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Are Small Businesses Being “Squeezed Out” of ECommerce By Pam Cote.

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Presentation on theme: "Are Small Businesses Being “Squeezed Out” of ECommerce By Pam Cote."— Presentation transcript:

1 Are Small Businesses Being “Squeezed Out” of ECommerce By Pam Cote

2 Self Assessment of IP Terminology Some common terms: Copyright Patent Trademark

3 Self Assessment of IP Terminology 1. 2. “Four score and seven years ago our fathers brought forth upon this continent a new nation, …” Abraham Lincoln

4 Self assessment cont. 3. 4. The number-one baked beans in America! Our Baked Beans are slow cooked to perfection, using only the finest ingredients found in our secret family recipe.

5 Self assessment cont. 5. Non-disclosure agreement 6. Calvin Klein® 7. Anti-dilution 8. George W. Bush 9. Good Housekeeping Seal of Approval 10. Jesse “The Body” Ventura

6 Self assessment cont. 11. TGI Fridays

7 Self assessment cont. 12. “Desperado, why don’t you come to your senses? You been out ridin’ fences for so long now Oh, you’re a hard one I know that you got your reasons These things that are pleasin’ you Can hurt you somehow” From The Eagles Album, “Hell Freezes Over” Desperado Copyright © 1973 Words & Music By Don Henley And Glenn Frey

8 Self assessment cont 13. Book title: The Chamber of Secrets 14. Galliano 15. Claritin

9 Self assessment cont. 16. Sound of a Harley Davidson motorcycle 17. 3-note chord in association with NBC. 18. Roundup Ready Soybeans 19. Olympic Games 20. Velcro 21. ILGWU

10 Self assessment cont. 22.

11 This is a story… About Tim Beere and Cathy Brand Beere De Brand Fine Chocolates Their web site And a patent held by PanIP


13 World wide reach with www Set up shop on the internet Assume larger audience Subject to laws


15 What is a Patent New and Useful Three major types Utility Design Plant

16 Utility Patents Processes Machines Compositions of matter Articles of manufacture Improvements

17 Enter PanIP What is PanIP? What is the patent? Summary History Submarine patents

18 Status of DeBrand vs PanIP Coalition of businesses being sued “This is just wrong”, Tim Beere Jonathan Hangartner, San Diego IP attorney DeBeer sued for defamation Errors by US Patent Office

19 Prior Art “…the entire body of knowledge from the beginning of time to the present”, Intellectual Properties Watchdog Back to submarine patents “Rules for determining obviousness are difficult and perplexing…”, Andrew Hamm, one click online shopping

20 What if you hold a patent? The owner has the right to prevent others from making Using Selling And Importing 20 years from date of filing Up to you to defend your own rights

21 How do you protect yourself? Consider Why reinvent the wheel? Liability insurance If you receive a patent infringement notice, you must respond Stay in touch with IP law

22 Related Issues Devine – shopping carts ACTV and HyperTV – hyperlinking Harrington - software for the universal shopping cart system Tokyo-based International Scientific Company - fee-charging system MercExchange LLC - methods of creating and searching online marketplaces and auctions

23 Answers to self assessment 1. Trademark 2. None, expired copyright 3. Trademark 4. Trade secret, also the phrase “The number-one baked beans in America!” may be trademarked. Examples of TM’d phrases are “Just Do It”, “Quality is Job 1”

24 5. Trade secret (technically, an NDA can relate to any form of IP or other information) 6. Trade mark only because it acquired secondary meaning (“famous” has a different impact in TM law, and relates to dilution)

25 7. Trademark (McSleep, Toys R Us) Remember that dilution only applies to “famous” marks. 8. None, terms only apply to commerce 9. Certification mark. Symbol used by an organization to vouch for products. 10. Trademark

26 11. Trade dress 12. Copyright 13. Book titles are not automatically protected by copyright (But protection is available under the Lanham Act if the title is being used in a deceptive way.) 14. Bottle is considered trade dress because it is distinctive packaging the name is TM’d

27 15. Expired patent, By the time it reached the market in 1993, it had 9 years left on the patent (for the active ingredient; other patents covered the formulation and perhaps method of treatment).

28 “Claritin” is also a trademark, and is protected as such. (Another complexity is regulatory exclusivity, where the government will not approve another product for a certain amount of time, regardless of whether there is patent protection or not. The active ingredient name (compendial name – loratadine) is not trademarked or trademark-able.)

29 16. While the examining office of the PTO originally allowed the mark to be registered, H-D abandoned the mark in September of 2000 as a result of litigation aimed at opposing the mark. So, it is not correct to state that this is trademarked (although one could argue that it is trademark-able.) 17. Other sounds have been trademarked and maintained successfully, such as the 3-note chord in association with NBC.

30 18. Plant patent, (and “Roundup Ready” has probably been TM’d) 19. Service mark 20. Trademark for company, and also hook and loop fastener patent 4,775,310 (expired) 21. Collective mark used by members of an association 22. None, possibly public domain

31 The End …but not the end for DeBrand Chocolates and the coalition.

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