Chapter 14Intellectual PropertyIntellectual Property: a legal concept, established in the United States Constitution, that refers to creations of the mind for which exclusive rights are recognizedI. Trademarks and Related Propertya. A recognizable sign, design, expression, mark, motto or device identifyingproducts or services of a particular sourceb. Protected under common law and by statutei. Lanham Act of 1946: primary federal trademark statute, prohibits trademark infringement, trademark dilution and false advertising ii. Federal Trademark Dilution Act: passed in 1995iii. Many state laws also protect trademarksc. 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 confused. 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; orii. Applicant intends to put the mark in commerce within 6 monthsiii. 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 unintentionallyi. Owner must show that the defendant’s use of the mark creates a likelihood of confusion about the origin of the goods or servicesii. Owner does NOT need to prove intent on part of infringer or that trademark was registerediii. Injunction: common remedy for infringement, forces infringer to stop using markf. Trademark must be distincti. Strong Marks: fanciful, arbitrary or suggestive marks are considered the most distinctiveii. 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 productsh. Trade Dress: refers to image/overall appearance of a product; receives the same protection as trademarksi. 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 productj. Licensing: an agreement permitting the use of a trademark, copyright, patent or trade secret for certain purposesII. Patentsa. 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 timei. Patents for inventions are protected for 20 years from the date of filing the patent applicationii. Patents for designs are protected for 14 years from the date of filing the patent applicationb. To be patentable, invention, etc., must be new and useful and not obviousc. Patentable:i. Processes that incorporate a computer programii. Business processes tied to a particular machine or apparatus, or that transforms a particular article into a different stated. NOT patentable:i. Laws of natureii. Natural phenomenaiii. Abstract idease. Infringement: unauthorized making, using or selling a patented product or design; remedies include:i. Injunctionii. Permanent injunction if patent holder proves irreparable injuryiii. Damages for royalties and lost profitsiv. Attorneys’ feesv. Triple damages if infringement was willful III. Copyrightsa. Copyright: intangible property right granted to author or originator of a literary or artistic producti. Creature of statute ii. Automatic lifetime (plus 70 years) protection for author of workiii. For publishing house, protection lasts 95 years from publication date or 120 years from date of creationiv. Can be registered with US Copyright Officev. Copyright symbol does NOT need to be on the work to be protected against infringementb. Protected under Copyright Act:i. Literary worksii. Musical works and accompanying wordsiii. Dramatic works and accompanying musiciv. Pantomimes and choreographic worksv. Pictorial, graphic and sculptural worksvi. Motion pictures and other audiovisual worksvii. Sound recordingsviii. Architectural worksc. NOT protected: ideas or principles on which a work is basedd. Infringement: when the form or expression of a copyrighted work is copied in part or entirety; remedies include:i. Damagesii. Criminal penalties, including imprisonmentiii. Permanent injunctione. 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 purposesii. The nature of the copyrighted workiii. Amount of copyrighted work usediv. Effect of use on potential market for value of copyrighted workIV. Trade Secretsa. Trade secret: information of commercial value, may include:i. Customer listsii. Plansiii. R & Div. Pricing informationv. Marketing methodsb. Protection of trade secrets extends to ideas and their expressionc. No registration or filing requirement for protectiond. Those who use or disclose another’s trade secrets are liable if:i. The secret was discovered through improper means, orii. Disclose constituted a breach of duty owed to the