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What is a trademark?
any mark, motto, device, or emblem that a manufacturer prints, stamps, or affixes to an item for sale
What are trademarks' benefits to business?
trademarks are intangible assets and ensure a certain quality
What are trademarks' benefits to consumers? Ex?
saves us $ because trademarks are info, and it keeps us from buying a fake (ex: beer, Yuengling)
Trademarks represent valuable ____ to the consumer.
trademarks represents valuable info to the consumer
Why is distinctiveness important with trademarks?
you’re in trouble when it causes confusion within the market, when the public doesn’t actually know what they are getting
What makes a trademark distinctive? Ex?
fanciful or arbitrary words are distinctive because they originate from outside the context of the products (ex: can’t use “shoe’s shoes” as a trademark but you could call a computer a shoe computer)
What is not distinctive? Ex?
it can’t just merely describe what you have (ex: Esso -> Exxon)
-descriptive terms and names are not distinctive
What is an exception to the distinctiveness rule and why?
Ex: quarter pounder -> no longer means ¼ lb of hamburger, it means, to the public, a McDonald’s type of burger.
what about “You’ve Got Mail?”
-belongs to AOL
-AT&T has a mailbox that says “You Have Mail”
-AOL sues
-AOL loses because there is not another reasonable saying
What is tradedress and how is it covered under trademark law? 2 ex?
if you have a product that has a unique style, shape, or look that the public then associates with your company, then it is protected under trademarks
-ex: Coca Cola bottles
-ex: look of presentation of Pizza Hut Restaurant
How can success bring problems? Why does McDonald's worry about this?
-when the name of your brand becomes the universal name for all of those products, you lose your trademark and the name becomes generic
- that’s why McDonald’s sues people over quarter pounder because they will lose the trademark if they don’t
What does registering a trademark entitle you to? Burger King example? Renewals?
-a trademark need not be registered BUT registration entitles the owner to its exclusive use for marketing
Ex: Burger King -> couldn’t sue older, smaller company even though they filed for a trademark
-once you register, every place that hasn’t gotten there first can’t do so
- registering furnishes proof of inception as evidence in court
-a trademark may be renewed between the 5th and 6th year following registration
- thereafter, you renew ever 10 years so long as it did not turn generic
What are service notes? What do they distinguish? Example?
- similar to trademarks and are registered the same way – ex: Hilton Hotel
-used to distinguish the services of a person
What is a tradename? How is it different from a trademark? Ex?
-different than trademarks
-used to identify a person or business in the marketplace
-keeps someone else from copying the name of a business
- ex: IBM, GM both names printed on the door
-ex: Kraft (tradename) Jello (trademark)
______Can Also Be Marks
-however, it is rare
-ex: NBC, ESPN (owned by ABC, owned by Disney)
The principles of trademark infringement apply to ____ as well as ____.
tradenames as well as service notes
What is trademark infringement?
-infringement occurs when once uses a protected trademark in a way that creates a substantial likelihood of confusion
-and you can sue for this
-it’s a criminal offense, but it is not uncommon for private police to go after people
-accidental use or copying is STIL infringement
-doesn’t have to be intentional
What are injunctions?
-injunctions (to do or not do a particular act) and damages are available to owner
What is trademark dilution? What do anti-dilution trademarks look to do?
-dilution is “the lessening of the capacity of a famous mark to identify and distinguish goods and services”
-anti-dilution statutes are designed to prevent a merchant of a non competitive good from trading on the goodwill and reputation of another’s trademark
-so even if not selling the same thing
What is the Federal Trademark Dilution Act of 1995?
-stopped the altering of a trademark a little and causing bad vibe to be associated with it, or using it in another field if it causes the mark to lose its distinctiveness (ex: Kodak and guy who sold bikes under the name Kodak)
What are the benefits of the Federal Trademark Dilution Act of 1995 when it came to the internet?
-one of the benefits is the statute’s ability to stop cybersquatters
- one of the benefits is the statute’s ability to stop cybersquatters (ex: in the beginning of the internet, hackers would take the name of a corporation and make a domain name [website] out of it… like And then once, say LLBean decided they wanted a website, their domain name was already taken. So the hackers would then ask for lots of money from the corporation in return for the rights to the domain name.)
- law made it clear that if you have a logo and someone else registers that name on the net, you don’t have to pay then for it
Why wasn't the Federal Trademark Dilution Act fully successful?
didn’t solve the net domain name prob because cybersquatters didn’t have to pay damages – so they feared little
What replaced, or added on to the Federal Trademark Dilution Act and what did it add?
adds new section to the Landon Act (we learned about earlier in the course)
-allows for damages and attorney’s fees
- made cybersquatting fear more bc they would have to pay
What is the problem with domain name arbitration?
-problem is that is still requires a law suit and time and money (and these nerds don’t have the money to pay anyway and you can’t be thrown in jail for not being able to pay your debts) – so often these law cases were pointless
What did the Uniform Resolution Policy (UDRP) say/do?
-Uniform Dispute Resolution Policy (UDRP)
-if 2 people believe they have rights to domain name, an arbitrator (instead of a court) hears the story and decides – faster and cheaper than law suits
-if you have same name as a famous person, famous person wins the right
What is appropriation?
-Falls within right of privacy but functions a lot like trademarks
-the use of someone’s name or likeness for business purposes
-making money off of someone’s persona
-I own the right to make money off of my persona, and no else does
What is wrongful appropriation? What do 17 states say about death (how different from privacy)? The rest?
-wrongful appropriation = using someone’s looks for $ w/o permission
-at least 17 states (CA) say that your image is something owned by your estate after you die; it doesn’t die with you; that estate can then license your look, sound or likeness
-this is how it’s different from privacy (you have no privacy when you die)
-the issue is with the licensing
Ex: Elvis Estate
Ex: don’t mess with the olsen twins
-but other states (NY) say it does die with you and people can use it after you die
-if you die without a will, the state looks any connections you have, and if they can’t find anyone, it goes to the state
What is intellectual property?
-ideas, creativity, mind power
that have economic value including:
-trade secrets
Why do we protect intellectual property?
-provides for incentive, motivation, and investment
-must reward incentive
-ex: why do we go to class? We’d obvi rather be somewhere
What is eligible for protection as a trade secret?
-any info of economic value, including formulas, data compilations, programs, devices, processes, and customer lists (some of these can fall under patents as well)
-to be considered as a trade secret it…
-gets its economic value because others don’t have info and can’t get it through proper means
-the owner is making reasonable effort to keep it secret
Ex: formula for Coke
Ex: formula for perfumes and colognes
What are the risks associated with trade secrets law?
-doesn’t prevent people from trying to copy what you’ve done as long as they figure it out through legal means (like reverse engineering…they can’t go and steal your exact formula)
-so with perfumes, you can figure the scent out but then you must say that it’s fake
-“compare to…” is legal because they are saying this isn’t that, but you can compare it to that
How are trade secrets stolen?
-industrial espionage
- bribery
- disloyalty of employees and trusted advisors
-trade secrets can wash into copyright and/or patent law
To hold someone liable for misappropriating trade secrets, you must prove what?
-the alleged trade must exist
-the defendant wrongfully obtained the trade secret
- harm will result from an actual or threatened misappropriation or disclosure
Under Federal protection of trade secrets, what is the economic espionage act?
-if you steal someone’s trade secret, you will go to prison and pay fines
-seizure and forfeiture of property used to misappropriate the secret AND any property gained from obtaining the secret
Fair Use encourages what?
-fair use ENCOURAGES people to build on another’s work- making social commentary so he MUST use some similarities to compare
What are the 4 steps in determining fair use?
1- What was the purpose?
Is it for $ or non profit education? $ for Luther so scales tips away
2- What is the nature of the work?
Fact build-on or imaginative build-on? Imaginative for Luther so scale tips away
3- What amount and percentage of work was used?
A lot or a little? A little for Luther so scaled tips toward
4- MOST IMPORTANT- What will be the impact of the use on the market value of the original work?
Cost them a lot of sales or cost them little sales?
Is the song basically a substitute for the original, or is it a separate song?
Scale tips to Luther’s favor.
Does the outcome of the Luther case mean that sampling recorded music is legal? Why or why not?
-Sound Recording Copyright
-this was not Luther Campbell’s issue
-they didn’t sample any sound recording
What about the Biz Markie case?
What song?
What did he do?
How can you legally sample a song?
Biz Markie – Alone Again
-sampled a piano phrase from Gilbert O’Sullivan
-NOT FAIR USE because he uses an exact example, it was copied – even one second is not legal
-you can sample now only by going through an agency in NY
Are bars and garage bands exempt from enforcement?
Bar and Garage Bands are not Exempt from Enforcement
- you can’t sing other songs unless you have a license to do so
What about DJs when it comes to licensing?
-DJs must have license too because public display of sound recordings needs permission
What does the Fairness in Music Licensing Act of 1998 say about broadcasted music/sounds?
– normal sized businesses can play tv/radio/etc (just free basic cable channels) and cannot be busted for it as long as they are not charging admission
What is the Betamax?
What was Sony sued for?
The Betamax (Sony)
-allows people to record shows
-stations sued sony for contributory infringement
What is ICANN?
-ICANN is responsible for regulating the issuance of domain names
What is a patent and how long does it last for? How does something qualify to be a patent?
-patent law provides to the inventor the right to exclude others from the making, using, selling, or offering to sell the invention for 20 years from date of application
-to qualify, the invention must be novel, “useful,” and not obvious in terms of current technology
-before 1995 we only gave 17 years, but now a patent lasts for 20 years from date of invention
WHat is a utility patent?
Utility patents "do things"
What can't you patent?
-cannot patent something you discover in nature because you didn’t invent it. BUT you can manipulate something (making it brand new) in nature and patent it (like genetic engineering)
-mathematics cannot be patented anymore than language can be trademarked. BUT math within inventions or as part of a process can be patented. Like software that does something new and unique
Why didn't Coke patent their formula?
Because they would hold the patent for only 17 years, and then after that everyone can have it. SO they chose trade secret for protection.
Can the patent office invalidate your patent? How? Ex?
-ex: Uncrustables – patent office can rethink your patent and invalidate it (they invalidated uncrustables because their “invention” was obvious)
Can an idea be patented?
No; -ideas themselves are not patentable – you have to reduce the idea to a process or machine or … etc.
What are the categories of patents?
- Processes (ex: process of manipulating genetics)
- Machines (ex: Edison movie projector)
- Articles of Manufacture ( ex: Space saving spare tire, or an iPod)
- Composition of Matter ( ex: chemicals)
- Improvements upon existing ideas in above categories
What is patent infringement? What is a limit on suing someone for patent infringement?
- making, using, selling, or offering to sell something without permission of the
patent-holder constitutes the tort of infringement
-you won’t always get sued because patent litigation is too slow and expensive
What is the ultimate idea underneath copyright law?
What is the social compromise? How does fair use play in?
-ultimately the idea is progress for society and copyrights/patents are the incentive
-social compromise: only for a certain period of time (tradeoff) ->patent -> fair use, some people can copy w/o permission and payment-> copyright
-government gets, inventor gets, society gets
What types of works are copyrighted?
-books, magazines, newspapers
-other paper publications
-CDs, vinyl records
-internet pages
-films, photos, videotapes, DVDs
-broadcast programs
-ex: Blue Band formation diagrams put in a form where people can look at it can be copyrighted
-copyright law protects _____
-if you don’t reduce it to a ____, ____, ____ ____, it can’t be copyrighted
tangible, fixed, original form
What are the Statutory Requirements for Copyright Protection?
- must be in a fixed form
-must be original
-doesn’t protect symbols, colors…( but could be covered under trademark law)
-mere ideas cannot be copyrighted (but if you express it in writing, it could be)
-ex: movie pitching example (someone stealing your idea)
-public info cannot be copyrighted
-ex: 911 or Titanic – BUT your version of the story can be copyrighted
-can’t copyright math or calendars
What is fixation in copyright law?
- the work must be in a fixed in⬦
What about live telecasts...copyrightable?
a tangible medium of expression now known or later developed (ex: video ->DVD) from which the work can be perceived, reproduced, or otherwise communicated directly or with the aid of a machine or device
- a work is fixed in a tangible medium when its embodiment is a copy or phonorecord by or under the authority of the author is sufficient stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration
- it must be around for a good amount of time with out falling apart or being destroyed
-ex: live telecasts -> fixated? Copyrightable? YES. If broadcasting station records what they are broadcasting for storage it is considered fixated
What are the categories of fixation under copyright law?
Categories of fixation
- copies
-material objects
-other than phonorecords
-in which a work can be fixed
-material object in which sounds are fixed
-other than those accompanying movies or audio-visual works
-make sound whether or not it uses machine (by itself makes sound or by a machine)
-makes sound only
What rights comprise a copyright?
- exclusive right to:
- to reproduce the work in copies or phonorecords
- to distribute copies or phonorecords
- to perform the work publicly (concerts)
- to display the work publicly (visual art)
- to prepare derivative works (to tweak or alter)
How Long is a Copyright Enforceable?
- Sonny Bono copyright term extension act of 1998
-ex: Disney didn’t want characters to be reproduced so they spread enough money throughout Congress to get a 20 year extension
New Terms: Pre-1978 publications- 95 years
1978 and After- life of author and 70 years after
works for hire (corporation created stuff): 95 years after 1st publication or 120 years after creation (whichever expires first)
What is interesting about copyright protection?
*Automatic Protection Under Copyright Law* - you don’t have to contact any office to get a copyright
What is the copyright notice?
The Copyright Notice
1- symbol © Copyright or Copr.
2- Year of Publication
3- Name of Copyright owner
Don’t have to do it to have rights
What are the benefits of the copyright notice? Internationally?
Signals to people that they can’t steal your stuff and you will come after them if
they do. Prior to 1989 you did have to put this on, so stealers may argue they
didn’t know the new law (that doesn’t require the sign) even existed.
Other countries require it and a lot of them also require an addition “All Rights
Who is Luther Campbell and what is he known for?
-Luther Campbell – public obscenity in live concerts
- first album with a parental advisory sticker
What did Luther do that was questioned?
What did he believe he was justified by?
- made reworked version of Pretty Woman after his lawyers said it may be legal to do so without permission
-no sampling
-only “Pretty Woman” words taken
-similar, but not same song. Guitar riff taken, but should be fair use.
What is the difference betweeen musical compositions and sound recordings when it comes to a music copyright?
-musical compositions – words and music
-sound recordings – on to a tangible form
What made Neil Diamond's "I'm a Believer" not completely covered under music copyrights?
because of the player piano roll.
What is compulsory licensing?
What must one do to use another's work?
What does compulsory licensing NOT apply to?
- origin and policy
- compensation
- limits
- Congress forced recording object makers to have licensing in place and have song writers and these companies work together
- once someone records a song, then anyone can record it as long as there is compensation paid (standard royalty 8.5 cents for every unit you sell) and you can’t make a travesty of the song (limits) or you cut a separate deal with the songwriter.
- So, if you’re a songwriter, you can’t stop anyone from recording your song if it has already been recorded if they pay the standard royalty fee and they don’t have a travesty of the song.
Doesn't apply to sound recordings.
What are the penalties for Copyright Infringement (of any copyright, books, music, movies, etc)
- penalties include
- actual damages
- statutory damages
- fines (criminal side)
- prison
(back-up copies are ok except for computer software
What about Subconscious Infringement? Ex?
- George Harrison of the Beatles
-boxed set “All Things Must Pass”
-song “My Sweet Lord” was listened to by Ronnie Mack and he realized that one of his songs sounded very similar to it
- Ronnie Mack sued George and all the $ from that song went to Ronnie Mack even though George had no intent of taking the song
What constitutes fair use?
Fair use is a defense to...?
Fair Use: Purpose and Justification
-social advancement
- we let people build on it if it falls in an area of social advancement
- fair use = defense to infringement
What are the traditional avenues for fair use?
-Teaching, Scholarship, and Research (as long as it’s not to economically hurt
copyright owner and as long as you don’t make copies for students)
- News Reporting – hard to do a story on something without being able to show it
- Criticism and Commentary (ex: for social protests/causes

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