© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. Twomey & Jennings BUSINESS LAW Chapter 10 Intellectual Property Rights and the Internet Chapter 10 Intellectual Property Rights and the Internet

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 2 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 ( 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 (

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 3 Trademarks identify goods.Service marks identify services. Marks: Names, Symbols & Designs Protection by registration grants registrant exclusive rights. Mark distinguishes owner’s goods or services from those of others. 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 Examples of registrable trademarks:

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 4 Trademarks and Service Marks Generic Terms may also be protected. Harley-Davidson, Inc. v Grottanelli (1999) No Hogging Generic Terms: Is the Word “Hog” a Trademark? Trade Dress Protection involves a product’s total image and the overall packaging look.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 5 Trademarks and Service Marks Limited Lanham Act protection of product design. –Courts are now expanding trade dress to include the design of the product itself. Limited Lanham Act protection of product design. –Courts are now expanding trade dress to include the design of the product itself. Fun-Damental Too, Ltd. v Gemmy Industries Corp (1997) Keeping the Toilet Bank Flush with Cash.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 6 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. Federal Trademark Dilution Act of –Cause of action against the commercial use of another’s mark. Trademark owner may obtain injunction from imitating or duplicating the mark. A mark can be abandoned and become generic. Examples: aspirin, thermos. Federal Trademark Dilution Act of –Cause of action against the commercial use of another’s mark.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 7 Internet Domain Names Cybersquatters: use someone’s trademark as a domain name. –Federal Anticybersquatting Consumer Protection Act (ACPA) of –Safe harbor exists for some users. –Dispute Avoidance under ICANN and WIPO. Cybersquatters: use someone’s trademark as a domain name. –Federal Anticybersquatting Consumer Protection Act (ACPA) of –Safe harbor exists for some users. –Dispute Avoidance under ICANN and WIPO.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 8 CopyrightsCopyrights 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 9 CopyrightsCopyrights 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 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 10 CopyrightsCopyrights “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. American Geophysical Union v Texaco, Inc. (1995) Fair Use or Not Fair Use— That is the Question.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 11 CopyrightsCopyrights Digital Millennium Copyright Act of –“Safe Harbor” provisions protect internet service providers from copyright liability. Digital Millennium Copyright Act of –“Safe Harbor” provisions protect internet service providers from copyright liability. Hendrickson v eBay, Inc. (2001) Hurricane Hendrickson Howls: eBay Seeks Safe Harbor.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 12 PatentsPatents 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 13 PatentsPatents 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 14 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 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 15 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 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 16 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. 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.

© 2004 West Legal Studies in Business A Division of Thomson Learning BUSINESS LAW Twomey Jennings 1 st Ed. 17 Summary Comparison of Intellectual Property Rights