CHAPTER 14 INTELLECTUAL PROPERTY AND INTERNET LAW I TRADEMARKS AND RELATED PROPERTY Trademark 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 A Statutory Protection of Trademarks Lanham Act incorporates common law of trademarks and provides remedies for owners of trademarks 1 Trademark Dilution Federal Trademark Dilution Act allowed trademark owners to bring suits in federal court for trademark dilution protect trademarks from certain unauthorized uses even when the use is for noncompeting goods or is unlikely to confuse 2 Similar Marks May Constitute Trademark Dilution B Trademark Registration Under current law a mark can be registered if 1 It is currently in commerce 2 The applicant intends to put it into commerce within the next 6 months During waiting period for approval any applicant can legally protect the trademark against a third party who has previously neither used the mark nor filed an application for it C Trademark Infringement Registration of a trademark is nation wide When a trademark has been used without authorization owner of the mark has a cause of action against the infringer trademark owner needs to prove only that defendant s use of trademark created confusion about the origin of goods or services does not need to prove intention or registration of trademark Most common remedy injunction to prevent further infringement D Distinctiveness of Mark 1 Strong Marks Games and its style etc Receive automatic protection because help identify product source not product description Fanciful and arbitrary trademarks invented i e Xerox Kodak Dutch Boy the X for the X Suggestive trademarks suggest something about the product s nature quality or characteristics without describing it require imagination from consumer i e Dairy Queen 2 Secondary Meaning Descriptive terms geographic terms and personal names are not inherently distinctive and do not receive protection under the law until they acquire secondary meaning costumers begin to associate a specific phrase or term with specific trademarked items Once secondary meaning is attached to term it becomes distinctive 3 Generic Terms Refer to an entire class of product do not receive protection even if they acquire secondary meaning i e computers bicycle escalator etc E Service Certification and Collective Marks Service mark trademark used to distinguish services titles and characters names for example Certification mark used by one or more persons to certify regions materials mode of manufacture quality or other characteristics of specific goods or services Good Housekeeping seal of approval UL tested etc Image and overall appearance of product treated as regular trademark F Trade Dress G Counterfeit Goods Copy or otherwise imitate trademarked goods 1 The Stop Counterfeiting in Manufactured Goods Act It is a crime to knowingly traffic in counterfeit labels regardless of which good it is attached to 2 Counterfeiting Penalties Fined for up to 2 million and prison for up to 10 years H Trade Names Trademarks apply to products trade name is used to indicate part or a business entire name whether the business is a sole proprietorship a partnership or a corporation may be protected as trademark if it also refers to the trademarked product Coca Cola for example CYBER MARKS II A Domain Names education Every domain ends with a generic top level domain TLD com commercial edu SLD second level domain chosen by business entity Cybersquatting a person registers 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 B Anticybersquatting Legislation 1 The Ongoing Problem of Cybersquatting Problem speed at which domain names change hands and the difficulty in tracking mass automated registration have created an environment where cybersquatting can flourish 2 Typo squatting Costly for businesses because they attempt to register all variations of the name to protect their domain name rights from typo squatters 3 Applicability and Sanctions of the ACPA Applies to all domain name registrations of trademarks Some domain name registrars offer privacy service that hide true owners of a website makes it difficult to find squatters C Meta Tags Keywords inserted into a field to increase the likelihood that a site will be included in a search engine result Using another s meta tags can constitute trademark infringement D Dilution in the Online World Does not require proof that consumers are likely to be confused by a connection between the unauthorized use and the mark Agreement contract permitting the use of a trademark copyright patent or trade secret for certain purposes Grants only rights expressly described in the agreement E Licensing III PATENTS Grant from government that gives an inventor the right to exclude others from making using or selling his or her invention for a period of twenty years from the date of filing application Must file patent application within a year of invention Businesses use them to perform patent searches to list or inventory their assets A Searchable Patent Databases B What is Patentable Item must be novel and not obvious anything is patentable except 1 Laws of nature 2 Natural phenomena and 3 Abstract idea algorithms for example 1 Patents for Software It was thought that computer programs did not meet the novel and not obvious requirements Basis for software is often a mathematical equation or formula which is not patentable Patent is granted on the basis that soft wares are process that incorporates computer programs 2 Patents for Business Processes Valid only if it is tied to a particular machine or apparatus or transforms a particular item into a different state or object machine or transformation test C Patent Infringement Patent infringement is a tort For patent infringement of a process all steps or their equivalent must be copied D Remedies for Patent Infringement Injunctions damages lost profits attorney fees etc Patent holder must prove that it has suffered irreparable injury and that the public industry would not be disserved by a permanent injunction considers public interests IV COPYRIGHTS Intangible property right granted by federal statute to the author or originator if a literary or artistic production of a specified type Copyrights are automatically protected A
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