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Business Law Ch 5

Summary of slides for Chapter 5 of Fundamentals of Business Law

QuestionAnswer
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