To clarify... Constitutional law: dictates power of government and fundamental rights – Copyright/Patent laws stem from Constitution Statutory law: acts or statutes enacted as law by legislature – Copyright/Patent are historically statutory laws (1790 Copyright Act) – Codification: formalizing laws into legal code (text) Common law: judge made laws that are built on prior cases (precedent) – Trademark has it's origins here, but eventually became statutory

RP3D (Exclusive Rights) 5 Exclusive rights of copyright holder 1) Reproduce 2) Perform publicly 3) Distribute copies 4) Display publicly 5) prepare Derivatives

T®adema®k ®

The Ring

We Live in a World Where People Own… “You’re Fired!” “That’s Hot”

19-0™ “19-0” “19-0 The Perfect Season” “The Perfect Season”, 2008 – New York Post “18-1” Three Peat® – 1989, Riles & Co. – Byron Scott – Chicago Bulls, '93/'98 – Yankees, 2000 – Lakers, 2002 – Three-Pete™, 2005

Duh, Winning®

SnookiSnooki®

Bollier says T®adema®ks... Show “competitive advantages of monopolizing culture” (p. 82) Brands are embedded in language/culture Allows corporations to protect themselves from competition Instruments for censorship

T®adema®k Basics 15. U.S.C. 1127: "any word, name, symbol, or device, or any combination thereof... used by a person... to identify and distinguish his or her goods... from those manufactured and sold by others and to indicate the source of the goods, even if that source is unknown." Prevents consumer fraud, counterfeiting, and confusion in the market; source of good/service 15 U.S.C. aka Lanham Act Titles (books, films, etc.), domain names, celebrity slogans – ^Not copyrightable

Trademarks

T®adema®k Basics Cont'd Get trademark protection by: – 1. Registering w/ USPTO, $335 fee + legal fees, 5 th -6 th year renewal and then ever 10 years – 2. Being first to use it in commerce Trademark is an adjective that modifies a noun; NOT a verb or noun (Miller Lite beer, Winston cigarettes, etc., but not “googling” or “take an Aspirin”) You can lose trademark protection through: – 1. abandonment, after 3 years of non- use=public domain; but potentially perpetual – 2. improper licensing or assignment – 3. genericization

Lanham Act U.S.C. – Title 15 regulates trade and commerce in U.S., notably anti-trust (competition laws) Primary federal trademark statute Sets requirements for receiving a federal mark Remedies for infringement “likelihood of confusion” test

Federal Trademark Dilution Act of 1995 Owners of “famous” marks have right to silence uses of their marks that blur or dilute their marks Had to show actual “dilution” Amended by: Trademark Dilution Revision Act (2006)Trademark Dilution Revision Act (2006) – Proves “likelihood” of dilution, don't have to show actual dilution – Likely because of Victor's Little Secret case and corporate lobbying

Types of Ma®ks ® is a federally registered mark ™ is an unregistered mark or common law mark, protected by common law/state law, geographically restricted ℠ is a service mark, used to promote branded services (Comcast Xfinity, UPS, Fedex, Lube I USA, etc.) State and federal laws

Nonconventional T®adema®ks Sound marks (aural marks): NBC chimes, “Sweet Georgia Brown” (Globetrotters theme), AT&T spoken, Law & Order, Metro-Goldwyn- Mayer lion roar Sound marks (aural marks) Color marks Motion marks Hologram marks Shape marks

“Trade Dress” (not utility functions)

4 Types of T®adema®ks Distinctiveness is KEY! More distinct the better! 1. Arbitrary or fanciful: mark that bears no logical relationship to the underlying product – Fanciful (coined): Exxon, Kodak, Reebok – Arbitrary (common words used uniquely): Apple, Amazon, Dutch Boy, Grey Goose 2. Suggestive: indicates nature/quality or good/service associated w/ mark; requires perceptive imagination of audience (Blu-ray, Coppertone, etc.)

4Types of T®adema®ks Cont'd 3. Descriptive: Mark acquires “secondary meaning” when mark is associated with producer and not the good. (Bank of America); low trademark protection – Term has dictionary meaning, but takes on “secondary meaning” when used in connection with products that relate to that meaning 4. Generic: distinctive mark has become generic term. (Aspirin, Heroin, Zipper, Yo-Yo, etc). NO trademark protection – Band-aid, Kleenex, Xerox have ALMOST became generic.

Name That Ma®k! Fanciful Arbitrary Generic Arbitrary Suggestive Descriptive Suggestive Arbitrary

Google® v. googling