What is intellectual property?
is property resulting from an intellectual, creative process ( your mind).
- includes information in books
- computer file
What is a trademark?
a distinctive mark, motto, device or emblem that a manufacturer stamps, prints, or otherwise offices to the goods it produces so that they may be identified on the market and their - origins made known.
- case 5.3 The Coca-Cola Co. v. Koke Co. of America (1920 case)
- Competitors were using products named 'koke" and "dope"
- Coco-Cola Co. brought an action to forbid other beverage companies from using the words "koke" and "dope."
- disagreed that the term Coke was misleading because the product no longer contained cocaine as "coke" implies.
- Court - the name coke is so well known around the world and is such a common term for the trademarked product Coca Cola that the D's use of "koke" was disallowed. The court could find no reason to restrain the use of "dope."
1946 Lanham Act
- enacted in part to protect manufactures from losing business to rival companies that used confusingly similar products
1995 - Federal Trademark Dilution Act
- created a federal cause of action for trademark dilution
- trademark dilution laws protect "distinctive" or "famous" trademarks (such as Jergens, McDonalds, RCA, and Macintosh) from certain unauthorized uses of the marks regardless of a showing of competition or a likelihood of confusion
- trademarks may be registered with the state or the federal government, to register for protection under federal trademark laws, a person files an application with the U.S. patent and trademark in Washington D.C., a mark can be registered if :
- it is currently used in commerce
- applicant intends to put mark into commerce
whenever a trademark is copied in its entity or to a substantial degree , the trademark has been infringed (used without permission)
- a person does not have to register a trademark to sue for trademark infringement but registration will establish a date of the beginning of the trademark's use
- fanciful, arbitrary, or suggestive trademarks are generally considered to be the most distinctive and strongest trademark
- these provide the best means of distinguishing one product from another ( outside the context of the particular trademark)
Fanciful - Xerox, Kodak
Arbitrary - English leather - after shave -no literal connection to the product
Suggestive - Dairy Queen - suggest some about a product without describing the product directly
Descriptive and geographical terms and personal names are not inherently distinctive and do not receive protection until they argue a
- when people begin to associate a specific term or phrase with specific trademark items - ex London fog - coats
- whether it becomes attached to a term or name depends on
- how extensive product is advertised
- the market for the product
- number of sales
such as a bicycle or computer receive no protection even if they acquire a secondary meaning.
similar to a trademark but is used to distinguish the services of one person or company from those of another
used by one or more persons other than the owner to certify the region, materials, mode of manufacture quality or accuracy of the owner's goods or services.
used to indicate part or all of a business' name. is directly related to a business and its reputation and good will.
the image and overall appearance of a product. Ex- Coke Bottle Shape
For example, the distinctive decor, menu, layout, and style of service of a particular restaurant
Part of an internet address. Businesses spend an average of $70,000 a year to maintain them.
When a person or business registers a domain name that is the same as, or confusingly similar to, the trademark of another, and offers to sell the domain name back to the trademarked owner
Anti-Cyber squatting Consumer Protection Act
This act makes it illegal to"register, traffic in, or use a domain name...
a. If the name is identical or confusingly similar to the trademarks of another, and...
b. If the one registering, trafficking in, or using the domain name has a "bad faith" intent, to profit from that trademark.
-Factors that may show bad faith.
-trademark rights of others.
-is there an intent to divert consumers in a way that could cause the goodwill represented by the trademark.
-is there an offer to sell the domain name to trademarked owne
search engines compile results by looking through a web site's key words field. key words, can be inserted into the key word field or words have nothing to do with the content of the web site.
-people do this to increase the hits on the site.
-may be more advertising dollars.
-using another's trademark without the owner's permission constitutes trademark infringing.
Trademark dilution in Cyberspace
Court ordered candyland.com to change its URL.
-in one case, spam emailing and using a free hotmail email address as the return address. Hotmail Inc. offers free email services and offers anti-spam as part of its services.
A government grant that gives an inventor the exclusive right or privilege to make, use, or sell his or her invention for a limited time period.
the applicant must demonstrate
that the invention, discovery, process, or design is genuine, novel, useful, and not obvious in light of a new technology.
protection is given to the first person to invent a product or process, even though someone else may have been the first to file for a patent on that product or process.
What is not patentable?
many software products simply automate procedures that can be performed manually. The basis for much software is often a mathematical equation or formula
These three are also not:
-The laws of nature.
-The exclusive right of "Authors" to publish, print, or sell an intellectual production for a certain statutory period of time.
-similar in nature to a patent or trademark but differs in that it applies exclusively to works of art, literature, and other works of authorship. (including computer programs.)
What is protected expression?
-includes books, records, films, art, architecture plans, menus, music videos, product packaging, computer software.
-To obtain protection under the Copyright Act, a work:
a. must be original
b. fall in one of the following categories:
1. literary works
2. musical works
3. dramatic works
4. pantomimes and choreographic works
5. pictorial, graphical, and sculptural works
6. films and other audiovisual works
7. sound recordings
c. must be "fixed in a durable medium" from which it can be perceived, reproduced, or communicated.
d. protection is automatic; registration is not required.
Are ideas copyrighted?
Ideas alone are NOT copyrighted. What is copyrighted is the particular way in which the idea is expressed.
-Anything that is not an original expression is not copyrightable.
-The key is originality.
-Facts widely known to the public are not copyrightable.
-Page numbers and mathematical calculations are not copyrightable.
-Compilations of facts are copyrightable.
-A compilation is "a work formed by the collection and assembling of preexisting materials of data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.- Ex: White pages are not copyrightable when the information is not selected, coordinated, or arranged in an original way.
1980-Computer Software Copyright Act.
Computer programs are classified as "literary works."
Computer programs are defined as a "set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result."
-Copyright protection extends not only to the parts of a computer program that can be read by humans (such as the high level language of a source code), but also to the binary- language object code of a computer program, which is readable only by the computer.
Whenever the form or expression of an idea is copied.
Reproduction does not have to be exactly the same as the original, nr does it have to reproduce the original in its entirety.
Fair Use" doctrine.
Under this someone can reproduce copyrighted materials without paying royalties.
Section 107 of Copyright Act-Fair Use
Criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Factors for "Fair Use"
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 substantially 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.
Copyright Act of 1976
-The loading of a file or program into a computer's random access memory, or RAM constitutes the making of a "copy" under copyright laws.
Economic Espionage Act
made theft of trade secrets a Federal crime.
Trips Agreement (Trade-Related Aspects of International Property Rights)
Signed by over 100 nations in 19944, this sets out standards for the international protection of patents, trademarks, and copyrights for movies, computer programs, books, and music.
-Each member country must have broad domestic laws protecting intellectual property rights.
-Under this, each signatory must give the same protection to noncitizens as citizens.
Buying one copy of product-over 90% of software in Russia, China and Pakistan consists of pirated copies