Chapter 10 INTELLECTUAL PROPERTY RIGHTS AND THE INTERNET

Trademarks and Service Marks Trademark is a distinctive motto, name or symbol on a product. Service Mark applies to a service. Lanham Act grants producer the exclusive right to register and use the trademark. Owners of marks may obtain federal protection by registering the mark with the U.S. Patent and Trademark Office (www.uspto.gov ).

Marks: Names, Symbols & Designs Chapter 10 Marks: Names, Symbols & Designs Mark distinguishes owner’s goods or services from those of others. Trademarks identify goods. Service marks identify services. Protection by registration grants registrant exclusive rights. Examples of registrable trademarks: marks that are coined, completely fanciful, or arbitrary Kodak film terms suggestive of some quality of product Frigidaire refrigerators acquired secondary meaning--surname, descriptive or geography Philadelphia cream cheese 2

Trademarks and Service Marks Generic Terms (soap, shirts) may never be protected. Trade Dress Protection involves a product’s total image and the overall packaging look. Limited Lanham Act protection of product design. Courts are now expanding trade dress to include the design of the product itself.

Trademarks and Service Marks Trademark owner may obtain injunction from imitating or duplicating the mark. A mark can be abandoned and become generic. Examples: aspirin, thermos.

Internet Domain Names Cybersquatters: use someone’s trademark as a domain name. Federal Anticybersquatting Consumer Protection Act (ACPA) of 1995. Safe harbor exists for some users. Dispute Avoidance under ICANN and WIPO.

Copyrights A copyright is the exclusive right given by federal statute to the creator of a literary or an artistic work to use, reproduce, or display the work. Copyrights run for the life of the creator plus 70 years after the creator’s death.

Copyrights Copyrights protect literary, musical, dramatic and artistic work in books, photographs. Even material on the internet. A copyright holder has the exclusive right to: Reproduce the work; Prepare derivative works; Distribute copies; Publicly perform the work; and Publicly display the work.

Copyrights “Fair Use” is an exception to the exclusive rights of copyright holders, depending on four factors: purpose and character; nature of the work; amount used; and the effect on the use. Digital Millennium Copyright Act of 1998. “Safe Harbor” provisions protect internet service providers from copyright liability.

Patents A patent gives the inventor an exclusive right for 20 years from the date of application to make, use, and sell an invention that is new and useful and unique (not obvious). Utility Patents. Design Patents. Plant Patents.

Patents To receive a patent, the invention must be new and not obvious. May lead to highly technical hearings before a patent officer at the US Patent and Trademark Office. Internet Business Methods can be patentable. Example: Amazon.com “one click” for purchases.

Secret Business Information Trade secrets are protected under state law for an unlimited period so long as they are not made public. Defense measures include: Non-disclosure agreements. Injunctions. Exit Interviews. Criminal Sanctions under the Economic Espionage Act of 1996.

Protection of Computers and Mask Products Protection of computer programs and the design of computer chips and mask works is commonly obtained, subject to certain limitations, by complying with federal statutes, by using the law of trade secrets, and by requiring restrictive licensing agreements. Many software developers pursue all of these means to protect their proprietary interests in their programs.

Protection of Computers and Mask Products Patents have also been obtained for computer programs. Semiconductor Chip Protection Act protects the design of a computer chip. Remedies for violation include: Actual Damages and Forfeit Profits to Real Owner.

Summary Comparison of Intellectual Property Rights Chapter 10 1