Chapter 20 - Ready for Study Flashcards
What are the four types of intellectual property that are registrable? With brief description.
- Trademark
> an actual mark that is created for the purpose of distinguishing a thing. example: apple logo - Copyright
> Exists in every ORIGINAL literary, dramatic, musical, and artistic work. Does not cover ideas or thoughts alone; it attaches material form to an idea
3. Patent > A new way(invention) of doing something that is useful. in order to have patent protection you must register
- Industrial designs
> Features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye. Must be registered to have protection
What is a trademark? What are its elements?
USED TO DISTINGUISH WARES OR SERVICES
A mark that is used by a person for the purposes of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired, or performed by him from those of the same by others.
Examples:
A certification mark
> to ID a product as meeting a certain standard of quality example: Oprah book club, “TRUSTe” for internet security.
A distinguishing guise
> The manner of shape, size, or packaging
A proposed trademark.
A business name
> The name of an established business is an asset to be protected
Any of the above, but proposed to be used and the owner has asked for protection
How are trademarks protected? What is goodwill?
POSITIVE ATTRACTION
Goodwill: positive association that attracts customers toward the owners wares or services rather that those if its competitor.
Common law protects trademarks owners through the tort of passing off.
How are unregistered trademarks protected? What rights are obtained by registration?
Unregistered trademarks are still protected, through the passing off tort and section 7 of the trademarks act.
EXCLUSIVE TO CANADA, 15 years,
> if trademark registered, you have exclusive right to use trademark in Canada
registering does not make you an owner of the mark forever. When you file you must have already started using mark. Protection lasts for 15 years. Can be renewed for another 15.
other people can challenge. But only was to be successful would be to show that they were already using it
MAJOR BENEFIT - ACTION WHEN UNAUTHORIZED USE > PASSING OFF NOT NEEDED
> a major benefit of registering is that a registered trademark may be infringed upon by any unauthorized use of that mark > it is not necessary for a defendant to have attempted to pass off.
In order to register a mark, what can it NOT be?
NAME, QUALITY, LOCATION, CONFUSED, PROTECTED GEO
a) A word that is primarily merely the name or surname of an individual who is living or died within the preceding 30 years
b) clearly descriptive of deceptively mis-descriptive of the character or quality of wares of services, or their place of origin
c) the name of any of the wares or services in connection with which it is used
d) likely to be confused with another trademark
e) prohibited on other grounds in the trademarks act
f) a protected geographic indication.
What are the grounds to register a trademark?
> the mark has been previously used or made known in Canada
the mark has been registered and used abroad, in a country that is a party to the international convention
the use of the mark is proposed in Canada
What remedies are available to infringements of a protected trademark?
> both provincial and federal courts may hear claims, but the judgement will be enforceable in the jurisdiction for which it is brought
> If there is injury to goodwill, then damages may be awarded.
ACCOUNT PROFITS, RESTRAINED, DISPOSE, SEIZURE
ARDS
i) if the defendant has profited, an account of the profits may be ordered
ii) the defendant may be restrained from further use
iii) the defendant may be ordered to deliver or dispose of infringing materials.
iv) The court may allow the plaintiff to search and seize offending wares and relevant books and records.
What is passing off? What are the elements of the tort of passing off?
> trying to steal the goodwill created by consumers and damages brand. Suing is to protect
Elements of the tort of passing off are as follows:
WORTH IT, MISREPRESENTED, PUBLIC CONFUSED, SUFFER OR LIKELY TO SUFFER
- Need to prove that you have something worth protecting. ie. goods, services, or reputation (goodwill)
- Need to prove that the defendant misrepresented its goods, services, or business as those of the plaintiff
- Need to prove that in the public mind there was likely to be some confusion between the goods of the defendant an the plaintiffs
- The plaintiff must suffer or be likely to suffer damages in consequence of the passing off
What is the nature of copyright law? What are the rights of the owner?
BALANCE ACCESS WITH COMPENSATION. FROM STATUTE
Copyright law balances public access to creations of art and intellect with fair compensation for creators. There is no common law protection for copyright; protection comes entirely from statute.
> The act of creating the thing gives you the following protection
PRODUCE, PERFORM, PUBLISH
3 p’s
> The right to produce or reproduce the work, or any substantial part of it, in any material form
The right to perform or deliver the work in public
the right to publish an unpublished work
What copyrights are protected by statute?
TRANSLATE, CONVERT, MAKE, COMMUNICATE, EXHIBIT, AUTHORIZE
TCM CEA
> the right to translate the work
the right to convert the work from one form into another (for example: covert a novel into a play)
the right to make a recording or film of the work
the right to communicate the work to the public by telecommunication
the right to exhibit the work in public
the right to authorize any of the above
What are the moral rights associated with copyright?
The non-transferable right of an author or creator to prevent a work from being misused or distorted.
INTEGRITY, DISTORTION, PREVENT, ANONYMOUS
> the right to integrity of the work
the right to prevent distortion or mutilation of the work
the right to prevent it from being used in association with some product, service, cause, or institution, and
where work is copied, published or performed, the right to be associated with the work as author or to remain anonymous.
What things get copyright?
NOT IDEA OR THOUGHT»_space;> ATTACH EXPRESSION TO A MATERIAL FORM
There is no copyright for a mere idea or thought. copyright attaches to the expression of an idea in a material form. A playwright could borrow the plot from another person’ novel provided the play is expressed entirety in her own words.
literary: any work that is reduced to writing or printing. pc source code…..any readable human language.
> reduced into a tangible form. no protection for spoken
Dramatic work: recital, choreographic work that is fixed in writing.
Musical work: An combination of a melody or harmony that is reduced to writing.
Artistic work: drawing, engraving, architecture…etc.
Is registering a copyright necessary? Does registration confer benefits?
Copyright comes into existence automatically on the creation of a work; registration is not necessary but optional.
It confers small benefits. it creates presumption that copyright exists and the person registered is the owner.
What is the duration of copyright?
will always be the owners for life, then by estate for additional 50 years after death
> after that it becomes fair game/public domain
What is infringement of copyright? What are the remedies?
An infringement occurs when another person, without the consent of the owner, does an act that only the owner has the right to do.
Remedies include:
DAMAGES FOR PROFIT LOST, ACCOUNTING OF PROFITS MADE, INJUNCTION and SURRENDER
> damages for profit or income lost by the owner, or for conversion of the owners proprty
accounting for profits made by the defendant as a result of the infringement(normally an alternative to damages)
injunction to restrain the defendant from further infringement and to require the surrender of any offending copies.
