right of an author or originator of a literary or artistic production to publish, print, sell, or otherwise use that production for a statutory period of time. The key requirement for the copyrightability of a compilation is originality. CASE EXAMPLE 4.13 The popular character Sherlock Holmes originated in stories written by Arthur Conan Doyle and published from 1887 through 1927. Over the years, elements of the characters and stories created by Doyle have appeared in books, movies, and television series, including the recent Elementary on CBS and Sherlock on BBC. Before 2013, those who wished to use the copyrighted Sherlock material had to pay a licensing fee to Doyle's estate. Then, in 2013, the editors of a book of Holmes-related stories filed a lawsuit in federal court claiming that the basic Sherlock Holmes story elements introduced before 1923 should no longer be protected. The court agreed and ruled that these elements have entered the public domain—that is, the copyright has expired, and they can be used without permission. A creative work that is not copy right able may be protected by other intellectual property law.

Protected Expression

To obtain protection under the Copyright Act, a work must be original and fall into one of the following categories: 1. Literary works (including newspaper and magazine articles, computer and training manuals, catalogues, brochures, and print advertisements). 2. Musical works and accompanying words (including advertising jingles). 3. Dramatic works and accompanying music. 4. Pantomimes and choreographic works (including ballets and other forms of dance). 5. Pictorial, graphic, and sculptural works (including cartoons, maps, posters, statues, and even stuffed animals). 6. Motion pictures and other audiovisual works (including multimedia works). 7. Sound recordings. 8. Architectural works.

Trademark Infringement

To prove trademark infringement, the trademark owner must show that the other party's use of the mark has created a likelihood of confusion about the origin of that party's goods or services.

What are trade secrets, and what laws offer protection for this form of intellectual property?

Under Section 757 of the Restatement of Torts, those who disclose or use another's trade secret, without authorization, are liable to that other party if either of the following is true: 1. They discovered the secret by improper means. 2. Their disclosure or use constitutes a breach of a duty owed to the other party.

How does the law protect patents?

Under federal law, "[w]hoever 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 therefor, subject to the conditions and requirements of this title."13 Thus, to be patentable, an invention must be novel, useful, and not obvious in light of current technology.

The Berne Convention

Under the Berne Convention of 1886, an international copyright agreement, if a U.S. citizen writes a book, every country that has signed the convention must recognize her or his copyright in the book.

International Protections

Various international agreements provide international protection for intellectual property. A landmark agreement is the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, which provides for enforcement procedures in all countries signatory to the agreement.

International Protections

Various international agreements provide international protection for intellectual property. A landmark agreement is the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, which provides for enforcement procedures in all country's signatory to the agreement.

Trade Secrets

include customer lists, plans, research and development, and pricing information. Trade secrets are protected under the common law and, in most states, under statutory law against misappropriation by competitors. The Economic Espionage Act made the theft of trade secrets a federal crime.

What are intellectual property rights?

is any property resulting from intellectual, creative processes—the products of an individual's mind, as suggested in in the chapter-opening quotation.

The TRIPS agreement provides

that each member country must include in its domestic laws broad intellectual property rights and effective remedies (including civil and criminal penalties) for violations of those rights.