Chapter 7 Flashcards
What is Intellectual Property?
Property resulting from intellectual and creative processes.
Where in the constitution was intellectual property rights acknowledged?
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;”
What is a trademark?
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.
What is the Lanham Act of 1946?
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.
What is the Trademark Dilution Revision Act?
amended the Lanham Act to allow trademark owners to bring suits in federal court for trademark dilution.
What must a plaintiff prove so they may bring a case to court under the TDRA?
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.
What is trademark dilution?
The unauthorized use of a distinctive and famous mark in a way that impairs the mark’s distinctiveness or harms its reputation.
How may trade,arks be registered?
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.
What is a trademark infringement and what marks something as trademarked?
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).
Under the Lanman Act, what may the plaintiff demand of the defendant other than an injunction?
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.
What are the five categories which courts use to identify the strength of a mark?
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.
What is a service mark?
A trademark that is used to distinguish the services (rather than the products) of one person or company from those of another.
What is a certification mark?
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.
What is a collective mark?
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.
What is trade dress? What protection is it subject to?
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.
What is the SCMGA?
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.
What are the penalties for counterfeiting?
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.
What is a trade name?
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.
What is a license?
An agreement by the owner of intellectual property to permit another to use a trademark, copyright, patent, or trade secret for certain limited purposes.
What is a patent?
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.
What is the basic requirement dor something to be patented?
. 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.
Who is given first rights to a patent?
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.
What are the remedies for patent infringement?
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).
How are permanaent injunctions decided today with respect to patent infringements?
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.
