LES 305: Week 14: Intellectual Property (Exam 4)

The term "BandAid" is now generic and describes all brands of adhesive bandages (Generic terms can't be protected by a trademark.)

"BandAid" is a trademark that belongs to Johnson and Johnson. You are the brand manager for Smith & Smith, a competitor of J & J, and you want to label S&S's own version of adhesive bandages as "Smith & Smith BandAids". If S&S is sued for trademark infringement for using the name "BandAid", S&S's best defense is that __________

Types of Intellectual Property

- Trademarks - Trade Dress - Trade Secrets - Trade Name - Patents - Copyrights - Digital Copyrights

transfer of personal property

1. Documents of title 2. Bills of sale

Creditors' Rights and Personal Property

1. Take security interest (lien) in personal property a. Also called a chattel mortgage or collateral b. Governed by Article IX of the Uniform Commercial Code (UCC)

Sonny Bono Copyright Term Extension Act (CTEA)

1. sponsored by the late Sonny Bono 2. resulted from public appeal of Mickey Mouse losing its copyright 3. Constitution prohibits granting copyright protection in perpetuity

factors to be considered in determining whether or not a particular use is fair

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes (e.g. criticism, teaching, comment, scholarship, news reporting, research 2. the nature of the copyrighted work 3. amount and substantiality of the portion used in relation to the copyrighted work as a whole 4. the effect of the use upon the potential market for or value of the copyrighted work.

types of patents

1. utility patents - new product, machines, processes, improvements to existing devices (20 years now) 2. design patents- features of a product (14-15 years) 3. plant patents- development of new forms of plants and hybrids (20 years)

Digital Millennium Copyright Act (DMCA)

1988 amendment to federal copyright laws that includes use of computer technology to copy music and other copyrighted materials as infringement.

dilution

7. Taylor Swift, a famous pop singer, filed for permission to exclusively use phrases that relate to her album, 1989, "Party Like It's 1989", "This Sick Beat", "Cause We Never Go Out of Style", "Could Show You incredible Things", "Nice to Meet You, Where You Been" to prevent, "...musical instruments, paper products, stickers, decals, handbags, guitar straps, and shopping bags, from using the phrases." If the filings that Taylor Swift made are approved and you bought a T-shirt with a "Party Like It's 1989" slogan on it to honor your idol, thinking that it was made by Taylor Swift or one of her licensees, but in fact, it was manufactured by a big box retailer without permission, and you were confused about the source of the product, then Ms. Swift would have a lawsuit for _______________

Trade Secret (Types of Intellectual Property)

A formula, device, idea, process, or other information used in a business that gives the owner a competitive advantage in the marketplace. -may be eligible for patent or Crt protection

patent infringement

Anyone who sells or uses a patented product or process without the consent of the patent holder has committed _____________________.

trademark (Trademarks prevent others from using identifiable words and phrases.)

Artist Shepard Fairey's ability to protect the term "Obey" on T-shirts is based on

-profits made by the infringer -actual costs -attorney fees -any other expenses associated with the infringement action

Damages for copyright infringement include __________

Individuals - Life + 70 Corporations - 120 years from creation or 95 years from publication

How Long Does a Copyright last?

As long as the owner does not allow the trademark to slip into generic status

How long does trademark protection continue?

$615 million

How much did Boeing pay to settle the criminal investigation into the use of the documents and other issues?

File for a design patent.

How would you advise Kanye West to protect the prototype of his new sandals?

parody (Social commentary is "fair use".)

In 2010, ThinkGeek began marketing canned Unicorn Meat for April Fool's Day. The tag line for this new delicacy was "Pâté is passé. Unicorn, the new white meat." It promised to be an "excellent source of sparkles!" The can contains a dismembered plush unicorn toy. However, the national Pork Board, an organization devoted to supporting the pork industry, saw a threat to the national brand of pork, which has long been advertised as "the other white meat." So the organization sent ThinkGeek a cease-and-desist letter. ThinkGeek's defense would be:

patent (This new packaging is novel, nonobvious and useful, the standard for patentability.)

In 2012, Proctor and Gamble created a new type of packaging for its Tide detergent, now known as "Tide Pods". This is an innovation over the old packaging in which users measure and pour detergent from a jug. How is this new packaging protected?

Madrid Agreement

In international law, 1891 multilateral treaty for protection of trademarks that permits universal registering and managing of trademarks registrations with the bureau are effective for five years in all member countries unless one of the members objects to the trademark registration, in which case the registration is not effective in that country.

Opposition Proceedings

In non-U.S countries, a process which includes publishing the description of a patent and inviting the public to study the description and possibly oppose the granting of the patent

Misappropriation

Intentional tort of using others' trade secrets or ideas for self-benefit or the benefit of a new employer

American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music (BMI)

Music song plays are controlled by

Fair Use

One of the exceptions to copyright protection; permits occasional and spontaneous use of copyrighted materials for limited purposes

Internet Corporation for Assigned Names and Numbers (ICANN)

Organization that registers domain names for purposes of protection of those names and intellectual property.

intangible/intellectual property (type of personal property that a business can own)

Patents, Copyrights, Trademarks, Trade Names, Trade Dress - Intangible Property: Has Value in Its Rights

dilution

Protects TM owners when others try to capitalize on the recognition, familiarity, and reputation of a distinctive mark.

trade dress

The iconic and distinctive little blue box used to package jewelry from Tiffany and Co. jewelry is an example of _____________

1. Monetary Damages 2. Injunction

The two types of remedies that are available for patent infringement are _____________.

as long as it remains a secret.

The type of intellectual property that was the main issue in the Boeing case can be protected

true ( Some copyright holders assign or license these rights to others in exchange for royalties. For example, most songwriters assign their rights for public performances of their songs to the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music, Inc. (BMI), who then pay the writers each time their song is used, according to a previously determined schedule of fees.)

True or false: A copyright holder has control over the use of the created work which includes control over reproduction, distribution, public performances, derivative works, and public displays

true

True or false: A short quote from a copyrighted work is an example of fair use.

true

True or false: Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

true

True or false: Establishing that someone is palming off requires proof that consumer confusion is likely because of the appearance or name of the competing product.

true

True or false: Knock-offs and gray-market goods are forms of infringement

true ( The distinction between "fair use" and infringement is not easily defined.)

True or false: Neither precedent nor case law outlines a specified number of words, lines, or notes that may be used without permission.

true (Registration is a means of preventing someone violating the copyright from claiming a lack of knowledge about the work's protection.)

True or false: Under the terms of the Berne Convention and U.S. law, copyright registration is not required, but it is recommended.

true

True or false: Use of a trade name without the registered owner's permission is infringement.

palming off

Unfair trade practice of passing off mock goods as the goods of another. an unfair method of competition that involves causing deception about the maker or source of a product (e.g. fake Rolex, Cabbage Patch dolls)

the circumvention of encryption devices criminalizes the circumvention of protection technology in order to make copies of copyrighted materials.

What does the Digital Millennium Copyright Act prohibit?

She was reprimanded.

What happened to the Boeing employee who raised questions about the use of the Lockheed Martin documents?

using short quote of a copyrighted work

What is an example of fair use?

keep it a trade secret

What is the best way to protect your company's secret recipe for its new protein drink, Soylent Green if you want it to remain a secret for the longest term possible?

For gray market goods, the manufacturer had a license, but exceeded its licensed quota; for knock-off goods, no license was granted to the manufacturer, the goods are completely counterfeit.

What is the difference between knock-offs and gray market goods?

$1 billion in lost contracts

What was the defense department penalty for Boeing for using the Lockheed Martin documents?

During the interview with the Lockheed Martin employee

When did Boeing employees first see Lockheed Martin's proposed bid for the project?

gray market goods

When you buy a case for your tablet with a very famous designer logo on it in the back alley of a large city for less than 50% of the retail price, and the company that manufactured the case exceeded its authorization from the trademark owner to produce cases, the cases are _____________

copyright laws

Which of the following protections is used for movies and plays?

The author of the text and Marianne Jennings *(both a and b)*

Who served as an ethics consultant to Boeing following the document issue coming to light?

The Industrial Espionage Act of 1996

____________ makes it a felony to copy, download, upload, fax or otherwise communicate trade secrets of US companies to benefit anyone other than the owner of that information.

Trademark (Type of Intellectual Property)

a *distinctive* word, name, symbol, design, or device that businesses use to identify their products or services -must be unique and nongeneric

patent (Type of Intellectual Property)

a type of legal monopoly over inventions, products, and processes; it is obtained by filing certain information and forms with the U.S. Patent Office

Trade Libel

a written untrue statement made about a business product or service in images, printed words, and in other media

liability

a. Bailee liable for damages until return b. Bailor must be certain property is in good condition

Mineral Rights

a. Can be sold/transferred separately b. Oil, gas, coal, geothermal energy

Federal Trademark Dilution Act

a. Covers blurring of distinctive marks b. Consumer surveys, used to see if there is confusion

requirements of bailment

a. Property possession transferred b. Intent to create a bailment (e.g.s valet parking, leasing in-line skates, coat check)

Computer Software Copyright Act of 1980

an act under which all software can be copyrighted, whether it is written in ordinary language (source code) or machine language (object code)

slander of title

an untrue statement (spoken defamation) made about a business product or service

disparagement

an untrue statement made about a business product or service; it is divided into two types - trade libel (written) or slander of title (oral) defamation of a business, its trademark or its products.

Copyright (Type of Intellectual Property)

exclusive ownership rights given to by the federal government to creators of books, music, magazine articles, plays, movies, songs, dances, photographs, and other creative works.

patent

exclusive ownership rights given to by the federal government to inventors of unique, nonobvious processes, products, or services. a. 17 year legal monopoly on products, processes, or machines with GATT; now 20 years b. Exclusive rights to profits c. Must be nonobvious, novel, and useful d. Selling the idea without consent constitutes infringement

Lanham Act of 1946

federal law passed to afford businesses, protection of their trademarks -protection of a company's goodwill

Knock-Off Goods

goods manufactured by someone other than the trademark or trade name holder without authorization and not according to the standards of the owner.

indefinite so long as it continues to be used

how long does a trademark last?

Gray Market

market in which trade name goods are sold through unauthorized dealers or without authorization from the owner of the trade name.

trade name (Type of Intellectual Property)

name of a firm or product require registration entitled to federal protection for exclusive use. (e.g. Olympic)

trademark (Type of Intellectual Property)

name, symbol, mark, letter, word or figure legally registered or established by use as representing a company or product.

Federal Trademark Dilution Act

permits recovery and injunctions for "dilution" of distinctive trademarks; it protects the trademark owner and prevents others from capitalizing on the popularity of the trademark protects against infringement

trade secret examples

processes, procedure, customer lists, customer preferences (lists of information, formulas, and even data that businesses compile for use in the marketplace, with customers, or in securing contracts)

bailor

property owner

bailee

property possessor

Cybersquatting (Type of Intellectual Property)

registering sites and domain names that are deceptively or confusingly similar to existing names, trade names, and trademarks.

bailment

right of posession

Trade Dress (Type of Intellectual Property)

total image and overall look, feel, color, and decorative design of a business.

infringement

violation, as of a law, regulation, or agreement; a breach

1. tangible personal property (fleet vehicles, machinery, office equipment) 2. intangible or intellectual property (patents, copyrights, trademarks, trade names, trade dress, etc.) 3. real property (land/surface, air rights, mineral rights (oil, gas, geothermal energ), fixtures (personal property that becomes annexed to real property)

what can a business own