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MGMT 311 > Chapter 8 > Flashcards

Chapter 8 Flashcards

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1
Q

Intellectual Property

A

The work of the human mind which consists of the products that result from intellectual and creative processes

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2
Q

What are types of intellectual properties?

A
  1. Trademarks
  2. Patents
  3. Copyrights
  4. Trade Secrets
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3
Q

Examples of intellect and creativity that can become intellectual properties:

A

Names, logos, artwork, motifs, source code, recipes, architectual designs

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4
Q

Non-examples of intellectual properties

A

Land, structure, car, jetski

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5
Q

Licensing Agreements

A

To avoid a lawsuit for infringement on an intellectual property a user of another’s property can enter into a contract to receive rights to use the property and in exchange pay a royalty (the proper way to use someone else’s intellectual property)

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6
Q

Trademarks

A

A 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 trademark is a source indicator.

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7
Q

Statutory Protection of Trademarks

A

The Lanham Trademark Act of 1946 and as amended in 1995 by the Federal Trademark Dilution Act
1. Trademark Dilution Revision Act
2. Marks do NOT need to be identical

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8
Q

Trademark Dilution Revision Act (2006)
Plaintiff must prove:

A
  1. Plaintiff owns a FAMOUS mark
  2. Defendant has begun using a mark in commerce that allegedly is diluting the famous mark
  3. Similarity gives rise to an association between the marks
  4. Association is likely to impair the distinctiveness of the famous mark or harm its reputation
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9
Q

Starbucks v Lundberg

A

High degree of similarity between marks of “Sambucks” and Starbucks. The use of the similar mark from Lundberg reduced the value of the famous mark (Starbucks)

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10
Q

Trademark Registration

A

Trademarks may be registered with the state or federal government. To register federally, a person must file an application with the U.S. Patent and Trademark Office in Washington, D.C.

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11
Q

A trademark can be registered if:

A
  1. It is currently in commerce or
  2. The applicant intends to put it into commerce within 6 months
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12
Q

(R)

A

Federal Trademark Registration

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13
Q

TM

A

State Trademark Registration

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14
Q

Trademark Infringement

A

Whenever a trademark is copied to a substantial degree or used in its entirety by another, intentionally or unintentionally, the trademark has been infringed

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15
Q

Distinctiveness of Mark

A

A trademark must be sufficiently distinct to enable consumers to identify the manufacturer of the goods easily and to distinguish between those goods and competing products

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16
Q

Strong Marks

A
  1. Fanciful Trademarks
  2. Arbitrary Trademarks
  3. Suggestive Trademarks
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17
Q

Fanciful Trademarks

A

Include invented words
(Kodak, Google, Zerox)

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18
Q

Arbitrary Trademarks

A

Those that use common words in an uncommon way that is non-descriptive
(Dutchboy paint)

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19
Q

Suggestive Trademarks

A

Imply something about a product without directly describing the product
(Dairy Queen, Quicken, BlueRay)

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20
Q

Secondary Meaning - Distinctiveness of Mark

A

Descriptive terms, geographic terms, and personal names are not inherently distinctive and do not receive protection under the law until they acquire a secondary meaning (Ex: Calvin Klein)

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21
Q

Generic Terms - Distinctiveness of Mark

A

Like bicycle and computer do not receive protection even if they acquire a secondary meaning

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22
Q

Service Mark

A

A mark used in the sale or the advertising of services, such as to distinguishing the services of one person from the services of others. Titles, character names, and other distinctive features of radio and television programs may be registered as service marks.

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23
Q

Certification Mark

A

A mark used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or accuracy of the owner’s goods or services. (Ex: “Good Housekeeping Seal of Approval”)

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24
Q

Collective Mark

A

A mark used by members of a cooperative, association, or other organization to certify the region, materials, mode of manufacture, quality, or accuracy of the specific goods or services. (Ex: labor union marks)

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25
Trade Dress
The image and overall appearance of a product (Ex: distinctive decor, menu, layout, style of service, ambiance) - Subject to the same protection as trademarks
26
Counterfeit Goods
Imitated trademark goods
27
Trade Names
A term that is used to indicate part or all of the business's name and that is directly related to the business's reputation and goodwill. - Protected under the common law and under trademark law
28
Licensing
Contract permitting the use of a trademark, copyright, patent, or trade secret for certain purposes
29
Pros of Trademarks
1. Inexpensive 2. Longest Lasting (Ex: McDonalds and Walt Disney)
30
Patents
A grant from the government that gives an inventor the right to exclude others from making, using, and selling an: 1. Invention for a period of 20 years 2. Design for a period of 14 years 3. Business Process for a period of 20 years
31
Since 2011, the protections begin for patents when..
The patent application is filed NOT when the patent was issued
32
"Race to the Patent Office"
First person to file the patent application receives the patent protection
33
Challenges to a patent on any grounds are prohibited for...
The first 9 months
34
Can you patent an idea?
YES No monetary gain is necessary, they can sue you for even just using it without permission
35
What is Patentable?
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore subject to the conditions and requirements of this title. (Anything that is novel and not obvious can be patented)
36
What is not patentable?
The laws of nature, natural phenomena, abstract ideas: including algorithms
37
Patent Infringement
If a firm makes, uses, or sells another's patented design, product, or process without the patent owner's permission, the tort of patent infringement occurs
38
Apple v. Samsung Electronics Co
Federal Trial Court in California said that 5 of Apple's Patents (Display of icons, shell, screen and button design) were infringed upon by Samsung. Appellate Court reversed because the product features in question were functional and essential to the use or purpose of the phone.
39
Do you use permanent injunction for technology?
No
40
Remedies for Patent Infringement
1. Injunction 2. Damages for royalties and lost profits 3. Attorney's fees 4. Treble damages
41
Injunction for Patents
Patent holder must prove they suffered irreparable injury and that the public interest would not be disserved by a permanent injunction
42
Treble Damages
Triple the amount of damages awarded
43
Cons of Patents
1. 20 year right to exclude others (that is relatively short) 2. Expensive (sometimes millions of dollars)
44
Copyright
An intangible property right granted by federal statute to the author or originator of literary or artistic production of a specified type. An author's exclusive right to publish, print, or sell a product of her intellect for a certain period of time.
45
Copyright Act of 1976 and Copyright Term Extension Act of 1998
Gives the author or originator the exclusive rights to their works for a specific amount of time
46
Works created after 1/1/78: Copyright Act of 1976 and Copyright Term Extension Act of 1998
Automatically given statutory copyright protection for the life of the author plus 70 years
47
Works owned by publishing houses: Copyright Act of 1976 and Copyright Term Extension Act of 1998
Are automatically given statutory copyright protection for 95 years from the date of publication or 120 years from the date of creation (whichever happens first)
48
Works by more than 1 author: Copyright Act of 1976 and Copyright Term Extension Act of 1998
Automatically given statutory copyright protection for the life of the authors plus 70 years after the death of the last surviving author
49
When the protection ends: Copyright Act of 1976 and Copyright Term Extension Act of 1998
Public Domain: when copyrights expire, protected works return to the public domain. It is a "creative commons" where the law cannot control what you do with the material you find.
50
What is an example of public domain being used?
Walt Disney used the Brother's Grimm Fairytales as a basis for his own intellectual property
51
Is copyright registration required?
NO, but it is the best proof that the intellectual property is yours is registration
52
What is the difference between trademarks and patents and copyrights?
You don't have to register copyrights. You have to register trademarks and patents.
53
Chances are if somebody created it...
Somebody owns it
54
What is protected expression?
1. A work must be "fixed in a durable medium" from which it can be perceived, reproduced, or communicated. 2. Original AND 3. Fall into one of the 8 categories
55
What are the 8 categories of protected expression?
1. Literary works 2. Musical works 3. Dramatic works 4. Pantomime/Choreography 5. Pictorial/Sculptural/Graphic work 6. Motion pictures 7. Sound recordings 8. Architectural works
56
Is it possible to copyright an idea?
NO. What is copyrightable is the particular way in which an idea is EXPRESSED
57
How should someone use copyrighted material?
Through a license agreement (contract) and royalties should be paid
58
Copyright Infringement Remedies
1. Damages 2. Injunctions
59
"Fair Use" Exception to Copyright Infringement
1. Criticism 2. Commentary 3. News reporting 4. Teaching 5. Scholarship 6. Research
60
What are the 4 statutory factors used by courts to determine on a case by case basis if the use of work is a "fair use"?
1. The purpose and character of the use 2. The nature of the copyrighted work (8 categories) 3. The amount/proportion of work used in relation to the whole work (the smaller the portion the better the argument) 4. Effect of the use on potential market (value of the market)
61
First Sale Doctrine
The copyright is controlled on the first sale. If you brought something and you resell it, you are not infringing.
62
Copyright Protection for Software
Computer code is protected by federal copyright law
63
Is plagiarism the same thing as copyright infringement?
NO
64
Why is plagiarism not the same thing as copyright infringement?
Copyright Law has an exception to Copyright Infringement called Fair Use Exception. If "Fair Use" of another's copyrighted work without the copyright owner's permission...can be proven then the use is not copyright infringement. So... If we are writing a paper for research purposes for example and fail to give credit to the authors of the resources used and quoted in the paper, that is plagiarism. But the writing of the paper using works of another which are copyrighted works is most likely considered to be fair use exception to copyright infringement and therefore not copyright infringement.
65
Pros and Cons of Copyright
- Expensive - $20 to register a copyright - Long lasting - Doesn't protect ideas - Still lots of controversy with technology
66
Trade Secrets
Protects some business processes and information that are not or cannot be patented, copyrighted, or trademarked against appropriation by competitors
67
Examples of Trade Secrets
Customer lists, plans, research and development, pricing information, marketing methods, production techniques, recipes, and generally anything that makes an individual company unique and that would have value to a competitor
68
How are trade secrets different than copyright or trademarks?
They extend to both ideas and their expression
69
Do you have to register trade secrets?
No
70
One who discloses or uses another's trade secret, without a privilege to do so, is liable to the other if:
1. He discovered the secret by improper means 2. His disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him
71
Uniform Trade Secrets Act of 1979
This uniform law was presented to the states in 1979 in an effort to reduce the unpredictability of the common law amongst the states in this area (adopted by 44 states)
72
Economic Espionage Act of 1996
Makes theft of trade secrets a federal crime
73
Confidentiality Agreements
Trade secrets must be disclosed to some persons, particularly key employees. So, businesses protect their trade secrets contractually by having all employees who use the process or information agree in their employment contracts to never divulge it.
74
Pros and Cons of Trade Secrets
- Can be the longest lived intellectual property (as long as it is a secret still) - Can be inexpensive - Can be expensive - Doesn't always work

MGMT 311 (17 decks)

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