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Intellectual Property
University of Mississippi School of Law
Myers, Gary

Intellectual Property Outline
Professor Gary Myers
 
“To promote the progress of science and useful arts, by securing, for limited times to authors &             inventors, the exclusive right to their respective writings & discoveries.” (Con Art I, § 8)
 
I.            Intellectual Property Overview – Path of Analysis for every topic in I.P.
A)            Validity
B)            Ownership
C)            Infringement
D)            Defenses
E)            Remedies
Trademark Law
I.          Policy Underlying I.P. Protection
A)    Public Good Theory – Economic; market governs; based on the idea that, without I.P. protection, “authors” have little incentive to research and develop goods and services that can easily be imitated by others, with less expense incurred. (Think: Drug Industry)
1.      Crux – exclusive rights create an economic incentive to continue researching and developing new and better goods and services
2.      Protection is nonetheless limited because, once inventors and authors are compensated, competition is healthy, creating access by as many people as possible to the invention.
 
B)    Natural Rights Theory – based on the idea that everybody should be entitled to the fruits of their labor (beyond just economics); Emphasized in France and Europe; recognizes the moral rights of authors and inventors, however it does not derive any support from the U.S. Constitution (which is why America stresses the Public Good model)
1.      Implications –
a.       Public good theory will have less exclusive rights, that have a shorter duration; more restrictions on the rights of authors and inventors
b.      Natural Rights theory suggests the need for broader, more extensive and long-lasting I.P. protection for authors and inventors 
2.      Internationalization – has been causing U.S. I.P. law to evolve & expand
C)    Distribution Theory – the “perpetually better mousetrap” idea
1.      Focuses on encouraging discl

goods and thereby taking business and money away from the true author/inventor. Process for finding it: 
a.       Consumers WOULD buy P’s product b/c of the good will associated with it . . . 
b.      But because of successful consumer confusion caused by Δ . . .
c.       Δ is unjustly enriched
G)    General Limits of Trademark Law –
1.      Will not give you a monopoly on the sale of a particular product!
2.      Will not forbid competitors from copying your product and selling a similar product!
H)    Generic Terms – no protection under trademark law
1.      “Becoming Generic”
a.       Something becomes generic when consumers begin to associate the term as being the product itself rather than a brand name.
To determine this, must look to the mind of the consumer.