Trademarks and copyrights Flashcards
trademarks
a distinctive mark, motto or device that a manufacturer puts on its products
infrigement
the unauthorized use of mark on competing or related goods/services if likely to confuse consumers as to their origin
types of trademarks
- trademark: goods
- service marks: services - nysscpa logo, greyhound bus
- certification mark: used by people other than owner to certify the quality, region, accuracy, materials, etc- good housekeeping seal of approval
- collective mark: a mark used by the members of a cooperative, association or other organization - Union mark
Trade dress
the image and overall appearance of a product
examples: the roof on Pizza hut, tic tac box, includes packaging design and color
trade names
indicates part or all of a business’ name (versus product or service)
- not protected under the lanham act, but protected under the common law if distinctive
- a trade name can be a trademark if same as the products name ex. coca cola
exclusivity of trademarks is protected by..
the common law, federal lanham trade-mark act of 1946, and state statutes
a. under the common law, trademarks are created simply by being used. the holder can sue anyone who infringes his mark
to quality for federal protection
the trademark must be registered with the US patent and trademark office. May use r symbol to show registration
- for state protection, may need to register with state government
- registration can be renewed after 5-6 years and then every 10 years (20 if registered before 1990)
- what are the practical benefits of registering a mark? clear proof of when you started using a mark
distinctiveness of mark
Lanham act only protects marks that are “sufficiently distinctive” from all competing marks
- strong marks: fanciful, arbitrary, or suggestive marks are the most distinctive because not otherwise associated with the product
a. fanciful: includes invented words - kodak
b. arbitrary: works that have no literal relation to the product: arm and hammer
c. suggestive: suggest something about the product without directly describing the product. mr. clean - secondary meaning: words with an accepted meaning (names, place names, descriptive terms) don’t get protection unless they acquire a second meaning associated with specific product ex. Tommy Hilfiger, disney, south of the border
generic terms
never require trademark protection, even if acquire a second meaning- don’t give protection to descriptive terms
a. big problem arises when trademarked term becomes generic- lose trademark status
examples: aspirin, thermos, raisin bran, escalator, nylon, corn flakes
remedies for infrigement
include damages, injunctions, and destruction of infringing items
defenses for infrigement
- mark is not distinctive or has become generic
- public is unlikely to be confused as to origin of goods/services - mcdonalds motor cars
- fair use doctrine: discussion, criticism or parody of mark, product or owner, including in comparative advertising - if you use mark for those things its okay
cybersquatting
registering another’s mark as a domain name and offering to sell it back violates federal law- black mail
example: Virtual works registered the domain name vw.net then told volkswagon it has 24 hours to buy it or it would sell it to the highest bidder
1. use of trademarks and meta tags (keywords for which search engines look) - nysscpa embedded in eric louis
Lanham act also prohibits
dilution of mark: the unauthorized use of a famous mark that reduces the marks distinctiveness by diluting its significance, reputation or goodwill
a. dilution is illegal even if it does not create potential for competition or likelihood of confusion
ex. senders of spam using hotmail as return address
b. mark must be famous to establish dilution
counterfeit goods
huge problem in which goods with fake trademarks are sold as originals
a. affects economy, provides funding for illegal operations
b. existing laws rarely enforced (buyers of fake prada bags never arrested
copyrights
a property right owned by authors/artists in literary or artistic works
a. copyright protection is available for the following, if “fixed in a durable medium” and can be perceived, reproduced or communicated, and is original
examples: literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial graphic and sculptural works, films and other audiovisual works, sound recordings, architectural works
protection under the federal copyright act
is automatic without registration for the life of the author plus 70 years (75 for corps)
- gives holder the right to control the reproduction, display, distribution, and performance of work
- must register with US copyright office to get full remedies (including damages) under federal law
- do not have to use the c symbol, but should to be eligible for federal remedies
- remedies for infringement include actual/statutory damages, legal fees, illegal profits, and destruction of illegal copies (also criminal penalties)
protection not available for
ideas (procedures, process, system, method of operation or discovery) “regardless of the form in which it is described, explained, illustrated or embodied”
infringement occurs when
the form or expression of an idea is copied, regardless if it is copied entirely or exactly
exception to infringement
fair use doctrine: one may copy copyrighted materials without penalty if intended to use materials for “criticism, comment, news reporting, teaching, scholarship, or research
for fair use doctrine, courts look at
- purpose of use, whether for commercial or nonprofit educational use
- nature of the copyrighted work
- amount and importance of the portion copied in relation to the entire work
- the effect of the use upon the value of the work (most important factor?)
no electronic theft act
penalizes the exchange of pirated copies of copyrighted works even if not for profit, or copying works for personal use
a. mgm v. grokster: anyone who distributes a device with the goal of promoting copyright infringement is liable for resulting infringement by others
b. music companies have filed more than 26,000 lawsuits against individuals for illegal downloading copyrighted music
world intellectual property organization copyright treaty of 1996
- supplements the berne convention, in which all member countries agree to respect copyrights granted by other member countries
- wipo treaty strengthens application of international copyright laws to the internet, but leaves some gaps
digital millennium copyright act 1998
us’ implementation of wipo treaty. exempts isps from liability if removes infringing material upon owners request
