what do trademarks includetrade dress- distinctive, but no-functional design of packaging, labels, containers and the product itself or its features can be labels, containers, and the product itself (swedish fish)service marksused to identify and distinguish the services of one person from those of another (McDonald's building design)certification marksused in connection with goods or services to certify their: - regional or other origin -composition -mode of manufacture -quality -accuracywhat the the 4 mark requirements1. inherently distinctive 2. cannot cause confusion with an existing mark 3. continuous use ---- 3 yrs of nonuse raises a presumption of abandonment 4. must defend the markto qualify as inherently distinctive a mark mustfall into one of the four categories 1. fanciful 2. arbitrary 3. suggestive 4. descriptivefanicfulmark only has meaning when used in relation to a specific product Pepsiarbitraryreal word or item with a meaning that is not associated with the product sold apple productssuggestiveallusive word that suggests a characteristic of the product or service netflixdescriptivesecondary meaning many purchasers associate the mark with good or service coca-colagenericno protection and may no be registered kleenexdo you have to register a mark to be protectedno yes if you want federal protected but other wise you are protected under state lawwhat are the requirements to register a mark- have actually used the mark in commerce - show a bonafide intent to use the mark in commerce and will actually use it within 6 monthsdoes a mark registration have to be renewedyes every 10 years with unlimited renewals the renewal requires an affidavit of use one year before the expirationwhat are the benefits of registering a mark1. nationwide constructive notice 2. allows use of federal court to enforce the mark 3. constitutes prima facie ---- evidence of registrant's exclusive right to use the mark (after 5 years this right becomes incontestable) 4. protection against imports using the mark 5. can use the R symbol -- use TM or SM if not registered 6. 2002 madrid protocol -- files >65 countrieshow do you defend your marksend a cease and desist letter sue if necessarywhat is infringementuse without authorization of an identical or substantially indistinguishable mark likely to cause confusion, mistake or deceiveinfringement testwill an appreciable number of ordinarily prudent purchasers be misled or confusedis intent required for infringementnoallowed use of other's markscomparative advertising non-commercial use (educational) news reportingwhat is a trade nameany name to identify a business vocation or occupation all it does was protect words register by filing an assumed namecan trade names also be registered as a trademarkyeswhat is a copyrightprotects creators of original work literary, musical, movies, plays, recording, architectural, computer software, choreography, art, contents of a websitewhen does copyright protection startas soon as the creator - fixes the work in a tangible expression so that the work can be perceived, reproduced, or communicated for more than a short timewhen can you use the copyright symbolyou can use it without registering immediatelywhat can you not copyrightdomain names processes recipe ideasideas and copyrightyou can express your idea in writing or drawings and copyright the description but it does not copyright the actual ideafor an idea to be protected1. must be original 2. must be a tangible expression 3. parties must have contractual relationship (contract is what creates the protection)why do you register a copyright1. easier to obtain damages 2. easier to obtain reimbursement of attorneys' fees 3. registration gives notice to all potential infringers of protection of materialcan someone actually prove damages from a copyrightno but the plaintiff can ask for a statutory amounthow long does a copyright lastlife of individual author + seventy years if the owner is an entity - 95 years from first publication or - 120 years from creationfair uses of copyrightcriticism comment news reporting teaching scholarship researchwhat is a patentmonopolistic right to make use or sell an invention/process to the absolute exclusion of others for the period of the patentexpiration of patentafter 20 years the invention enters the public domain 20 years from date of applicationwhat are the 3 categories of patentsutility plant designutility patentnew and useful process, machine, manufacture or composition of matter or a new and improvement thereof drugs +5 years equipmentplant patentnew and distinctive variety of plantdesign patentnew, original, ornamental design for an article of manufacture 14 years expiration jewelry design of car can also use copyright or trademarkpatent vs trademarkpatents expire trade secrets do not expirewhat is required to keep your patentmust pay maintenance fees at 4 8 and 12 maintenance fees only apply to utility patentsemployer owns the copyright ifthe employee created the work within scope of employmentprincipal/client will own the copyright ifthe work was commissioned from an independent contractoremployer/principal will own the patent ifif the employee/IC was hired for that type of invented workwhen does the employee own the patentif they were not hired for inventive work employee prepared within scope of employment using the employer's facilities the employer has non-exclusive royalty free right to use itinternet service providers and platformsthey have immunity if their users infringe on other's copyrights DMCA take down notice the owner of the IP can file a take down notice with the platformwhat is tangible personal propertygoodswhat is real tangible propertyland building fixturespersonal intangible propertynegotiable instruments stock certificates contract rights copyrights patentsreal intangible propertyleases easements mortgagesnegotiable instrumentschecks and promissory noteseasementright of someone who does not own the land to come on the land and use it for a specific purposewhat is a fixtureitem was personal property item was attached to or made specifically for real property due to this attachment or custom it becomes a fixture and is now real propertyfor landlords - fixturesif you want to keep the personal property you must put a security interest on the property -- refrigerators and mircowavesbill of saletangible personal propertytransfer of title formcarassignmentintangible personal propertysale - transfer of "consideration (price)"transfer of possession - not requiredgift transfer1. delivery - possession of item itself - and have a bill of sale/assignment/title OR constructive (keys) 2. Donor intent to: - make a gift - transfer must be present 3. accepted by doneeaccessionthe growth belongs to the owner - livestock - puppies - interestconfusionwhen similar items belonging to different people are combined and the people cannot identify who owns which itemexcheatwhen no one claims ownership it will revert to the statepossesionfinder of lost property has title until true owner takes it backlost property found in groundlandowner gets the propertyif property is mislaidpossessor of space where item left gets the property but true owner can always get it backwhat are the two types of interest in real propertyfreehold estate leasehold estatewhat are the two types of interest in freehold estatespresent interests future interestswhat are the types of present interestsfee simple fee simple defeasible life estatespresent interest entitle the owner topresent possession of the real propertyfuture interest do notentitle the owner to current possessiontypes of future interestreversion remainderfee simple estate present interest or future interestpresent interest with no associated future interestfee simple interest in real propertygrantor gives the grantee a deed to the real property gives you the most rights you own it until you choose not to own anymore or you have given someone the right to take it away from youencumbrancea claim against a property by a party that is not the owner of the fee simple the owner of the encumbrance can control how the owner uses or possesses the propertyfee simple means of transfersale gift will inheritancefee simple defeasiblea present interest and always has an associated future interest ownership is conveyed on a condition that is specified that if that condition happens, then the owner no longer owns the propertyreversionthe possession goes back to the grantorremainderthe possession goes to a third partylife estatepresent interest and always has an associated future interest when ownership is conveyed ownership is limited to the lifetime of the granteewho owns the property after death of the grantee of the life estatethe owner of the future interestfee simple defeasible or life estate transfersale gift will and inheritance can only be given by the person the life estate is tied totenancy in commonno right of survivorship interest by be transferred by will interest may be transferred by deedjoint tenancyright of survivorship exists interest may not be transferred by will interest may be transferred by deed if interest is transferred to anyone outside the JT the JT is destroyed and all become TICwhat is a leasehold estatecontract for possession and/or usetypes of leasehold estatedefinite term periodic tenancy tenancy at will tenancy at sufferancedefinite termexpires at end of definite term must be in writing if the term is greater than a year no prior notice of termination requiredperiodic tenancymonth to month commercial setting - lease can say that when the definite term end then it moves to month to month prior notice is required to terminate (if no notice then the lease automatically renews for the next period)tenancy at willindefinite duration - until landlord or tenant terminate no prior notice is required to terminate unless a state (residential) statute requires a minimum amount of timetenancy at sufferancecommercial setting lease can provide that when the definite term expires the lease becomes tenancy at sufferance tenant fails to vacate premises at expiration of leaseassignment of leaseoccurs when tenant transfers to 3rd party for all remaining rights under the lease tenant is not release from liability to landlord under the lease landlord can sue the tenant and 3rd partysubleaseoccurs when tenant transfers to a 3rd party only a portion of the tenants rights under the lease tenant not released from liability to landlord under lease landlord can only sue tenant and then the tenant has to sue landlordlandlord dutiesquiet enjoyment fitness for use repair obligation - minimum is the landlord must only repair to keep it habitabletriple net leasethe tenant must pay real property tax casualty and liability insurance maintenanceevictionremoval of tenant after termination of lease or tenant breaches lease and removal is allowedwhen a tenant breaks the lease by not paying what can the landlord collectunpaid prior rent rent coming due in the future other amounts allowed under lease (damages)landlord's duty to mitigate damageslandlord has a duty to go find another tenant with reasonable effort