Trademarks and copyrights

Question 1

trademarks

Answer 1

a distinctive mark, motto or device that a manufacturer puts on its products

Question 2

infrigement

Answer 2

the unauthorized use of mark on competing or related goods/services if likely to confuse consumers as to their origin

Question 3

types of trademarks

Answer 3

1. trademark: goods
2. service marks: services - nysscpa logo, greyhound bus
3. certification mark: used by people other than owner to certify the quality, region, accuracy, materials, etc- good housekeeping seal of approval
4. collective mark: a mark used by the members of a cooperative, association or other organization - Union mark

Question 4

Trade dress

Answer 4

the image and overall appearance of a product

examples: the roof on Pizza hut, tic tac box, includes packaging design and color

Question 5

trade names

Answer 5

indicates part or all of a business’ name (versus product or service)

1. not protected under the lanham act, but protected under the common law if distinctive
2. a trade name can be a trademark if same as the products name ex. coca cola

Question 6

exclusivity of trademarks is protected by..

Answer 6

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

Question 7

to quality for federal protection

Answer 7

the trademark must be registered with the US patent and trademark office. May use r symbol to show registration

1. for state protection, may need to register with state government
2. registration can be renewed after 5-6 years and then every 10 years (20 if registered before 1990)
3. what are the practical benefits of registering a mark? clear proof of when you started using a mark

Question 8

distinctiveness of mark

Answer 8

Lanham act only protects marks that are “sufficiently distinctive” from all competing marks

1. 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
2. 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

Question 9

generic terms

Answer 9

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

Question 10

remedies for infrigement

Answer 10

include damages, injunctions, and destruction of infringing items

Question 11

defenses for infrigement

Answer 11

1. mark is not distinctive or has become generic
2. public is unlikely to be confused as to origin of goods/services - mcdonalds motor cars
3. 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

Question 12

cybersquatting

Answer 12

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

Question 13

Lanham act also prohibits

Answer 13

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

Question 14

counterfeit goods

Answer 14

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

Question 15

copyrights

Answer 15

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

Question 16

protection under the federal copyright act

Answer 16

is automatic without registration for the life of the author plus 70 years (75 for corps)

1. gives holder the right to control the reproduction, display, distribution, and performance of work
2. must register with US copyright office to get full remedies (including damages) under federal law
3. do not have to use the c symbol, but should to be eligible for federal remedies
4. remedies for infringement include actual/statutory damages, legal fees, illegal profits, and destruction of illegal copies (also criminal penalties)

Question 17

protection not available for

Answer 17

ideas (procedures, process, system, method of operation or discovery) “regardless of the form in which it is described, explained, illustrated or embodied”

Question 18

infringement occurs when

Answer 18

the form or expression of an idea is copied, regardless if it is copied entirely or exactly

Question 19

exception to infringement

Answer 19

fair use doctrine: one may copy copyrighted materials without penalty if intended to use materials for “criticism, comment, news reporting, teaching, scholarship, or research

Question 20

for fair use doctrine, courts look at

Answer 20

1. purpose of use, whether for commercial or nonprofit educational use
2. nature of the copyrighted work
3. amount and importance of the portion copied in relation to the entire work
4. the effect of the use upon the value of the work (most important factor?)

Question 21

no electronic theft act

Answer 21

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

Question 22

world intellectual property organization copyright treaty of 1996

Answer 22

1. supplements the berne convention, in which all member countries agree to respect copyrights granted by other member countries
2. wipo treaty strengthens application of international copyright laws to the internet, but leaves some gaps

Question 23

digital millennium copyright act 1998

Answer 23

us’ implementation of wipo treaty. exempts isps from liability if removes infringing material upon owners request