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LEGL 2700: Exam 2
Trade Secret
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Valuable commercial information unknown by competitors
Ex: recipe for coca cola
You don't have to apply to the govt for a trade secret law, but if the secret is stolen or they find out someone is going to leak the info, they can go to a court & the court will recognize the steps to protect it & use criminal or civil sanctions
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Patent
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An invention or improvement on an existing item
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Trademark
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Distinctive design, picture, emblem, logo or wording identifying the manufacturer of the product
sometimes phrases, wording that associate it with the manufacturer of the product; Ex: "Just do it" by NIke
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Copyright
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A literary, musical, dramatic, or artistic work
If you write a book or song or movie you are protected by copyright
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Article 1, Section 8
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Constitution sets out the authority for 2 of the 4 types of intellectual property: copyright & patent
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What 2 types of intellectual property are supported by the constitution?
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Copyright & Patent
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Why would the founding fathers put copyright & patent in the constitution?
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It encourages you to write new things & invent new things because you get the exclusive rights
Downside- you're giving a 20 year monopoly to someone
About 80% of value of fortune 500 companies is in their intellectual property
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What 2 types of intellectual property were developed by common law rules?
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Trade secrets & Trademarks
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What are the 2 requirements for trade secrets?
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1) The owner of the knowledge or information must have taken reasonable measures to keep it secret
2) The knowledge or information must have economic value from not being known publicly
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Examples of Trade Secrets
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Manufacturing processes- you can make your product cheaper & faster than anyone else
Advertising campaigns- company spends millions on ad campaign & want to keep it secret until it is released at the super bowl
Customer lists- from stores that have your name, address, etc so they know who shops there
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2 ways/agreements companies try to protect information/trade secret
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Nondisclosure agreement & Noncompete agreement
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Nondisclosure agreement
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employee promises to keep secrets after leaving company; usually has a big penalty
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Noncompete agreement
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If you own a restaurant & several dishes are key to keeping customers to come back; chefs promise they can't leave & compete with them by using your recipes for a certain amount of time
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Trade secret/ Criminal sanction
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if you intentionally steal a trade secret from somebody- you've never been given access to it; if you hack into the company's computer network
Ex: college student hacked into direct TV
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Trade Secret/ Civil sanction
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when you used to work for a company & take trade secrets & used them wrongly & break nondisclosure or any part of contract
Court could issue injunction that says you have to stop doing what you're doing immediately or you can get money for value you could have lost from this
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Patent
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20 year monopoly for the use of a new invention
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How many years for a design patent?
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14 years
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Requirements for Patentability/Patentable Subject Matter
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Machine-most common; ballpoint pen, toaster, etc
Process- come up with new way of doing something or getting to a finished product; like Henry Ford & assembly line
Composition of matter- new material; like tethlon the non stick material
Improvement of any of the foregoing- new way to improve toaster
Nonfunctional designs- artistic things; 14 years not 20 years
Certain plants- like corn that have pesticides that don't need to be sprayed
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Requirements for Patentability/Patentable Subject Matter Cont.
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Non obviousness, Novelty, and Usefulness
Non obvious- just because you come up with someone new but it was so obvious that anyone could come up with it, then it's non obvious
Novelty- has to be new; non one has ever done it before
Useful- has to have some purpose
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What must an application submitted to the US Patent & Trademark Office (PTO) include?
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1) An explanation of how to make & use the invention
2) An explanation of why the invention is different from the prior art
3) An identification of which specific aspects of the invention deserve to be patented (i.e. the "claims")
PTO gets 1200 applications per day; issues 22,000patents in 2012
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Patent infringement
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unauthorized use of a patented invention
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Defenses to a patent infringement action
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Non-infringement- I'm not using your patent- it's similar but it's not the same thing
Invalidity- this patent is bogus, never should have been issued; govt screwed up & shouldn't have issued this
Only civil remedies for unauthorized use of patent
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Trademark
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Any word, picture, or design that is attached to a good to indicate its source
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4 types of trademarks
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Trademark- something attached to a physical product; Nike swoosh on shoe or shirt
-can also trademark sounds (Intel's jingle) or scents
-The "R" next to logos indicates that it's a registered trademark
-"TM" means it doesn't have federal trademark protection but it has state trademark
Service Mark- a mark associated w/ a service
Certification Mark-mark used to certify the quality, compliance or some other characteristic of a good or service; ex: energy star; wifi
Collective Mark-mark used to represent membership in an organization or association; Ex: NFL
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Trade Dress
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Colors, designs, or shapes associated with a certain product or service
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How long do trademarks last?
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Trademarks potentially last forever; have to register it after the first 6 years & then after every 10 years
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Why must you actively enforce/sue for your trademark?What are the defenses?
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Civil Enforcement- Because if you don't then you have the risk of the trademark becoming generic/too common; like zipper, refrigerator, Xerox etc.
Defenses:
The mark is not distinctive
No chance of confusion by the public
Fair use
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When is criminal enforcement usually involved with trademarks?
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The government will prosecute people for selling counterfeit products
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Trademark Dilution
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Prevents use of a similar trademark to dilute the significance, reputation, or goodwill associated with the more famous trademark
Not directly copying but using logo very similar to bigger company's to try to get sales
Ex: "Chewy Vuitton" dog toy example=not trademark dilution
-"Victor's Little Secret" store=trademark dilution
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Copyright Law
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Protects expression, while a patent protects invention
Songs, films, books, TV shows
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How long does a copyright last?
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If copyright is created by individual person, then it lasts for the lifetime of the author plus 70 years
If corporation owns copyright, then it lasts 95 years from date of first publication; or 120 years from date of first creation
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Three requirements for a Copyright
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Must be original- some new contribution you're bringing to the table
Must be fixed in a tangible medium- has to be recorded somehow
Must show creativity
-You get copyright protection the second it is recorded
-You don't have to apply to the government every time you write something that you want copyright protection
-If someone copies your work, you have to register w/ the gov & then sue them (for copyright infringement)
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Fair use
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Exception allowing copying for criticism, comment, news reporting, teaching, scholarship, or research, or parody
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4 factors of Fair Use
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1) Purpose in character of fair use- Why are you using this work?
2) What is the nature of the original copyrighted work?
3) How much are you using it?
4) What is the effect going to be on the market for the original work?Are people going to buy your product instead of the original?
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Digital Millennium Copyright Act
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It's still illegal to copy someone's work without permission
If you violate it's up to 10 years in jail
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