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Rutgers University, Newark School of Law
Kettle, John R.

Copyright, Trademark and Intellectual Property
(You’re A Star Baby!)

I. Intellectual Property Law In Context
A. Intellectual Property is derived from:
a. The Constitution- Art. 1 § 8, (3)-
The Congress shall have the power…(3) To Regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.
This gives us Trademark law.
b. Art. 1 §8, (8)-
The Congress shall have the power…(8) To promote the Progress of Science and useful Arts, by securing for limited times to authors and Inventors the exclusive right to their respective Writings and Discoveries.
This gives us copyright and patent law.
c. Art. 6- The Supremacy Clause
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding.

A. Types of I/P and Sources of Protection:
1. Ideas – State (K Theory/Novel; Concrete Form; Used by Defendant), C/L.
2. Trademark – Federal (®), State (™), C/L.
3. Unfair Competition – State, Federal (§ 43(a) Lanham Act (42 USC §1125), FTC, etc.).
4. Trade Secrets – State, C/L, Federal (Trade Secrets/ Espionage Act), USTA.
5. Right of Publicity – State, Federal (§ 43(a)).
6. Copyright – Federal (17 USC), State (works not yet fixed).
7. Patents– Federal Only (Novel, Non-obvious, Useful).

B. Rationales for Protecting I/P:

1. The purpose of IP is to maintain an incentive to produce. Create for the benefit & Enrichment of Society
a. Incentive for creation of new ideas (protecting the author/inventor)
b. Protection of the consumer from fakes, etc.
c. Promote economic investment in new ideas and technology (protecting the investor).

2. The doctrine attempts to balance the interests of the creator/inventor –inventor/producer, and the consumer/public

3. The exchange of ideas enriches society more than the exchange of money; b/c you end up w/ 2 ideas and w/ money you end up w/ the same amt.
a. W/o compensation people will be less willing to exchange idea

C. IDEAS-To be protected you must

der must waive this so there can be no breach of trust.
ii. Showing of novelty may not be required

Cosby Show Case: Murray says that it was his idea and he submitted this to the studio, and he even went so far as writing a script. They used it later…he sued.
Held: The idea was not novel.
Note: Prof. Kettle thinks that his attorneys committed malpractice because they didn’t sue on an infringement of copyright theory, but instead, on an misappropriation of an idea theory. This is only because he did write a script about the show—it was detailed and so it could be copyrightable expression.

5. IP has nationalized for 3 reasons:
i. Emergence of the federal preemption doctrine
ii. Rapid evolution of technologies
iii. Growth of International Trade in IP goods.

II. State Law OF Intellectual Property
A. Rights in Undeveloped Ideas
Theories of Protection-See Ideas Section Above