8

Question 1

what’s intellectual property , what are its ideas and what are they to companies, how should it be treated

Answer 1

• it’s property that results from the intellectual and creative process.

-Although ideas are intangible(not physical), they are some of the most important assets of companies and therefore need to be protected.

Question 2

• Why does our legal system protect intellectual property?
•What are some other theories on intellectual property (and property rights, generally)?

Answer 2

• (protect your ideas, it’s a monetary reward from being a inventor, inventions will most likely occur cuz they offer $)

-( it’s the only reason to creat smth without just wanting to be creative. not all countries like US intellectual property protection but comply so won’t lose trade partners,morally dont agree at times)

Question 3

what are the Types of Intellectual Property Protection (4) what two types can’t be used together

Answer 3

-(1)Trademark (umbrella category)
*Trade dress
*Service marks
-(2)Patent
-(3)Copyright
-(4)Trade Secret

Mix and match! (think of ways we can do that) Aspects of the same idea can be protected multiple ways
Except, patent and trade secret cannot go together.
* ( on phone, logo trade mark, code patent, when inventing smth you can choose what to patent, you can’t have patent and trade secret on same thing at same time)

Question 4

what’s a Trademark ,what happens to consumers when a another business uses it (why can it be bad in 2 ways), what are examples of it

Answer 4

• a distinctive word, symbol, sound, or design that identifies the manufacturer as the source of particular goods and distinguishes its products from those made or sold by others (it’s anything where you look and hear the sound and know what that company is from, easy to distinguish,consumers know what company is from)

-By using another’s trademark, a business could lead consumers to believe that its goods were made by the other company.
*This can be bad in two ways…
(1.quality isn’t the same,harms reputation as a company
2.lose profit if the off brand is better than reg company)
(prevents consumers from being confused to what they’re buying)

ex: knock off beats, sharpies,apple
(shows the combinations of things that say how it’s similar,packaging,fonts,etc)

Question 5

how does trademark get protected by common law ,how do u get a trademark(2,one with common law ,then official way)?

Answer 5

-Under common law, ownership of trademark created by use
How do you get a trademark?
under two ways
-start a business and use it,common law trademark
-officially registering trademark to govt, USPTO, ppl search to see if trademark is taken)

Question 6

how does Trademark Registration look like (what’s it registered with,when is it available to be registered,what is a registrant allowed to use and for why),why is it an advantage to register to USPTO v common law

Answer 6

-Registered with the government
-Can be registered if currently in commerce or will be within 6 months (extendable to 30 months)
-The registrant is also allowed to use the symbol ® to indicate that the mark has been registered. ( advantages to register to USPTO, calls dibs nationwide instead of only relying common law trademark. common law protects you locally,not massachusetts,registering can give u national trademark using R symbol)

Question 7

What are Statuary Protection of Trademarks (when was lanham act enacted + why, what’s Trademark dilution/Federal Trademark Dilution Act,trademark infringement occurs when-(5))( what are 2 examples of occurrence of trademark infringement)

Answer 7

-The Lanham Act of 1946 was enacted to protect manufacturers from losing business to rival companies that use similar trademarks.(what statutory protection trademark started with)

(Trademark dilution was what it was expanded with)
-Occurs when (i) someone owns a famous distinctive mark, (ii) the defendant uses a similar mark(not direct copy)in commerce (iii) that leads to an association(consumer confusion if produced relate to manufacture) between the two, and (iv) the association impairs the distinctiveness of the famous mark(if you don’t have a reason to protect ,not need for the trademark)

ex:gym example in LB, it’s well known in LB,a mobile phone provider came out with unleashed (same name as gym). the owner told prof that she was told not to say unleashed, in LB common law predated,no confusion, the humans tmobile won’t have correlation,prof told owner that they existed before,not same industry,no need to trademark
2nd ex: pandora music ,pandora jewelery,prof doesn’t know if they’re related

Question 8

Distinctiveness of the Mark (which trademarks are considered the most distinctive/strongest(3) ,what are suggestive marks,what are generic terms)(what should a trademark not be)

Answer 8

-Only those trademarks that are deemed sufficiently distinctive from all competing trademarks will be protected.
•Fanciful, arbitrary, or suggestive trademarks are generally considered to be the most distinctive (strongest)(words that don’t have meaning in everyday life,rare,gucci is name,bandaid ,powerade are word combos so don’t count either)
•Suggestive marks -> must have secondary meaning(suggests what item is, powerade,bandaid, nike,ajax)
•Generic terms receive no protection(taco tuesday couldn’t be trademarked by lebrun,cant trademark apple phrase)

•A trademark may not be derogatory to a person, institution, belief, or national symbol.(another limitation)

Question 9

Why no protection for generic marks?
•What happens if something “whimsical” becomes generic?(who was in danger of losing their trademark?who lost it?who’s afraid?)

Answer 9

(kleenex v tissue, kleenex was in danger of losing trademark as ppl used it more , tylenol,qtip lost trademark, post it, google is afraid to use it as search ,synonymous of search the internet)

Question 10

What are Service Marks , Certification Marks , Collective Marks

Answer 10

Service mark: Used to distinguish the services (rather than the products) of one person or company from those of another( same idea but services instead of goods,ex: geek squad)

Certification mark: Used by persons other than the owner to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services.(fair trade,when buying coffee/chocolate)

Collective mark:Used by members of an organization to certify the specific goods or services.( seeing toothpaste/toothbrush,ADA accepted, smog checks)

Question 11

what’s Trade Dress ,how protected is it(samsung v apple ex)

Answer 11

•Trade dress refers to the image and overall appearance of a product.(refers to the appearance of product that’s enough)
•Protected to the same degree as a trademark(ex: nikes were known cuz of swoosh trademark symbol VS labuttons cuz of red bottoms,it’s overall look that tells source of manufacture) (like red bottoms, samsung overall look is dif, apple had said they violated their trade dress,they pointed out camera homebutton , samsung defended due to there being no other way to design phone,apple won case ,samsung redesigned their phone)

Question 12

what are Trade Names,when is it protected, which trade names are protected by ___ law

Answer 12

•A trade name is a name that a business uses to identify itself and its brand.(company name)
•A trade name that is the same as the company’s trademarked product is protected.
•Unique trade names are protected under the common law.(u can also register now)

Question 13

Trademark Infringement( when does it get infringed, what must owner show to prove there was an infringement,what remedy is granted for infringement + what can it recover)

Answer 13

•Whenever someone else uses a trademark in its entirety or copies it to a substantial degree, intentionally or unintentionally, the trademark has been infringed.(occurs when: always search USPTO to make sure nothings taken)
•Owner must show likelihood of confusion of origin of defendant’s product
•The remedy most commonly granted for trademark infringement is an injunction (order)to prevent further infringement. Can also recover damages, defendant’s profits, and destruction of goods( can get negative monetary consequences)

Question 14

what’s Licensing,licensor,licensee

Answer 14

(licensing is a aspect of franchises)
•An agreement by the owner of intellectual property to permit another to use a trademark, copyright, patent, or trade secret for certain limited purposes
•The party that owns the intellectual property rights and issues the license is the licensor.
•The party obtaining the license is the licensee.

Question 15

Counterfeit Goods(when cant it be prosecuted by US,what’s SCMGA what does it do and how do penalties look like )

Answer 15

(how trademark laws apply overseas)
-The U.S. cannot prosecute foreign counterfeiters since our laws do not apply.(own foreign company can prosecute not US)
-The Stop Counterfeiting in Manufactured Goods Act (SCMGA)
•Makes it a crime to traffic in counterfeit goods or services
•Penalties include fines and/or imprisonment

Question 16

what does a patent give , how long does it last for inventor,how long are patents for designs, what’s USPTO used for,how many months can the patent get challenged

Answer 16

(applies to inventors)
A patent gives an inventor the exclusive right to make, use, and sell a product for 20 years.(20 yr monopoly)
•Patents for designs are for 14 years.(14 yr monopoly)

(USPTO also is used to sign up patent,they review application, grant,publish, there’s a 9 month period where ppl can challenge)

Question 17

under The America Invents Act, who receives protection , for how many months can it be challenged

Answer 17

(USPTO has it)
•The first person to file an application receives protection.
•There is a 9 month limit for challenging a patent.

Question 18

what are the Searchable Patent Databases,who’s it provided by,who conducts these searches,what can it study)

Answer 18

•The U.S. and European patent offices provide searchable databases for locating patents.
•Because patents are valuable assets, businesses may need to perform searches to list assets.
•Patent searches can also study trends in an industry.(tech company, gas company)

Question 19

What Is Patentable?(what are u allowed to patent?)what isn’t patentable ,example of smth that can get a patent

Answer 19

•An invention must be novel(“new” never done before), useful, and not obvious in light of current technology(jack in the box with no jack got patented)
•Almost anything is patentable, except the laws of nature, natural phenomena, and abstract ideas.

Question 20

jump with rope example

Answer 20

-instead of jump rope it’s used as that, it received a patent,anyone could’ve thought of it tho

Question 21

how does Patent Infringement (sue in federal court) look like (when can it occur,when doesn’t infringement occur under US law,what are its remedies )

Answer 21

•(patent infringement occurs when:) Making, using or selling another’s patented product without permission
•it May also occur even though not all parts of an invention are copied
•No infringement occurs under U.S. law when a patented product is made and sold in another country.(the creator of manufacturer insulin didn’t patent it,companies patented it and now it’s expensive even tho material is cheap,countries says it should’ve been like before, don’t protect patent from medical laws)
•Remedies: injunctions (court order telling u to stop) and damages. (if there was willful infringement)Treble (triple(damaged is multiplied by 3 to get it back)) damages for willful infringement,

(ex: her prof told her that patent control files bs lawsuits,small companies get the with 5k to get rid of ppl,bullies companies with no patent)

Question 22

what’s copyright (works created after __, when do they expire if owned by author,expiration date of publication or date of creation)

Answer 22

-A copyright is a property right granted to the author or originator of certain literary or artistic productions.
•Works created after January 1, 1978, are given protection for the life of the author plus 70 years.(person copyright, harry potter ,jk rowling copyright with copyright until 70 yrs after her death,happy bday song isn’t copyright cuz dead person 70 yrs passed)
•Copyrights owned by publishing companies expire 95 years from the date of publication or 120 years from the date of creation, whichever is first.(company copyright,disneys mickey and minnie)

Question 23

Copyright owners are protected against(4):

Answer 23

•Reproduction of the work
•Development of derivative works(can’t come up with similar works)
•Distribution of the work(can’t hand out copies of copyrighted work)
•Public display of the work(cant put giant screen on public playing movies)

Question 24

What Is Protected Expression(for copyright)?(what does copyright protect?when?,what are the 8 categories that can be protected thru copyright)

Answer 24

(patents protect an idea)
-Protection is automatic.(copyright protects expression)

-Categories( harry potters expression of idea is copyright,various art,computer code)
•Literary works – includes computer code!*
•Musical works and accompanying words
•Dramatic works and accompanying music
•Pantomimes and choreographic works
•Pictorial, graphic, and sculptural works
•Motion pictures and other audiovisual works
•Sound recordings
•Architectural works

Question 25

when does Copyright Infringement occur ,what doesn’t reproduction have to be, if what happens counts as infringement occurance, remedies)

Answer 25

•Occurs whenever the form or expression of an idea is copied
•The reproduction does not have to be exactly the same as the original.
•If a substantial part of the original is reproduced, infringement has occurred.
•Remedies(for copyright infringement)– damages and/or criminal penalties(monetary)

Question 26

The original: Queen - Under Pressure

•Infringement? Vanilla Ice - Ice Ice Baby

Answer 26

example

Question 27

what’s The “Fair Use” Exception and The First Sale Doctrine

Answer 27

-Material can be reproduced for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research(playing harrypotter on classroom)

-Once a copyright owner sells or gives away a copy of a work, the owner no longer control of that copy.( ex: textbook supreme court case, foreign college student bought cheaper books from home country and sold them in US enough to profit, he sued but won under first sale doctrine, can do whatever to book except for printing more and sell)

Question 28

under Copyright Protection for Software, what’s The Computer Software Copyright Act (1980)

Answer 28

•The code, the overall structure, sequence, and organization of a program are protected.
•The “look and feel” of programs are generally not protected (at least not under copyright law).

(software code is copyright, the code that makes phone is copyrighted ,the look and feel of phone is trademarked samsung logo is trademark, chip is patented, look of app trademark,code is copyright, multiple things can be protected)

Question 29

what’s a trade secret ,where does it extend, what does it have to be, what can’t it get)

Answer 29

•A trade secret is a formula, device, idea, process, or other information used in a business that gives the owner a competitive advantage in the marketplace.
•Extends to both the idea and the expression (unlike copyrights and trademarks)
•Has to be secret – cannot get patent( like krabby patty formula,design and info must be secret to have trade secret protection,lasts however long that can be left a secret so can last forever, recipe for coca-cola is trade secret,code can’t be a trade secret thru reverse thru reverse engineer,so that’s copyright)
(when you patent you have to see what it is,it has to be filed,you have to describe how to make it,that’s why it can’t also be a trade secret)

Question 30

what is theft of trade secrets considered

Answer 30

•The theft of trade secrets is a crime.
(two under are regulatory that make it a crime to engage economic espionage)
•Uniform Trade Secrets Act
•Economic Espionage Act

Question 31

Trade Secrets in Cyberspace

Answer 31

if someone hacks the cloud is susceptible it being discovered by someone, but cloud is supposed to be secured, it being flushed out to see hour dis/similar if it was similar

Question 32

definition, how acquired , duration, remedy for infringement of PATENT

Answer 32

definition: A grant from the government that gives an inventor exclusive rights to an invention.

how acquired: By filing a patent application with the U.S. Patent and Trademark Office and receiving its approval.

duration:20 yrs from the date of the application; for design patents,
14 years.

remedy: Monetary damages, including royalties and lost profits, plus attorneys’ fees. Damages may be tripled for intentional infringements.

Question 33

definition, how acquired , duration, remedy for infringement of COPYRIGHT

Answer 33

definition: The right of an author or originator of a literary or artistic work, or other production that falls within a specified category, to have the exclusive use of that work for a given period of time.

how acquired: Automatic (once the work or creation is put in tangible form). Only the expression of an idea (and not the idea itself) can be protected by copyright.

duration: For authors: the life of the author, plus 70 years.
For publishers: 95 years after the date of publication or 120 years after creation.

remedy: Actual damages plus profits received by the party who infringed or statutory damages under the Copyright Act, plus costs and attorneys’ fees in either situation.

Question 34

definition, how acquired , duration, remedy for infringement of TRADEMARK (service mark and trade dress)

Answer 34

definition: Any distinctive word, name, symbol, or device (image or appearance), or combination thereot, that an entity uses to distinguish its goods or services from those of others. The owner has the exclusive right to use that mark or trade dress.

how acquired:
1. At common law, ownership created by use of the mark.
2. Registration with the appropriate federal or state office gives notice and is permitted if the mark is currently in use or will be within the next six months.

duration: Unlimited, as long as it is in use.To continue notice by registration, the owner must renew by filing between the fifth and sixth years, and thereafter, every ten years.

remedy:
1. Injunction prohibiting the future use of the mark.
2. Actual damages plus profits received by the party who infringed (can be increased under the Lanham
Act).
3. Destruction of articles that infringed.
4. Plus costs and attorneys’ fees.

Question 35

definition, how acquired , duration, remedy for infringement of Trade Secret

Answer 35

definition: Any information that a business possesses and that gives the business an advantage over competitors (including formulas, lists, patterns, plans, processes, and programs).

how acquired: Through the originality and development of the information and processes that constitute the business secret and are unknown to others.

duration: Unlimited, so long as not revealed to others. Once revealed to others, it is no longer a trade secret.

remedy: Monetary damages for misappropriation (the Uniform Trade
Secrets Act also permits punitive damages if willful), plus costs and attorneys’ fees.