Law 3220 1st Edition Lecture 11 Outline of Last Lecture I Intentional Interference with a Contractual Relationship II Interference with Perspective Advantage III Product Liability a Strict Liability b Failure of Warning c Unknown Hazards d Joint and Several Liability e Defenses of Product Liability Outline of Current Lecture I II III Trademarks a Classifications b Ways to violate c Defenses d Counterfeiting e Trade Dress f Trade Names Copyrights Patents Current Lecture Product liability reform companies get lobbyists who talk to politicians to try to get new laws made o Lobbyists might try to limit damages you have to pay get rid of punitive damages o Might make it harder for plaintiff to go to court Fast food might be the new area of lawsuits like what tobacco was in the past Chapter 9 Intellectual Property Intellectual Property Gained by mental not physical effort Involve infringements on the violation of an owner s rights Major Forms o Trademarks o Copyrights o Patents These notes represent a detailed interpretation of the professor s lecture GradeBuddy is best used as a supplement to your own notes not as a substitute o Trade Secrets lasts forever Trademarks Commercial symbol design logo phrase word mark etc o Classifications 1 Arbitrary and Fanciful favored most because less tied to things Ex Reebok is a completely made up word 2 Suggestive Not as favored hints at product Ex Chicken of the Sea suggests tuna 3 Descriptive Not as favored Ex Holiday Inn describes what it is 4 Generic not protected used commonly to refer to something that might not be the specific product Ex Nylon zipper aspirin Xerox Kleenex o Good for ten years then needs to be renewed o Can do it internationally o Ways to Violate Trademark Laws 1 Infringement confusion of the origin of the product with improper use of the trademark Lanham Act allows suits for infringement Ex Making shoes called Rebok instead of Reebok still not ok 2 Dilution Using trademark for a different thing Ex Nike uses name for shoes if you were to make tractors and put the Nike swoosh it would not be ok 3 Cybersquatting using a trademark in a domain name to attract customers Ex You sell tractor parts make website that says Ford tractor parts even if they re not Ford for the purpose of having more people come on your website because you used the Ford name o Defenses to Trademarks 1 Fair Use If you re not using it to make money or advertise If you re using it for comparison of products 2 Noncommercial Use for an editorial to make fun of 3 News reporting Educational Use o Audi AG vs D Amato D Amato registered a domain name as www audisports com sold goods with Audi logo claimed to have permission from an Audi dealership salesman sued for infringement dilution and cybersquatting district court sided with Audi Audi wanted an injunction D Amato appealed to get equitable relief you must show a likelihood of confusion and D Amato said that on his website he had a disclaimer that he was not Audi disclaimer didn t help him court said he misdirected consumers to his website created initial interest confusion before giving the disclaimer and lied about saying he had permission from Audi also D Amato was got for the dilution law because he used the Audi logo to sell other things that Audi did not sell o Counterfeiting If you copy a mark without authority to do so Also passing off goods as if they are the original Cannot sell something called Counterfeit Levi Jean because you are still using the Levi name o Trade Dress look and feel of products and of service establishments Ex Lion s roar is an MGM trademark Two Pesos v Taco Cabana one Mexican style restaurant cannot copy another s decor Walmart vs Samara Brothers Samara designed kids clothes o Other Marks Service Marks apply to services such as advertising insurance hotels restaurants etc Ex Burger King has phrase Home of the Whopper Certification Mark word symbol device that is used in commerce to certify regional or other geographic location Ex Made in USA o Trade Names name of the company or business Coca Cola beverage has the same trademark as the producer Can t register this under Lanham Act common law applies Can t have national protection unless there might be confusion Ex A random company cannot use the Coca Cola name because it is recognizable everywhere o Goodwill reputation of a firm that gives value to trademarks and other such forms of intellectual property Copyrights for books written works etc o Copyright Act of 1976 amended in 1990 Prevents unauthorized changes in an author s work Gives works moral rights right of author to have proper attribution of authorship o Copyright lasts for 70 years past the life of the author o If you work for a company as a hired person the company owns what you create o Fair Use For purposes such as criticism news teaching scholarship or research it is ok to copy a work Factors are 1 Purpose for copying 2 Nature of the work 3 Extent of the copying 4 Effect of the copying on the market o Damages for violation of infringement focus on the economic loss of the holder of the copyright o Can be a criminal case in infringement o Ex Infringement if you download a video from Youtube o Media Power Group vs Latin American Music Company Media Power had radio station played 4 songs that LAMC said they didn t have the rights to LAMC said Media Power group was infringing on their music copyrights had to prove that they had ownership of the copyright LAMC didn t have proper documents to show ownership Patents grant from the government to an inventor for the right to exclude others from making using offering for sale or selling the invention o Patent counts for 20 years o Whoever files patent first is the owner despite who invented it first o If you change the invention slightly you can get a new patent for it o o o Patent Application has to list all details of patent measurement weight materials etc because patent office has to be able to distinguish between that and future potential patents Montesanto vs Bowman Farmers were not sell the seeds or reproduce the seeds sued for patent infringement but Bowman said that once I have the product I can use it anyway I want court and appeals court sided with Montesanto because said Bowman was reproducing a patented product Problem with patents is a lack of uniformity worldwide