2. What is intellectual property? What is intellectual property? Why does the law protect trademarks and patents? Why does the law protect trademarks and patents? What laws protect authors’ rights in the works they generate? What laws protect authors’ rights in the works they generate? What are trade secrets, and what laws offer protection for this form of intellectual property?  What are trade secrets, and what laws offer protection for this form of intellectual property?  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

3. What steps have been taken to protect intellectual property rights in today’s digital age? What steps have been taken to protect intellectual property rights in today’s digital age? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

4. Intellectual property (or “I.P.”) is becoming more important because of the significant value of I.P. to many corporations, which in some cases may exceed the value of physical, tangible assets. Intellectual property (or “I.P.”) is becoming more important because of the significant value of I.P. to many corporations, which in some cases may exceed the value of physical, tangible assets. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 4

5. Founders of America understood the value of I.P.: Founders of America understood the value of I.P.: – Article I § 8 authorizes Congress to “secur[e] for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 5

6. Distinctive mark, motto or device or emblem that a manufacturer stamps, prints or otherwise affixes to the goods it produces. Distinctive mark, motto or device or emblem that a manufacturer stamps, prints or otherwise affixes to the goods it produces. Distinguish product/service from goods of other manufacturers and merchants. Distinguish product/service from goods of other manufacturers and merchants. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 6

7. Trademarks helps avoid consumer confusion. Trademarks helps avoid consumer confusion. The Coca Cola Co. v. The Koke Co. of America – CASE 5.1 The Coca Cola Co. v. The Koke Co. of America (1920). Defendants argued that Coca-Cola was not entitled to trademark protection. Why? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 7

8. Statutory Protection of Trademarks. Statutory Protection of Trademarks. – Lanham Trademark Act (1946) creates incentives for companies to invest; prevents unjust enrichment of infringers. – Creates federal cause of action even when unlikely to confuse consumers. – Protects “distinctive” or “famous” marks such as McDonalds, Dell, Apple). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 8

9. Statutory Protection of Trademarks (cont’d). Statutory Protection of Trademarks (cont’d). – Trademark Dilution. Congress amended Lanham Act with Federal Trademark Dilution Act (1995). Use of Similar Mark May Constitute Trademark Infringement. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 9

10. Trademark Registration. Trademark Registration. – Register at U.S. Patent Trademark Office (www.uspto.gov) if: Mark is currently in commerce; or Applicant intends to put it into commerce within 6 months. Registration allows use of “®” symbol. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 10

11. Trademark Infringement. Trademark Infringement. – Registration with USPTO gives national notice. – Whenever mark is substantially copied (intentionally or unintentionally), owner has action for infringement. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 11

12. Trademark Infringement. Trademark Infringement. – Remedies: owner can seek injunction against further infringement. Under Lanham Act, owner can recover damages, plus profits wrongfully received from unauthorized use of trademark. Court can also order destruction of goods. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 12

13. Distinctiveness of the Mark. Distinctiveness of the Mark. – Trademark must be sufficiently distinct. – ‘Strong’ Marks: Fanciful and Arbitrary Marks: fanciful (Xerox and Kodak) and arbitrary (Dutch Boy paint).  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 13

14. Distinctiveness of the Mark (cont’d). Distinctiveness of the Mark (cont’d). – Secondary Meaning. Descriptive, geographical terms are usually not protected, unless there is a secondary meaning, e.g., “London Fog” coats. – Generic Terms: receive no protection (e.g., bicycle, aspirin, and computer). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 14

15. Service, Certification, and Collective Marks. Service, Certification, and Collective Marks. – 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. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 15

16. Service, Certification, and Collective Marks (cont’d). Service, Certification, and Collective Marks (cont’d). – Certification Mark: used to certify the region, materials, mode of manufacture, quality of specific goods or services. – Collective Mark: used by an organization or association (Good Housekeeping, union marks). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 16

17. Trade Dress. Trade Dress. – Refers to the image and overall appearance of the product or service: distinctive décor at a restaurant product names, or packaging. Same protection as trademark. Issue is consumer confusion. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 17

18. Counterfeit Goods. Counterfeit Goods. – Importation of goods that bear a fake (counterfeit) trademark damages U.S. businesses and may present serious health risks (nutritional supplements and drugs). – Stop Counterfeiting in Manufactured Goods Act (2006). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 18

19. Trade Names. Trade Names. – Trademarks apply to products: e.g., Pepsi-Cola®. – Trade name applies to companies and are protected by federal law as well. Example: Safeway®. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 19

20. Domain Names: an internet address, consisting of Domain Names: an internet address, consisting of – A “top level domain” to the right of the “dot” (.com,.org,.edu) and – A “second level domain” to the left of the “dot” chosen by entity creating the domain name, e.g.,: www.westlaw.com. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20

21. Domain Names (cont’d). Domain Names (cont’d). – Internet Corporation for Assigned Names and Numbers (ICANN) overseas distribution of top-level domain names. – Overhauled its system to attempt to stop cybersquatting. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 21

22. Anticybersquatting Legislation. Anticybersquatting Legislation. – Anticybersquatting Consumer Protection Act (1999) amended the Lanham Act. – Ongoing Problem of Cybersquatting. – Applicability of the ACPA and Sanctions of Act. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 22

23. Meta Tags. Meta Tags. – Playboy Enterprises v. Welles (2002). Dilution in the Online World. Dilution in the Online World. – Candyland.com. Licensing: allows use of trademark. Licensing: allows use of trademark. – CASE 5.2 George V. Restauration S.A. v. Little Rest Twelve, Inc. (2009). Use of the Buddha Bar brand was infringement. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 23

24. Exclusive federal grant from U.S. Patent and Trademark Office to make, use, and sell an invention for 14 years (20 years for design). Exclusive federal grant from U.S. Patent and Trademark Office to make, use, and sell an invention for 14 years (20 years for design). – Must be “novel, useful, and not obvious” in light of current technology. Searchable Patent Databases. Searchable Patent Databases. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 24

25. – First person to invent, not file, gets protection. What is patentable? Almost anything except: (1) laws of nature, (2) natural phenomenon, (3) abstract ideas. What is patentable? Almost anything except: (1) laws of nature, (2) natural phenomenon, (3) abstract ideas. – Patents for Software. – Patents for Business Processes. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 25

26. Patent Infringement: may occur even though product is not identical. Patent Infringement: may occur even though product is not identical. Remedies for Infringement. Patent holder can seek an injunction, damages, and attorneys fees and costs. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 26

27. Remedies (cont’d). Remedies (cont’d). – In 2006, U.S. Supreme Court held that patent holders are not automatically entitled to an injunction against future infringing activities (eBay, Inc. v. MercExchange, LLC). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 27

28. Intangible property right granted by federal statute to creator of a literary or artistic production of a specified type. Intangible property right granted by federal statute to creator of a literary or artistic production of a specified type. Works created after 1978 have automatic protection for life of the author, plus 70 years.  Works created after 1978 have automatic protection for life of the author, plus 70 years.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 28

29. For publishing houses, copyright expires 95 years from publication or 120 years from creation, whichever is first. For publishing houses, copyright expires 95 years from publication or 120 years from creation, whichever is first. Works can be registered at U.S. Copyright Office (www.loc.gov/copyright/). Works can be registered at U.S. Copyright Office (www.loc.gov/copyright/). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 29

30. What is Protected Expression? What is Protected Expression? – Only the expression of an idea can be copyrighted -- not the idea itself (Section 102). – To be protected, a work must be “fixed in a durable medium.” – Protection is automatic, registration is not required. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 30

31. What is Protected Expression (cont’d) What is Protected Expression (cont’d) – Must fall into one of the following categories: Literary Works, Musical Works, Dramatic Works and Accompanying Music, Pantomimes and Choreographic Works.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 31

32. What is Protected Expression (cont’d) What is Protected Expression (cont’d) – Pictoral, Graphic and Sculptural Works (including cartoons, maps, posters and stuffed animals). – Motion Pictures and other Audiovisual Works (including multimedia). – Sound Recordings. – Architectural Works. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 32

33. What is Protected Expression (cont’d). What is Protected Expression (cont’d). – Section 102 Exclusions. “any idea, procedure, process, system, method of operation, concept, principle, or discovery….” What is copyrightable is the expression of the idea. Thus, anyone can use the underlying ideas in a copyrighted work. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 33

34. What is Protected Expression? What is Protected Expression? – Compilations of Facts are copyrightable, but the compilation must be “original.” Copyright Infringement. Copyright Infringement. – Whenever unauthorized copying occurs. – Damages: actual to criminal prosecution.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 34

35. Copyright Infringement (cont’d). Copyright Infringement (cont’d). – The “Fair Use” exception: Section 107 of the Copyright Act provides for exception to liability from reproduction of copyright under the “fair use” doctrine when material is used for criticism, comment, news, criticism, teaching, research. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 35

36. Copyright Protection for Software. Copyright Protection for Software. – Computer Software Copyright Act (1980). Classifies computer software as a “literary work.” Courts generally do not apply copyright protection to the “look and feel” of a computer program. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 36

37. Copyrights in Digital Information. Copyrights in Digital Information. – Computer Software Copyright Act (1980). Classifies computer software as a “literary work.” Courts generally do not apply copyright protection to the “look and feel” of a computer program. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 37

38. Copyrights in Digital Information (cont’d). Copyrights in Digital Information (cont’d). – Based on the Copyright Act of 1976. – Infringement may occur when a song (or any part of it) is copied or downloaded into a computer. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 38

39. Copyrights in Digital Information (cont’d). Copyrights in Digital Information (cont’d). – MP3 and File Sharing Technology. Peer to Peer (P2P) Networking. Music sharing (Napster, Kazaa, Gnutella). Music storage and vicarious liability. “Cloud Computing” (Google, Amazon.com, Facebook). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 39

40. Copyrights in Digital Information (cont’d). Copyrights in Digital Information (cont’d). – MP3 and File Sharing Technology (cont’d). Sharing Stored Music Files. Maverick Recording Co. v. Harper – CASE 5.3 Maverick Recording Co. v. Harper (2010). Was this user an “innocent infringer”? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 40

41. Copyrights in Digital Information (cont’d). Copyrights in Digital Information (cont’d). – MP3 and File Sharing Technology (cont’d). Evolution of File Sharing Technologies. – The U.S. Supreme Court has held that companies are vicariously liable when they distribute file-sharing software intending that it be used to violate copyright laws. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 41

42. Business process or information that cannot or should not be patented, copyrighted or trademarked. Business process or information that cannot or should not be patented, copyrighted or trademarked. Can include: customer lists, plans, research, formulae, pricing information, marketing techniques. Can include: customer lists, plans, research, formulae, pricing information, marketing techniques. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 42

43. Protection extends to ideas and expression. Protection extends to ideas and expression. State and Federal Law on Trade Secrets. State and Federal Law on Trade Secrets. – Uniform Trade Secrets Act and Economic Espionage Act (1996). Trade Secrets in Cyberspace. Trade Secrets in Cyberspace. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 43

44. Berne Convention (WIPO). Berne Convention (WIPO). – Every country who signed must recognize the author’s copyright. No notice required. – More safeguards against infringement on the web. – World Intellectual Property Organization (WIPO) Copyright Treaty 1996. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 44

45. TRIPS Agreement of 1994. TRIPS Agreement of 1994. – Created the World Trade Organization. – Each member country must include in its domestic laws broad I.P. protection and enforcement measures. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 45

46. Madrid Protocol. Madrid Protocol. – Signed by sixty-one countries, including U.S. in 2003. – Allows a single country can apply for simultaneous trademark protection in all member countries. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 46