2 - Ch "9" Flashcards
trademark
identifies a product
service mark
identifies a service
Lanham Act
the principal register protects others from using a mark
Madrid protocol
international registration
owners of marks registered with the US Patent and Trademark Office can register and protect their mark in 60 countries
Registrable Marks
marks are categorized along a spectrum of distinctiveness
when a phrase becomes identifiable with a service product , it has acquired distinctiveness or secondary meaning and functions as a trademark
proving trademark infringement
plaintiff must provide that it has a valid mark, used the mark first, and that another’s use of it will confuse consumers
remedies for improper use of marks
injunction
plaintiff may recover lost profits and other actual damages. Willful violation can lead to treble damages
Abandonment of exclusive right to mark
an owner can lose a mark if it becomes generic
trade dress protection
trade dress involves a product’s total image and overall packaging
when a competitor adopts a confusingly similar trade dress, it dilutes the mark and deceives consumers
Limited Lanham Act Protection of Product Design
trade dress has evolved to encompass product design to prevent against “knockoffs”
copying a mark and making counterfeit goods is always a violation
Prevention of Dilution of Famous Marks
the federal trademark dilution act provides a cause of action against the commercial use of another’s mark when it results in dilution of its distinctiveness
Internet Domain Names and Trademark Rights
cybersquatters: set up identical or confusingly similar domain to existing trademarks
dispute avoidance: can be achieved by having an extensive trademark search done to make sure your choice is not trademarked
Duration of Copyright
run for the life of the creator plus 70 years
if a business pays someone to create the work, the copyright runs for 120 years from the creation (95 from publication)
Copyright Notice
not mandatory but recommended to prevent a claim of innocent infringement
to claim infringement must have two copies of the work registered with the US Patent Office
What is Copyrightable?
literary, musical, dramatic, and artistic works
work must be original, independently created by the author, and possess some degree of creativity
Copyright ownership and the internet
when a business hires a freelancer to create a copyrightable work, the “work for hire” is owned by the business
if a freelancer creates software for a fixed fee without a contract setting forth the ownership, the freelancer owns the work. The company utilizing the freelancer has a license to use the work but does not have ownership of it
rights of copyright holders
copyright holders have exclusive right to :
-reproduce the work
-prepare derivatives from the original work
-distribute copies of recordings of the work
-publicly perform the work
-publicly display the work
Limitation on exclusive character of copyright
fair use allows limited use of copyright materials based on:
-purpose and character of the use
-nature of the work; amount used
-the amount and substantially of the portion used in relation to the copyrighted work as a whole
-the effect on the use on the markets or value
Secondary Liability for Infringement
entities that distribute devices designed to infringe copyrights are liable for the infringement
digital millennium copyright act
enacted in 1998 to curb pirating of software and copyrighted works
Title II provides “safe harbor” for ISPs from liability in limited circumstances
Patents
types : duration : notice
utility patents: granted for a new process, machine, manufacture, composition or improvement for 20 years
design patents: protects new, non-obvious ornamental features in connection with manufacture for 14 years
plant patents: protects inventors of asexually reproduced new plant varieties for 20 years
notice: patent owners must mark patented items in order to recover damages from infringement
the america invents act: amended federal patent law in 2011
patentability
four categories: processes, machines, manufacturers, and compositions of matter
to receive a patent, the invention must be new and not obvious
once approved, presumed valid unless prior art (showing invention would have been obvious) is proven
Patentable Business Methods
a pure business-method patent consists of a series of steps related to performing a business process
Infringement
patent owner has exclusive right to the invention and may bring an infringement suit for monetary damages, injunctive relief and maybe attorney fees
under supreme court’s “doctrine of equivalents,” infringers may not avoid liability by substituting insubstantial differences for some elements of the product or process
trade secrets
any formula, device, or compilation of information used in one’s business that provides an advantage over competitors who do not have that information
loss of protection
when secret business information is made public, it loses the protection it had while secret
defensive measures
limited disclosure, non-disclosure agreements, exit interviews and industrial security plans
criminal sanctions of secret business information
fines up to $500,000 or twice the value of the proprietary information; up to 15 years in prison
corporations fined up to $10 million or twice the value of the secret
offender’s property is subject to forfeiture
copyright protection of computer programs
written programs have the same protection as any other copyrighted material
patent protection of programs
patents have been granted for computer programs
trade secrets
trade secret law extends to computer programs
restrictive licensing
it is common for software creators to license software use to others instead of selling it to them
semiconductor chip protection
semiconductor chip protection act applies to mask work and chip products
-duration and qualification for protection: exclusive rights for 10 years for works that are not commonplace or familiar
-limitation on exclusive rights: competitors may design similar, but not identical, products
-remedies: infringers are liable for actual damages and the forfeiture of profits to the owner or up to the $250,000 statutory damages
copyright
the exclusive right given by federal statute to the creator of a literary or an artistic work to use, reproduce, and display the work
