Property by Creation

Question 1

What are the 4 types of trademarks?

Answer 1

Fanciful, Arbitrary, Suggestive, Descriptive With Secondary Meaning

1. Descriptive Mark: Identifies One or More Characteristics of a Product or Service
   >Must Have Secondary Meaning (Advertising, Volume of Sales, Length and Manner of the Mark’s Use, Consumers Must Recognize the Mark and Identify It w/ the Good or Service)
   ex. “creamy” yogurt
   ex. “bran” cereal
2. Suggestive Mark: implies Something About the Good or Service.
   ex netflix = internet + flicks
   ex. pinterest = pinned + interest
   ex airbnb = air travel + bed&breakfast
3. Fanciful Mark: Term, Name, or Logo That Is Different From Anything Else That Exists.
   ex. Kodak
   ex. Pepsi

4.Arbitrary Mark
An Arbitrary Mark Might Include a Term or Phrase With a Well-Known Meaning, but out of Context.
ex. Apple computer
ex. shell gasoline
ex. camel cigarettes

D
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F
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Question 2

What is trademark generecide?

Answer 2

The appropriation by the public of a mark when it is being used to refer to any product or service of its kind - including those that are unrelated to the trademark holder
ex. bandaid, pyrex

Question 3

What is the goal of trademark law?

Answer 3

1. to protect the goodwill of the owner
2. to prevent confusion among buyers

Question 4

What is trademark infringement?

Answer 4

Using a mark that is similar enough to a prior, existing mark so that it may cause confusion among the public

Question 5

What is a trademark?

Answer 5

Exclusive right to use a mark in commerce as a source identifier

Question 6

What is a free rider?

Answer 6

Someone benefiting from a creative (innovative) work of another without contributing to its creation (innovation)

Question 7

What constitutes “originality”?

Answer 7

A modicum of creativity, more than mechanical (FEIST V RURAL)

Compounding facts in a “creative” way, qualifies

Originality is not a stringent standard
>does not require that facts be presented in an innovative or surprising way
>the selection and arrangement of facts cannot be so mechanical or routine

Question 8

Difference between creation in copyright and patent law?

Answer 8

Copyright: first to create with originality
Patent: first to go to patent office

Question 9

What is the copyright infringement test created in AP v INS news?

Answer 9

all 5 must be satisfied:

1. information was gathered at a cost,
2. that the information is time sensitive
3. that the use of the information by the defendant is “free-riding,”
4. that the defendant is offering a service in direct competition with the
   plaintiff’s
5. the free ride threatens the existence of the plaintiff’s business

C.T. - costly, time sensitive
F. - free riding
C.T. - competitive, threatens business

Question 10

Is originality allowed in databases?

Answer 10

Depends on the selection and rearrangement > no direct copying is allowed, but facts are not copyrightable

Question 11

Can you independently create something that has been copyrighted before?

Answer 11

Similarity is permitted if no copying took place

Question 12

What is the idea-expression dichotomy?

Answer 12

Copyright protects only expressions, not the underlying ideas (ideas are part of the public domain)

Question 13

What rights does a patent ownder have?

PATENT SPECIFICATION (DESCRIPTION TO ENABLE OTHER TO CREATE THE INVENTION) AND CLAIMS (LEGAL BOUNDARIES)
NOTICE COSTS
The difficulty to detect the legal contours of patents

Answer 13

Right to exclude use of its invention by anyone else

Question 14

What are the conditions for patent eligibility?

Answer 14

1. Subject Matter
2. Novelty

> Novelty entails that an invention is not new and therefore not patentable if it was known to the public or used in public before the filing date of the patent application. The invention cannot be contained in the prior art or preempted by a use in public.
THE REQUIREMENT OF INVENTION BEING NON-OBVIOUS TO A “PHOSITA”

3. Usefulness
4. Non Obvious

SNUN

Question 15

What is phosita?

Answer 15

PHOSITA stands for “person having ordinary skill in the art” and is a legal construct in patent law used to evaluate whether an invention is non-obvious. PHOSITA is a hypothetical person with the typical skills and knowledge of a particular technical field, but without being a genius.

Question 16

What is a patent troll?

Answer 16

Instead of actually creating or selling any new products, these lawyers are in the business of litigation (or threatening litigation) on the basis of patent infringement claims, often on the basis of ambiguous patents with high notice costs. These business
entities file multiple weak patent infringement suits, levering the high costs of defense litigation, with the expectation that many alleged infringers will agree to pay to settle the dispute.

Question 17

What is the tragedy of the anti-commons?

Answer 17

When multiple people have a right to exclude, the costs of coordinating/transaction, might lead to underuse when bundling
of those right is needed for a project.

Question 18

EA-EXPRESSION DICHOTOMY
Copyright protects only expressions, not the underlying ideas (ideas are part of the public domain)
RIGHTS OF COPYRIGHT OWNERS
Exclusive right to reproduce, distribute, adapt (make derivative works), perform public, display in public.
Excluded: right to re-sell (belongs to the buyer of a copy)
DESIGN PATENTS
Protection of the ornamental aspects of a novel design - application required

Question 19

What rights do copyright owners have?

Answer 19

Exclusive right to reproduce, distribute, adapt (make derivative works), perform public, display in public.
Excluded: right to re-sell (belongs to the buyer of a copy)

Question 20

What is a design patent?

Answer 20

Protection of the ornamental aspects of a novel design - application required