Chapter 14 Intellectual Property Intellectual Property a legal concept established in the United States Constitution that refers to creations of the mind for which exclusive rights are recognized I Trademarks and Related Property a A recognizable sign design expression mark motto or device identifying products or services of a particular source b Protected under common law and by statute i Lanham Act of 1946 primary federal trademark statute prohibits trademark infringement trademark dilution and false advertising ii Federal Trademark Dilution Act passed in 1995 iii Many state laws also protect trademarks c Dilution owner of a famous or distinctive trademark is protected from others unauthorized use of an identical or similar mark regardless of whether the mark is used on non competing goods or is unlikely to confuse d Registration trademarks may be registered with either the state or federal government to obtain protection mark can be registered if it is i Currently in commerce or ii Applicant intends to put the mark in commerce within 6 months iii Registration NOT required for trademark protection but it helps e Infringement when trademark is copied in its entirety or to a substantial degree intentionally or unintentionally i Owner must show that the defendant s use of the mark creates a likelihood of confusion about the origin of the goods or services ii Owner does NOT need to prove intent on part of infringer or that trademark was registered iii Injunction common remedy for infringement forces infringer to stop using mark f Trademark must be distinct i Strong Marks fanciful arbitrary or suggestive marks are considered the most distinctive ii Secondary meaning arises when customers begin to associate a specific term or phrase with a specific trademarked item g Service Mark trademark used to distinguish services rather than products h Trade Dress refers to image overall appearance of a product receives the same protection as trademarks i Trade Name indicates part or all of a business s name to receive protection and be eligible for registration a trade name must also be the name of the company s trademarked product j Licensing an agreement permitting the use of a trademark copyright patent or trade secret for certain purposes II Patents a Patent a grant from the government giving an inventor the right to exclude others from making using or selling the invention for a specific period of time i Patents for inventions are protected for 20 years from the date of filing the patent application ii Patents for designs are protected for 14 years from the date of filing the patent application b To be patentable invention etc must be new and useful and not obvious c Patentable i Processes that incorporate a computer program ii Business processes tied to a particular machine or apparatus or that transforms a particular article into a different state d NOT patentable i Laws of nature ii Natural phenomena iii Abstract ideas e Infringement unauthorized making using or selling a patented product or design remedies include i Injunction ii Permanent injunction if patent holder proves irreparable injury iii Damages for royalties and lost profits iv Attorneys fees v Triple damages if infringement was willful III Copyrights a Copyright intangible property right granted to author or originator of a literary or artistic product i Creature of statute ii Automatic lifetime plus 70 years protection for author of work iii For publishing house protection lasts 95 years from publication date or 120 years from date of creation iv Can be registered with US Copyright Office v Copyright symbol does NOT need to be on the work to be protected against infringement b Protected under Copyright Act i Literary works ii Musical works and accompanying words iii Dramatic works and accompanying music iv Pantomimes and choreographic works v Pictorial graphic and sculptural works vi Motion pictures and other audiovisual works vii Sound recordings viii Architectural works c NOT protected ideas or principles on which a work is based d Infringement when the form or expression of a copyrighted work is copied in part or entirety remedies include i Damages ii Criminal penalties including imprisonment iii Permanent injunction e Fair Use Doctrine provides for legal unlicensed citation or incorporation of copyrighted material in another author s work courts take into consideration i Whether the purpose and character of work is for nonprofit or educational purposes ii The nature of the copyrighted work iii Amount of copyrighted work used iv Effect of use on potential market for value of copyrighted work IV Trade Secrets a Trade secret information of commercial value may include i Customer lists ii Plans iii R D iv Pricing information v Marketing methods b Protection of trade secrets extends to ideas and their expression c No registration or filing requirement for protection d Those who use or disclose another s trade secrets are liable if i The secret was discovered through improper means or ii Disclose constituted a breach of duty owed to the party