EXAM 5 Flashcards
5 Types of Intellectual Property
Trade Secrets, Trade Symbols, Trade Names, Copyrights, Patents
2 Requirements to qualify as a Trade Secret
Secret info, has value to owner due to secrecy
Examples of Trade Secrets
Algorithms, Formulas
Misappropriation is associated with
Trade Secrets
How to protect against misappropriation?
NDA, HR Policies
What does an NDA prohibit?
(DUCS) Disclosure, Use, Competition, Solicitation
What can an NDA require?
That all info be destroyed or returned
Remedies to misappropriation
Seek damages that are greater than or equal to the loss of the owner, Injunction
Injunction
Prevent further disclosure/use
What does the Trademark (Lanham) Act of 1946 protect?
Trade Symbols
3 Types of Trade Symbols
Trademark, Service Mark, Certification Mark
Trademarks identify
GOODS
Service Marks identify
SERVICES
Certification Marks example
USDA
2 Mark Requirements
Inherently Distinctive, Cannot Cause Confusion
Example of Fanciful
Pepsi, Exxon
Example of Arbitrary
Apple, Amazon
Example of Suggestive
Netflix, Jaguar
Example of Descriptive
Coca-Cola
Example of Generic
Band-Aid, Kleenex
What to consider when choosing mark?
Industry
Do you have to register your mark to protect it?
NO, UNLESS YOU WANT FEDERAL PROTECTION
To register a mark, you must have:
Use of mark, Continuous Use, Ability to defend
How long do you have between intent and action in use of mark?
6 Months
How often must marks be renewed?
Every 10 years
Limit on number of times a mark can be renewed?
Unlimited
When must owner file Affidavit of Use for a mark?
1 year before expiration
Benefits of registering a mark?
Nationwide notice, enforcement of mark, protection on imports
When is a mark incontestable?
≥ 5 years
2002 Madrid Protocol
Identifies Mark in > 65 countries
When is a mark considered abandoned?
After 3 years of nonuse
How to defend mark?
Send cease and desist letter, sue if necessary
What do you NOT have to prove for infringement?
PROOF OF INTENT
To prove infringement of mark:
Using w/o authorization of identical or substantially indistinguishable mark
Testing infringement:
Would an appreciable number of ordinarily prudent purchasers be misled or confused
When are marks allowed to be used by a non-owner?
Comparative ads, Non-commercial use, News Reporting
Trade Names
Any name used to identify a business/vocation/occupation (includes assumed names)
Example of a secondary meaning arising in an industry
Beyoncé
_____________________ can be protected in more than one way
Intellectual Property
Can Trade Names be registered as a trademark?
YES
Copyrights
Protects creators of original works
Original Works examples
Music, Literature, Movies, Books, Plays, Computer Software, Art, Contents of a Website
When does protection arise for an original work?
When put into tangible form where it can be perceived, reproduced or communicated for MORE THAN A SHORT TIME
Does the owner have to register to use the © symbol?
NO, THEY CAN USE IT IMMEDIATELY
Examples of work that cannot be copyrighted:
Domain Names, Processes, List of Ingredients, Ideas
How to protect an idea:
Original, Tangible Expression, Contractual Relationship between Creator and Infringer
Why register a copyright?
Easier to obtain damages, reimbursement, and gives notice
If damages occur in the context of a copyright, does the owner have to prove these damages?
NO
Sonny Bono Copyright Expression Act of 1988 protects copyrights for how long?
Individual: Lifetime + 70 yrs
Entity: 95 yrs from first publication or 120 yrs from creation
Fair Uses of Copyright Material
(CCN TSR) Criticism, Comment, News Reporting, Teaching, Scholarship, Research
Patents
Monopolistic right to make/use/sell an invention/process to others (even if second process was developed independently)
Where do patented inventions go when they expire?
The Public Domain
3 Patent Categories:
Utility, Plant, Design
Utility Patent Category
New/Useful Processes, Machines, Manufacturing, Composition
When do Utility Patents expire?
20 yrs from application, Drugs can get 5 yr extension
Date of Application does NOT signify
Date of Approval
Plant Patent Category
New/Distinctive Variety of Plant
When do Plant Patents expire?
20 yrs from application
Design Patent Category
Ornamental design for an article of manufacture
When do Design Patents expire?
14 yrs from application
Design Patents can also be:
Copyrighted and Trademarked
Can you renew a patent?
NO
Do trade secrets expire?
NO
What type of patent needs to pay patent maintinence fees?
Utility Patents
If employee creates work within the scope of their employment, who owns it?
Employer
If work was commissioned to I.C. from principal, who owns it?
Principal
If employee/IC was hired for “that type of inventive work”, who owns it?
Employer/Principal
If inventor uses principal’s facilities, who owns it?
Employee, but Principal has non-exclusive royalty-free license to use
Digital Millenium Copyright Act of 1998
Protects IP, copyrights on the internet
Tangible Personal Property Example
Goods
Tangible Real Property Examples
Buildings, Land, Fixtures
Intangible Personal Property Examples
Stock, copyrights, patents, contract rights, negotiable instruments
Negotiable Instrument Example
Checks
Intangible Real Property Examples
Leases, Easements, Mortgages
Mortgage is the same as a
Deed of Trust
Fixtures
Start off being personal property and then attaches to or made custom for real property
Requirements to constitute as a fixture:
Removal would damage realty, purpose to structure, peculiar to the realty
What do securities help protect?
Personal Property…(ex. apt fridge)
7 Ways to Transfer Personal Property
(PAWSGEC) Possession, Accession, Will, Sale, Gift, Escheat, Confusion
Transfer of _________ of not required in a sale to have transferred property
POSSESSION
Bill of Sale relates to:
Tangible Personal Property
Assignment relates to:
Intangible Personal Property (ex. interest)
Requirements for transfer to qualify as a gift:
Delivery, Donor intends to give (unconditional), Donee accepts
Accession example:
Cows, Interest
In a confusion transfer, ________________ carries the burden of proof
The person at fault
Possession means the finder of the lost property,
Has title until true owner takes it back
If found underground, who has title?
Landowner
If mislaid, who has title?
Possessor of space where item as left
True owner can ___________ get lost/mislaid property back
ALWAYS
2 Types of Estates:
Freehold and Leasehold
Freehold is
OWNERSHIP
Leasehold is
CONTRACT FOR POSSESSION/USE
Fee Simple
No associated future interest
Fee Simple Defeasible
Always associated future interest
Who can do more on property in an easement? 3rd party or owner?
3rd Party
Lien
Gives bank right to take any land if owner doesn’t pay
How to transfer Fee Simple
Sale/Gift: Deed
Will/Inheritance: Will/Oath
If Fee Simple Defeasible is violated by doing a restriction, FSD goes away and owner…
Gets Fee Simple
For FSD, user has _____________ and owner has ______________
Present interest, Future interest
When does life estate terminate?
UPON DEATH
Anyone with future interest gets what after life estate owner’s death?
Fee Simple
Is Life Estate transferred by will from owner?
NO
If interest in Joint Tenancy is transferred to someone not in JT, JT turns into
Tenancy in Common
Tenancy in common has NO
right of survivorship
Most common commerical type of lease
Leasehold Estates
If the leasehold estate is > 1 yr, it must be
In writing
Is prior notice of termination required by law for leasehold estates?
NO, but it will continue to renew for another period
Tenancy at Will
Uncommon, Infinite Duration, Not required to notice of termination unless by statute
Tenancy Sufferance
Failure to vacate, results in double/triple rent
Assignment of Lease
Tenant liable to landlord, landlord can sue T and 3rd Party
Sublease
Tenant liable to landlord, L can sue T, T can sue 3rd Party
Statute of Frauds requires that a Contract of Sale must be
IN WRITING
Where does earnest money go?
To Title Company
Due Diligence Period
Buyer inspects property during a fixed period
Title Commitment outlines
Owners of title and any encumbrances
If land is unsatisfactory,
Buyer can terminate contract of sale, gets earnest money back
If land is satisfactory,
Contract goes hard, earnest money becomes non-refundable if buyer doesn’t give notice
Closing
Deed delivered from seller to buyer
Who records the deed?
The Title Company
Title Insurance Policy
Insurance for Buyer on losses cause by defects in title
Requirements for a valid deed:
In writing, delivery (or proof to), grantor signs, legal description of land
NOT REQUIRED for a valid deed:
Consideration, Notary, Recording, Payment
A deed is a
CONTRACT
Deeds can:
Restrict real property in the future
Undisclosed Encumbrance
Not disclosed or expected in contract, orally, title commitment/policy, Deed
General Warranty means Grantor has agreed to
Defend title all the way back to patent
If Grantor breaches warranty under GW, Grantee can get
A reduction in value of property due to easement
Special Warranty means Grantor has agreed to
Defend title to the property for encumbrances/transfers they made themselves
Quitclaim Deed means Grantor has agreed to
Simply transfer the title if they have it, they do not defend the title, they are not liable
Recordation
Providing a county authority with the original document of the deed
Grantee will NOT have easement enforced on them if they
Didn’t know about easement, Paid for property
Requirements to Record a Deed
Notarized, Original Document, Pay Fee
If seller breaches their duty,
Title Insurance can pursue them
Adverse Possession requirements
(AEOAC) Actual, Exclusive, Open & Notorious, Adverse, Continuous (3-10yrs)
