Are Small Businesses Being “Squeezed Out” of

ECommerce

By Pam Cote

Self Assessment of IP Terminology

Some common terms:Copyright

Patent

Trademark

Self Assessment of IP Terminology

1.

2. “Four score and seven years ago our fathers brought forth upon this continent a new nation, …”

Abraham Lincoln

Self assessment cont.

3.

4.

The number-one baked beans in America!Our Baked Beans are slow cooked to perfection, using only the finest ingredients found in our secret family recipe.

Self assessment cont.

5. Non-disclosure agreement

6. Calvin Klein®

7. Anti-dilution

8. George W. Bush

9. Good Housekeeping Seal of Approval

10. Jesse “The Body” Ventura

Self assessment cont.

11. TGI Fridays

Self assessment cont.

12. “Desperado, why don’t you come to your senses?You been out ridin’ fences for so long nowOh, you’re a hard oneI know that you got your reasonsThese things that are pleasin’ youCan hurt you somehow”

 From The Eagles Album, “Hell Freezes Over” Desperado Copyright © 1973 Words & Music By Don Henley And Glenn Frey

Self assessment cont

13. Book title: The Chamber of Secrets

14. Galliano

15. Claritin

Self assessment cont.

16. Sound of a Harley Davidson motorcycle

17. 3-note chord in association with NBC.

18. Roundup Ready Soybeans

19. Olympic Games

20. Velcro

21. ILGWU

Self assessment cont.

22.

This is a story…

About Tim Beere and Cathy Brand Beere De Brand Fine Chocolates Their web site And a patent held by PanIP

World wide reach with www

Set up shop on the internet Assume larger audience Subject to laws

www.debrand.com

What is a Patent

New and Useful Three major types

Utility Design Plant

Utility Patents

Processes Machines Compositions of matter Articles of manufacture Improvements

Enter PanIP

What is PanIP? What is the patent?

Summary History

Submarine patents

Status of DeBrand vs PanIP

Coalition of businesses being sued www.youmaybenext.com “This is just wrong”, Tim Beere Jonathan Hangartner, San Diego IP

attorney DeBeer sued for defamation Errors by US Patent Office

Prior Art

“…the entire body of knowledge from the beginning of time to the present”, Intellectual Properties Watchdog

Back to submarine patents “Rules for determining obviousness are

difficult and perplexing…”, Andrew Hamm Amazon.com, one click online shopping

What if you hold a patent?

The owner has the right to prevent others from making Using Selling And Importing

20 years from date of filing Up to you to defend your own rights

How do you protect yourself?

Consider Why reinvent the wheel? Liability insurance

If you receive a patent infringement notice, you must respond

Stay in touch with IP law

Related Issues

Devine – shopping carts ACTV and HyperTV – hyperlinking Harrington - software for the universal

shopping cart system Tokyo-based International Scientific

Company - fee-charging system MercExchange LLC - methods of creating and

searching online marketplaces and auctions

Answers to self assessment

1. Trademark 2. None, expired copyright 3. Trademark 4. Trade secret, also the phrase “The

number-one baked beans in America!” may be trademarked. Examples of TM’d phrases are “Just Do It”, “Quality is Job 1”

5. Trade secret (technically, an NDA can relate to any form of IP or other information)

6. Trade mark only because it acquired secondary meaning (“famous” has a different impact in TM law, and relates to dilution)

7. Trademark (McSleep, Toys R Us) Remember that dilution only applies to “famous” marks.

8. None, terms only apply to commerce

9. Certification mark. Symbol used by an organization to vouch for products.

10. Trademark

11. Trade dress 12. Copyright 13. Book titles are not automatically

protected by copyright (But protection is available under the Lanham Act if the title is being used in a deceptive way.)

14. Bottle is considered trade dress because it is distinctive packaging the name is TM’d

15. Expired patent, By the time it reached the market in 1993, it had 9 years left on the patent (for the active ingredient; other patents covered the formulation and perhaps method of treatment).

“Claritin” is also a trademark, and is protected as such. (Another complexity is regulatory exclusivity, where the government will not approve another product for a certain amount of time, regardless of whether there is patent protection or not. The active ingredient name (compendial name – loratadine) is not trademarked or trademark-able.)

16. While the examining office of the PTO originally allowed the mark to be registered, H-D abandoned the mark in September of 2000 as a result of litigation aimed at opposing the mark. So, it is not correct to state that this is trademarked (although one could argue that it is trademark-able.)

17. Other sounds have been trademarked and maintained successfully, such as the 3-note chord in association with NBC.

18. Plant patent, (and “Roundup Ready” has probably been TM’d)

19. Service mark

20. Trademark for company, and also hook and loop fastener patent 4,775,310 (expired)

21. Collective mark used by members of an association

22. None, possibly public domain

The End

…but not the end for DeBrand Chocolates and the coalition.