Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Copyright 2 Folder & Trademark > Copyright Ownership > Flashcards

Copyright Ownership Flashcards

1
Q

What are the copyright ownership bundle of rights?

A
  • Not an exhaustive list
  • Different jurisdictions have more
    1. Distribute to public (communicate to public)
    2. Transmit electronically (stream video)
    3. Perform or display publicly
    4. Creative derivative works (adaptations)
    5. Reproduce
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is the purpose of copyright ownership?

A
  • US Constitution (1787):
    “Congress have the power to promote the Progress of Science & Useful Arts, by securing for limited Times to Authors & Investors the exclusive Right to their respective Writings & Discoveries.”
  • Rights are granted to creators to incentivise them to create works that advance the arts, humanities, the sciences
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is the term (duration of protection) for original works?

A
  • Original works
  • -> Life of author + 70 years
  • After Publications (w more than 1 authors)
  • -> 70 years (SG): photo, sound recording, film
  • -> 50 years (SG): broadcast, cable
  • -> 95 years (US): work of corporate authorship
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

More information on the duration of protection for copyright. (Transferable? Public Domain?)

A
  • Transferable to others after death
  • -> Transfer does not extend copyright
  • Eventually, all works in public domain
  • -> No copyright protection
  • -> Anyone can use it without permission
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Why does copyright not last forever?

A
  • More protection than needed to incentivise creators

- Public domain is reviewed as creative resource

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What are the 2 types of rights owners can transfer?

A
  • Owner can transfer 2 types of rights in writing
  • -> One right or the whole bundle of rights
  • -> Writing: not only on paper, allow electronic contracts
  • Owner can assign copyright to another
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Can ownership license (sell, give away) rights?

A
  • Grant permission for others
  • Transfer some specified rights, retains all others
  • Users may pay royalty
  • For a term (time) or in perpetuity (forever)
  • In a territory / global (geographically limited licenses)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Who owns the copyright (in terms of employees)?

A

Default rules, which can be altered by contract

Employees:
- If employee makes work as part of job, employer owns copyright

Exception for journalist employee of periodical:

  • Employer owns right to “first periodical publication” in its periodical
  • Employee retains remaining rights (eg. to republish in a collection)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Who owns the copyright (in terms of those who contributed)?

A

If contribute work to publication:

  • If creator is not an employee, but is just contributing a work
  • Creator owns copyright
  • Creator licenses publication of their work to others
    • -> Retain other rights
    • -> Eg. license use of photo you took in an ad
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Who owns the copyright (in terms of those who commissioned the work)?

A

If work commissioned:

  • Hiring someone specifically to create a work
  • Most commissioned work:
    • -> Creator owns copyright
    • > Exception: portrait, photograph, engraving (visual works) –> commissioner owns copyright
  • Others may not know the rules. Best practice: make ownership explicit by contract
  • SG default rule likely to change: creators own rights to all commissioned works, unless otherwise specified in writing
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Who owns the copyright (in terms of those who posted on social media)?

A
  • Once you post a photo to a social networking site, it is the social network’s & the network can use your photo as it wishes. FALSE
  • IG Terms of Use: “We do not claim ownership of your content, but you grant us a license to use it.”
  • Social media users retain copyright ownership
  • User gives licence to the service to use content for purposes in its terms & conditions
    • -> Eg. permission to display your work to others, subject to your privacy settings
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

How is copyright applied in advertising when agencies assign copyrights to clients?

A
  • Advertisement Intellectual Property: Common arrangement
  • -> Agency assigns all intellectual property rights in ads to client
  • -> Client pays agency fee
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

How is copyright applied in advertising when agencies pitch to clients?

A
  • Advertisement Intellectual Property: Common arrangement: Pitches
  • -> The advertiser (potential client) invites agencies to pitch (present) ideas for a new campaign
  • -> Client usually does not pay for pitches – some of which are not used
  • Ideas aren’t protected, so what can pitcher do? (Delicate method)
    –> Ask client to sign confidentiality agreement contract - non-disclosure agreement regarding content of pitch
    –> For pitch: turn ideas into expression
  • Written proposals, illustrations, video with copyright notice –> so it is fixed, reminds client you are aware of your rights
     
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Trademark is a subset of copyright?

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What does copyright protect?

A

Copyright: protects original literary, musical, artistic works

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What does trademark identify?

A

Trademark: identifies source of goods or services

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is the definition of trademark (for goods)?

A
  • A word, phrase, symbol, and/or design that identifies and distinguishes the source of goods
  • Eg. Apple
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What is the definition of service marks (for services)?

A
  • Distinguishes source of service

- Eg. hotel (intercontinental)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What is the Singapore definition of Trademark?

A
  • Singapore Trade Marks Act
  • A “sign capable of being represented graphically” that is “capable of distinguishing goods or services” of the provider
  • Sign includes: “a letter, word, name, signature, numeral, device, brand, heading, label, ticket, shape, colour, aspect of packaging”
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

A trademark must be registered to be valid.

A

False

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

More about trademark registration.

A
  • Registration optional, but wise
  • -> Document your claim
  • 10-year term
  • -> Indefinite renewals
22
Q

When do you register a trademark?

A
  • After use
  • Or before 1st use if you declare bona fide intent to use

-Trademark can be deemed abandoned after 5 years of non-use

23
Q

What happens if you don’t register your trademark?

A

Common law remedy of passing off still available  harder to prove

24
Q

What is the trademark registration process?

A
  1. You apply for registration
  2. TM office examines the mark & searches for
    conflicting (confusingly similar) mark
  3. Your claim published for opposition by others
  4. TM office decides
  5. Either party can appeal to court
25
Q

What is the notice for trademark and when are the 2 different variations used?

A
  • A trademark notice (TM or ®) is required for a trademark to be valid. FALSE
  • Is optional
  • TM for goods, SM for services before registration granted
  • ® only after registration
26
Q

If someone is using my trademark on a different type of goods, one of us is infringing the other.

A

False

27
Q

Does trademark protect goods and services in all classes?

A
  • Trademark protects goods, services in the class in which you register.
  • Why? So you can’t lock up a mark in classes in which you are not using it
  • Eg. Tiger beer, tiger balm, tiger airways  exist peacefully because they’re in different classes of goods and services
28
Q

If someone is using my trademark anywhere in the world, one of us is infringing.

A

False

29
Q

Is trademark territorial?

A
  • Register for protection in a territory
  • -> A particular jurisdiction (legal area)
  • System for international recognition of trademark (Madrid)
  • -> Register in one member jurisdiction
  • -> Can extend protection to member jurisdictions (About 100… include US, EU, SG)
  • Eg. Harry’s bars
  • -> Same marks, different territories
  • -> Can coexist if not international brands
30
Q

Trademark only protects words, logos, and colours

A

False

31
Q

Trademark protects aspects of the visual appearance of product or packaging if:

A
  • Distinctive: consumer identifies it as the course AND
  • Non-functional: eg. merely decorative
  • Sometimes called trade dress (US term) or get up (Commonwealth)
  • Eg. Why coke bottle shape is protected
  • Eg. Toblerone shape: distinctive shape, not purely functional
  • Eg. No protection for Kit Kat. Courts ask: how distinctive?, How functional? Do fingers facilitate manufacturing / eating?
32
Q

State what’s included in the trademark distinctiveness continuum.

A
  1. Generic terms
  2. Descriptive marks
  3. Suggestive marks
  4. Arbitrary marks
  5. Fanciful marks
33
Q

What does distinctiveness mean?

A

Distinctiveness:

  • Can a mark distinguish one source of goods or services from others in consumers’ minds?
  • Eg. Apple, Microsoft, Google, Coca-cola, IBM
34
Q

What is considered a generic mark?

A
  • Name for the goods, services offered
  • Words with no distinctive character for the goods/services
  • A generic mark cannot be claimed or registered
  • Eg. Vegetarian store called “Vegetarian”
35
Q

What is considered a fanciful mark?

A
  • Term invented for use as a trademark
  • No prior meaning
  • Inherently distinctive – inherently has ability to distinguish its owner
36
Q

What is considered a descriptive mark?

A
  • (def.) Describes a quality, feature, function, or characteristic of the goods/services
  • Trademark registrar views a descriptive mark skeptically - Examples:
    • -> Laudatory (praise) words (eg. Best restaurant)
    • -> Place names (eg. Sixth Avenue Restaurant)
    • -> Common names for persons (eg. Lee’s Restaurant)

Descriptive mark can acquire distinctiveness

  • Seems to lack distinctiveness, but in fact, may have it through use in the market
  • Authorities may hear evidence:
    • -> Consumer recognise it?
    • -> Efforts to market it?
  • Can be registered only if it acquired distinctiveness (aka. Secondary meaning)
37
Q

Rank marks from least to most distinctive

A
  1. Generic terms can’t distinguish source, nor be protected
  2. Descriptive marks
  3. Suggestive marks
  4. Arbitrary marks
  5. Fanciful marks most distinctive
38
Q

What is considered a suggestive mark?

A
  • Meaningful but not literally descriptive in context
  • -> Imagination required to associate mark with product, service
  • Jaguar, 7 Eleven
39
Q

What is considered an arbitrary mark?

A
  • Word has meaning in another context
  • Mark is arbitrary for the product/service
    • No relation to goods/services for which uses
  • Eg. Shell, Polar (Cakes & Puffs)
40
Q

Can a mark lose distinctiveness?

A
  • Authorities rule that mark has fallen into common use
  • Loses its ability to distinguish its owner
  • Loses its protection
  • Victim of “genericide”
41
Q

What causes trademark infringement and trademark dilution?

A
  1. Similar marks
    - Visual
    - Aural (sound alike?)
    - Conceptual (meaning of words)
  2. And similar (potentially competing) goods/services
42
Q

What are some remedies to trademark infringement?

A
  • Injunction and/or damages

- Registration of conflicting mark not allowed

43
Q

What is trademark dilution?

A
  • Came to age in 1990s)
  • A new cause of action in trademark law
  • Does not replace infringement
  • For marks well known to the public at large in the jurisdiction (SG, US, etc)
  • “Lessening of the capacity of the trademark to identify and distinguish goods or services, regardless of whether there is -
    (a) any competition between the proprietor of the trademark and any other party; or
    (b) any likelihood of confusion on the part of the public”
    (SG Trademark Act)
44
Q

What is the basic kind of dilution?

A

Blurring

  • (def.) Distinctiveness of the mark impaired (blurred) by association with a similar mark
  • Eg. ROLLS ROYCE (makes autos), ROLLS ROYCE (makes candy, pants?)
  • No competition, no confusion
45
Q

What is a special subset of dilution?

A

Tarnishment

  • Similar to blurring: confusion, competition not required
  • But similar mark has “inappropriate or unflattening associations”
  • Eg. Victoria’s Secret AND Victor’s Little Secret (selling adult novelty items)
    • -> No competition, our mark is tarnished being associated with you
46
Q

What is a defence for dilution?

A

Fair Use

  • Includes these uses:
  • -> Comparative advertising
  • -> Non-commercial purposes (May include parody)
  • -> News reporting / commentary
  • In these cases, we’re not using the trademark for goods/services
  • -> Neither infringement nor dilution occurs
47
Q

Under common law, what is Passing Off?

A
  • Remedy available regardless of whether mark is registered
  • As plaintiff you prove:
  • -> You have goodwill attached to the mark for the goods/services
  • -> Defendant engaged in misrepresentation to take advantage of your goodwill AND
  • -> Damage to your goodwill (probable or real)
48
Q

What are the 2 causes of action in Trademark Law?

A
  • Infringement

- Dilution

49
Q

What is considered infringement in TM law?

A
  1. Identical or similar marks

2. And similar (competing) goods/services

50
Q

What is considered dilution in TM law?

A
  • For well-known marks
  • Confusion, competition not required
  • Does mark cause dilution?
    (Does mark take unfair advantage of another mark by):
    –> Using similar marks
    –> On any goods/services, similar or not

Copyright 2 Folder & Trademark (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions