Intellectual Property by Design
Focus of the course is how stuff looks.
We call it “intellectual property” because those words are intended to reflect the intangible nature/characteristics/properties/aspects of the “intellectual property.”
We will be focusing on industrial intellectual property (not “pure artistry”)
“We” don’t want to restrict and protect how something works but the artistry of the product we do want to protect.
“If it’s made for the masses, then there is no copyright” is held to be a “stupid test” by the Supreme Court and was rejected.
treaty asks that “new or original” designs be protected by the country.
Every country has got to take the designer object and must protect that item for at least 10 years.
Hague Agreement – this one is about registering the design. For the most part, registration is a formality that gets you some “goodies” and the is reasons for doing it but “you don’t have to if you don’t want to.”
Countries do things differently. The major difference is “examination countries” and “non examination countries”
Some countries, like the US, make examination (by looking at prior patents/designs) and it takes a long time.
Three major types of IP Law
Common law trademark and federal trademark
Very similar but Federal trademark codified it basically
“trade dress” –
“Anonymous source rule”- You don’t have to be able to name it, just know it comes from somewhere specific (one and only one that does this)
Something that distinguishes where that product came from.
Nonfunctional – not dictated by function alone
Utility/Function trumps distinctiveness
If it’s functional, we’re not going to protect it as trade dress
Use – “You have to use it to get protection.” You have to sell it before you can ask for protection.
You have to show that there is a “likelihood of confusion” in this claim of action.
If you trademark something, after 5 years, it cannot be disputed.
How things works
You have to show it is:
Ornamental – has to have “eye appeal”
If anybody else makes the thing that you have a design patent on then you get all of the profits that person made from that design. Does not matter even if the desig
countries adopt as legal obligations
The customs that has arisen in the business community or as nations deal with one another may inform how we apply those treaties, but the enforceable obligations are a matter of treaties not long standing practice.
Restatement of Foreign Relations
It’s “nothing more than a big ol’ contract”
Prof didn’t really talk much about it. Restatement is pretty straight forward.
Vienna Convention on the law of treaties
How we apply treaty law
Article 27, you cannot use internal law as the basis for non-performance of a treaty.
Treaty law does NOT give AN INDIVIDUAL a cause of action OR a defense.
Treaty binds nations NOT individuals
About trademarks and patents
It’s the first time that we changed our trade agreement for out trading partners
These treaties have to be administered by an international agency/counsel