2 18 15 Chapter 9 Intellectual Intangible Property Intellectual Intangible property usually created mentally can t pick up and hold o If someone s using your intellectual property without your permission Tort of Misappropriation Sue for damages loss of profits Injunction to get them to stop o Types of intellectual property Trade names Name of business company First person to use company name is the one that can protect it under common law Can t register anywhere has to show they were the first person to use the name only protection is common law o Secretary of State can do a local name search for your company name while your starting your paperwork Trademarks Any kind of design logo or symbol that a company prints on its good to be readily identified in the marketplace and associated with the company Nike s swoosh Apple s apple Target s bull s eye Lanamack Federal Law under which you can register trademarks and get legal protection allows search and seizure notices within the US o Must convince them it s unique to you You can register it and it s good for 10 years At the end of the 10 years you can renew your registration for another 10 years o Protection for 10 year period you can prevent anyone else from using your trademark in their business without permission If there s a dispute you can get federal court jurisdiction Federal court has experts Allows you to register protect your trademark in the US only Basis to use to register your trademark in other countries in which you do business Need to register in every country Madrid convention You can file 1 trademark registration and its good for all of the countries in the European Union Once you ve registered in the Lanamack you can give a copy to US Customs Put in their database and customs will clear shipments from other countries to make sure foreign countries aren t shipping in goods with your trademark can get a court order to seize and destroy the goods What bout everything being sold outside of US Problem Finding Identifying the goods Have a US court order to seize try to get the foreign country to enforce Or can try 2 18 15 to get a court order from their nations court if they have search and seizure laws o Lanamack makes the importation of goods with a false trademark or tradename illegal o If you can show if someone intentionally or maliciously infringes on your intellectual property to make money court will triple awarded damages Counterfeit goods cost US countries in different ways Losing profit because not buying the real goods Lose future sells because of potentially poor 4 classifications of trademarks quality counterfeit goods o Arbitrary and Fanciful most unique easy to protect Nike swoosh o Suggestive trademarks Suggest or hint at the product Dairy Queen ice cream o Descriptive Less favored by courts have to show customer recognition to your company and your product to be protected Holiday Inn hotel Yellow pages describes phonebook check text book for difference between descriptive and suggestive o Generic hardest to protect in court It s commonly used to describe a type of item Thermos Nylon generic words that describe an item not a specific company s product Can also become generic if you have a trademark you have a responsibility to protect your trademark ask to stop or file a suit If you don t and multiple companies use the mark you can t bring to court anymore because you didn t protect yourself o Infringement courts looking for Consumer Confusion and the other company s profiting from your trademark trade name Demonstrate by going to stores and interview people with the product and people say that they think it s the original company making the product o Dilution someone s harming your company s reputation shrinking people s opinions of your company and the products Defenses for Infringement or Dilution Compared Use fair use in Ads as long as it s not malicious Misappropriations 2 18 15 Non Commercial Use Using intellectual property but not for profit non commercial use News Reporting or Educational Use Can copy or talk about trademarks trade names for these uses o Cyber Squatting Someone improperly using your trademark in a domain name or website name appl com selling similar products to apple com People often didn t have any intentions of using the domain names but were hoping that the company will buy out your domain name to get rid of it Copyrights artistic type subject matter If you re the creator of an original work of art Federal copyright act if you register and get the copyright it is good for the life of the creator 70 years Copyright office in Washington dc You get 5 rights if you register and prevents anyone else from doing these Patent o Right to reproduce the work copies o Right to publish or distribute the work o Right to display the work in public o Right to perform the work in public o Right to prepare derivative workspace on the original work sequels spin offs o No domain rights Exceptions to infringements news reporting educational uses comparative ads etc not doing it for profit Fine per incident Patent act for new or useful process manufacturing machinery or composition of an article Register and get patent approved protection is good for 20 years you cannot renew after 20 years Patents are public all details that are filed are public o Issue 1 Patent office may not kick out everyone s application that s close to yours may need to litigate to enforce it o Issue 2 If someone from another country gets ahold of your file it will be harder to enforce protection in another country Expensive have to have an engineer architect do drawings Slow process from filing 2 years to get approved do get some protection during the waiting period can get an injunction against someone 2 18 15 Complicated law specialty Trade Secrets Protect an invention without a patent any kind of formula process that gives you a competitive advantage formula to Coca Cola If you can prove to the courts that you have a trade secret and can protect it you can keep anyone else from getting it Indefinite time period Demonstrate to the court o That you have something that gives you a competitive advantage o That you ve taken steps to protect it Employees sign trade secrecy agreements won t share with anyone outside of company Have employees sign non compete agreements There s documentation somewhere and it s under lock and key somewhere Discovery Protective court order only gives opposition access for the purpose of the