Chapter 7 Flashcards
Misappropriation of a Trade Secret
The owner of a trade secret can bring a civil lawsuit under state law against anyone who has misappropriated a trade secret through unlawful means, such as theft, bribery, or industrial espionage. plaintiffs can:
1) recover the profits made by the offender from the use of the trade secret,
2) recover for damages, and
3) obtain an injunction prohibiting the offender from divulging or using the trade secret.
*the owner of a trade secret is obliged to take all reasonable precautions to prevent that secret from being discovered by others.
Economic Espionage Act
makes it a federal crime to steal another’s trade secrets. it is a federal crime for any person to:
1) convert a trade secret to his or her benefit or for the benefit of others.
3) knowing or intending that the act would cause injury to the owner of the trade secret.
Reverse Engineering
A competitor can lawfully discover a trade secret by performing reverse engineering (i.e., taking apart and examining a rival’s product or re-creating a secret recipe).
*a competitor has reverse engineered a trade secret can use the trade secret but not the trademarked name used by the original creator of the trade secret.
Utility Patent
a patent that protects the functionality of an invention (machines, processes, compositions of matter, improvements to existing machines, processes, or compositions of matter, designs for an article of manufacture, asexually reproduced plants, living material invented by a person). *abstractions and scientific principles cannot be patented unless they are part of the tangible environment)
Requirements for Obtaining a Patent
1) novel (new and has not been invented and used in the past).
2) useful (has some practical purpose).
3) nonobvious
Patent Period
utility patents for inventions are valid for 20 years.
*patent term begins to run from the date the patent application is filed.
Patent Infringement
unauthorized use of another’s patent. a patent holder may recover:
1) monetary damages equal to a reasonable royalty rate on the sale of the infringed articles,
2) other damages caused by the infringement (e.g., loss of customers),
3) an order requiring the destruction of the infringing article, ad
4) an injunction preventing the infringer form such action in the future.
Design Patent
a patent that may be obtained for the ornamental nonfunctional design of an item. *valid for 14 years.
Ex. design of a chair, a door knob, a perfume bottle, etc.
Copyright
a legal right that gives the author of qualifying subject matter, and who meets other requirements established by copyright law, the exclusive right o publish, produce, sell, license, an distribute the work.
Copyright Revision Act
A federal statute that
1) establishes the requirements for obtaining a copyright and
2) protects copyrighted works from infringement.
* only tangible writings (writings that can be physically seen) are subject to copyright registration and protection.
Individual Copyright Holder Period
Life of the author plus 70 years beyond the author’s life.
Business Copyright Holder Period
The shorter of either 95 years form the year of first publication or 120 years from the year of creation.
Copyright Infringement
An infringement that occurs when a party copies a substantial and material part of a plaintiff’s copyrighted work without permission. A copyright holder may recover
1) the profit made by the defendant from the copyright infringement,
2) damages suffered by the plaintiff,
3) an order requiring the impoundment and destruction of the infringing works, and
4) an injunction preventing the defendant from infringing in the future.
Fair Use Doctrine
a doctrine that permits certain limited use of a copyright by someone other than the copyright holder without the permission of the copyright holder.
Mark
Any trade name, symbol, word, logo, design, or device used to identify and distinguish goods of a manufacturer or seller or services of a provider from those of other manufacturers, sellers, or providers.
Lanham (Trademark) Act
A federal statute that
1) establishes the requirements for obtaining a federal mark and
2) protects marks form infringement.
TM
A symbol that designates an owner’s legal claim to an unregistered mark that is associated with a product.
SM
a symbol that designates an owner’s legal claim to an unregistered mark that is associated with a service.
Trademark
a trademark is a distinctive mark, symbol, name, word, motto, or device that identifies the goods of a particular business.
To qualify for federal protection, a mark must be either
1) distinctive: a word or design that is unique.
2) secondary meaning: ordinary words or symbols that have taken on a secondary meaning. these are words or symbols that have an established meaning but have acquired a secondary meaning that is attached to a product or service. (ex, “Just do it (Nike) and “I’m lovin’ it” McDonalds).
Trademark Infringement
The owner of a mark can sue a third party for the unauthorized use of the mark if they can prove that
1) the defendant infringed the plaintiff’s mark by using it an unauthorized manner and
2) such use is likely to cause confusion, mistake, or deception of the public as to the origin of the goods or services.
A successful plaintiff can recover
1) the profits made by the infringer through the unauthorized use of the mark,
2) damages caused to the plaintiff’s business and reputation,
3) an order requiring the defendant to destory all goods containing the unauthorized mark, and
4) an injunction preventing the defendant from such infringement in the future.
Generic Name
a term for a mark that has become a common term for a product line or type of service and therefore has lost its trademark protection.
Federal Trademark Dilution Act (FTDA)
a federal statute that protects famous marks from dilution (the lessening of the capacity of a famous mark to identify and distinguish its holder’s goods and services) **blurring (where a party uses another party’s famous mark to designate a product or service in another market so that the unique significance of the famous mark is weakened) and tarnishment: where a famous mark is linked to products of inferior quality or is portrayed in an unflattering, immoral, or reprehensible context likely to evoke negative beliefs about the mark’s owner).
Trademark Dilution Revision Act of 2006
this act provides that a dilution plaintiff does not need to show that it has suffered actual harm to prevail in its dilution lawsuit but instead only show that there would be the likelihood of dilution. the holder of the mark must prove:
1) its mark is famous
2) the use by the other party is commercial
3) the use by the other party causes a likelihood of dilution of the distinctive quality of the mark.
