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A2610 > Ch.26 Intellectual Property, Patents, Trademarks, Copyright, and Franchising > Flashcards

Ch.26 Intellectual Property, Patents, Trademarks, Copyright, and Franchising Flashcards

1
Q

Patent

A

exclusive right granted to the inventor of something new and different to produce the invention for a period of 20 years in return for the disclosure of the invention to the public

Industrial property - encourage new inventions

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2
Q

Industrial property

A

encourage new inventions

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3
Q

Trademark

A

a mark to distinguish the goods or services of one person from the goods or services of others

Protect marks and prevent unauthorized use

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4
Q

Copyright

A

right of ownership of an original literary or artistic work and the control over the right to copy it

Encourage literary and artistic endeavours and protect such works from copying or use without authorization

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5
Q

Industrial design

A

right to produce in quantity some artistic work

Fourth form of protection
Bridging trademarks and copyrights

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6
Q

Trade secret

A

commercial secret regarding a product or process
Employees held accountable to keep secret

Examples: “secret” sauce, soft drink recipes or processing techniques

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7
Q

Non-disclosure agreements (NDA)

A

contract to maintain a trade secret

Used for employees, potential partners, suppliers, and customers

Business negotiations

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8
Q

The Patent Act
Patents apply to inventions which are:

A

New - not invented before

Useful - not a mere idea, actually works and can be reproduced by someone “skilled in the art”

Unobvious - not next logical step

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9
Q

Four classes;

A
  1. Machine (multiple interactive parts)
  2. Process (method of manufacture / achieving result)
  3. An article of manufacture (useful device)
  4. Composition of material (a formulation)
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10
Q

Application for patent:

A

Can be made by inventor or inventor’s agent

In Canada - first to file owns the invention
- USA - first to invent system
- USA - first to file also (New Act 09/2011)

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11
Q

Patent agents:

A

Assist in preparation of documents and processing of the patent

Lawyers who specialize in patent work skilled in assessment of inventions

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12
Q

Search:

A

Canadian intellectual Property Office and/or U.S. Patent Office - search for any similar patents

Any patents already issued that cover part or all of invention make invention not patentable

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13
Q

Application:

A

If invention is open, inventor submits application

Includes petition for patent and detailed specifications, drawings, and claims being made

Must pay patent-filing fee and short abstract of disclosure written in simple language

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14
Q

Claim:

A

Most important document is specifications and claims statement
- Describes invention in detail and what is new and useful

  • Describes uses of invention and why inventor entitled to patent
  • Inventor cannot leave out parts of the invention i.e. must be accurate, or patent may be void
  • Accompanying abstract is brief synopsis of detailed submission written in non-technical language
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15
Q

Examination and Issue:

A

Canadian Intellectual Property Office examines application to determine if infringes on existing patent

Protection is from date of application but no protection until patent is granted

“Patent pending” a notice to others that a patent has been applied for and warning of possible infringement

Patent is for 20 years from date of application

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16
Q

Foreign Patent Protection
Paris Convention (1883):

A

Treaty whereby signatory states recognize patents in other member states

Inventor has 12 months from date of application in home country to file for application (and protection) in other countries who are members of treaty

Filing date in foreign country is same filing date as the first filing date in home country

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17
Q

Compulsory license

A

directive by the Commissioner of Patents requiring patentee to license others to produce a product for the general benefit of the public

  • In return for monopoly of patent, patentee must “work” the invention to meet public demand
  • May arise when work of patent is dependent upon right to produce a part covered by an earlier patent
  • If patentee fails to “work” a patent or price is unreasonably high, then any interested party may apply for a license
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18
Q

Infringement

A

def: unlawful interference with the legal rights of another

Using a patent without authorization

Entitles patentee to take legal action against unauthorized producer, user, or seller

Includes unauthorized production, importation of product or any working of patent without consent or payment of royalties

Remedies (for infringement):
- Money damages, injunction and accounting for all profits made

19
Q

Trademarks

A

Marks used to distinguish and identify one’s goods or services
- Includes trademarks and trade names

  • Protection of goodwill and preventing passing off
20
Q

Trademarks Historical development:

A

Long history dating back to Babylon

Various amendments in Canada over the years

Now includes certification marks and importation of trademarked goods

21
Q

Trademarks Act
Federal statute:

A

Governs use of trademarks and trade names
Defines trademarks and maintains register of marks at Canadian Intellectual Property Office
Protection under the Act provided by registration
Marks can be registered which are not:
Descriptive o In use by another prior user
Confusing with existing marks
Contrary to public interest

22
Q

Types of marks that can be registered:

A

Service marks

Certification (“quality”) marks

Distinctive guise

Trade name
Sound mark

Non-traditional marks

23
Q

Service marks

A

used by service industries

24
Q

Certification (“quality”) marks

A

used to distinguish goods or services of a certain quality

25
Q

Distinctive guise

A

trademark with particular shape, used to distinguish it from products of others

26
Q

Trade name

A

name chosen to describe a business

27
Q

Sound mark

A

sound of distinctive character

28
Q

Non-traditional marks

A

colours, scents, holograms and animations may be distinguishing

29
Q

Requirements to be registrable under the Act:

A

Distinctive

Not confusing with marks already in existence

Used in public

30
Q

Prohibitive marks:

A

Royalty or government related

Famous or well-known living person (or person died within last 30 years)

Offensive symbols

31
Q

Enforcement Remedies
Civil

A

Damages

Injunction

Accounting for all profits

32
Q

Enforcement Remedies
Criminal

A

For forgery

Passing off

33
Q

Loss of Mark

A

Mark not used; or

Generic
- Name so successful becomes generic such as zipper or linoleum

34
Q

Foreign Trade Marks

A

Same as patents under international conventions

35
Q

Franchise

A

business relationship that licenses the use of trade names, trademarks, and operating procedures to operate a similar business \

Governed by contract and in some provinces by statute

Franchisor grants franchisee license to use the trade name and trademarks of the franchisor’s products and services

Agreement usually contains upfront payments and royalties from profits

36
Q

Copyright

A

Law pertaining to copyright concerned with:

“Right to copy” and the control of it

Recognizes rights of original creator to control reproduction of work

Covers all writing (books, articles, poems) as well as written work (musical compositions, choreography, live performances, etc.)

Covers artistic work like sculpture, paintings, photographs, video recordings, etc

37
Q

The Copyright Act

A

Sole right to publish to publish or reproduce an original work is the original author

Term in Canada - lifetime of the author plus 50 years copyright period (U.S. is 70 years)

Registration not required for protection but acts as notice to public

Protects arrangement of words or expression but not underlying idea or subject matter

Takes form of registration of work and marking with symbol © (+date+owner)
Copyright can be assigned, in whole or part

38
Q

Infringement

A

Unauthorized copying of protected work i.e. copying, distribution, publishing, etc. without permission

  • Exceptions with “fair dealing” for private study, research, criticism, review, etc.
39
Q

Infringement remedies

A

Damages

Injunction

Accounting for lost profits

40
Q

Moral rights

A

author has right to have his or name associated with the work i.e. “right to the integrity of the work”

Includes right to:
- Have name associated with the work
- Have pseudonym or remain anonymous
- Action if distortion or mutilation of work prejudices honor or reputation of the author

41
Q

Plagiarism

A

taking of copyrighted work of one person by another

42
Q

Digital Copyright Protection and Infringement

A

Cutting, pasting and/or downloading from a website without permission is an infringement of copyright

  • Can be done only with permission of copyright holder or agent and only within terms of royalty agreement
  • Some Web content is exempt and can be freely duplicated
  • Policing illegal downloads is challenging for music industry due to user anonymity
43
Q

Performing-Rights Societies and Collective Societies

A

Obtain performing rights to musical and dramatic works

  • Grant performing licenses for a fee to organizations that want to perform works (e.g. play or musical)
  • Fees collected paid in part to copyright owner and balance covers operating expenses
  • Fee schedules are published and filed with Copyright Board
44
Q

License Agreements

A

Licensing of intellectual property (IP) is common means to commercialization

Owner of intellectual property grants license in return for payment of royalty
- Example: Disney product merchandising

License is for specific and narrowly defined use, time frame and includes any geographical or limitations appropriate to the compensation and negotiated use

Requires minimum investment in time and expertise on part of licensor

A2610 (31 decks)

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