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Ch. 8 MGMT
MGMT Exam 2
| Question | Answer |
|---|---|
| Intellectual Property Rights | Intellectual Property is the work of the human mind which consists of the products that result from intellectual and creative processes are protect Violation of these rights is compeition IP laws benefit vs. restraints on compeition |
| US Constitution Article 1, Section 8 | Congress is authorized “[t]o promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” |
| Types of Intellectual Property | Trademarks Patents Copyrights Trade Secrets |
| Examples that can become intellectual property | Anything written, novel, computer programs, paintings, house plans, music, plays, inventions, product packages |
| What Cannot become intellectual property | Land (real property), Consumer goods, and Stocks |
| Licensing Agreements | to avoid a lawsuit for infringement on an intellectual property a user of another’s property can enter into a contract to receive rights to use the property and in exchange pay a royalty. |
| Trademarks | a distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known. A trademark is a source indicator. |
| Distinctive mark | Word “Google”, phrase “Just do it”, symbol or design Adopted for the purpose of identifying the origin of goods being offered for sale. Trademark must serve a branding function to be protected |
| Nontraditional Trademarks | Sound Color Fragrance Design of a business establishment |
| Trademark Registration | trademarks may be registered with the state or federal government. To register federally, a person must file an application with the U.S. Patent and Trademark Office in Washington, D.C. |
| Notice of registration | Federally registered = R circle Not registered= TM |
| A trademark can be registered if: | it is currently in commerce or the applicant intends to put it into commerce within 6 months |
| Statutory Protection of Trademarks | Trademark Dilution Revision Act – 2006 For “Famous” Trademarks Marks do NOT need to be identical Marks are protected even when the use is for non- competing goods OR is unlikely to cause confusion |
| Statutory Protection of Trademarks Plaintiff must prove: | P owns a famous mark that is distinctive D has begun usin a mark in commerce that allegedly is dilutin the famous mark Similarity gives rise to an association b/w mark Association is likely to impair the distinctivenes of famous mark OR harm its rep |
| The Lanham Trademark Act of 1946 | amended in 1995 by the Federal Trademark Dilution Act. |
| Trademark Dilution Revision Act | The act is designed to protect “famous” marks from uses that “dilute” reputation Blurring and Tarnishing Must only prove a “likelihood” of dilution NOT required to prove actual dilution |
| Trademark Infringement | Whenever a trademark is copied to a substantial degree or used in its entirety by another, intentionally or unintentionally, the trademark has been infringed. |
| Trademark Infringement Plaintiff must prove | P owns a mark D is using a mark that is copied to a substantial degree, AND A “likelihood of confusion” exists |
| Remedies for Trademark Infringement | actual damages plus profits from using the mark destruction of the goods attorneys’ fees |
| Distinctiveness of Mark | a trademark must be sufficiently distinct to enable consumers to identify the manufacturer of the goods easily and to distinguish between those goods and competing products; may be protected and registered only upon a secondary meaning |
| Strong Marks | Fanciful Trademarks Arbitrary Trademarks Suggestive Trademarks Secondary Meaning |
| Arbitrary Trademarks | those that use common words in an uncommon way that is non-descriptive |
| Fanciful Trademarks | include invented words |
| Suggestive Trademarks | imply something about a product w/o directly describing the product; automatically protectable and registrable |
| Secondary Meaning | descriptive terms, geographic terms, and personal names are not inherently distinctive and do not receive protection under the law until they acquire a secondary meaning |
| Generic terms (Distinctiveness of Mark) | like bicycle and computer do not receive protection even if they acquire a secondary meaning |
| Service, Certification and Collective Marks | Service mark- SM Collective Mark Trade Dress- motif of a restaurant Counterfeit goods Trade Names- Coca cola Licensing |
| Pros/Cons of Service Certification and Collective Marks | inexpensive longest lasting- think Mcdonald's and Walt Disney |
| Patents | a grant from the government that gives an inventor the right to exclude others from making, using, and selling an: invention for a period of 20 years design for a period of 14 years |
| Since 2011 the protections (patents) | begin when the patent application is filed not when patent is issued |
| Race to the Patent office | first person to file the patent application receives the patent protection Challenges to a patent on any grounds are prohibited for first 9 months |
| What is Patentable? | “whoever 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 therefore, subject to the conditions and requirements of this title” |
| Requirements of Patent | Process Machine Product Composition of Matter (new alloy) Improvements to the above 4 categories |
| Utility (Patentable) | must be operable and achieve a useful purpose |
| Novelty (Patentable) | Must not be previously patented or publicly used (needs to be new) Grace period after a year then it is no longer novel and cannot get a patent |
| Timely Filing (Patentable) | Patents must be filed within one year of creation |
| Non-obvious | cannot be an obvious advancement |
| Not patentable | the laws of nature natural phenomena abstract ideas including algorithms |
| Patent infringement | If a firm makes, uses, or sells another’s patented design, product, or process without the patent owner’s permission, the tort of patent infringement occurs |
| Infringement | P must show that: products -> not all features or parts copied processes -> all steps must be copied |
| Remedies for Patent Infringement | Injunctions Damages for royalties and lost profits Attorney's fees Treble damages means; 3 times damages |
| Pros/Cons Patent Infringement | 20 year right to exclude others – that’s relatively short Expensive ($5,000 - $100,000+ and sometimes millions) |
| Copyright Law | an intangible property right granted by federal statute to the author or originator of a literary or artistic production of a specified type. An author’s exclusive right to publish, print, or sell a product of her intellect for a certain period of time |
| Copyright Act of 1976 & Copyright Term Extension Act of 1998 | give the author or originator the exclusive rights to their works for a specific amount of time as follows |
| Copyright Act of 1976 & Copyright Term Extension Act of 1998 (1-3) | Works created after 1/1/78 70 years after death of the author Works owned by publishin houses shorter or 95 years from date of publication or 120 yr from the date of creation Works by more than 1 author 70 yrs after the death of the last survivin author |
| When the protection ends | the materials go into the “Public Domain.” When copyrights expire, protected works return to the public domain. It is a “creative common” where the law cannot control what you do with the material you find |
| Registration | Copyrights can (but is not required) be registered with the U.S. Copyright Office in Washington, D.C. A copyright owner no longer needs to place the symbol © or the term “Copr.” or “Copyright” on the work to have the work protected against infringement |
| Registration is | no longer required chances are if somebody created it, somebody owns it |
| What is protected expression | To be protected, a work must be “fixed in a durable medium” from which it can be perceived, reproduced, or communicated, Original and fall into one of the 8 categories |
| 8 categories of protected expression | literary works musical works and accompanying words dramatic works and accompanying music pantomime or choreographic work pictorial, graphic, or sculptural work motion pictures and other audiovisual works sound recordings architectural works |
| It is not possible to copyright an | “idea.” Ideas embodied in a work may be freely used by others. What is copyrightable is the particular way in which an idea and an expression is expressed |
| Copyright infringement | Plaintiff must prove: Ownership of a valid copyright and Defendant’s work is “substantially similar” or “virtually identical” to Plaintiff’s copyrighted work. |
| Remedies (Copyright Infringement) | Damages: imposed of the discretion of the court and based upon the harm done by the copyright owner Injunctions: stopping the infringer from using the work |
| Fair Use Exception to Copyright Infringement | 1. criticism 2. commentary 3. news reporting 4. teaching 5. scholarship, or 6. research |
| 4 statutory factors used by courts to determine on a case-by-case basis if the use of a work is a “fair use” | 1. Purpose and Character of the Use 2. Nature of Copyrighted Work, 3. Relative Amount of Work Used, and 4. Effect on Potential Market |
| First Sale Doctrine | once a work has been sold the copyright owner has no more rights to control further sales. So, the initial purchaser can resell it without the copyrights owner’s permission |
| *Is plagiarism the same thing as copyright infringement? | Not Really You can site things under fair use of infringement, must site it |
| *What is plagiarism? | Can you be engaged in “fair use”, therefore, not infringement, and still committing plagiarism? |
| Pros/Cons of Copyright Infringement | Inexpensive - $20 to register a copyright Long lasting Doesn’t protect ideas Still, lots of controversy with technology |
| Trade Secrets | Trade secret law protects some business processes and information that are not or cannot be patented, copyrighted, or trademarked against appropriation by competitors. Protects what cant be copyrighted patented or trademarked |
| Examples of Trade Secrets | Customer list Research and development Marketing methods |
| Protection of trade secrets extends to | ideas and to their expression. |
| Trade Secret | involves no registration or filing requirements |
| §757 of the Restatement of Torts, states: | One who discloses or uses anothers trade secret without a privilege to do so is liable to the other if discovered the secret by improper means or disclosure or use constitutes a breach of confidence reposed in by the other in disclosing the secret |
| Uniform Trade Secrets Act of 1979 | an effort to reduce the unpredictability of the common law amongst the states in this area. Parts of the act have been adopted by about 44 states as of 2007 |
| Economic Espionage Act of 1996 | makes theft of trade secrets a federal crime |
| Plaintiff must prove (Trade Secret Infringement): | Information Defendant disclosed was a secret, Plaintiff took reasonable steps to keep it a secret, and Defendant improperly disclosed the information. |
| Confidentiality Agreements | trade secrets must be disclosed to some persons, particularly key employees. So, businesses protect their trade secrets contractually by having all employees who use the process or information agree in their employment contracts to never divulge it |
| Pros/Cons of Trade Secrets | Can be longest lived form of Intellectual Property as long as the secret (coca cola recipe) Can be inexpensive Can be expensive – Stealth Fighters Doesn't always work |
| Once you file a patent | anyone can see how something is made don’t want other countries to see how we make stealth fighter airplanes (top guns)* |
| There is no protection (trade secrets) | if someone discovers a trade secret on their own Reverse engineering is okay unless you are an employee and tell everyone |
Created by:
bella_grace11
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