legl ch. 11
To be successful in a trade secret case...
1. Need to prove there is a trade secret 2. Need to prove someone misappropriated the trade secret
justification for intellectual property
Framers of constitution wanted Congress to protect IP with Article 1, section 8 of the constitution IP is not a new idea, extended back to the 1400s, Abraham Lincoln owned a patent Constitution recognizes exclusive property boundaries promote and give incentive to the business production of what people need and want
Patents and copyrights give exclusive right for a limited time
Reward inventors for a limited time When time expires - set by Congress because of constitution - it will be freely available to everyone in the public domain Need to find sweet spot where inventors are rewarded but also need a time limit so that anyone can use the invention
utility patent
new, non-obvious, useful processes, machines, compositions of matter or improvements thereof Term = 20 years Anything useful or functional
design patent
new, original and ornamental design for an article of manufacture Term = 15 years (used to be 14) Appearance of an article unrelated to the function Ex. Beverage container design, computer icon, the way seaweed is design to lay on a plate
plant patent
new, variety of plant that can be reproduced asexually Term = 20 Just because something involves a plant does not mean it automatically falls under plant patents
can work created by the government have a copyright?
no Works created by the government are not copyrighted because that is within the public domain
what happens if you are employee and invent something on the job?
*Note that if you are an employee and invent something within the scope of your job, the company owns that invention and get acquire a patent Big financial boom or win for a company or university Can profit by licensing the portfolio
patent enforcement
- Patent owner can sue against infringement for injunction and damages Patents run for a limited duration, then the invention is in a public domain and others can use it If successful owner can get injunction and damages Can get triple damages for willful infringement - Owning a patent is not a licence to produce a product or service Patents only convey the right to exclude others from making, selling or importing invention In order to make something using a lot of other people's inventions, you need to get a license Ex. If you created face ID, you cannot create a phone without a license - Inventions can cover methods and articles that can overlap Cars Smart phones Lots of intellectual property goes into these objects ^^ makers of these items need to get license from patent owners to create the entire car Ex. BMW probably does not own all of the patents on every part of a new car Ex. Smart phones have so many chips, apps, physical parts - Major research universities have offices dedicated to IP UGA has lots of utility patents UGA Research Foundation is a named party to research at UGA and owns patents to IP developed at UGA
Copyright Fair Use
Includes copying for... Criticism Comment News reporting Teaching Scholarship Research Need to be careful, and still need to cite - cannot be sued for these things
characteristics of patents
1. Novelty Something new and different from the prior art Claimed invention has to be something that is not identical to any invention described in prior art previous to date of invention 2. Nonobviousness Ability of an invention to produce surprising or unexpected results Different enough from the prior art that a person skilled in the art would determine it provides a new contribution to society's knowledge Ability of an invention to produce surprising or unexpected results Hard - experts end up battling it out for both sides 3. Utility (only utility patents) Must do something useful NOT for patents issues on designs or plants Utility patents Inventions that lacks practical purpose or doesn't work isn't useful therefore cannot be patented Generally not hard to prove ANY utility can be approved Ex. Someone trying to invent acne cream, while inventing the cream they accidentally discover it doesn't help acne, but it works well for silver polish - if it meets all other requirements it is useful, therefore it could be patented
four Factors for fair use considered on case by case basis
1. Purpose and character 2. Nature of the work 3. Amount and substantiality of portion used 4. Effect of use upon potential market for copyrighted work Ex. Hackleman copies two pages out of a textbook for teaching purposes, given to each member of the class VS she copies entire textbook, don't go to the bookstore to buy the book, I'll sell you this for $30 Latter use is not OK for teaching purposes Hard to use precedent because of the case by case basis Beginning in 2003, the music industry began to file hundreds of lawsuits for those illegally sharing copyrighted music Students being pursued for illegal use of computer Area where the law struggles to catch up with technology and the new landscape of how things are being done Law hasn't changed as much as it has needed to to adjust to digital formats leading to owner's rights being diminished in some cases
Can PTO deny registration? YES and heres why..
1. Same or similar to another mark 2. Prohibited or reserved names or designs Ex. US flag or other governmental symbols 3. Names or likeness without permission Ex. Dead president (need spouse's permission), even if spouse is deceased, need to look at right of publicity under state law 4. Descriptive Ex. Salty crackers for crackers - it only describes the product Ex. Honey baked ham 5. Generic Ex. cell phone, social network 6. Disparaging (NO LONGER) For 70 years after the Lanham Act, these two categories were not registerable - within the past two years this has changed Ex. Matal v Tam - Band with people of Asian descent, wanted to name their band the Slants, PTO denied registration saying it was disparaging Similar denial for the Washington Redskins Slants appealed to SCOTUS, and the disparagment clause was considered unconstitutional, view point discrimination and violated first amendment The PTO is a state actor discriminating based on view point 7. Immoral, scandalous names or symbols (NO LONGER) Ex. Beer company with label with a frog flipping you off - not immoral because the frog was considered an inanimate object Ex. Iancu v Brunetti 2019 - Brunetti has a clothing line called FUCT, allegedly stood for something, had a phonetic closeness to an expletive - tried to gain trademark protection but PTO said the mark was scandalous, ACLU helped appeal then it got to SCOTUS - this violated free speech, government cannot discriminate based on view point Last two portions of lanham act are gone
defenses to trademark infrigement
1. The mark is not distinctive and should never have been granted 2. Little likelihood of confusion Ex. Ford automobile v Ford Modeling Ex. Land O Lakes butter v Land O Lakes fishing tackle - no confusion Kraft v Cracker Barrel Case 3. Fair use Fair use under Lanham related to discussion, criticism, or parody of the mark, owner, or product Comparative advertising, textbooks, news reporting - if done carefully, fair use Ex. Hackleman using trademarks to educate, not a violation
copyright criteria
1. Work must be original Facts are not original, but a collection of facts might be Ex. Calendar or phone book is not original Work of authorship 2. Must be fixed in a tangible medium of expression Book, hard drive, flash memory, canvas, photo paper 3. Must show creative expression Mere effort isn't enough Ex. list of ingredient in a recipe is not creative, but instructions on how to put them together might be
trade mark registration process
1. applicant files an intent to use application 2. the PTO puts the mark in the Official Gazette to notify existing mark owners 3. With no problems or objects are resolved favorably to proposed mark owner, mark goes to the Principal Register - If name is descriptive or is the name of a person - PTO will put it in a Supplemental Register for 5 years
types of Marks Protected by the Lanham Act of 1946
1. trademark 2. service mark 3. certification mark 4. collective mark 5. trade dress
Copyright Infringement
Although copyright attaches the moment a work is created, copyright infringement cannot begin unless owner has registered the work with the copyright office The owner has to establish that defendant violated exclusive rights of Reproduction Creation of derivative works Distribution Performance Ex. literary, musical, audiovisual Display Ex. Literary or musical tutorials Subconscious copying is still copyright infringement, can still be liable in civil law Like plagiarism, weren't necessarily aware of plagiarism, didn't recall you did it and didn't cite it Deliberate and willful copying is criminal Will look at if the defendant has access to the work, saw something similar produced Lots of circumstantial evidence Criminal penalties are applicable for deliberate and willful Ex. Piracy: large scale copyright infringement People making tons of copies of movies Can have illegally produced movies destroyed
trade dress - color trademarks
Apply to unique situations because it is not possible to permit each business to own their own color - it would result in color depletion Limited number of colors For a while PTO wouldn't allow the ownership of color However, there are narrow situations where the ownership of color is permitted Ex. Tiffany Blue - they own this robin's egg blue in the situation of boxes and bags as a jeweler - protects them from other jewelers using this blue for their boxes and bags Ex. John Deer DOES NOT own the color green - they have protection over the deer, competitors can paint their tractors green because it is functional color for this industry - green = vegetation, grass, fields, farmland - they have some protection over the colors with the yellow and green in certain places Ex. Pink insulation - only Owens Corning has pink insulation, pink is not a functional color of roof insulation Ex. Louboutins have red lacquered soles for highly priced shoes (they have a trademark for the sole) - YSL makes an entirely red shoe including the sole, Loubiton sued YSL for trademark violation - court said no, if it is an entirely red shoe, Loubiton's trademark goes too far If the color is functional for the industry of the protect, trademark will often not be protected
When someone applies for a registered mark, the PTO puts the mark in the Official Gazette to notify existing mark owners
As an owner, need to check the Official Gazette, determine if you want to object Puts everyone on notice that this is a proposed mark and people get to object if they want If there is objection raised by owners or the PTO, hearing is conducted to resolve this
trade dress - sound trademark
Can be issued if it identifies the commercial origin of a particular service or product Ex. ESPN dun na na, NBC bells
Competition
Companies know property rights lead to market advantage Research and development is expensive IP rights are believed in incrementally increase the production of information and investment Society obtains benefit of inventors In exchange we give inventors and creators exclusive rights for a time Time set by Congress bc the constitution says so When time expires, it goes to the public domain Ex. Drug company IP system grounded in incentive Unless you were an ethically perfect person, why would you put so much money into R&D if you had no protection over what you created or invented? Creates competition, increases invention and creation so that people can feel rewarded - inventions and creations are protected
establishing a trade secret
Conduct a trade secret audit to identity confidential knowledge-based resources Identifying valuable forms of information Preserve secrecy - KEEP IT SECRET Lock written material In private place Secure computer-stored knowledge with firewalls and encryption Don't want all workers to see for example Impose confidentiality restrictions Regular visitors Many large companies have special conference rooms or floors where outsiders meet with people in the company Want to keep outsiders out of the working area so they can't see things on computer screens, storyboards, etc Ask employees, customers, and business partners to sign nondisclosure agreements It's common Ex. with cleaning company, make employees sign NDA's so they won't share lists, and a non compete so the employees can't clean in the area with the customer lists
Copyright Ownership
Copyright law grants property in certain creative expressions and prohibits others from reproducing it without permission
Digital Millennium Copyright Act 1998
Copyright law is the primary law of the internet (not that other areas don't) Illegal to circumvent devices used by copyright owners to keep their work from being infringed Safe Harbor Provision for Internet Service Providers Impossible to police entire internet of their own Protects ISPs from illegal copies that pass through their systems as long as the IPS removed the copyrighted material when the owner says so Has to make an effort to clean their systems Puts ISPs in position to help ISPs lose safe harbor if they fail/refuse to help
How to copyright something
Copyright office of Library of Congress oversees the administrative function of copyright, Congress enacts laws, federal courts interpret and enforce copyright laws action for copyright infrigement cannot be undertaken unless the author has properly registered with the Copyright Office NOT through PTO Everything published before 1924 is viewed within public domain As of Jan 1, 2020, works published before 1924 is in the public domain, copyright has expired statutorily Legislation clicks up Jan 1, we add a new year Each year more copyrighted material becomes public domain due to legislation
how to make trade secrets last
Employee mobility and trade secrets - businesses need to take reasonable measures to protect secrets Confidentiality contracts forbid employees from disclosing the knowledge obtained in workplace NDA's, non competes Employers can enforce agreements not to compete only when there is a valid business purpose for the contract Employers have been cracking down on this If a trade secret can be kept, it has no timeline Shortcoming is that if people can reverse engineer or there is independent creation, then you're screwed
Companies can be considered owners under copyright law
Ex. If an employee creates something within the scope of employment that is not excluded by contract, the company owns the copyright If a company creates something, their term is different Term: 95 years of publication OR 120 years from creation of the work, whichever expires first
*Ownership of movie or CD doesn't give you the right to display it, perform it, or make a work
Ex. just because you purchased a book from Barnes and Noble, you cannot just go make the book into a movie - need to get permission from author or book Ex. Old photographs and you want to make a documentary - need to check if someone has a copyright to the photographs
Federal Gov IP enforcement
FBI, DOJ, etc Work to enforce IP laws
Trademark Dilution
Federal Trademark Dilution Act of 1995: prohibits the usage of a mark same or as similar to another's trademark to dilute its significance, reputation, and goodwill Famous marks - only famous trademarks can prevail under this act Even if an owner of a famous trademark cannot prove public confusion, an injunction can still be ordered because it is a famous mark Big companies pushed this act forward - didn't want people to be able to ride of their coattails of the reputation they worked hard to establish Courts can award owner damages, profits, attorney fees if infriger willingly did so or caused willing dilution blurring tarnishment
In 2011, Obama enacted the American Invents Act
First substantial revision since 1999 of patent law Big adjustment was a switch from "first to invent system" to "first inventor to file" system First to get to the patent office wins
Recognizability or distinctiveness of trademarks
Function of trademarks and why companies want to distinguish their products and services from their competitors Trademarks exclusively distinguish reputation and goodwill of a specific business Companies have worked hard to develop recognition - you see a mark and think of them, think of product and service and its reputation Lots of money is put into this, that's why it's protected Think of well known trademarks Nike swoosh, Apple, golden arches of McDonald's Power of the trademark Protection against confusion
If name is descriptive or is the name of a person - PTO will put it in a Supplemental Register for 5 years
If it acquires a secondary meaning within the 5 years, it can be moved to the Principal Register and get trademark status Secondary meaning: the public thinking differently about the meaning of this person's name or the descriptive term Ex. Honey baked ham - descriptive term, put into Supplemental Register for 5 years, when you see honey baked ham, you think of the company - that is secondary meaning and is moved to the Principal Register Ex. Disney or Ford, people but their names have developed a secondary meaning to the public - when people see these names, the majority thinks of Disney stuff not the guy, with Ford you think of cars, not Henry Ford
what damages can sucessful copyright cases get?
If successful, copyright owner can get injunction, get actual damages, statutory damages Statutory damages can happen if the work is registered prior to the infringement Most of the time is it smarter to register a copyright - can get set statutory damages Don't have to prove a set number of damages, the statues already guaranteed certain damages Criminal damages Fines imposed Copied materials seized Individuals put in jail
Patentable subject matter - Scrutinizing subject matter tests validity of patent
Important to determine whether your invention is patent worthy Investor watch this, inventors see how patentable technology is, methods Becomes important for IPOs Courts have carved out subject matter that cannot be patented because it is not a true invention Cannot patent... 1. Natural phenomena Ex. Hiking and see a new flower, you are an expert and you know no one has ever found the flower - you cannot patent the plant, you could however patent a compound gleamed from the flower 2. Processes Can be controversial Ex. Algorithms, formulas that express truths about the universe 3. Mere abstract ideas Ex. Happiness, patriotism, freedom ex. Alice Corporation vs CLS Bank (2014) 4. Humans Congress locked this down in 2011, too far ex. Association for Molecular Pathology v Myriad Genetics (2013)
what does NOT count as missapropriation of trade secrets
Independent creation and reverse engineering are NOT misappropriation, they are exempted If you happen to create the exact information on your own, that's OK Lots of circumstantial evidence required Ex. Two different states, no overlap - no misappropriation Reverse engineering: you put something out there, someone else takes it and figures out how to make it by reversing the steps, you cannot sue the person because they engineered it In some cases, a patent can provide better protection if you think people would be able to reverse engineer something If you can meet requirements of patent, maybe it would be better to go for a patent rather than a trade secret
importance of IP
Knowledge assets are among the most valuable assets of businesses Estimated, 75% the value of Fortune 500 companies is from IP
marks protected by lanham act of 1946 - trade dress
Look or design of a product or service Ex. Red color scheme for coke, shape of their bottle Applies to total visual image where services are concerned Federal court has held that a restaurants decor, layout, menu, dress of works, all under trade dress Protects trade dress that is DISTINCTIVE If distinctive and registered, owner does not need to prove the public identifies it with a specific source
marks protected by lanham act of 1946 - Service Marks
Mark associated with a service rather than a product When registered it has a circle "R", when unregistered it has superscript SM for service mark Mark is used on advertising of the service because there is no physical package or good to put the mark on Typically on uniforms, trucks, webpages
marks protected by lanham act of 1964 - trademark
Mark, word, picture or design that is attached to goods to indicate the source of the good Can be located on a package, label, voucher, or product itself Typically designated by superscript ™ hen unregistered and the circled "R" when registered Ex. Georgia G, late to the party with establishing trademarks, but now they have everything protected under the circle R, cannot use without using licensing fees or permission (student organizations have leeway)
trademark
Marks on what is produced to represent the origin of goods and services, marks indicate a specific producer Used for thousands of years, used in pottery, branding cattle Law protects maker of trademark against use of trademark by anyone else Use can be purposeful or accidental Can be registered with the PTO but don't have to be Unregistered trademarks still have rights and the owner can sue for infringement Have protection, just not the same muscle BUT federal trademark registration under the Lanham Act of 1946 is advised because registered marks under the LA have special protections unregistered marks don't have
Need to prove someone misappropriated the trade secret
Misappropriation: when one improperly acquires or discloses secret information Ex. burglary, espionage, hacking Acquiring information from someone who you know is not supposed to tell you something - both people in violation If secret acquired innocently and you don't know this person misappropriated you're fine
Civil enforcement of Trade Secret
Misappropriation: wrongful taking of trade secrets Owners can seek injunction or money damages Injunction: order by judge to do something or refrain from doing something Ex. Make someone stop using my list
Patent registration
Only registration Property doesn't become legally perfected or legally valid until its been challenged If a patent is attacked, generally on the basis of validity, obvious, not patentable, etc Just because its patented doesn't mean it's bulletproof
Generic marks cannot be protected
Owners need to be diligent to make sure their trademark does not become generic Trademarks become generic when... Through the owner's actions or another's inappropriate use that the trademark becomes synonymous in consumer's mind with the whole product or service Ex. Coke was put on notice that their good was possibly becoming generic, concerning because if the mark becomes generic, you lose registration - this was happening because people went into a restaurant and asked for a Coke to describe any dark beverage, used interchangeably to describe any dark beverage, not actually Coca Cola - Coke's lawyers put out notices that vendors need to specify coke vs other sodas Has happened to a lot of named products because their names have been used synonymously with goods and services Ex. Kleenex, aspirin, trampoline, video tape, "google that", velcro
defenses to patent infrigement
Patent invalid Even though the PTO gave someone a patent, someone can challenge validity by saying the PTO shouldn't have issued the patent in the first place Can challenge claims with criteria Ex. PTO or court may conclude that a claim in patent or application is invalid if invention was disclosed under prior patents, TV show, book, webpage, published before claimed invention, disclosed to public or sold Court can find patent invalid due to statutory requirements Not a clear description, doesn't describe patentable subject matter
trade dress aspects
Power with total visual image Ex. you were blind folded, taken to a store without words, but all other elements of the store/restaurant were the same - you would be able to know, this is Chick Fil A, this is steak and shake Importance cannot be understated If you're driving down the road and see a new restaurant or store being built, eventually the shape or the way the store is being configured will tell you something about the store A lot of fast food chains have been rebranding - messes with trade dress
Illegal to assist others in copyright infringement
Produce or assist in production Obtain financial benefit Supervise infringement Distribute devices that can infringe copyright
Manufacturing and trafficking counterfeit trademarked products is a criminal violation
Producing, trading imitation products is CRIMINAL Ex. fake rolex, prada shoes, purses Have to go to the scary part of town to buy this stuff Deliberate intent to pass off fake products as real using an unauthorized mark
Capturing IP
Protection for intangible property does not apply automatically in most cases Need to take steps to protect time, effort, and money spent in developing knowledge to transform it into a valuable asset Firms that don't have IP strategy risk losing valuable assets Once knowledge is in the public domain, IP rights cannot be applied to recapture it If you don't do identification or inventory of IP, you don't know what is it or that it's worth money, you cannot recapture it Failure to follow the rules means that information that could have made you money is lost and dedicated to the public domain - anyone can use it Need to know what IP is and how to identity it Need to do inventory on regular basis to make sure money isn't just walking out your door
With no problems or objects are resolved favorably to proposed mark owner, mark goes to the Principal Register
Provides notice of the mark's official trademark registration status Ex. Entrepreneur comes up with businesses then sells them - wanted to start a puppy spa, proposed the name of the spa be "Pawliday Inn" - mark placed in Official Gazette, Holiday Inn objected, once Holiday Inn said they were not going to move into the pet industry - guy didn't want to go through legal issues so he picked a new name and left it
is registration required for a copyright?
Registration is not required to obtain a copyright under federal law Under Copyright Law of 1976 - from the moment the author creates it, automatic Don't need a mark You should assume an item is copyrighted even if it doesn't have a mark Allows owners to control the reproduction, display,distribution, and production of a work
marks protected by lanham act of 1946 - collective marks
Represents membership is a collective organization like a union or cooperative Can be used by particular members of the organization which owns them Ex. SEC, ADA Used by members of the organization who owns the mark
Criminal enforcement of Trade Secret
State law makes intentional TS violation a crime, most criminal cases take place under the Federal Economic Espionage act (EEA) EEA considered taking TS a crime, can only be brought by the federal government Provisions address standard trade secret violations Provisions also address misappropriation that benefits a foreign government Individuals can be fined, receive up to 10 yrs in prison Companies can be fined up to $5 million in fines Ex. Coca Cola case 2007 Early 2000s, a Coke secretary had been privy to secrets for product development (things coke had in the pipeline for R&D), contacted Pepsi saying she would sell information for $1.5 mill Pepsi knew they would also be in trouble for misappropriation if they took the info, so they turned the lady over, she went to prison for 8 years
Need to prove there is a trade secret
TS used in businesses, gives opportunity the chance to gain economic advantage because its secret Secrecy gives it value Reasonable steps are taken to keep it secret taken by company In order to receive protection, you need to take efforts to keep it secret Defining trade secret: information like formulas, techniques, processes, R&D, profitability information, customer information Information is worth something because people cannot readily get it Only way people could get information is if they did it wrongly TS don't have to be unique
Obtaining a Patent
To be legally protected, patents needs to be granted by the US PTO following the review of a patent application Process 1. File application 2. Pay filing fee 3. Explain invention Show difference from prior art Application must explain and show why and how this invention is different from prior art 4. Describe patentable aspects 5. Evaluation by the patent examiner Examiner will decide whether it is qualifying Lots of back and forth, could get super technical Good to hire a patent lawyer if things get super technical Patent lawyer helps with litigation Take a special patent law exam Can be expensive but worth it, they have more ability to help you with the legal aspects Could also get a patent agent Patent agent: non-attorney with lower fees, helps you file information, get information to PTO, cannot represent you in litigation or do anything with law, purpose is to have technical work done for you
Trademark Enforcement
Trademark infringement can be criminal or civil Law protects the owner from unauthorized use of the mark Infringement: civil violation of a trademark Remedies include damages and injunctions and orders to destroy infringing products Sometimes with videos or DVDs, fake purses, one of the orders of the court is to destroy all of the products Standard of proof: likelihood of confusion
Trade secrets don't have to be unique
Two companies can have overlapping info - as long as they believe their info is valuable to their company and they have taken steps to keep it secret Ex. Customer list for cleaning company - girls starts a cleaning company, puts ads up and starts getting clients, over a few years she has a decent client list with a range of customers Someone else comes to Athens and wants to start a cleaning company, the girl's customer list is very valuable - you can't get the list so you start advertising, start making a list, over a few years it is likely that the two people have some of the same people on their customer lists As long as the two companies with commonalities don't know each other's lists, they are trade secrets
Trademark Registration - how to be eligible and steps to keep a trademark alive
Usage of mark in interstate commerce is required for registration with the PTO Pretty easy these days, if it's on the internet, that's enough Must be distinctive Trademarks enjoy relatively UNLIMITED protection - need to follow rules Every 6 years owner needs to notify PTO that they are still using the trademark Every 10 years owner needs to renew the trade mark Just need to watch over and protect trademark
marks protected by lanham act of 1946 - certification marks
Used by someone other than the owner of the certification mark to certify quality, point of origin, or other characteristics of goods or services Often owned by a trade association or some centralized commercial group Certification guarantees goods or services with the certification mark bears certain characteristics Owner needs to make sure anyone using the mark is complying with standards for certification If they don't do this and someone uses the certification mark and the standard for the mark is lower than certification, the mark owner can lose their mark Ex. You own mark for fair trade, you need to police the people using the mark, make sure they meet the standards or tell them to stop using the mark - you're mark could be cancelled Expect people who comply with strict standard to use the mark
Trade secrets are so important for business because this is money
With so much value being comprised of IP, companies take it seriously Trump initiated that we have US companies and universities have immigrants come over, they take secrets to their countries and they misappropriate our stuff Huge uptick in this problem, government is trying to help our industries because money is being lost Many companies have information they don't want to lose
Hackleman's Brother and his job
Works to design rocket engines His life is monopolized by trade secrets by companies he works for or with Companies extremely worried about their secrets Ex. cannot bring cell phone on premises, laptop, cannot take things out of your cubicle, leave with documents, notes during a meeting Companies protect data with encryption, physical couriers used, secure mail, warning employees, communicating properly to employees
patent
an exclusive right created by statute and conveyed by the PTO (patent trademark office) for a limited period of time Associated with an invented act Can exclude others from making, selling, or importing an invention US constitution authorizes Congress to create patents US is a world leader in establishing patent law Trade off - lawmakers try to find sweet spot to reward creators with exclusive rights for a period of time, but that stops after a time and it goes into the public domain Period of time set by Congress
trade secrets
any form of knowledge or information that has economic value from not being generally known to others or readily ascertainable by proper means and has been subject to reasonable efforts by the owner to maintain secrecy Developed in 1800s in IR With apprentices and artisans, secrets were passed down and kept guarded With large factories, things were different - trade secrets became important because anyone who worked in the factory could know them Trade secrets are a common way of asserting property in knowledge based intangible resources Common law protects trade secrets but most states have adopted Uniform Trade Secrets Act UTSA: uniform acts adopted as statutory law
copyright
protects creative expression such as written or artistic work Deals with original expression as opposed to original inventive act of a patent Copyrights and patents are actually used by both arts and sciences Property rights afford an author or artist a monopoly to... Copy and market for a limited time Congress in the constitution was given the power to grant exclusive right a limited period of time set be congress When time expires, it goes to the public domain Term: author's lifetime + 70 years Why Elvis's family still gets to profit off his work Some people say this term is too long Copyright developed with invention of printing press and has developed from there Today digital technology has made it east to copy and reproduce everything from movies, to music, software, printed material People are often violating copyright law and don't realize liability - not a defense
types of patents
utility patent design patent plant patent
trademark dilution - blurring
when usage of a mark blurs distinctiveness of a famous mark Uses trademark in a way to blur the distinctiveness If the consumer has to think harder to distinguish between two products or services with the same name Ex. Movie, "Coming to America" - guy owned a fast food restaurant called McDowell's with golden arcs, Big Mics - not enough to keep the public from having to think hard about distinctiveness
trademark dilution - tarnishment
when usage of a mark creates a negative impression about the famous company Ex. Ben and Cherry's suing Ben and Cherry's adult film producer - BJs said they were a family company and cannot have adult film producer doing this Ex. Strip club using the name Tiffany's, used chandeliers - image of jewelry store would be tarnished due to this strip club
