1. Crunchy How about the particular way it appears on the bag? Can “Crunchy” get trademark protection?

2. Trademarks are Devices Devices (that can take nearly any form) that distinguish or identify a particular good or service Slogans, logos, words, pictures, and combinations of words and pictures are all familiar “devices.” Sounds, scents and colors can also be devices in certain circumstances

4. Is there any Splenda?

5. You can’t read the packaging, but you know these are, don’t you?

7. Trademarks are Distinctive There are 5 categories of distinctiveness Marks that are fanciful, arbitrary or suggestive can be trademarks Marks that are merely descriptive can be trademarks only if they have acquired “secondary meaning” Marks that are generic can’t be trademarks

8. Trademarks can be Strong or Weak Weak Strong Suggestive Arbitrary Fanciful Descriptive Generic Mark-o-meter

9. Suggestive vs. Descriptive Does the mark requires you to employ some imagination, thought or perception in order to connect the mark to the product? If not, then it’s merely descriptive “Secondary Meaning” can support a mark that merely describes its product or service. Surnames are treated the same as merely descriptive marks; they can be trademarks if secondary meaning has been achieved

10. Secondary Meaning This means that the marketplace recognizes the goods or services as being those of a particular provider even though the mark describes the product and even though there may be many providers of that product Digital Computers is an example; McDonalds hamburgers are another

12. Krunchee! TM Will this work? Maybe for visual, but probably still descriptive…what if you advertised on the radio?

13. Any other bright ideas?

14. Inspiration! Do you think this is arbitrary or suggestive?

15. Duck! TM Notice of trademark claim to “Duck!”

16. Federal Registration (Principal Register) You can use nationally, not just in the area where your product is marketed Better legal remedies in case of infringement Right to use the ® symbol Incontestible status after 5 years, eliminating most challenges to your exclusive use of mark Easier for others to search, so they can avoid adopting confusingly similar marks

17. Duck! United States Patent & Trademark Office NOTICE OF REGISTRATION Principal Register Dear Chipco: Congratulations, your trademark has been entered on the principal register. Go out and build brand. Love, The Government

18. Duck! ® “Duck!” is a registered trademark!

19. Other Trademark Topics SERVICE MARKS: Same thing as a trademark, only instead of identifying a particular good, it identifies a particular service. Same analysis applies. CERTIFICATION MARKS: Denotes that the product meets a particular standard set by an organization formed to certify, classify, or evaluate competing products. Think U/L (for Underwriters Laboratories) or “Good Housekeeping Seal of Approval” or “Consumer Reports” and the like. other COLLECTIVE MARKS: Denotes membership or some similar affiliation with a union, trade group or like organization. Think “Got Milk” or “Beef. It’s what’s for dinner.” Also, see movie credits for usually several of such marks.

20. Other Trademark Topics INFRINGEMENT: The touchstone of trademark infringement is the likelihood of confusion of the public as to the source of the goods. So use of another’s trademark or elements of such a mark in a way that could lead to confusion is an infringing use. DILUTION: Does not depend on confusion; can exist even where there is no possibility of confusion. The harm here lies in a use that dilutes or reduces the value of the plaintiff’s mark. Example: The wholesome and family friendly Milton Bradley board game “Candyland” sued the operator of an internet porn site using that same name, alleging – not confusion – but dilution of the mark’s value.

22. Further Topics TRADE DRESS: The image and overall appearance and “feel” of a business establishment can, if it is indeed distinctive and possibly confusing to consumers, be protected from infringement by competitors. Taco Cabana/Two Pesos Case

23. Further Topics COUNTERFEIT GOODS: “Stop Counterfeiting in Manufacturing Goods Act (“SCMGA”), a 2006 law that criminalized the trafficking in counterfeit labels, stickers, or packaging even if not attached to the counterfeit goods themselves, thus closing a loophole that had long facilitated counterfeiters. Now, there are Criminal Penalties: Up to 10 years in prison; up to $2 million in fines; counterfeit goods destroyed; restitution of loss to victim.

24. Further Topics TRADE NAMES: Can also be a trademark, but only if they also identify the good or service sold. Not a trademark if they simply are the name of a business. May still be protected under common law unfair competition, if they are distinctive, not descriptive or generic, and where confusion of consumers is possible.

25. Further Topics DOMAIN NAMES: A “top-level” domain is “.com” or “.org”; a “second-level” domain is what goes before that. Federal “anti-cybersquatting” law now makes it illegal to “register, traffic in, or use” second level domain that is the same as or confusingly similar to someone else’s trademark, if you have “bad faith intent.” Has not been a real effective remedy; doesn’t address “Typosquatting” and is expensive and hard to use.

26. Copyright v. Trademark Copyright protects a fixed original expression “Fixed” is a very general term – includes computer memory or back of a napkin “Original” means independent creation, even if lacking in quality or merit. Not copied Creative effort is required. Can be bad, and doesn’t have to be much, but some minimal level of creative effort is required for copyright protection.

27. Copyright v. Trademark Categories of Fixed Original Works that can be Protected: -Literary works -Musical works -Dramatic works -Pantomimes & choreographic works -Pictoral, graphic & sculptural works -Motion pictures & other audio visual works -Sound recordings -Architectural works -Computer programs

28. Copyright does not protect ideas or facts – This is Section 102. Can protect the way in which facts are compiled and presented, however. Example: white pages – NO; but yellow pages – YES. Copyright gives you the exclusive right to reproduce, distribute, create adaptations of, perform or display the particular expression or “work” Copyright v. Trademark

29. Copyright Terms General Rule now: Author’s life plus 70 years if the author owns it; if for hire, between 95 and 120 years depending on when published No © is required since March 1, 1989; earlier it was generally required Works created before 1923 are all in the public domain Best policy is to seek permission

30. Copyright Infringement COPYRIGHT INFRINGEMENT involves copying or reproducing any substantial part of the copyrighted work. Civil and criminal penalties apply, and actual and statutory damages can be awarded. FAIR USE DOCTRINE: Copyright Act allows use for criticism, comment, news reporting, teaching, scholarship, or research. When disputed, law looks to (1) nature of use (for profit or not?), (2) nature of the work, (3) amount used, and (4) effect on market for the work

31. Registration Easy and cheap Necessary to enforce in court If done promptly enough, you may have a statutory damage remedy You don’t have to scramble around trying to register after you discover an infringer just so you can take them to court Cheap insurance

32. COPYRIGHT LEGISLATION NO ELECTRONIC THEFT ACT OF 1997: Criminalized violations even for “personal use” (which changed “fair use” doctrine). Now, criminal penalties attach even if no profit is realized from the copying.

33. COPYRIGHT LEGISLATION DIGITAL MILLENIUM COPYRIGHT ACT: Value of US exports of creative products surpasses value of all other industries. US & other important export nations entered into a treaty called WIPO in 1996, which was implemented in the US with the enactment of the DMCA in 1998. -Civil and criminal penalties for circumventing encryption software or other anti-piracy protection; penalizes distribution of devices that do that, too. -Allows fair use: Allows circumvention for educational and non-profit purposes including testing security, encryption research, privacy protection, parental monitoring -Limited liability of ISP’s for the “copies” made by their customers.

34. Trade Secrets What is one? Information that confers a competitive advantage one who has it over those who don’t, and which the one possessing it uses reasonable efforts to keep confidential. Can be ideas, concepts, formulas, etc. and other things that may not be protectable with copyright, patent or trademark law. Protection under State Laws, but also by private contract. It is a tort to use or appropriate information you know to be a trade secret of another.

35. Chapters 23 Personal Property Law

36. Introduction Definition: Property consists of legally protected rights and interests a person has in anything with an ascertainable value that is subject to ownership. –Difference Between Real and Personal Property. –Ownership rights in each. Acquiring Ownership of Personal Property. Laws Governing Mislaid, Lost, or Abandoned Property.

37. Property Ownership Property ownership is viewed as a “bundle of rights”, including the: –Right to possess. –Right to sell. –Right to give. –Right to lease. –Right to destroy.

38. Fee Simple Owns the entire “bundle of rights”. Fee simple gives the owner the maximum possible estate or right of ownership of real property, continuing forever. Chapter 37 will deal with realty estates.

39. Concurrent Ownership Divided Ownership David owns the red car and the blue car; Linda owns the green car and the white car. Undivided Ownership David and Linda own the red car, blue car, green car, and white car.

40. Concurrent Ownership Tenancy in common (Fig. 1). A and B own an undivided interest in the property. Upon B’s death, B’s interest passes to B’s heir, C, and then it’s owned by A and C. Tenancy with Right of Survivor- ship (Fig. 2). A and B own undivided interest as long as both are alive, upon the death of either, the interest of the deceased owner passes to the other. AB C Fig.1 AB Fig. 2

41. Concurrent Ownership Tenancy by the Entirety (not common) –Usually between husband and wife. Community Property (limited # of states) –Property acquired by couple during their marriage is owned as an undivided ½ interest in property (real and personal).

42. Acquiring Ownership of Personal Property Possession. –Capture of wild animals (wild animals belong to no one). –Finding of abandoned property. –Adverse Possession. Production. –Writers, inventors, manufacturers, and others who produce personal property acquire title to it.

43. Voluntary transfer of property ownership from Donor (owner) to Donee (recipient) for no consideration. Three types –Intervivos—while donor is living. –Causa Mortis: -- made by donor in contemplation of imminent death. –Testamentary – after death, by will/inheritance. Gifts

44. Three requirements for valid gift: –Delivery—actual or “constructive” (symbolic, such as keys to car). Donor must give up complete control or dominion. Delivery by a 3 rd party is OK. –Donative intent on the part of the donor –Acceptance by the Donee.

45. Acquiring Ownership of Personal Property Will or Inheritance. Accession. –Someone adds value to a piece of personal property by use of either labor or materials. Confusion. –Commingling so that a person’s personal property cannot be distinguished from another’s. –Fungible goods consists of identical particles such as oil or grain.

46. Mislaid, Lost or Abandoned Property Mislaid Property: Voluntary placed somewhere, then inadvertently forgotten. Finder is steward for true owner. Lost Property: Involuntarily left. Property owner acquires title against whole world, except for true owner. Finder must return to true owner or be liable for conversion. Abandoned Property: Discarded by true owner with no intention of recovering. Acquires title against all the world, including the original owner.

47. A bailment is formed by the delivery of personal property, without transfer of title, by one person (Bailor) to another (Bailee), usually under an agreement for a particular purpose. The property must be returned by the Bailee to the Bailor, or a third party as directed by the Bailor, in the same or better condition. Bailments

48. Elements of a Bailment Personal Property. (Tangible or Intangible--but not persons or realty.) Delivery of Possession. –Bailee given exclusive control or possession. –May be actual or constructive. –Bailee must knowingly accept (Bailee must intend to exercise control over chattel). Bailment Agreement. –Express or Implied.

49. Ordinary Bailments Bailment for the sole benefit of the Bailor: –A gratuitous Bailment; Bailee owes Bailor a low duty of care, liable only for gross negligence. Bailment for the sole benefit of the Bailee: –Bailee owes Bailor a high duty of care and is liable for even slight negligence. Mutual Benefit Bailment: most common. –Each party owes the other a reasonable duty of care.

50. Rights and Duties of the Bailee Right To Possess. –Bailee may acquire or use property temporarily. Title does not pass. Right to Use Bailed Property. Rights of Compensation. –Reimbursed for costs or services as provided in the agreement. Right to Limit Liability. Duty to Return bailed property in same condition to Bailor. Bailee may liable for conversion and/or negligence.

51. Rights and Duties of the Bailor Right to have property protected and used as agreed. Right to have property back at end of bailment with service or repair done properly. Right to have the Bailee not convert. Right to not be bound to limitation of liability unless Bailor knows. Duty to Provide safe goods: –Mutual Benefit Bailment: free from known or hidden defects; Sole Benefit of Bailee: notify if any known defect.

52. Common Carriers: –Publicly licenses to provide transportation services to general public. –Common Carriers are strictly liable for damages except if the damages caused by: An act of God. An act of the public enemy. An order of the public authority. An act of the shipper. The inherent nature of the goods. –Shipper’s loss. –Connecting Carriers. Special Types of Bailments

53. Warehouses and Innkeepers Warehouses: –Owe duty of reasonable care. –Can’t exculpate, can limit. Innkeepers: –Owe duty of strict liability, modified by state statutes; if innkeeper provides safe and notifies guests. –If parking area provided and innkeeper accepts bailment, then may be liable.