© 2007 by West Legal Studies in Business / A Division of Thomson Learning CHAPTER 7 Intellectual Property

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 2 Trademarks and Related Property Distinctive mark or emblem affixed to a product that easily identifies, or distinguishes, the product in the marketplace. Case 7.1 Coca-Cola Co. v. Koke Co. of America (1920).

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 3 Statutory Protection of Trademarks. –Lanham Trade Mark Act (1946). –Federal Trademark Dilution Act (1995): federal cause of action for “dilution” (confusion of similar marks on goods or services). Trademarks and Related Property

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 4 Trademark Registration. –Federal protection requires registration with U.S. Patent Trademark Office ( –Mark can be registered if: In current use, or Applicant intends to put the mark into commerce within 6 months. Trademarks and Related Property

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 5 Trademark Infringement Strong Marks (e.g., Xerox). –Fanciful, arbitrary or suggestive. –Normally outside the context of the product. Secondary Meaning. –Descriptive, geographic terms and personal names. –Case 7.2 Menashe v. Secret Catalogue, Inc. (2006). Generic Terms. –Bicycle, computer. What about Escalator?

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 6 Service, Certification, and Collective Marks Service Mark. –Similar to trademark but for services. Certification Mark. –Used by other than the owner. Collective Mark. –Certification used by members of cooperative or association. –“Good Housekeeping” Seal of Approval.

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 7 Trade Names / Trade Dress Trade Names applies to all or part of business’s name; directly related to goodwill. Trade Dress refers to the image and appearance of the product.

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 8 Cyber Marks Cyber Marks are Trademarks on the internet. What rights does a trademark owner have? Domain Names. ICANN.

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 9 Cyber Marks Anticybersquatting Legislation. Meta Tags. –Case 7.3 Playboy Enterprises, Inc. v. Welles (2002). Dilution in the Online World. –Hasbro v. Internet Entertainment Group.

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 10 Patent is a grant from government gives inventor exclusive right to make, use and sell invention for 20 years from filing the application. Software patents are now available. Patent Infringement. Business Process Patents (State Street Bank v. Signature Financial Group).Patents

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 11 Copyright: –Intangible property right to author for her life plus 70 years. –Automatic protection after –Works can be protected by registration at U.S. Copyright Office.Copyrights

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 12 Can only copyright the expression of an idea, not the idea itself. Work must be original and fixed in a durable medium. Compilation of facts must be original. What is Protected Expression?

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 13 Whenever form or expression of idea is copied. “Fair Use”: exception to infringement if educational, news reporting, scholarship or research. Copyright Infringement

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 14 Software Copyright 1980 Congress passed Computer Software Copyright Act. Computer language is a “literary work.” Courts disagree over the ‘look and feel’ of computer.

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 15 Copyrights in Digital Information Copyright Act of When is a copy made? What about collective works (newspaper and electronic databases)?

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 16 The Digital Millennium Copyright Act of –Provides ‘safe harbors’ from immunity for ISP’s. –Provides for flexible ‘fair use’ online. Copyrights in Digital Information

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 17 MP3 and File-Sharing Technology. –Software allows P2P sharing of files over a distributed network. –Is the software maker liable? –Napster was found vicariously liable for copyright infringement. Copyrights in Digital Information

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 18 Trade Secrets: business process or information that cannot or should not be patented, copyrighted or trademarked. Protected from competitors. Uniform Trade Secrets Act. Economic Espionage Act of Trade Secrets

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 19 Trade Secrets Can include: customer lists, plans, research, formulae, pricing information, marketing techniques. Hacking into a competitor’s computer may be criminal.

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 20 Trade Secrets in Cyberspace Internet facilitates illegal copying and distribution of confidential information. Sometimes mistakes can transfer information.

THE LEGAL ENVIRONMENT TODAY Miller Cross 5 th Ed. © 2007 by West Legal Studies in Business / A Division of Thomson Learning 21 International Protection Berne Convention (WIPO). Trade-Related Aspects of Intellectual Property (TRIPS) of 1994 (WTO). World Intellectual Property Organization (WIPO) Copyright Treaty 1996.