IP Flashcards

Question

Abstract Ideas

Answer 1

Not patentable, unless there is a sufficiently concrete application of that concept to create something, novel, useful, and nonobvious.

Answer 2

IP is justified because it produces good outcomes. Some utilitarian, some economic.

Answer 3

Lockean “labor” theory (natural rights to fruits of labor) and the Kantian and Hegelian “personhood” theories (people need control over certain products of their will, personality and freedom to realize their personhood).

Answer 4

The acquisition, disclosure, or use of a trade secret by “improper means.”

Answer 5

A quasi-property right exists in published news such that appropriating the published news gathered by another for further commercial purposes constitutes unfair competition in trade.

Answer 6

Economically valuable information that is only valuable because it is a secret, and the owner tries to keep it a secret.

Answer 7

Perpetual, as long as it remains a secret.

Answer 8

Misappropriation occurred when Three D hired formed Cemen employees who knew trade secrets and used them to make a prototype of Cemen's Tech mixer.

Answer 9

There does not need to be a trespass, illegal conduct, or breach of a confidential relationship for an appropriation of trade secrets to be wrongful. The discovery of trade secrets by any improper means is wrongful and constitutes a cause of action.

Answer 10

A trade secret owner who wins a misappropriation action may obtain an injunction, compensatory damages, reasonable royalties, punitive damages, and attorney’s fees

Answer 11

Protects “original works of authorship fixed in any tangible medium of expression."

Answer 12

1. literary works 2. musical works 3. dramatic works 4. pantomimes and choreographic works 5. pictorial, graphic, and sculptural works 6. motion pictures and other audiovisual works 7. sound recordings 8. architectural

Answer 13

A work of authorship is “original” only if it is “independently created” by the author of the work and reflects some minimal degree of “creativity.”

Answer 14

To be granted copyright protection, works must be original, meaning that they entail some minimal degree of creativity.

Answer 15

Courts have universally held that copyright can only protect particular expressions of an idea, not the idea itself.

Answer 16

General ideas or themes in a work cannot be copyrighted.

Answer 17

Copyright can only protect works of authorship that are “fixed in a tangible medium of expression.” Almost any record of a work of authorship counts as fixation, no matter how ephemeral. Writing on a piece of paper, taking a photograph, and recording a sound are all fixation. But so is writing on a chalkboard or drawing in the sand.

Answer 18

The initial owners of the copyright in a work of authorship are the people who created the work, unless those people created the work for their employer, in which case the employer is the initial owner of the work. If copyright vests in multiple authors, those authors are joint owners of the work.

Answer 19

Life of the author plus 70 years

Answer 20

For the life of the last surviving author plus 70 years.

Answer 21

The Copyright Act provides that a “work made for hire” is “a work prepared by an employee within the scope of his or her employment."

Answer 22

The Supreme Court held that a person is a copyright employee if they are an employee for the purpose of federal agency law and concluded that Reid was not an employee. Accordingly, Third World America was not a work made for hire but could be a joint work.

Answer 23

95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.

Answer 24

1. Reproduction: The right to make copies of the work 2. Adaptation: The right to make derivative works based on the work. 3. Distribution: The right to distribute the work to the public. 4. Performance: The right to perform the work to the public. 5. Display: The right to display the work to the public.

Answer 25

Copyright owners can sell or license some or all of their exclusive rights in their works, essentially in any way they choose

Answer 26

The reproduction right gives copyright owners the exclusive right to create copies of their works of authorship.

Answer 27

The adaptation right gives copyright owners the exclusive right to create “derivative works” based on their works of authorship

Answer 28

The distribution right gives copyright owners the exclusive right to distribute copies of their works of authorship to the public.

Answer 29

Doctrine limits the distribution right by providing that “the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Answer 30

Provides that a person can create and distribute a sound recording of a copyrighted musical work without the permission of the copyright owner, by providing notice and paying a low statutory fee per copy distributed. Think cover songs.

Answer 31

Give copyright owners the exclusive right to perform or display their works of authorship to the public.

Answer 32

To perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.

Answer 33

A copyright owner must show “actual copying” and “improper appropriation.”

Answer 34

Defendants are liable for copyright infringement only if they actually copied the original work and are not liable if they created a similar or identical work independently. Usually uses circumstantial evidence to show the defendant had access to the original work and they are sufficiently similar to permit an inference of actual copying.

Answer 35

He's So Fine song. The court found that Harrison did not deliberately or consciously copy He’s So Fine, but still found actual copying, concluding that Harrison unconsciously copied He’s So Fine.

Answer 36

Copyright owners also must prove “improper appropriation,” by showing that the original and the copy are “substantially similar” because the defendant copied protected elements of the original. Copying a small part of a work (de minimis copying) may not be infringing, if it doesn’t make the original and the copy substantially similar. Likewise, copying an idea or expression of fact from a work may not be infringing.

Answer 37

When a fact can only be expressed in a limited number of ways, it will not be seen as copyright infringement.

Answer 38

Literal copying means copying a concrete element or particular expression from the original, creating extrinsic or “objective” similarity between the original and the copy.

Answer 39

Nonliteral copying means copying an abstract element or general quality from the original, creating intrinsic or “subjective” similarity between the original and the copy.

Answer 40

Three years for civil infringement actions, and five years for criminal infringement actions.

Answer 41

The fair use doctrine provides that certain prima facie infringing uses of copyrighted works of authorship are not actually infringing, because they are socially beneficial. Includes criticism, commentary, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Answer 42

1. Purpose and Character of the Use - Decision makers consider the uses purpose- is it for commercial or for nonprofit/educational purposes? 2. The Nature of Copyrighted Work - Some works are closer to the core of intended copyright protection than others. How creative is it? 3. Amount and Substantiality of the CR work - Is the amount and substantiality of CR used reasonably in relation to the copying's purpose? 4. The Uses Market Effects ***Most important factor*** Evaluates the impact not only on the market for the copyrighted work, but also the market for derivative works based on the copyrighted work.

Answer 43

The Supreme Court held that it could be a transformative fair use because it commented on and criticized the original. The Court also observed that while substantial copying is necessary to create a parody, a parody is not a substitute for the original.

Answer 44

If a copyright owner wins an infringement action, the court can provide an injunction, damages, or both. Also, potential recovery of attorney's fees.

Answer 45

A trademark is created when a person uses a mark in commerce in relation to goods or services, and consumers associate the mark with the source of the goods or services.

Answer 46

Indefinite

Answer 47

Federal or State Law

Answer 48

1. Fanciful: A mark that is a “neologism” with no independent meaning, such as “Kodak” for cameras or “Google” for a search engine. 2. Arbitrary: A mark that is unrelated to the product, such as “Apple” for computers or “Amazon” for an online store. 3. Suggestive: A mark that alludes to a quality of the product, such as “Coppertone” for sunscreen or “Greyhound” for a bus line. 4. Descriptive: A mark that identifies a quality of the product, such as “spearmint toothpaste” or “nylon toothbrush.” *TM eligible if secondary meaning acquired* 5. Generic: A mark that identifies the nature of the product, such as “pencil” or “paper.” *not TM eligible*

Answer 49

Yes, if they have acquired secondary meaning.

Answer 50

The visual appearance or packaging of a product or its design that signifies the source of the product to consumers.

Answer 51

Federal and state law prohibit the unauthorized use of both registered and unregistered trademarks if it is likely to cause confusion.

Answer 52

1. The strength of the plaintiff’s mark 2. The proximity or relatedness of plaintiff’s and defendant’s goods 3. The similarity of plaintiff’s and defendant’s marks 4. Evidence of actual confusion 5. Convergence of marketing channels 6. The degree of care customers are likely to use when purchasing goods of the type in question 7. The intent of the defendant in selecting the mark 8. The likelihood the parties will expand their business lines and compete with each other These factors are looked at wholistically and weighed against each other when determining if confusion is likely.

Answer 53

While the court found that Toucan Sam is a “very strong” trademark, it dismissed Kellogg’s complaint because it found no risk of consumer confusion. The court observed that Kellogg and Toucan Golf sell totally unrelated products, and their trademarks are similar only because they both consist of a drawing of a toucan.

Answer 54

The Lanham Act authorizes the owners of “famous” trademarks to sue for “dilution,” which includes “blurring” and “tarnishment.”

Answer 55

Permits the unauthorized use of a trademark when it is unlikely to cause consumer confusion.

Answer 56

A manufacturer who copies an unpatented but trademarked product can use the trademark in advertising to identify the copied product. (Nominative Use)

Answer 57

State law.

Answer 58

The right to privacy typically authorized people to prevent the disclosure of certain kinds of facts about themselves, as well as the use of their name and likeness.

Answer 59

The court specifically observed that the commercial use of a person’s name or likeness without their permission was not protected free speech.

Answer 60

Enables celebrities to license the use of their names and licenses, because they could prevent unauthorized use.

Answer 61

The court held that the players could transfer their right to privacy and referred to this transferrable right as the “right of publicity.”

Answer 62

The court held that Ford infringed Midler’s right of publicity by causing consumers to believe that Midler had performed the song used in the ad.

Answer 63

Federal Law

Answer 64

Federal Law

IP Flashcards

(90 cards)