Intellectual Property (trademark + copyright)

Four areas of IP

• Patent

• Trade Secret

• Trademark

• Copyright

Establishing Rights in the 4 areas of IP

Patent: must apply for and be granted a patent

Trade Secret: no registration, just sign non-disclosure agreements and take security measures yourself

Trademark: submit an application to the United States patent and Trademark office

Copyright: formal registration through US Copyright office

Duration of each IP

patent: 20 years

trade Secret: until secret is exposed

Trademark: lasts indefinitely as long as you keep using it

Copyright: life of author + 70 years

IP as a negative right

the right to exclude

Why is IP so important to entrepreneurs and small businesses?

• serves as the foundation of innovation for many small start-ups

• Allows small companies to gain a competitive edge over more established firms with greater resources

What does it truly mean to protect Intellectual property?

• It is the ability to EXCLUDE others—> to get the power over your own product

Trademarks

A word, shape, color, logo, brand, font, slogan, or sound that acts as an identifier of a certain brand

Policy goal of trademark law

Consumer Protection: allows consumers to rely on trademarks to identify goods

Protecting Corporate Goodwill: keeps competitors from dominating and buying smaller companies, also incentivizes companies to invest and produce quality products applicable to their brand

What is the main thing trade marks allow for (in customers and producers)?

Source identity: consumers can identify goods and producers can cultivate a brand based off their identity

Lanham Act: what can be a trademark

Any word, name, symbol, device (sound, shape), or combination. Anything that is a source identifier can be a trademark!

What is the spectrum of distinctiveness?

Tells us the different levels of distinctiveness a brand has

List the 5 levels to the Spectrum of Distinctiveness (weak to strong)

1. Generic

2. Merely Descriptive

3. Suggestive

4. Arbitrary

5. Fanciful

Genericide

when a word gets used so often that it becomes ‘generic’ (can no longer be used as a source identifier)

Merely Descriptive

describes the characteristics of a product in the name of the brand (frosted flakes)

Suggestive

Suggests a characteristic of a product (under armour)

Arbitrary

The name has NO correlation to what the good actually is (apple iPhone)

Fanciful

a made up word/symbol that has no purpose but to be the name identifier for a certain product (adidas)

Fanciful Marks and Genericism

It is possible for fanciful names to become generic and lose its value as a source identifier (escalator, Yo-yo)

Can generic words function as a trademark?

NEVER

Which distinctiveness is protected immediately?

Suggestive, Arbitrary, and Fanciful

Which one is an acquired distinctiveness?

Descriptive

Trade Dress

Overall image and appearance of a product

Trademark Life Span

10 years from the registration date and can last indefinitely if it stays in use

Trademark Infringement + likelihood of confusion

occurs when someone uses an identical or similar mark in connection with similar products and services—> causes a likelihood of confusion to the origin of the products and services

Copyright

a legal right that gives the creator of the work ownership on how it is used and shared

Copyright Law Policy Goal

incentivizes authors and artists for the public good—> and again, the ability to exclude others

Duration Work for Hire

lasts 95 years from the date of the first publication or 120 years from its date of creation (used when there is no author—> rather more so corporations

Copyright Statute elements (3):

1. Something original

2. Works of authorship

3. Fixed in a tangible medium of expression (has to go beyond just an idea, procedure, system, concept, discovery)

original

• an independent creation with some degree of creativity

works of authorship

literary works, musical works, dramatic works, pantomimes, motion pictures, pictorial, sound recordings, architectural work

Fixation

fixed in a relatively stable and permanent embodiment, usually a natural part of the creation process, provides notice to future authors

Establishing Copyright Protection

• Registration is available but not necessary

• No application

• Copyright protection is limited

Excluded from Copyright protection

Ideas are never protected by copyright- only the expression of the idea can be protected

Spectrum of what stays in public domain and what can be copyrighted

Public: Facts, ideas, discoveries, principles

Copyright: creative original elements, like analysis and opinions

Tension in the Law

keeping building blocks of creation in the public domain while also providing an incentive for authors and artists to create new work

Fair Use

permits the unlicensed use of copy-right protected works without permission or payment