12) IP Flashcards
Qualitex Co v. Jacobson Products Co
F: unique green dry clearner machine pads H: ok copyright a color – distinguishes symbol w secondary meaning, and dn disturb functionality
TM: can sue for
1) straight up infringement 2) tarnishment (form of dilution) 3) blurring (form of dilution)
TM: source of law (3)
Lantham Act (if fed trademark) mostly: state CL (most TMs local) constitutional authority comes from ICC, but generally not a constitutional q
trademark: “secondary meaning”
helps public ID the producer
copyright: when created?
the moment the work is – dnh to register it (but must register before you sue)
fair use exception: 4-part test
1) purpose/ch of the use 2) nature of copyrighted work 3) amount of portion used vs work as a whole 4) effect of use on market value of copyrighted work as a whole
fair use exception: ok purposes of use (3)
1) criticism / parody 2) news reporting 3) education (teaching, scholarship, research)
copyright: duration (2 kinds)
personal: life of copyright holder + 70 years corporate: 95 years after first publication OR 120 years after date of creation (whichever expires first)
copyright: source of law
US constitution “promote the progress o science and useful arts, by securing for a limited time to authors and inventors the exclusive rights to their respective writings and disoveries” and federal statutes (Copyright Act 1976)
copyright: exception
fair use exception
patent
time-limited monopoly on novel, non-obv, useful invention
Feist Publications Inc v. Rural Telephone Service Co
F: phone company’s listings copied H: phone book not copyrightable bc no originality, just facts, and not arranged in a particularly creative way
F: unique green dry clearner machine pads H: ok copyright a color – distinguishes symbol w secondary meaning, and dn disturb functionality
Qualitex Co v. Jacobson Products Co
TM: duration
forever, BUT can abandon IF: 1) intent to abandon 2) dnu in commerce for 2 yrs
if has all requirements, then copyright holder GETS (4)
exclusive rights to: 1) copy 2) distribute 3) perform/display 4) make derivative works
copyright requires (3 elements)
1) original 2) works of authorship 3) fixed in a tangible medium of expression
trademark: functionality exception
the TM can’t inhibit competition by letting the producer control a useful product feature
F: phone company’s listings copied H: phone book not copyrightable bc no originality, just facts, and not arranged in a particularly creative way
Feist Publications Inc v. Rural Telephone Serivce Co
TM: blurring
mark loses association w company (no one else can make goldfish shaped crackers)
trademark – def
name, symbol, or aspect of packaging that IDS the producer. owner has exclusive right to use it in connection w sale of that good or service IN THAT AREA
F: phone company’s listings copied H: phone book not copyrightable bc no originality, just facts, and not arranged in a particularly creative way
Feist Publications Inc v. Rural Telephone Service Co
TM: registration (3)
–must register –need to be using it in commerce, or planning to soon -can’t be too similar to someone else’s
TM: infringement:
someone else is copying your TM MUST CONFUSE CUSTOMERS
copyright: “original”
–can’t copyright fact/idea –originality vs labor –Feist case
copyright: “work of authorship”
must have identifiable author –corporate ok –folklore not
copyright in the digital age
consider if capable of substantial noninfringing uses – VCR yes, napster type software no (well it is, but marketing etc)
3 types of intellectual property
1) copyright 2) trademark 3) patent
TM: tarnishment
company selling inferior product (Singer vacuum cleaners–ok not sewing machine)
Suntrust Bank v. Houghton Mifflin Co
F: The Wind Done Gone H: it’s a parody, so fair use exception allows fairly substantial copying (need to copy enough to make sure reader knows what you’re talking about)
trademark: functionality: test
is it essential to the use or purpose of article? does it affect the cost/quality of article? such that exclusive use would put competitors at disadvantage (excluding of course the reputation-related disadvantage that always comes from TM)
things you can patent (3)
1) processes 2) machines 3) compositions of amtter
patent: source of law
US constitution “(“promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to ehri respective writings and discoveries” fed statutes
copyright: “fixed in a tangible medium of expression”: exs
literary music drama graphic scupture audiovisual architecture
