Chapter 7

Question 1

What is Intellectual Property?

Answer 1

Property resulting from intellectual and creative processes.

Question 2

Where in the constitution was intellectual property rights acknowledged?

Answer 2

More than two hundred years ago, the framers of the U.S. Constitution recognized the importance of protecting creative works in Article I, Section 8. Statutory protection of these rights began in the 1940s and continues to evolve to meet the needs of modern society.

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

Question 3

What is a trademark?

Answer 3

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.

Question 4

What is the Lanham Act of 1946?

Answer 4

Statutory protection of trademarks and related property is provided at the federal level by the Lanham Act of 1946. The Lanham Act was enacted in part to protect manufacturers from losing business to rival companies that used confusingly similar trademarks. The Lanham Act incorporates the common law of trademarks and provides remedies for owners of trademarks who wish to enforce their claims in federal court. Many states also have trademark statutes.

Question 5

What is the Trademark Dilution Revision Act?

Answer 5

amended the Lanham Act to allow trademark owners to bring suits in federal court for trademark dilution.

Question 6

What must a plaintiff prove so they may bring a case to court under the TDRA?

Answer 6

Under the TDRA, to state a claim for trademark dilution, a plaintiff must prove the following:

The plaintiff owns a famous mark that is distinctive.
The defendant has begun using a mark in commerce that allegedly is diluting the famous mark.
The similarity between the defendant’s mark and the famous mark gives rise to an association between the marks.
The association is likely to impair the distinctiveness of the famous mark or harm its reputation.

Question 7

What is trademark dilution?

Answer 7

The unauthorized use of a distinctive and famous mark in a way that impairs the mark’s distinctiveness or harms its reputation.

Question 8

How may trade,arks be registered?

Answer 8

Trademarks may be registered with the state or with the federal government. To register for protection under federal trademark law, a person must file an application with the U.S. Patent and Trademark Office in Washington, D.C. A mark can be registered

(1)if it is currently in commerce or
(2)if the applicant intends to put it into commerce within six months.
In special circumstances, the six-month period can be extended by thirty months.

Question 9

What is a trademark infringement and what marks something as trademarked?

Answer 9

The registrant is also allowed to use the symbol ® to indicate that the mark has been registered. Whenever that trademark is copied to a substantial degree or used in its entirety by another, intentionally or unintentionally, the trademark has been infringed (used without authorization).

Question 10

Under the Lanman Act, what may the plaintiff demand of the defendant other than an injunction?

Answer 10

Under the Lanham Act, a trademark owner that successfully proves infringement can recover actual damages, plus the profits that the infringer wrongfully received from the unauthorized use of the mark. A court can also order the destruction of any goods bearing the unauthorized trademark. In some situations, the trademark owner may also be able to recover attorneys’ fees.

Question 11

What are the five categories which courts use to identify the strength of a mark?

Answer 11

Fanciful and arbitrary marks employ words and phrases with no commonly understood connection to the product. These are the two strongest categories and trigger the highest degree of trademark protection. Suggestive marks, which suggest a product’s features and require consumers to use some imagination to associate the suggestive mark with the product, are in the middle of the spectrum. The two weakest categories are descriptive and generic marks. Descriptive marks define a particular characteristic of the product in a way that does not require any imagination. Generic marks describe the product in its entirety and are not entitled to trademark protection.

Question 12

What is a service mark?

Answer 12

A trademark that is used to distinguish the services (rather than the products) of one person or company from those of another.

Question 13

What is a certification mark?

Answer 13

A mark used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services.

Question 14

What is a collective mark?

Answer 14

A mark used by members of a cooperative, association, union, or other organization to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services.

Question 15

What is trade dress? What protection is it subject to?

Answer 15

The image and overall appearance of a product. Basically, trade dress is subject to the same protection as trademarks. In cases involving trade dress infringement, as in trademark infringement cases, a major consideration is whether consumers are likely to be confused by the allegedly infringing use.

Question 16

What is the SCMGA?

Answer 16

The Stop Counterfeiting in Manufactured Goods Act (SCMGA) was enacted to combat counterfeit goods. The act made it a crime to intentionally traffic in, or attempt to traffic in, counterfeit goods or services, or to knowingly use a counterfeit mark on or in connection with goods or services.

Before this act, the law did not prohibit the creation or shipment of counterfeit labels that were not attached to products. Therefore, counterfeiters would make labels and packaging bearing a counterfeit trademark, ship the labels to another location, and then affix them to inferior products to deceive buyers. The SCMGA closed this loophole by making it a crime to traffic in counterfeit labels, stickers, packaging, and the like, whether or not they are attached to goods.

Question 17

What are the penalties for counterfeiting?

Answer 17

Persons found guilty of violating the SCMGA may be fined up to $2 million or imprisoned for up to ten years (or more if they are repeat offenders). If a court finds that the statute was violated, it must order the defendant to forfeit the counterfeit products (which are then destroyed), as well as any property used in the commission of the crime. The defendant must also pay restitution to the trademark holder or victim in an amount equal to the victim’s actual loss.

Question 18

What is a trade name?

Answer 18

A name that a business uses to identify itself and its brand. A trade name is directly related to a business’s reputation and goodwill, and is protected under trademark law. Unless it is also used as a trademark or service mark, a trade name cannot be registered with the federal government. Trade names are protected under the common law, but only if they are unusual or fancifully used.

Question 19

What is a license?

Answer 19

An agreement by the owner of intellectual property to permit another to use a trademark, copyright, patent, or trade secret for certain limited purposes.

Question 20

What is a patent?

Answer 20

A property right granted by the federal government that gives an inventor an exclusive right to make, use, and sell an invention for a limited time.

Question 21

What is the basic requirement dor something to be patented?

Answer 21

. Patents for designs, as opposed to inventions, are given for a fourteen-year period. The applicant must demonstrate to the satisfaction of the U.S. Patent and Trademark Office that the invention, discovery, process, or design is novel, useful, and not obvious in light of current technology.

Question 22

Who is given first rights to a patent?

Answer 22

It was often difficult to prove who invented an item first, however, which prompted Congress to change the system by passing the America Invents Act.Footnote Now, the first person to file an application for a patent on a product or process will receive patent protection. In addition, the law established a nine-month limit for challenging a patent on any ground.

Question 23

What are the remedies for patent infringement?

Answer 23

If a patent is infringed, the patent holder may sue for relief in federal court. The patent holder can seek an injunction against the infringer and can also request damages for royalties and lost profits. (A royalty is a payment made to a patent or copyright holder for the privilege of using the patent or the copyrighted work.) In some cases, the court may grant the winning party reimbursement for attorneys’ fees and costs. If the court determines that the infringement was willful, the court can triple the amount of damages awarded (treble damages).

Question 24

How are permanaent injunctions decided today with respect to patent infringements?

Answer 24

In the past, permanent injunctions were routinely granted to prevent future infringement. Today, however, a patent holder must prove that it has suffered irreparable injury and that the public interest would not be disserved by a permanent injunction.

Question 25

Copyright

Answer 25

The exclusive right of an author or originator of a literary or artistic production to publish, print, sell, or otherwise use that production for a statutory period of time.

Question 26

What is the 1976 Copyright Act?

Answer 26

The 1976 Copyright Act, as amended, governs copyrights. Works created after January 1, 1978, are automatically given statutory copyright protection for the life of the author plus 70 years. For copyrights owned by publishing companies, the copyright expires 95 years from the date of publication or 120 years from the date of creation, whichever is first.

Question 27

How does registration of copyright act?

Answer 27

Copyrights can be registered with the U.S. Copyright Office (www.copyright.gov) in Washington, D.C. Registration is not required, however. A copyright owner need not place a © or Copr. or Copyright on the work to have the work protected against infringement. Chances are that if somebody created it, somebody owns it.

Generally, copyright owners are protected against the following:

Reproduction of the work.
Development of derivative works.
Distribution of the work.
Public display of the work.

Question 28

What is a general principal for something to be copyrighted?

Answer 28

Thus, for the design of a useful item to be copyrightable, the sculptural features—that is, the way it looks—must be separate from its utilitarian (functional) purpose.

Question 29

What are the remedies for copyright infringement?

Answer 29

Actual damages are based on the harm caused to the copyright holder by the infringement, while statutory damages, not to exceed $150,000, are provided for under the Copyright Act. In addition, criminal proceedings may result in fines and/or imprisonment. In some instances, a court may grant an injunction against the infringer.

Question 30

What is fair use and how is it understood under the Copyright Act?

Answer 30

Section 107 of the Copyright Act provides as follows:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by [Section 106 of the Copyright Act], for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2)the nature of the copyrighted work;
(3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4)the effect of the use upon the potential market for or value of the copyrighted work.

Question 31

What is the computer software copyright act?

Answer 31

The Computer Software Copyright Act amended the Copyright Act to include computer programs in the list of creative works protected by federal copyright law.

Question 32

What is a trade secret?

Answer 32

A formula, device, idea, process, or other information used in a business that gives the owner a competitive advantage in the marketplace.

Question 33

How is one held liable for trade secret infringement?

Answer 33

Under Section 757 of the Restatement of Torts, those who disclose or use another’s trade secret, without authorization, are liable to that other party if either of the following is true:

They discovered the secret by improper means.
Their disclosure or use constitutes a breach of a duty owed to the other party.

Today, nearly every state has enacted trade secret laws based on the Uniform Trade Secrets Act. Additionally, the Economic Espionage Act made the theft of trade secrets a federal crime.

Question 34

What is the Berne Convention of 1886?

Answer 34

Under the Berne Convention of 1886, if a U.S. citizen writes a book, every country that has signed the convention must recognize her or his copyright in the book. Also, if a citizen of a country that has not signed the convention first publishes a book in one of the 169 countries that have signed, all other countries that have signed the convention must recognize that author’s copyright. Copyright notice is not needed to gain protection under the Berne Convention for works published after March 1, 1989.

The European Union altered its copyright rules under the Berne Convention by agreeing to extend the period of royalty protection for musicians from fifty years to seventy years. This decision aids major record labels as well as performers and musicians. The profits of musicians and record companies have been shrinking in recent years because of the sharp decline in sales of compact discs and the rise in digital downloads (both legal and illegal).

Question 35

What was the TRIPS agreement?

Answer 35

The TRIPS agreement established, for the first time, standards for the international protection of intellectual property rights, including patents, trademarks, and copyrights for movies, computer programs, books, and music. The TRIPS agreement provides that each member country must include in its domestic laws broad intellectual property rights and effective remedies (including civil and criminal penalties) for violations of those rights.

Each member nation must ensure that legal procedures are available for parties who wish to bring actions for infringement of intellectual property rights. Additionally, a related document established a mechanism for settling disputes among member nations.