1. ©2001 West Legal Studies in Business. All Rights Reserved. 1 Chapter 7: Intellectual Property

2. ©2001 West Legal Studies in Business. All Rights Reserved. 2 IntroductionIntroduction Wealth consists of tangible and intangible property. Intellectual property (or “I.P.”) is becoming more important because the value of many corporations (e.g., Microsoft) is based primarily on I.P. See the “Digital Dilemma: Intellectual Property in the Information Age.”Digital Dilemma: Intellectual Property in the Information Age

3. ©2001 West Legal Studies in Business. All Rights Reserved. 3 Constitutional Authority Founders of America understood the value of I.P. and its impact on interstate commerce. Article I § 8 authorizes Congress to “secur[e] for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

4. ©2001 West Legal Studies in Business. All Rights Reserved. 4 Types of Intellectual Property Trademarks. –Service Marks. –Trade Dress. Patents. Copyrights. Cyberspace I.P.

5. ©2001 West Legal Studies in Business. All Rights Reserved. 5 §1: Trademarks Overview at Bitlaw.com. Distinctive mark, motto or device or emblem that a manufacturer stamps, prints or othewise affixes to the goods it produces. Distinguish product/service from goods of other manufacturers and merchants. Avoids consumer confusion. –Case 7.1: Coca Cola v. Koke Co. (1920).Coca Cola v. Koke Co.

6. ©2001 West Legal Studies in Business. All Rights Reserved. 6 Trademarks [2] Lanham Trademark Act (1946) creates incentives for companies to invest; prevents unjust enrichment of companies who infringe.Lanham Trademark Act (1946) Federal Trademark Dilution Act (1995) Cause of action regardless of competition or confusion based on a “similar” mark.Federal Trademark Dilution Act (1995)

7. ©2001 West Legal Studies in Business. All Rights Reserved. 7 Trademarks [3] Register with U.S. Patent Trademark Office if:U.S. Patent Trademark Office –Mark is currently in commerce; or –Applicant intends to put it into commerce within 6 months. –Registration allows use of “®” symbol.

8. ©2001 West Legal Studies in Business. All Rights Reserved. 8 InfringementInfringement Whenever a trademark is copied or use, intentionally or unintentionally, there is infringement. Trademark owner has cause of action against infringer,unless trademark is a “generic” term. –Case 7.2: America On-Line v. ATT (1999).America On-Line v. ATT

9. ©2001 West Legal Studies in Business. All Rights Reserved. 9 Trade Dress Refers to the image and overall appearance of the product. Same protection as trademark. Issue is consumer confusion. –Example: distinctive décor, product names, packaging of Starbucks coffee shops.Starbucks coffee shops

10. ©2001 West Legal Studies in Business. All Rights Reserved. 10 Service Mark Similar to trademark but used to distinguish services of one person/company from another. Titles and character names used in media are frequently registered as service marks.

11. ©2001 West Legal Studies in Business. All Rights Reserved. 11 Trade Name Trademarks apply to products. Trade name applies to companies and are protected by federal law as well. –Example: IBM, Coca-Cola, NBC.

12. ©2001 West Legal Studies in Business. All Rights Reserved. 12 §2: Patents Exclusive grant from U.S. Patent and Trademark Office to make, use and sell an invention for 20 years.U.S. Patent and Trademark Office Patent Infringement. Patents for Software are now available.

13. ©2001 West Legal Studies in Business. All Rights Reserved. 13 §3: Copyrights Introduction to Copyright.Introduction to Copyright Intangible property right to author for her life plus 70 years. Automatic protection after 1978. Works can be protected by registration at U.S. Copyright Office. U.S. Copyright Office. Case 7.3: Repp v. Webber (1997).Repp v. Webber

14. ©2001 West Legal Studies in Business. All Rights Reserved. 14 Copyrights [2] Can only copyright the expression of an idea, not the idea itself. Work must be original and fixed in a durable medium: literary, musical, choreographical and dramatic works, pictoral, graphic and sculptures, films/ audiovisual/ TV/ sounds, computer software and archtectural plans. “Work Made For Hire” for Employees.Work Made For Hire

15. ©2001 West Legal Studies in Business. All Rights Reserved. 15 Copyrights [3] Compilations of facts are copyrightable but the compilation must be “original.” –Feist v. Rural Telephone Co. (1991).Feist v. Rural Telephone Co. –Bellsouth v. Donnelley (1993).

16. ©2001 West Legal Studies in Business. All Rights Reserved. 16 Copyright Infringement Section 107 of the Copyright Act provides for exception to liability from reproduction of copyright under the the “fair use” doctrine when material is used for criticism, comment, news, criticism, teaching, research.Section 107 of the Copyright Act

17. ©2001 West Legal Studies in Business. All Rights Reserved. 17 Software Copyrights Computer Software Copyright Act (1980).Computer Software Copyright Act –Classifies computer software as a “literary work.” –Does not apply to “look and feel.” »Lotus v. Borland (1996).Lotus v. Borland

18. ©2001 West Legal Studies in Business. All Rights Reserved. 18 §4: Trade Secrets Business process or information that cannot or should not be patented, copyrighted or trademarked. Protection from competitors. Uniform Trade Secrets Act.Uniform Trade Secrets Act Case 7.4: Nowogroski v. Rucker (1999).

19. ©2001 West Legal Studies in Business. All Rights Reserved. 19 Trade Secrets [2] Can include: customer lists, plans, research, formulae, pricing information, marketing techniques. Hacking into a competitor’s computer may be criminal. Economic Espionage Act (1996).Economic Espionage Act

20. ©2001 West Legal Studies in Business. All Rights Reserved. 20 §5: International Protection Berne Convention (WIPO).Berne Convention Trade-Related Aspects of Intellectual Property (TRIPS) of 1994 (WTO).Trade-Related Aspects of Intellectual Property (TRIPS) of 1994 World Intellectual Property Organization (WIPO) Copyright Treaty 1996.World Intellectual Property Organization (WIPO) Copyright Treaty 1996

21. ©2001 West Legal Studies in Business. All Rights Reserved. 21 Law on the Web West’s Intellectual Property Site. U.S. Patent and Trademark Office.U.S. Patent and Trademark Office Search the USPTO database.Search the USPTO database Patent Searches.Patent Searches Legal Research Exercises on the Web.