ESSENTIALS OF THE LEGAL ENVIRONMENT TODAY, 5E

ROGER LEROY MILLER

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CHAPTER 8

INTELLECTUAL PROPERTY RIGHTS

© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

LEARNING OBJECTIVES

• What is intellectual property?• Why is the protection of trademarks

important?• How does the law protect patents?• What laws protect authors’ rights in the

works they create? • What are trade secrets, and what laws

offer protection for this form of intellectual property?

© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

INTRODUCTION

• Intellectual property is any property resulting from intellectual, creative processes—the products of an individual’s mind.• Includes: information contained in books,

computer files, apps for your smartphone, movies you watch, music you listen to

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LO-1

TRADEMARKS

• A trademark is a distinctive word, symbol, sound, or design that identifies the manufacturer as the source and distinguishes its products from others.• Protection of trademarks is important to protect manufacturers from losing business to rival companies.

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LO-2

TRADEMARKS

• Statutory Protection of Trademarks• Lanham Act of 1946 provides federal

protection of manufacturers from losing business to rivals that used confusingly similar trademarks.• Trademark dilution• Federal Trademark Dilution Act (1995) allows trademark

owners to sue in federal court for trademark dilution.• 2006 Trademark Dilution Revision Act (TDRA

• Use of a similar mark may constitute trademark dilution

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TRADEMARKS

• Trademark Registration• U.S. Patent and Trademark Office • A mark can be registered if in use or mark

will be used within 6 months.• Trademark Infringement• Unintentional or intentional substantial

copying of mark.• Injunctions are the most common remedy.

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TRADEMARKS

•Distinctiveness of the Mark• Strong marks• Fanciful, arbitrary, or suggestive trademarks are

considered to be most distinctive trademarks, normally not related to product

• Suggestive trademarks• Bring to mind something about a product without

describing the product• Secondary meaning • Arises when customers associate a specific term of

phrase with specific trademarked items• Generic terms = no protection

© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

TRADEMARKS

• Service, Certification, and Collective Marks• Service mark: used to distinguish services• Certification mark: used by one or more

persons, other than the owner, to certify the region, materials, or other characteristics of specific goods or services• Collective mark: used by members of a

coop, association, union, or other organization

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TRADEMARKS

• Trade Dress • Broad concept that can include all or part

of the total image or impression created by a product of its packaging

• Counterfeit Goods• Stop Counterfeiting in Manufactured

Goods Act (SCMGA)• Criminalizes intentional trafficking in counterfeit goods

• Penalties for counterfeiting© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

TRADEMARKS

• Trade Names• Indicates part or all of a business’s name• Licensing• Way to avoid litigation and still make use

of another’s trademark or other form of intellectual property

© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

PATENTS

• A government grant that gives inventor the exclusive right to make, use, and sell an invention for 20 years. • America Invents Act (2011), first person to file receives protection.• Searchable Patent Databases• www.uspto.gov• www.epo.org

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LO-3

PATENTS

•What Is Patentable?• Item must be novel and not “obvious.” • Almost anything is patentable (excluding

laws of nature, natural phenomena, abstract ideas).

• Patent Infringement• If a firm makes, uses, or sells another’s

patented design, product, or process without permission

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PATENTS

• Remedies for Patent Infringement• Sue for relief in federal court• Injunction• Request damages for royalties and lost

profits• Reimbursement for attorneys’ fees

(sometimes)• Treble damages

© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

COPYRIGHTS

•Copyright is an intangible property right granted by federal statute to the author or originator of certain literary or artistic productions.• Registered with U.S. Copyright Office

© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

LO-4

COPYRIGHTS

•What Is Protected Expression? • Work must be original and “fixed in a

durable medium.” • Section 102 Exclusions• Excludes copyright protection for any “idea, procedure,

process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied.”

• Compilations of facts are copyrightable.

© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

COPYRIGHTS

• Copyright Infringement• Form or expression of an idea is copied

(does not have to be in its entirety).• Penalties, damages and criminal actions

are possible. • Remedies for copyright infringement• The “fair use” exception• Certain persons or organization can copy materials

without penalty (e.g., education, news, research). • The first sale doctrine

© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

COPYRIGHTS

• Copyright Protection for Software• 1980 Computer Software Copyright Act• Includes computer programs in the list of creative

works protected by federal copyright law• Courts have not extended protection to

the “look and feel” of programs.

© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

TRADE SECRETS

• Trade Secrets• Information of commercial value• State and Federal Law on Trade Secrets• Section 757 of the Restatement of Torts• Uniform Trade Secrets Act• 1996 Economic Espionage Act• Trade Secrets in Cyberspace

© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

LO-5

EXHIBIT 8.1

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INTERNATIONAL PROTECTIONS

• The Berne Convention• 1886 international copyright agreement• 2011 EU extended period of royalty

protection for musicians from 50 to 70 years

• The TRIPS Agreement• Established standards for international

protection of intellectual property rights

© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

INTERNATIONAL PROTECTIONS

• The Madrid Protocol• Designed to reduce the costs of

international trademark protection• The Anti-Counterfeiting Trade Agreement (ACTA)• Increase international cooperation to

combat counterfeiting• Provisions and goals• Border searches

© 2016 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.