Intellectual Property- Outline
I. Intellectual Property Generally:
A. Trademark- Identity
1. What are we really protecting w/ trademarks?- not really the name or the symbol, but the goodwill associated w/ the product
2. Trademark is all about trying to promote good competition
3. To be registered, a mark must primarily be used to identify and distinguish goods and services- don’t get the mark until you actually use it.
4. Secondary Meaning- when a mark has become so distinctive that even if originally it described the product it has now gained a secondary meaning and can be used as trademark.
5. Rights of Identity:
a. preclude others from using a similar mark that is likely to cause confusion
b. precludes others from counterfeiting mark
c. precludes dilution- which is when someone does anything to lesson the distinctive nature of a mark- very difficult to prove
B. Patent- Inventions- some idea that has been reduced to useable form- protects the invention and the method of creating that invention.
1. American system of Patents is different- profit was the carrot, i.e. you invent something, you create something you can market and make money from it…In France the carrot is integrity and paternity- i.e. your invention is yours and cannot be changed
2. You get a patent for a
a. process
b. product
c. improvement
3. Must be new, useful, nonobvious
a. new- must be w/in one year to reduce the idea to practice
b. useful- can’t be useless- pretty broad- very low standard
c. nonobvious- no patent given for something that is obvious to someone in the field of what the patent is supposed to be for. Example: famous john deere case- chisel plow- problem was the plow kept breaking, so a guy comes up with adding a spring to the chisel to cause some give, gets a patent, then he comes up for an improvement on the spring and asks for another patent and is denied on obviousness, because it is not a creative improvement it is obvious
4. Cannot patent ideas- only their application
C. Copyright- Expressive works/ works of Communication- architecture, art, music, computer programs, etc.
1. After copyright, patent, etc. expires it becomes part of public domain and everyone can use it for free.
2. Burn Convention- international treaty on copyright- U.S. only recently signed because they wanted the rights involved in copyright to be based solely on money so we weren’t recognizing attribution or integrity as rights….U.S. signed the burn convention which includes attribution and integrity but limited it severely to only audio/ visual works.
3. The rights of copyright are separate from the
in commerce- 2 types of use:
a. Actual use- when you are actually using the mark in the market.
b. Intent to use- this is used when you want someone to “hold” a mark for you because you haven’t actually put the mark on anything, but you intend to. So you get 6 months to use it, and you can get extensions but not for any longer than 3 years, then you go back and file another paper that turns it into an Actual use application. This is a retroactive registration, i.e. the effective date of your registration is when you filed the intent to use and not when you actually used it.
3. Trademark Law must always be put in the context of the market- i.e. pants vs. airplanes- rules are different
4. Case Law
a. Bluebell v. Farah: Time Out mark- mens sportswear pants, neither party has trademark registered, they are both attempting to claim the trademark
i. This case is before intent to use laws
Trademark issue because- it could confuse consumers- since it is the same product, marketed in same place, etc.
