What are some aspects of branding that can be trademarked? A trademark is a distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to

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Chapter 8 (Intellectual Property)

1. What are some aspects of branding that can be trademarked?

A trademark is a distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known.

2. What is trademark infringement?

When registering for a trademark with the U.S. Patent and Trademark office, they give a notice on a nationwide basis that the trademark belongs exclusively to the registrant. The registrant then uses the trademark symbol on their mark to indicate that it belongs to them. Whenever that trademark is copied to a substantial degree, or used in its entirety by another, whether intentionally or unintentionally, the trademark is infringed. In other words, the trademark has been used without authorization. The owner of the mark can take legal action against the infringer by showing that the defendant’s use of the mark created a likelihood of confusion about the origin of the defendant’s goods or services.

3. Could a company likely obtain trademark protection for its logo?

Companies such as Rolls Royce, McDonald’s, Starbucks, and Apple, are all logos covered under the Federal Trademark Dilution Act from unauthorized uses. These are known as “distinctive” or “Famous” trademarks. Owners of these can bring suits in federal court for dilution. A company can obtain trademark protection by registering with the state or federal government. This process may take six to thirty months, and registration is postponed until the mark is actually used. During the waiting period, any applicant can legally protect their trademark against a third party who previously has never used the mark nor filed an application for it.

4. Under what circumstances is trafficking in labels that bear counterfeit trademarks a crime?

5. What is the result when Company A uses Company B’s registered trademark without B’s consent?

6. What is a service mark?

A service mark is a trademark that is used to distinguish the services (rather than the products) of one person or company from those of another. For example, each airline has a specific symbol associated with its name. Titles and character names used in radio and TV are frequently used as service marks. The registration symbol is R instead of T. Service marks can also be slogans for companies. It can sometimes be difficult to distinguish between service marks and trademarks. Mcdonald's is a restaurant that offers products and services, so a big mac is a trademarked product while providing the fast food is a service mark.

7. What is a trade name?

A trade name indicates part or all of a business’s name, whether the business is a sole proprietorship, a partnership, or corporation. A trade name is directly related to a business and its goodwill. A trade name may be protected as a trademark if the trade name is also the name of the company’s trademarked product. For example, the word Safeway, was sufficiently fanciful to obtain protection as a trade name for grocery chain because it is unusual or fancifully used. Therefore, this name is protected.

8. Closing down the domain name of a website is effectively used by U.S. officials when there is online sales of what kind of goods?

9. What is a patent?

A patent is a grant or legal document from the government that gives an inventor the exclusive right to make, use, or sell their invention for a period of twenty years. Patents for designs are given for a fourteen year period. Patents are an important element in encouraging innovation. This grant gives the inventor exclusive rights to their product or design in exchange for a comprehensive disclosure of the invention. Whoever invents or discovers new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement, may obtain a patent and are subject to the conditions and requirements of this title

10. What is a license?

A license is an agreement or contract permitting the use of a trademark, copyright, patent, or trade secret for a certain purpose. The party that owns the intellectual property rights and issues the license is the licensor, and the party obtaining the license is the license. A license only grants the rights expressly described in the license agreement. When the license involves internet uses, disputes frequently arise over licensing agreements.

11. How long does A have to challenge B’s patent if A believes B has infringed upon A’s previously acquired patent?

12. What is patent infringement?

Patent infringement is when a firm makes, uses, or sells another’s patented design, product, or process without the patent owner’s permission. Patent infringement may occur even though the patent owner has not put the patented product into commerce, or even though not all features or parts of a product are copied.

13. Works that are copyrightable include what?

A copyright is an intangible property right granted by federal statute to the author or originator of a literary or artistic production of a specified type. A copyrightable is the particular way in which an idea is expressed. When an idea and expression are inseperable, the expression can not be copyrighted. Works that are copyrightable include literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, and architectural works. Anything that is not an original expression does not qualify for copyright protection. Facts widely known to the public are not copyrightable. Page numbers are not copyrightable because they follow a sequence known to everyone. Mathematical calculations are not copyrightable.

14. What must a work be to be protected under the Copyright Act?

In order for a work to be protected under the Copyright Act, a work must be “fixed in a durable medium” from which it can be perceived, reproduced, or communicated. Protection of these items are automatic, and registration is not required. These works include books, records, films, menus, product packaging, computer software, newspapers, musical works, ballets/other forms of dance, cartoons, maps, sound recordings, motion pictures, and many others. It must be an original expression or a fact that is not widely known to the public to be protected.

15. What is copyright infringement?

Copyright infringement is when the form or expression of an idea is copied. The reproduction does not have to be exactly the same as the original, nor does it have to reproduce the original in its entirety. If a substantial part of the original is reproduced, the copyright has been infringed.

16. What does “fair use” mean as an exception to copyright infringement?

The “fair use” doctrine is an exception to liability for copyright infringement. In certain circumstances, a person or organization can reproduce copyrighted material without paying royalties. According to Section 107 of the Copyright Act, the fair use of copyrighted work, including such use by reproduction in copies or phonorecords for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. Because the guidelines for fair use is very broad, the courts determine whether a particular use is fair on a case-by-case basis.

17. What does the first sale doctrine enable a buyer of a newly copyrighted book to do?

18. Does federal copyright protection extend to parts of an app that can be read by computers?

19. Could A bring an action for copyright infringement against its competitor, B, who copied parts of the software that can be read by humans?

20. What is a theft of trade secrets?

A trade secret is information of commercial value, such as customer lists, plans, and research development. A theft of trade secrets is when confidential business data is stolen by industrial espionage, such as by tapping into a competitor’s computer. This is an actionable offense without any contractual violation. The theft of trade secrets is a federal crime.

21. What kind of information may be protected as trade secrets? (2)

Trade secrets protect the information of commercial value such as customer lists, plans, and research development. They may also protect pricing information, marketing methods, production techniques, and generally anything that makes a company individually unique. In other words, anything that would have value to the company’s competitor would be protected as trade secrets. Protection of trade secrets extends to both ideas and their expression. Because of this, there is no registration or filing requirements for trade secrets.

22. Is an app for an idea that businesses can use to track their revenue, profit, and payroll protected by any federal law?

23. What is the significance of all signatories of the Berne Convention as it relates to the publishing of a book written by a French citizen first in France and then in the U.S.?

24. What is the essence of the TRIPS agreement regarding infringement of intellectual property rights?

The TRIPS agreement, otherwise known as the Trade Related Aspects of Intellectual Poverty Rights, is a party to various international agreements relating to intellectual property rights. For example, the Paris Convention of 1883, allows parties in one country to file for patent and trademark protection in any of the other member countries. The TRIPS agreement established the standards for the international protection of intellectual property rights, including patents, trademarks, and copyrights for movies, computer programs, books, and music.

Chapter 9 (Internet Law, Social Media, and Privacy)

25. Would federal law preempt state law concerning antispam?

The statute preempts state antispam laws except for those provisions in state laws that prohibit false and deceptive e-mailing practices. The act permits the sending of unsolicited commercial email but prohibits certain types of spamming activities. Prohibited activities include the use of a false return address and the use of false, misleading, or deceptive information when sending e-mail.

26. How many states currently prohibit or regulate spam?

Thirty-seven states have enacted laws that prohibit or regulate the use of spam. Many state laws that regulate spam require the senders of e-mail ads to instruct the recipients on how they can “opt-out” of further e-mail ads from the same sources. In some states, an unsolicited e-mail must include a toll-free phone number or return e-mail address that the recipient can use to ask the sender to stop forwarding those emails.

27. What is cybersquatting?

Cybersquatting is when a person registers on a domain name that is the same as, or confusingly similar to, the trademark of another and then offers to sell the domain name back to the trademark owner. Apple Inc. has repeatedly sued cybersquatters that registered domain names similar to the names of its products, such as ipods.com.

28. Would it be illegal if A registered a domain name that is confusingly similar to the trademark of B if A had bad faith intent to profit from the mark by selling the name to B?

29. What is typosquatting?

30. What could a plaintiff recover if it proves the defendant is profiting from a domain name that is confusingly similar to the plaintiff’s trademark?

31. Be able to recognize an example of A diminishing the quality of B’s domain name. Give an example of your own.

32. What is trademark dilution?

33. Is A’s downloading of music into her computer’s random access memory (RAM) without authorization considered copyright infringement?

34. Is the Digital Millennium Copyright Act violated if A transfers pirated copies of movies of television programs to an Internet site that permits users to view them without downloading them?

35. What is a license?

36. Be able to recognize a fair use exception to the provisions of the Digital Millennium Copyright Act.

37. Are making and selling devices and services for the circumvention of encryption software a violation of the Digital Millennium Copyright Act?

38. What is copyright infringement? (2)

39. What is peer-to-peer (P2P) networking?

40. What is a distributed network?

41. What is a business-extension exception under the Electronic Communications Privacy Act?

42. What is cloud computing?

43. May an employer discipline and even fire an employee who uses social media in a way that violates her employer’s stated social media policies?

44. How could an employer violate the Stored Communications Act with respect to its firing of employees who maintain a password-protected social media page to vent about their work?

45. Under the Electronic Communications Privacy Act, is it permissible for an employer to intercept employees’ business communications on devices provided for employees’ use in the ordinary course of its business?

46. What would cause an Internet Service Provider to have to disclose the identity of those persons who make defamatory statements online about a company’s products?

47. Can a company which markets its products online use cookies to track individuals’ Web browsing activities?

48. Are the privacy rights of the users of companies’ Web sites and apps for mobile devices frequently defined by the companies that own the sites and the apps?

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