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Business Law Ch 5
Summary of slides for Chapter 5 of Fundamentals of Business Law
| Question | Answer |
|---|---|
| What is a trademark? | A distinctive mark, motto, device, or emblem that a manufacturer stamps, prints or otherwise affixes to the goods it produces |
| What is the purpose of a trademark? | To distinguish products/services from goods of other manufacturers and merchants. |
| What are some examples of trademarks? | Izzy scoop, restaurant logos, company logos, the "golden arches" of mc donalds... |
| What is the purpose of the Lanham Trademark Act (1946)? | It creates incentives for companies to invest; it prevents unjust enrichment of companies who infringe |
| What is Trademark Dilution? | Addition to the Lanham Act that protects "distinctive" or "famous" marks |
| What are examples of trademarks protected via Trademark Dilution? | McDonalds, Dell, Apple |
| Can the use of a similar mark constitute trademark dilution? | It may |
| Can a famous mark be diluted by an identical mark? | Yes |
| Can a famous mark be diluted by a similar mark? | Yes |
| Can a similar mark dilute when related goods compete in the same market? | Yes! |
| How can you register a trademark? | If the mark is currently in commerce, or the applicant intends to put it into commerce within 6 months |
| What does registration of a trademark look like? | ® |
| What website can you register a US Patent Trademark at? | uspto.gov |
| What does the TM mean? | The mark is not registered federally but is being used as a trademark |
| Does the TM mean you intend file? | Usually |
| Is the use of a TM required prior to filing? | No |
| Under the Lanham Act, what remedies can an owner be provided from trademark infringement? | the owner can recover damages plus profits wrongfully received from unauthorized use of trademark |
| Can the court order destruction of goods when trademark infringement occurs? | Yes |
| Does a trademark have to be sufficiently distinct? | Yes |
| Can generic terms receive protection? | No |
| What are some examples of generic terms? | Bicycle, aspirin, and computer |
| Are descriptive, geographical terms protected under trademark law? | Yes |
| Fanciful and arbitary | Clearly describes what a thing is |
| What's an example of a fanciful/arbitrary mark? | Kodak, Xerox, Pentium, Apple |
| What's an example of a suggestive mark? | Coppertone, Petsmart |
| What's an example of a descriptive mark? | eTrade, Sports Illustrated |
| What's an example of generic mark? | Overnight delivery service |
| When can a descriptive, geographical term have protection? | When there is a secondary meaning |
| What is a service mark? | Similar to trademark, but used to distinguish services of one person/company from another |
| When can secondary meaning have a mark be trademarked? | When the term is used so much that it obtains the secondary meaning |
| What would titles and character names used in media be registered as? | Service marks |
| Certification Mark | used to certify the region, materials, mode of manufacture, quality of specific goods or services |
| Collective Mark | used by an organizer or association |
| What are some examples of collective mark? | Good Housekeeping, union marks |
| Can colors be trademarked? | Yes (like UPS brown and pink insulation boards) |
| What is Trade Dress? | Not a name or brand, but the aesthetic |
| Does trade dress receive the same protection as trademarks? | Yes |
| What is the issue that allows trade dress to be protected? | To protect consumers from confusion |
| What would distinctive decor at a restaurant be protected under? | Trade Dress |
| What is a counterfeit good? | a good that bears a fake trademark and damages US businesses; could present serious health risks |
| What are the penalties for counterfeiting goods? | Up to $2 million and 10 years in prison |
| What do trade names apply to? | The names of companies |
| What is a domain name? | The internet address |
| What is "top level domain"? | The right side of the URL: .com; .org; .edu |
| What are "second level domain"? | The left side of the URL. |
| What group attempts to control the overseas distribution of top-level domain names? | Internet Corporation for Assigned Names and Numbers (ICANN) |
| What did the Anti-Cybersquatting Consumer Protection Act address? | Cybersquatting, Typocybersquatting, and the applicability and sanctions of ACPA |
| Cybersquatting | Buying the name of a site and holding onto it, expecting large sums of money from a future buyer |
| Typocybersquatting | Buying the misspellings of a wellknown name in order to ciphon traffic |
| What's an example of how a company prevents typocybersquatting? | Google has purchased like... almost every variation of its name... |
| Can there be trademark dilution in the online world? | Yes |
| Licensing | allows the use of a trademark |
| What are meta tags? | I have no clue |
| Patents | exclusive federal grant from US Patent and Trademark Office to make, use, and sell an invention for 14 years (20 years for design) |
| What 3 things must a patent be? | novel, useful, and not obvious in light of current technology |
| Old patent rules | first person to invent, NOT FILE, gets protection |
| New patent rules | first person to FILE get protection |
| what are the exceptions to what is patentable? | laws of nature; natural phenomenon; abstract ideas |
| If you put something that people can do in their head into a computer, does this become patentable? | Yes |
| Machine test | If it is put into a machine, it is likely patentable |
| Can patent infringement occur even though the product is not identical? | Yes |
| Is patent infringement occurring when a patented product is made or sold in another country? | Not under US law |
| What are the remedies for patent infringement? | patent holder can seek an injunction, monetary damages, and perhaps attorneys fees and costs |
| Are patent holders automatically entitled to an injunction against future infringing activities? | No |
| Copyright | an intangible property right granted by federal statute to creator of a literary or artistic production of a specified type |
| If a work is created after what year, it is protected for the life of the author plus 70 years? | 1978 |
| If a work is created before what year, it is public domain? | 1923 |
| If by a publishing house, a copyright expires how many years from publication? | 95 |
| If by a publishing house, a copyright expires how many years after creation? | 120 |
| When is a copyright made? | As soon as you make a work |
| How soon must a copyright be registered in order to pursue statutory damages? | within 3 months |
| In order to be protected by copyright, a work must be what? | Fixed into a durable medium |
| Is software code protected by copyright? Why? | Yes because it is stored in RAM which is a physical medium |
| Does digital art have protection? | Yes |
| Can the expression of an idea be protected? | Yes, by copyright |
| Can an idea itself be protected? | No |
| How much can someone get for statutory damages of copyright infringement? | $200-$150k per infringement |
| How much compensatory damages can someone get for copyright infringement? | The proven lost profit |
| What falls under copyrighted materials? | Literary works, musical works, dramatic works and accompanying music, and pantomimes and choreographic works, pictoral and graphic and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works |
| What are the exclusions to what can be copyrighted? | Any idea, procedure, process, system, method of operation, concept, principle, or discovery |
| Can anyone use the underlying ideas in a copyrighted idea? | Yes |
| Are compilations of fact copyrightable? Why? | They can be if the compilation is original |
| When does copyright infringement occur? | Whenever authorized copying occurs |
| Fair Use | when material is used for criticism, comment, news, criticism, teaching, or research |
| If you declare that you are using a copyrighted material under Fair Use, are you protected? | Not necessarily; it's up to the court to decide what's fair use or not |
| First Sale Doctrine | owner of a lawfully-made copy can sell or dispose of the copy without the copyright owner's consent |
| Computer Software Copyright Act | classifies computer software as a "literary work" |
| "Look and feel" of a computer program doesn't matter to a court unless the material being looked at is: | artwork |
| Copyrights in Digital Information | infringement may occur when a song (or any part of it) is copied or downloaded into a computer |
| Digital Millenium Copyright Act (DMCA) | provides civil and criminal penalties to circumvent encryption software; limits ISP liability for subscriber act; 'Fair Use' exceptions for libraries and universities etc |
| If a file is stored on a computer or server and shared with others, could there be copyright infringement? | Potentially, yes |
| When are companies vicariously liable? | When they distribute file-sharing software intending that it be used to violate copyright laws |
| Trade Secret | business process or information that cannot or should not be patented, copyrighted or trademarked |
| What can a trade secret include? | customer lists, plans, research, formulae, pricing information, marketing techniques |
| Is a trade secret still a trade secret if it is not treated as one? | Probably not |
| Does trade secret protection extend to ideas and expression? | Yes |
| Are trade secret laws different depending on state? | They're pretty much uniform |
| Are there international copyright laws? | Yes |
| Am I going to list international copyright laws? | No |
| Can you apply for simultaneous trademark protection in all member countries to the Madrid Protocol? | You bet. But screw one up and you're screwed in the rest, tbh. |
Created by:
fredrickss
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