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Property I
Villanova University School of Law
Caudill, David S.

Intellectual Property
 
        A. Copyrights
 
1.      How granted?
 
(a) No grant, comes from origination of work. However, there are benefits for registering
 
                        2. What can one copyright?
 
(a)Copyright Act – original works of authorship fixed in any tangible medium of expression now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of machine or advice
 
                        3. What can’t be copyrighted?
 
(a) ODDzON Products Inc. v. Oman – utilitarian aspect of work such as tactility of “koosh ball” can’t be copyrighted.
 
(b) Familiar Shapes and Symbols can’t be copyrighted because not original
 
                        4. What are the privileges of owning copyright?
 
(a)    Owner can reproduce, prepare derivative works, distribute copies of the work, to perform the work publicly, and display the work publicly
 
5. What can others do with copyrighted work?
 
(a) People can quote and look at it without paying
and can even make a parody of the copyright
 
                        6. How can one prove infringement?
 
(a)       “Substantial similarity” which makes one liable for copyright infringement if independent creation improbable.  
 
(b) Proving that the defendant copied the person who own the copyright.
 
 
          B. Trademarks
 
                    1. How Granted?
 
(a)    No grant, comes from origination of work. However, there are benefits for registering
 
2.      What can one trademark?
 
(a)    Any name, symbol, or device used by a person or business to distinguish goods
 
                                                                                                   i.      Qualitex CO. v. Jacobson Products Co. –  Color, shapes, sounds, and fragrances can be trademarked
 
ii.       Policy – To reduce shopping time and costs by creating a mark that a customer can be sure is a specific firm’s; and, to assure that another firm cannot deceive a customer by selling a different product with the same mark. 
 
3.      What can’t be trademarked?
 
(a) An already registered mark that would cause confusion
 
(b) Descriptive, generic, or misdescriptive marks

                                                                                       iii.      Nonobvious
 
–      Arkie Lures, Inc. v. Gene Larew Tackle, Inc – Nonobviousness based on:
 
à      Scope and Content of the Prior Art
 
à      Differences Between the Prior Art and the Claimed Invention
 
à      Level of Ordinary Skill in the Field of the Invention (Complexity of Product)
 
à      Objective Indicia – Graham Factors – Commercial Success
 
2.      What bundle of rights received from a patent?
 
(a)    The right to exclude others from making, using, offering for sale, or selling” the invention in the US
 
3.       Promissory Estoppel and the Doctrine of Equivalents
 
(a)  After obtaining a patent by narrowing the claim the patent holder may be estopped from claiming infringement by others working to design their product outside the literal cope of the claim language.