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Chapter15-BusinessandIntellectualPropertyLaw.pptxChapter 15 Business and Intellectual Property Law
Its Legal, Ethical, and Global Environment
Marianne M. Jennings
Business
11th Ed.
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Examples
Patents
Copyrights
Trademarks
Trade Names
Trade Dress
Intangible Personal Property
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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20 Years From Filing/15 Years for Design Patent
Exclusive Rights to Use and Profits
Must Be Non-obvious, Novel, and Useful
Using the Idea Without Consent Constitutes Infringement
Patents
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Remedies for Patent Infringement
Case 15.1 eBay, Inc. v. MercExchange, LLC (2006)
The issue of a permanent injunction
How do we balance interest in protecting property rights without depriving the world of new developments and technologies?
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©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Protect Authors of Books, Magazine Articles, Plays, Movies, Songs, Dances, Photographs
Protects Against Vicarious Infringement
Third parties who facilitate infringement
Copyrights
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Copyrights
Case 15.2 Sony BMG Music Entertainment v. Tenebaum (2011)
What happens if you are warned against facilitating infringement or are infringing and don’t stop?
What is the school’s liability for use of its server?
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©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
Copyrights
Runs For Lifetime of Author Plus Seventy Years
120 Years From Creation or 95 Years From Publication, Whichever is Shorter, if Company Holds Rights
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©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Federal Statutes
Sonny Bono Copyright Extension Act
Digital Millennium Copyright Act
Computer Software Copyright Act of 1980
Copyrights
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Copyrights
Works Automatically Copyrighted But No Suits Can be Filed Until the Copyright Office is Given a Copy
Damages Include Profits, Costs, Attorney’s Fees
Fair Use is Permitted − Short Quotes; Research Copies, Criticism, Commentary and Parody
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Campbell v. Acuff-Rose Music, Inc. (1994)
Parody as art and expression
Excessive use is not necessarily a bar to fair use standard
Case 15.3 Louis Vuitton Malletier v. My Other Bag, Inc. (2016)
Product parodies – increase brand demand
Is Parody Fair Use?
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Words, Pictures, Designs, or Symbols Used to Identify a Product
Lanham Act of 1946 and Subsequent Amendments Provide Protection
Must Be Unique and Non-generic
Holder Must Maintain Unique Nature
Recent Changes Allow Registration Prior to Use of the Trademark
Trademarks
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Federal Trademark Dilution Act (an Amendment to the Lanham Act)
Passed in 1996
Protects against dilution of trademarks and includes both profit and non-profit uses
Trademark Dilution
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Trademark Infringement
Case 15.4 Beastie Boys v. Monster Energy Company (2015)
Was there authorization for use?
Was it fair use?
What lessons should businesses learn from this experience?
Issues with trademark offensiveness
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Colors, Shapes, and Designs Associated With a Product
Allowing their use is likely to create confusion
Consumer surveys are used to establish whether consumers will be misled
Penalties for Infringement
Civil suits
Criminal penalties
Trade Dress
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Infringement and the Web
Cyber Infringement
Federal Trademark Dilution Act
Applies to Internet
Self-enforcing
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Intellectual Property Rights
| TYPE OF INTELLECTUAL PROPERTY | TRADENARKS | COPYRIGHTS | PATENTS | TRADE SECRETS |
| Protection Applicable standard Where to apply Duration | Words, names, symbols, or devices used to identify a product or service Identifies and distinguishes a product or service Patent and Trademark Office Indefinite so long as it continues to be used | Original creative works of authorship, such as writings, movies, records, and computer software Original creative works in writing or another format Register of Copyrights Life of author plus 70 years; corporate is 120 years from creation or 95 years from publication of the work | Utility, design, and plant patents New and nonobvious advances in the art Patent and Trademark Office Utility and plant patents, 20 years from date of application; design patents, 15 years | Advantageous formulas, devices, or compilation of information Not readily ascertainable, not disclosed to the public No public registration necessary Indefinite so long as secret is not disclosed to public |
Click to edit Master text styles
Second level
Third level
Fourth level
Fifth level
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
Trade Secrets
Customer Lists, Customer Information, Data Processed a Certain Way
Uniform Trade Secrets Act
Protects employers from having former employees take trade secrets to new employer
Industrial Espionage Act
Makes it a federal crime to transfer trade secrets to another
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©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Patent Protection
Some countries require opposition proceedings for defense of the patent
Some countries impose working requirements
International I.P. Issues
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Trademark Protection
Name, symbol, mark, letter, word or figure
Must be registered in United States and other countries for full protection
Protects the goodwill of the firm
Common law countries establish trademark through establishing use and recognition
Now in United States you can register a trademark before you begin using it
International Trademark
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Trademark Protection
In 1996, EU opened a centralized office for Trademark registration for member states
Provides a one-step registration for all EU countries
1891 Madrid Agreement provides for international registry of trademarks
Effective in all member countries for five years
1929 Pan American Convention provides protection for registered trademarks in all member countries
International Trademark
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Trademark Protection
Knock-off goods: goods carrying trademarks that are not produced by the trademark holder
Gray market goods: actual trademark goods that are sold without authorization of trademark holder
International Trademark
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Copyrights
Berne convention membership: registration in one is registration in all
Will be part of WIPO
Simultaneous publication in member country is protected
International standards vary
China’s software piracy
China is on trade watch list because so much software is copied
International Trademark
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Product Disparagement: Defamation for Products/Businesses
Elements
Statement about a business’ reputation, honesty, or integrity that is untrue
Publication
Statement is directed at business with intent to injure
Damages
Enforcing Business Rights
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Case 15.5 Bose Corporation v. Consumers Union of the United States, Inc. (1984)
Why is Malice an important part of the case?
What classes of speech are excepted from First Amendment protection?
Enforcing Business Rights
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Palming Off
Company sells product by leading buyers to believe the product is something else
Examples: Fake Rolex watches; Cabbage Patch dolls
Plaintiff must establish that confusion is likely
Enforcing Business Rights
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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Misappropriation
Protects business trade secrets such as the customer list
Some theft, espionage or bribery must be used to obtain secret information
Enforcing Business Rights
©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.
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