Chapter 25

Intellectual Property

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Trade Secret Protections

• Trade secret protections are provided by state statutes and/or state common law.

• The Uniform Trade Secrets Act (UTSA) defines trade secrets as information or articles that are to be kept secret because of its particular value.

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Misappropriation

(1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means, or (2) disclosure or use of a trade secret of another without express or implied consent.

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Trademarks

• A trademark is a word, symbol, or phrase used to identify a particular seller’s products and distinguish them from other products.

• For example, the word Nike and the Nike “swoosh” symbol identify shoes made by Nike and distinguish them from others.

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Trade Dress

• Increasingly, the U.S. Patent and Trademark Office (USPTO) and courts have granted trademark protection for such trade dress-related characteristics as product shapes, colors, and scents,

• Company must prove an exclusive link to the source product in the consumer’s mind.

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Classifications of Trademarks

• Arbitrary or Fanciful

• Suggestive

• Descriptive

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Trademark Infringement

Likelihood of confusion: In order for a trademark holder to prevent another from using the holder’s mark, the holder must prove that the use of the mark by another will be likely to cause consumer confusion as to the source of the goods. Courts use the eight-factor Polaroid test to assess likelihood of confusion.

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Copyright Law

Fundamentally, in order to gain copyright protection, a work must meet a three-part test:

1) originality,

2) some degree of creativity, and

3) fixed in a durable medium.

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Copyright Protection Periods

• Sole author or originator—70 years from death

• More than one author or originator—70 years from the death of the last surviving author

• Publisher or work-for-hire-first of:

(1) 120 years from the date of creation, or

(2) 95 years from the date of publication.

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Direct Infringement

• Copyright owner can prove legal ownership of the work in question, and

• The infringer copied the work without permission.

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Defense to Infringement: Fair Use

• Purpose and Nature of the Use

• Nature of the Work

• Amount and Substantiality Used

• Market Effect

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Patents

A patent is a government-sanctioned monopoly right that allows an inventor the exclusive entitlement to make, use, license, and sell her invention for a limited period of time.

– Utility patents– Design Patents– Plant Patents

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Fundamentals of Patent Law

In order to obtain a patent, an invention must be:

• novel,

• nonobvious,

• proper subject matter for protection.

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Novelty Standard

An invention or process must be unique and original, and a patent applicant must show that no other identical invention or process exists.

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Nonobviousness Standard

Invention must be something more than that which would be obvious, in light of publicly available knowledge, to one who is skilled in the relevant field.