intellectual property intellectual property chapter 9

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Intellectual Property Intellectual Property Chapter 9 Slide 2 Intellectual Property Intellectual effort, not by physical labor Reputation (goodwill) is one part of intellectual property Intangible property Lawsuits involve infringement in violation of the owners right Damages include monetary and injunction Counterfeit and fraudulent use of this property costs business tens of billions of dollars a year Major forms include: Trademarks Copyrights Patents Trade secrets Slide 3 Trademark A commercial symbol design, logo, phrase, distinctive mark, name or word brand name (i.e. Nike and others) protected by the Lanham Act Classifications: arbitrary and fanciful (most favored Clorox) suggestive (not as favored Dairy Queen) descriptive not as favored but Holiday Inn and Yellow Pages have protection Generic no protection (nylon, zipper) Slide 4 Registration Online: Pay of $335 for each class of goods using a mark Submission of copy of mark (a specimen) Description of the goods that will use the mark Declaration that applicant has no knowledge that mark will conflict with other marks Good for 10 years, then renew International protection of marks encouraged by International Bureau of the World Intellectual Property Organization (WIPO) via the Madrid Protocol Through Madrid System a trademark holder from most countries can file an existing trademark for international registration. Less costly than registering in each country individually. Slide 5 Infringement, Dilution and Cybersquatting Infringement Confusion of origin of goods by improper use of trademark Essentially stealing anothers good name Lanham Act allows lawsuits for infringement Dilution Rights further expanded through The Trademark Dilution Act Injunction against those blurring or tarnishing famous trademarks Cybersquatting Trademark is improperly used in a domain name Restricted by the Anticybersquatting Consumer Protection Act Defenses Fair use (mention of mark in comparative advertising) Non-commercial use (parody or editorial commentary) News reporting or educational use Slide 6 Audi AG v. DAmato DAmato registered domain name www.audisport.com. Sold goods and services with Audi logos. Site used various Audi trademarks Audi, Quattro & Audi Four Ring Logo. Claimed to have permission from an Audi dealership salesman. (Even if he did, Audi dealerships dont have rights to grant use of Audi trademarks.) Audi sued DAmato for infringement, dilution and cybersquatting of its three famous trademarks. District Court: Held for Audi. Issued injunction against DAmato, his website and domain name. DAmato appealed. Slide 7 Audi AG v. DAmato HELD: Affirmed. DAmato infringed. Likelihood of confusion must be shown to obtain equitable relief (here a permanent injunction). Disclaimer on website of association with Audi does not absolve DAmato of liability. Directing consumers to his website and later disavowing affiliation with Audi is too late. He created initial interest confusion an infringement under the Lanham Act. He stated on the website that he had a signed agreement with Audi, which was not true. Website merely having hyperlinks to goods (hats/shirts) creates a commercial effect that damages Audi. Dilution law also offended integrity and distinctiveness of mark is infringed upon. Audi spent millions on its trademarks to be known worldwide. DAmato used the marks in commercially related activities. The marks used were identical to Audis. Under Anticybersquatting Consumer Protection Act (ACPA), requirements have been met showing Amato was in bad faith to profit from Audis mark. Slide 8 Counterfeiting Copying or imitating of a mark without authority to do so. Passing off goods as if they were original. Problems with universities, Major League Baseball and well-known companies: Nike and Disney. Levis has seized millions of pairs of counterfeit pants all over the world. Even if people are told that the counterfeit goods are counterfeit (no one fooled), the trademark counterfeited. Lanham Act allows private parties to obtain search-and- seizure orders to grab counterfeit goods. Private investigators look for imitations; provide U.S. Attorney with evidence; and U.S. Attorney either takes actions or approves a partys right to obtain a warrant to seize goods. Goods can be used as evidence in lawsuits. Slide 9 Trade Dress Protected by Lanham Act Concerns the look and feel of products and service Size, shape color, texture, graphics, etc. Must be inherently distinctive i.e. Roar of lion trade dress for MGM Two Pesos v. Taco Cabana: One Tex-Mex restaurant could not copy its competitors unique dcor. Wal-Mart v. Samara Bros.: No infringement by Wal-Mart on Samaras design of children clothing, although designs were similar. Protection received if trade dress is distinctive and has secondary meaning. Secondary Meaning: Primary significance of mark or trade dress is recognition of the source of product rather than the product itself. Slide 10 Other Marks Service Marks Apply to services, not goods Law is similar as for trademarks Ex: International Silk Assn. uses the motto: Only silk is silk Ex: Burger Kings Home of the Whopper Certification Mark Word, symbol, device or any combination of these Used to certify regional or other geographic origin >Made in Montana May also be type of material used, mode of manufacture, quality, accuracy or other characteristics, >Union Made in the USA Slide 11 Trade Names Name of company or a business Some products, such as Coca-Cola, have same trademark as the trade name of producer Cannot be registered under the Lanham Act Protected by common law Protection applies to areas in which name has meaning National protection cannot be claimed unless there might be confusion Ex: because Coca-Cola is known worldwide, no one may use trade name in any business. E.g., cannot open Coca-Cola Motel. Slide 12 Goodwill Reputation of a firm that gives value to trademarks and other forms of intellectual property Prized asset of many firms Gain trust of many customers = Goodwill Benefit of advantage of having an established business and secured customers Upon sale of business, goodwill can be evaluated. Often closely tied to trademark or brand name Slide 13 Copyright Copyright Act of 1976 Rights of literary property recognized by law Books, written works, etc. Easy to get; registration process Works must be original Life of author plus 70 years or 95 years for business copyrights Gives owner exclusive right to: reproduce publish or distribute display in public perform in pubic prepare derivative works based on original Slide 14 Infringement and Fair Use in Copyright Fair use - for purposes such as criticism, comment, news reporting, teaching,... scholarship, or research Four Factors of fair use purpose and character of copying nature of work extent of copying effect of copying on market Damages for violations focus on economic loss to holder. In some areas (federal law) activity may be tied to mail or wire fraud felony convictions include fines/prison People always looking for alternatives for file sharing Slide 15 Maverick Recording Co. v. Harper Media Sentry looks for infringements of media via Internet. Discovered Harper using file-sharing program. Shared files (songs) by peer-to-peer network (LimeWire). MediaSentry downloaded files, capturing and sharing metadata for each file. After suit was filed by copyright owners, plaintiffs were allowed to examine Harpers computer. Forensic experts IDed all file sharing, even those erased. Plaintiffs moved for summary judgment on copyright claims for 37 audio files. Court granted judgment & injunction for further action. Harper said infringements were innocent under copyright law; trial court agreed with that lesser level of violation. It set damages at $200/violation. Plaintiffs appealed, saying shes not innocent violator and damages should be statute minimum of $750/violation. Slide 16 Maverick Recording Co. v. Harper HELD: Harper is not an innocent infringer. Affirmed district courts copyright liability. Reversed its finding of innocent infringer. Remanded for further proceedings. No doubt that Harper downloaded copyrighted material. Harper contended that she was too young and nave to understand copyrights on music. Her arguments are insufficient. Her knowledge is irrelevant under the Copyright Act. Plaintiffs are entitled to statutory damages. Must be awarded $750/infringement minimum. Slide 17 Patents Exclusive right to make, use, or sell a product for 20 years Anyone who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent Strong protection during life of patent Rapid technology changes may limit usefulness. But expensive, technical and time- consuming process Since patent divulges all info to competitors, some prefer trade secrets See Nystrom v. Trex Company, Inc. Slide 18 Nystrom v. Trex Company Nystrom owns a two-truck, two-man lumber yard. Received patent for A board for use in constructing a flooring surface for exterior use [such as a deck]... manufactured to have a... convex top surface which sheds water and at the same time is comfortable to walk on.... Nystrom sued Trex (large mfgr. of exterior decking planks made from composites of wood fibers & recycled plastic) for infringing. Trexs defense: their planks are not cut from logs, and that Nystroms patent board means that made only from wood. District Court: Summary judgment for Trex. Key parts of the patent invalid. Dismissed Nystroms claim. Nystrom appealed. Continued Slide 19 Nystrom v. Trex Company U.S. Ct. of Appeals: Summary judgment for non- infringement is reversed. Opinion centered on the meaning of the word board. Nystrom says that board is not limited to wood cut from log and in his patent he did not disclaim boards made from materials other than logs, such as products m

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