Chapter 15 Products: Business Intellectual Property Marianne M. Jennings Business Its Legal, Ethical, and Global Environment 10th Ed. Chapter 15 Products: Business Intellectual Property
Intangible Personal Property Examples Patents Copyrights Trademarks Trade Names Trade Dress
Patents 20 Years From Filing/14 Years for Design Patent Exclusive Rights to Use and Profits Must Be Non-obvious, Novel, and Useful Using the Idea Without Consent Constitutes Infringement
Remedies for Patent Infringement Case 15.1 eBay, Inc. v. MercExchange, LLC (2006) The issue of a permanent injunction How do we balance interest in protecting property rights without depriving the world of new developments and technologies?
Copyrights Protect Authors of Books, Magazine Articles, Plays, Movies, Songs, Dances, Photographs Protects Against Vicarious Infringement Third parties who facilitate infringement
Copyrights Case 15.2 Sony BMG Music Entertainment v. Tenebaum (2011) What happens if you are warned against facilitating infringement or are infringing and don’t stop? What is the school’s liability for use of its server?
Copyrights Runs For Lifetime of Author Plus Seventy Years 120 Years From Creation or 95 Years From Publication, Whichever is Shorter, if Company Holds Rights
Copyrights Federal Statutes Sonny Bono Copyright Extension Act Digital Millennium Copyright Act Computer Software Copyright Act of 1980
Copyrights Works Automatically Copyrighted But No Suits Can be Filed Until the Copyright Office is Given a Copy Damages Include Profits, Costs, Attorney’s Fees Fair Use is Permitted—Short Quotes; Research Copies, Criticism, Commentary and Parody
Is Parody Fair Use? Case 15.3 Campbell v. Acuff-Rose Music, Inc. (1994) What is the significance of 2 Live Crew’s commercial gain from the parody? Do you agree with the Court’s decision? Was it a fair use?
Trademarks Words, Pictures, Designs, or Symbols Used to Identify a Product Lanham Act of 1946 and Subsequent Amendments Provide Protection Must Be Unique and Non-generic Holder Must Maintain Unique Nature Recent Changes Allow Registration Prior to Use of the Trademark
Trademark Dilution Federal Trademark Dilution Act (an Amendment to the Lanham Act) Passed in 1996 Protects against dilution of trademarks and includes both profit and non-profit uses
Trademark Dilution Case 15.4 Moseley, dba Victor’s Little Secret, v. V Secret Catalogue, Inc. (2003) Were the two names confusing? What connection do the two companies have? What does VS have to prove to prevail?
Trade Dress Colors, Shapes, and Designs Associated With a Product Allowing their use is likely to create confusion Consumer surveys are used to establish whether consumers will be misled Penalties for Infringement Civil suits Criminal penalties
Infringement and the Web Cyber Infringement Federal Trademark Dilution Act Applies to Internet Self-enforcing
Intellectual Property Rights TYPE OF INTELLECTUAL PROPERTY TRADENARKS COPYRIGHTS PATENTS TRADE SECRETS Protection Applicable standard Where to apply Duration Words, names, symbols, or devices used to identify a product or service Identifies and distinguishes a product or service Patent and Trademark Office Indefinite so long as it continues to be used Original creative works of authorship, such as writings, movies, records, and computer software Original creative works in writing or another format Register of Copyrights Life of author plus 70 years; corporate is 120 years from creation or 95 years from publication of the work Utility, design, and plant patents New and nonobvious advances in the art Utility and plant patents, 20 years from date of application; design patents, 14 years Advantageous formulas, devices, or compilation of information Not readily ascertainable, not disclosed to the public No public registration necessary Indefinite so long as secret is not disclosed to public
Trade Secrets Customer Lists, Customer Information, Data Processed a Certain Way Uniform Trade Secrets Act Protects employers from having former employees take trade secrets to new employer Industrial Espionage Act Makes it a federal crime to transfer trade secrets to another
International I.P. Issues Patent Protection Some countries require opposition proceedings for defense of the patent Some countries impose working requirements
International Trademark Trademark Protection Name, symbol, mark, letter, word or figure Must be registered in United States and other countries for full protection Protects the goodwill of the firm Common law countries establish trademark through establishing use and recognition Now in United States you can register a trademark before you begin using it
International Trademark Trademark Protection In 1996, EU opened a centralized office for Trademark registration for member states Provides a one-step registration for all EU countries 1891 Madrid Agreement provides for international registry of trademarks Effective in all member countries for five years 1929 Pan American Convention provides protection for registered trademarks in all member countries
International Trademark Trademark Protection Knock-off goods: goods carrying trademarks that are not produced by the trademark holder Gray market goods: actual trademark goods that are sold without authorization of trademark holder
International Trademark Copyrights Berne convention membership: registration in one is registration in all Will be part of WIPO Simultaneous publication in member country is protected International standards vary China’s software piracy China is on trade watch list because so much software is copied
Enforcing Business Rights Product Disparagement: Defamation for Products/Businesses Elements Statement about a business’ reputation, honesty, or integrity that is untrue Publication Statement is directed at business with intent to injure Damages
Enforcing Business Rights Case 15.5 Bose Corporation v. Consumers Union of the United States, Inc. (1984) Why is Malice an important part of the case? What classes of speech are excepted from First Amendment protection?
Enforcing Business Rights Palming Off Company sells product by leading buyers to believe the product is something else Examples: Fake Rolex watches; Cabbage Patch dolls Plaintiff must establish that confusion is likely
Enforcing Business Rights Misappropriation Protects business trade secrets such as the customer list Some theft, espionage or bribery must be used to obtain secret information