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LAW 3220 > Chapter 9 > Flashcards

Chapter 9 Flashcards

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1
Q

Intangible property caused by mental effort rather than physical labor. Generally governed by federal laws.

A

Intellectual Property

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2
Q

Types of Intellectual Property

A

(1) Trademarks
(2) Copyrights
(3) Patents
(4) Trade secrets

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3
Q

Word, name, symbol, or combination that identifies the manufacturer of a product that is protected under the federal Lanham Act.

A

Trademark

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4
Q

Where do you register a trademark?

A

Patent and Trademark Office (entitles a party to exclusive use of the mark)

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5
Q

Price of a trademark?

A

Fee (starting about $300) + submit copy of mark (specimen) + description + declaration of no conflict

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6
Q

Length of time a trademark is good for?

A

10 years

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7
Q

Allows nationwide claim on the mark from the moment it is registered, so long there is intent to use in commerce.

A

Trademark Registration

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8
Q

True or False: Even a color can be trademarked.

A

True

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9
Q

Classifications of Trademarks

A

(1) Arbitrary and Fanciful
(2) Suggestive
(3) Descriptive
(4) Generic
(5) Descriptive
(6) Secondary

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10
Q

Most protected - Inherently distinctive and creative

A

Arbitrary and Fanciful Trademarks

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11
Q

Exon, Nike, Pepsi, Apple

A

Examples of Arbitrary and Fanciful Trademarks

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12
Q

Highly protected - Hint at what the product is, but requires a bit of a mental leap to figure it out.

A

Suggestive Trademarks

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13
Q

Coppertone sunscreen, Greyhound Bus

A

Examples of Suggestive Trademarks

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14
Q

Less protected - Describes a characteristic or quality of a particular good or service.

A

Descriptive Trademarks

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15
Q

Vision Center, Electronic Land

A

Examples of Descriptive Trademarks

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16
Q

Not protected - Words that are common and do not refer to products from a specific producer.

A

Generic Trademarks

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17
Q

Aspirin, Vacuum Cleaner, Clock

A

Generic Trademarks

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18
Q

Not ordinarily protected as trademarks. However, they can receive trademarks protection if they develop a secondary meaning for the consuming public.

A

Descriptive Terms

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19
Q

Words with an ordinary or descriptive meaning, but over long use are tied to a particular product known to the public as specifically designating that product.

A

Secondary Meaning

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20
Q

How to prove secondary meaning?

A

To prove a secondary meaning, the plaintiff must show that the primary significance of the term to the general public is not the product, but the actual producer.

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21
Q

Sports Illustrated Magazine

A

Example of Secondary Meaning

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22
Q

To remain protected, trademark owners must prove that they are using (or intending to use) the trademark for __________ purposes. If they fail to do so, even if they register the trademark, the trademark dies and others can begin using it.

A

Commercialized

23
Q

Trademark laws apply to:

A

(1) Movie titles, advertising slogans, comic book titles, fictional characters, words, names, and symbols

24
Q

When a seller causes confusion about the origins of a product by improper use of a trademark.

A

Trade Infringement

25
Q

Trade Infringement Example

A

In 2016, Louis Vuitton lost a ™ infringement case against MOB (My Other Bag Inc.). MOB sells a line of handbags decorated with “imagery meant to evoke designer handbags from Louis Vuitton, Chanel and others” as a playful parody of those designer bags. The MOB handbags are made of canvas and display the mark “MY OTHER BAG” on one side and a drawing of the iconic Louis Vuitton designer bag on the other side.
Court held that MOB used enough of Louis Vuitton’s pattern, but not more than necessary, to communicate parody (not confusion) of Louis Vuitton’s bags

26
Q

Trade Infringement Example

A

Christin Louboutin holds a valid trademark in the US for its red sole - just so long as that red sole contrasts with the shoe’s upper portion.
In other words, an all red pair of heels with a red sole (which were the subject of the YSL lawsuit) are not considered a violation of Louboutin’s trademark under US law. But contrast the colors, and Christian Louboutin holds the trademark.

27
Q

Similar use of a famous mark or name by a 3rd party can cause dilution (watering down) of the distinctive quality of the actual famous mark.

A

Trademark Dilution

28
Q

How does trademark dilution occur?

A

Dilution occurs when an unrelated product pseudo-copies (to some degree) a famous name or trademark as its own, so diminishes the value of the official ™ owner

29
Q

To win trademark dilution cases, the original trademark must be proven to be ______.

A

Famous

30
Q

Registering, selling or using an Internet domain name with the intent of profiting from goodwill or someone else’s trademark.

A

Trademark Cybersquatting

31
Q

Trademark Cybersquatting Example: Mattel Inc. vs. Adventure Apparel

A

Facts: Mattel manufactures and sells Barbie. Mattel has many registered trademarks on different Barbie-related marks. Adventure Apparel (AA) registered two domain names: barbiesbeachwear.com and barbiesclothing.com. When a user went to either of these websites, they were automatically redirected to adventureapparel.com

Issue: Did AA violate federal law against cybersquatting when registering the domain name “barbiesbeachwear.com” and “barbiesclothing.com?”

Holding: Yes

Analysis: AA used the Barbie trademark improperly in a domain name. AA was required to terminate the domain name or give it to Mattel. They also had to pay damages for each domain name they had.

32
Q

Fraudulent copying of a trademark without authority to do so

A

Counterfeiting

33
Q

Entails a company’s intent to deceive consumers or others by presenting itself as the trademark holder by way of the fake logo, fake tag, etc.

A

Trademark Counterfeiting

34
Q

Top Most Counterfeited Brands:

A

(1) Nike
(2) Apple
(3) Rolex
(4) Samsung
(5) Adidas

35
Q

Trademark laws protect:

A

(1) Trade Dress

(2) Trade Name

36
Q

The look and feel of a product (think the classic Coca-Cola bottle)

A

Trade Dress

37
Q

The name of a business (again, think Coca-Cola)

A

Trade Name

38
Q

Exclusive right to use an original expression that is preserved in a tangible form.

A

Copyright

39
Q

Copyright applies to:

A

(1) Books
(2) Art
(3) Musical works, and
(4) Computer programs

40
Q

Copyrights are protected under:

A

Copyright Act of 1976 (as amended)

41
Q

Term of Copyright Protection:

A

Author’s Life plus 70 years

42
Q

The Copyright Act gives copyright owners 5 exclusive rights over their work:

A

(1) Reproduce
(2) Publish and distribute
(3) Display in public
(4) Perform in public
(5) Prepare derivative works based on original

43
Q

Copyright Infringement Example

A

Example: Vanilla Ice vs. Queen and David Bowie

In 1991, Vanilla Ice’s #1 hit, Ice Ice Baby, “sampled” but did not credit the song UNder Pressure by David Bowie and Queen, Facing a lawsuit for copyright infringement, Vanilla Ice confessed to the sampling.
Case was settled out of court with Vanilla Ice paying an undeclared sum of money and crediting Bowie/ Queen on the track

44
Q

Copyright Infringement Example

A

Example: The Hangover Part II (2011)
S. Victor Whitmill vs. Warner Bros

Tattoo artist S. Whitmill sued Warner Bros. for copyright infringement in the film The Hangover Part II. In the film, Stu wakes up in a Bangkok hotel with a replica of Mike Tyson’s tribal face tattoo. The plaintiff designed the tattoo specifically for Mike Tyson and claimed it was copyrighted work. Whitmill claimed that Warner Bros had the right to put his work in the film or in any promotional materials attached to the Hangover Part II. Warner Bros settled Whitmill’s claim for an undisclosed amount.

45
Q

Exclusive right to own and use an invention or design.

A

Patent

46
Q

Term of Patent:

A

Good for 20 years after the filing of the patent application. Nonrenewable

47
Q

How are patents granted?

A

Granted on a first to file rule

48
Q

To patent an invention, it must be:

A

(1) A process for producing a useful, concrete, and tangible result.
(2) A machine (something with moving parts, like a cigarette lighter, a sewage treatment system, a laser or a photocopier).
(3) An article of manufacture (eraser, tire, chair, hand tool)
(4) A composition of matter (chemical, drug, soap, genetically altered lifeform)
(5) An improvement of an invention that fits within one of the first four categories

49
Q

Patent Example: A company files a patent for a new method of frying chicken.

A

A process for producing a useful, concrete, and tangible result.

50
Q

Patent Example: Reverse flow engine core having a ducted fan with integrated

A

A machine (something with moving parts, like a cigarette lighter, a sewage treatment system, a laser or a photocopier).

51
Q

Formula, pattern, device or compilation of information that is used in one’s business, allowing an opportunity to obtain an advantage over competitors who do not know or use it.

A

Trade Secrets

52
Q

Information is a trade secret if:

A

(1) Not known by the competitor
(2) Business would lose its advantage if the competition got hold of it, and
(3) Owner has taken reasonable steps to protect it from disclosure

53
Q

True or False: Theft of trade secret can result in criminal and tort claims.

A

True

LAW 3220 (14 decks)

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