CH 08: Intellectual Property Rights (Exam 2)
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274 Terms
What is intellectual property?
Intangible property created through human intellectual or creative processes.
What constitutional provision authorizes federal patent and copyright laws?
Article I, Section 8.
Why does the Constitution protect intellectual property?
To promote progress in science and useful arts.
What four types of intellectual property are covered?
Trademarks, patents, copyrights, trade secrets.
What do trademarks protect?
Brand identity and the source of goods.
What do patents protect?
Qualifying inventions, designs, and processes.
What does copyright protect?
Original creative expression.
What do trade secrets protect?
Valuable confidential business information.
What is the main violation involving trademarks?
Confusing use or dilution.
What is the main violation involving patents?
Unauthorized use of a patented invention.
What is the main violation involving copyright?
Unauthorized copying or exploitation of protected expression.
What is the main violation involving trade secrets?
Improper acquisition, use, or disclosure.
How are trademark rights generally acquired?
Through use; registration provides additional protection.
How are patent rights acquired?
By application and government approval.
When does copyright protection generally arise?
Automatically when an original work is fixed.
How are trade secret rights maintained?
By keeping qualifying information secret.
How long can trademarks remain protected?
Potentially indefinitely with continued qualifying protection.
How long do utility patents generally last?
20 years from filing.
How long do qualifying modern design patents generally last?
14 years from grant.
How long does ordinary individual copyright generally last?
Author's life plus 70 years.
How long can trade secrets remain protected?
As long as qualifying secrecy is maintained.
Which intellectual property types generally require confidentiality?
Trade secrets.
Which intellectual property right generally requires government approval?
Patents.
Which intellectual property right automatically arises upon fixation?
Copyright.
What is an intellectual property licensing agreement?
A contract permitting use of protected property.
Who is the licensor?
The owner granting permission.
Who is the licensee?
The party receiving permission.
What is a royalty?
Payment for authorized intellectual property use.
Does buying a product automatically authorize copying its logo or design?
No.
Why are intellectual property licenses important?
They permit authorized use and help avoid infringement.
What is a trademark?
A distinctive source-identifying mark, symbol, name, or device.
What is the main function of a trademark?
Identify commercial source and prevent consumer confusion.
What major federal law protects trademarks?
The Lanham Act of 1946.
What are two main purposes of the Lanham Act?
Protect trademark owners and prevent consumer confusion.
What does the Coca-Cola and Koke example teach?
Established brand identity can be protected against confusingly similar names.
Does an old brand name automatically lose protection if its original meaning changes?
No; consumers' association with the commercial source matters.
What is trademark dilution?
Weakening a famous mark's distinctiveness or harming its reputation.
What 1995 law expanded federal protection against trademark dilution?
Federal Trademark Dilution Act.
What 2006 law revised trademark dilution rules?
Trademark Dilution Revision Act.
What four elements does the outline list for trademark dilution?
Famous distinctive mark; defendant's commercial use; association; likely weakening or reputational harm.
What must the plaintiff own in a trademark dilution claim?
A famous, distinctive trademark.
What use must the defendant make in a dilution claim?
Use of another mark in commerce.
What connection must exist between the marks for dilution?
Similarity creating an association.
What harm must the association be likely to cause?
Weakened distinctiveness or reputational harm.
Must two trademarks be identical for dilution?
No; similar marks may suffice.
What does the Starbucks and Sambuck's example illustrate?
A similar name may dilute a famous trademark.
What is the central concern in trademark dilution?
Protecting a famous mark's distinctiveness or reputation.
What is the central concern in trademark infringement?
Likelihood of consumer confusion.
Dilution vs. infringement?
Dilution harms a famous mark; infringement involves likely confusion.
Where can federal trademarks be registered?
U.S. Patent and Trademark Office (USPTO).
Can trademarks also be registered at the state level?
Yes.
What two bases for federal trademark applications are listed?
Current commercial use or intent to use.
What intent-to-use timing detail does the outline mention?
Intended commercial use within six months.
What are the three core elements of trademark infringement?
Enforceable mark; unauthorized similar use; likelihood of confusion.
What must a trademark infringement plaintiff own?
Enforceable rights in a mark.
What conduct may constitute trademark infringement?
Unauthorized use of an identical or sufficiently similar mark.
What must consumers be likely to confuse in infringement?
Source, sponsorship, or affiliation.
Must a defendant intentionally copy a trademark to infringe?
No.
Does accidental similarity automatically eliminate trademark infringement liability?
No.
A shoe seller uses a nearly identical competitor logo. What claim may arise?
Trademark infringement.
What is trademark distinctiveness?
The ability of a mark to identify and distinguish a commercial source.
What are the three inherently strong trademark categories?
Fanciful, arbitrary, suggestive.
What is a fanciful trademark?
An invented word used as a brand.
What is an example of a fanciful mark?
Xerox.
What is an arbitrary trademark?
A common word used unrelatedly to its ordinary meaning.
What is an example of an arbitrary mark?
Apple for computers.
What is a suggestive trademark?
A mark that hints at a product without directly describing it.
What is an example of a suggestive mark?
Dairy Queen.
Fanciful vs. arbitrary marks?
Invented term vs. unrelated ordinary word.
Arbitrary vs. suggestive marks?
Unrelated meaning vs. hint about the product.
What is a descriptive trademark?
A term directly describing a product or characteristic.
What is secondary meaning?
Consumers associate a term with a particular commercial source.
Which terms may need secondary meaning for trademark protection?
Descriptive terms, geographic names, personal names.
Can a designer's personal name become protectable?
Yes, through acquired secondary meaning.
Are descriptive marks inherently distinctive?
No; they generally require secondary meaning.
What is a generic term?
The ordinary name of a product category.
Can generic product terms receive trademark protection for that category?
No.
Can secondary meaning make a generic term protectable?
No.
Why can't a business monopolize the word "bicycle" for bicycles?
It is a generic product name.
Descriptive vs. generic terms?
Descriptive may gain secondary meaning; generic cannot be protected.
What is a service mark?
A mark identifying the source of services.
What is a certification mark?
A mark certifying quality, materials, origin, or standards.
What is a collective mark?
A mark identifying members of an association or organization.
An airline's branding primarily illustrates what?
Service mark.
A symbol certifying product safety standards illustrates what?
Certification mark.
A professional association's member symbol illustrates what?
Collective mark.
Service vs. certification marks?
Identifies services vs. certifies standards or characteristics.
Certification vs. collective marks?
Certifies qualities vs. identifies organization membership.
What is trade dress?
A product's distinctive overall appearance or packaging.
What features can trade dress include?
Shape, colors, visual arrangement, overall presentation.
What two conditions does the outline emphasize for trade dress protection?
Distinctiveness and nonfunctionality.
What does nonfunctional mean for trade dress?
The protected feature is not merely necessary for product use.
A competitor copies distinctive cosmetic packaging, confusing buyers. What claim may arise?
Trade dress infringement.
What are counterfeit goods?
Imitation goods falsely presented as authorized trademarked products.
What does SCMGA stand for?
Stop Counterfeiting in Manufacturing Goods Act.
What conduct does the SCMGA criminalize?
Certain intentional trafficking in counterfeit goods, services, labels, or packaging.
Can unattached counterfeit labels violate the SCMGA?
Yes.
What does trafficking in fake designer labels illustrate?
Potential federal counterfeiting liability.
What is a trade name?
The name identifying a business itself.