Wendy Lewis Only

Computer Forensics: Investigating Network Intrusions and Cybercrime, 2nd Edition

Chapter 9

Investigating Trademark and Copyright Infringement

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Objectives

After completing this chapter, you should be able to:

• Understand trademarks and their characteristics
• Understand service marks and trade dress
• Recognize and investigate trademark infringement
• Understand copyright
• Investigate copyright status
• Understand how copyrights are enforced

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Objectives

After completing this chapter, you should be able to (cont’d):

• Understand plagiarism
• Use plagiarism detection tools
• Understand patent infringement
• Understand domain name infringement
• Investigate intellectual property theft
• Understand digital rights management

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Introduction to Investigating Trademark and Copyright Infringement

• This chapter discusses:
• Copyrights
• Trademarks
• Patents
• What constitutes infringement
• How infringement can be investigated

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Trademarks

• Trademark
• Word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods of one party from those of others
• Three types of trademarks:
• Service mark
• Collective mark
• Certification mark

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Trademark Eligibility and Benefits of Registering It

• To own a trademark, the individual or business unit must file a trademark application form at the USPTO
• Application form must include:
• Applicant’s name
• Applicant’s address for correspondence
• A depiction of the mark
• A list of the goods or services provided
• The application filing fee

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Trademark Eligibility and Benefits of Registering It

• Trademark provides several benefits, including:
• Protection of an organization’s name and logo
• Exclusive rights of the mark and protection against trademark infringement
• More visibility of the product
• Inclusion in the trademark search database
• The ability to, in the event of trademark infringement, ask the infringer to pay for damages and the attorneys’ fees
• A base for filing the registration for that particular trademark in a foreign country

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Service Mark and Trade Dress

• Trademark differentiates products of the same trade
• Service mark differentiates services of the same trade
• Trade dress
• Distinctive packaging of a product that differentiates it from other products of the same trade
• Elements of trade dress do not affect the way in which the product is used
• There is no distinction between trade dress and trademark

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Trademark Infringement

• Infringement
• Encroachment on another’s right or privilege
• In the legal field, this term is often used when referring to intellectual property rights, such as patents, copyrights, and trademarks
• Trademark Act of 1946 section 1114 and 1125 specify trademark infringement

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Monitoring Trademark Infringements

• Guidelines:
• Check whether the infringement has been done by a distributor, employee, or customer
• Check any third party who is involved in the infringement process
• Ask for government authorities to identify a problem in third-party trademark application filings and domain name registrations
• Stay up to date with news, articles, and consumers’ comments

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Monitoring Trademark Infringements

• Guidelines (cont’d):
• Analyze infringement with the use of search engines
• Make use of trademark infringement monitoring services

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Key Considerations Before Investigating Trademark Infringements

• Before investigating trademark infringements:
• Check if the trademark owner has registered or applied for registration in the country where the infringement has occurred
• Check if the country is a member of the Paris Convention or the Madrid Protocol
• Check the laws addressing this kind of infringement
• Look for availability of adequate and strong enforcement mechanisms
• Check whether the trademark is in use in the relevant country or is vulnerable to cancellation

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Steps for Investigating Trademark Infringements

• Follow these steps:
• Check the type of infringement
• Investigate the infringement
• Search for any article or advertisement related to the issue that was published in a newspaper or magazine
• Obtain civil, criminal, and family background on the business or its owners
• Document the intellectual property of the business
• Investigate the history of the registration and license for filing in court

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Steps for Investigating Trademark Infringements

• Follow these steps (cont’d):
• Check conversations with neighboring businesses or residents
• Document pending changes that are noted during the investigation
• Document and investigate new locations
• Keep an updated record of changes in promotional programs to present as evidence in court
• Monitor changes after the proceedings in court

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Copyright

• Copyright
• A form of protection provided to the authors of ‘original works of authorship’ including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished
• A copyright notice for visually perceptible copies should have the word “Copyright” followed by the symbol ©, the published date, and the owner
• Works published before March 1989 require a valid copyright notice in order to be protected under the laws governing copyright

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Investigating Copyright Status

• Three basic ways:
• Examine the copy of the work to find elements that need to be included in the copyright notice
• Search the database of the U.S. Copyright Office (http://www.copyright.gov/records)
• Approach the U.S. Copyright Office to do a search for the requested category

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How Long Does a Copyright Last?

• Duration of a copyright is different for joint works, anonymous works, works under pseudonyms, and works-for-hire
• Copyrights for works that are published after 1977
• Valid for the life span of the author plus another 70 years
• Works published before 1923 in the United States are in the public domain
• Copyrights for works published between 1923 and 1977 have a validity of 95 years from the date of first publication

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How Long Does a Copyright Last?

• Joint works
• Works done by two or more authors
• Validity of the copyright is until the death of the last surviving author of that particular work plus 70 years
• Copyright for anonymous, pseudonymous, or made-for-hire works
• Lasts for the shorter of a period of 95 years from the year when the work was published or for a period of 120 years from the year when the work was created
• Copyrights for works-for-hire can be renewed and extended for a term of 67 years by owner request

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U.S. Copyright Office

• Objectives of the U.S. Copyright Office:
• To govern copyright law
• To create and maintain the public record
• To impart technical support to Congress
• To offer information service to the public
• To serve as a resource to international and domestic communities
• To provide support to the Library of Congress

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How Are Copyrights Enforced?

• Uruguay Round Agreements Act (URAA)
• Signed by President Clinton on December 8, 1994
• Created the Notice of Intent to Enforce (NIE). According to URAA
• Owner of a restored work should notify any reliance parties if there is a plan to enforce copyrights for the particular work
• Reliance party
• Individual or business who used the work when the status of the work was in the public domain, prior to the URAA agreement

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Plagiarism

• Plagiarism
• When someone takes someone else’s words or ideas and presents them as his or her own
• Paper mills
• Web sites that provide students with research works, essays, and so on
• Types of plagiarism
• Sources not cited: ghostwriting, poor masking, photocopying, potlucking, laziness, self-plagiarizing
• Sources cited: omitting or misattributing source, perfect paraphrasing

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Plagiarism

• Steps for plagiarism prevention:
• Know in detail the types of plagiarism
• Understand facts and myths about plagiarism
• Cite the source, if information is directly taken from it
• Quote the information if it cannot be reworded
• Learn to paraphrase, as it avoids plagiarism to an extent
• Be aware of detection tools
• Be aware of policies and procedures
• Be aware of legal penalties

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Plagiarism

• Plagiarism detection factors:
• Change of vocabulary
• Incoherent text
• Punctuation
• Dependence on certain words and phrases
• Amount of similarity between texts
• Long sequences of common text
• Similarity in the order of text
• Frequency of words
• Common spelling mistakes

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Plagiarism

• Plagiarism detection factors (cont’d):
• Distribution of words
• Syntactic structure of the text
• Preference for the use of long or short sentences
• Readability of written text
• Inadequate references

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Plagiarism

• Plagiarism Detection Tools
• Three categories:
• Tools to detect plagiarism in text
• Tools to detect plagiarism in source code
• Tools that assist in the process of data collection
• Tool: Turnitin
• Online tool primarily for educators and students
• Tool: Stanford Copy Analysis Mechanism (SCAM)
• Word-based scheme designed for detecting plagiarism, copies, extracts, and strongly similar documents in digital libraries

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Plagiarism

• Tool: JPlag
• Detects software plagiarism by identifying similarities between multiple sets of code files
• Tool: SIM
• Used to detect the similarity between two computer programs
• Examines the correctness, style, and uniqueness of the program

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Plagiarism

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Figure 9-1 SIM compares computer programs

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Plagiarism

• Tool: SPlaT
• Checks documents for any similarities between them
• Functions in four modes:
• Web spider mode
• Reviewer’s workbench mode
• Author mode
• Local search
• Tool: Sherlock
• A command-line program that finds similarities between textual documents

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Plagiarism

• Tool: Urkund
• Checks documents against Web pages, published material, and other documents
• Tool: SafeAssign by Blackboard
• Used to prevent plagiarism and create opportunities to help students identify how to properly attribute sources rather than paraphrase
• Tool: EVE2
• Determines if information is plagiarized from the World Wide Web

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Plagiarism

• Tool: WCopyfind
• Extracts the text portions of a collection of document files
• Tool: iThenticate
• Compares documents to a publications database comprising more than 10,000 major newspapers
• Tool: Glatt
• Glatt Plagiarism Screening Program (GPSP) is a comprehensive computer software program specifically designed for detecting plagiarism

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Plagiarism

• Tool: Forensic Linguistics Institute
• Current umbrella entity serving as the research, internship, and special projects arm of the Programs in Linguistics: Forensics Linguistics at Hofstra University

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Patent

• Patent
• A property right granted to the inventor by the USPTO to keep others from making, using, or selling the invention without authorization
• Effective for up to 20 years from the date it is filed
• According to patent law, a patent is granted on the new and unique article
• Types of patents:
• Utility patents
• Design patents
• Plant patents

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Patent Infringement

• Patent infringement
• Unauthorized making, using, offering to sell, selling or importing into the United States any patented invention
• Infringement can be classified as:
• Direct infringement
• Indirect infringement
• Contributory infringement

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Patent Infringement

• Resolving patent infringement process involves:
• Analyzing the claims by going through all patented documents
• Verifying the claim for its authenticity

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Patent Search

• Seven-step strategy:
• Index to the U.S. Patent Classification
• Manual of Classification
• Classification Definitions
• Browse Patent Titles and Abstracts
• Retrieve Subclass Listing
• Official Gazette—Patent Section
• Complete Patent Document

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Tool: http://www.ip.com

• IP.com Prior Art Database
• Provides companies with a way to publish their innovations in a publicly searchable, library-indexed collection of prior art

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Domain Name Infringement

• Anyone can register a domain name
• If it conflicts with an existing trademark, it constitutes domain name infringement
• Responsibility lies with the domain name registrant to comply with trademark laws
• Domain name infringement can be avoided
• Check whether trademark is infringing upon another’s trademark before registering
• Consult an attorney familiar with the Internet, trademarks, and related laws

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How to Check for Domain Name Infringement

• Follow these five steps:
• Use search engines such as Google
• Search Whois.net to find out if any other businesses contain text identical to the desired domain name
• Examine the Trademark Electronic Search System (TESS)
• Engage an efficient search firm to do a national trademark, service mark, and domain name search
• Appoint a trademark attorney to perform all activities described in the above steps

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Intellectual Property

• Intellectual property
• Product of intellect that includes copyrights and trademarks for commercial use
• Protected through various copyright, trademark, and patent laws
• Broadly classified into two types:
• Copyright
• Industrial property

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Investigating Intellectual Property Theft

• Property theft includes the theft of the following:
• Unregistered trade secrets
• Copyrighted, patented, or registered works
• Trademark violations
• Confidential proposals and work papers
• Technical notes
• Strategic business planning
• Gray-market and illegal distributions
• Counterfeiting
• Unauthorized product diversions
• Trade names or partials

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Investigating Intellectual Property Theft

• Steps for investigating intellectual property theft:
• Check the type of theft
• Look for clues that indicate theft of intellectual property
• Search and find the source of the theft
• Use detection tools or various plagiarism detection tools to find the source
• Check for unauthorized sharing of software
• Document all the information for further reference

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Digital Rights Management (DRM)

• Digital rights management (DRM)
• Technology used by manufacturers, publishers, and copyright holders to limit the usage of digital devices
• DRM involves the following:
• Users pay for the content
• Content provider or ISP takes the billing list from the DRM center and sends authorized content
• Payment gateway takes payment requests from the DRM center
• DRM center takes content requests from the user after payment approval

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Digital Rights Management (DRM)

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Figure 9-2 DRM allows the user to use protected content

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Tools

• Windows Media Digital Rights Management
• A DRM solution included with Windows
• Haihaisoft Media DRM Platform
• Enables the secure deployment of digital audio and video media
• LockLizard
• A document security and copy-protection program from PDF files, Flash files, e-books, and Web-based content

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Tools

• IntelliProtector
• A software activation service with a Web-based control panel that helps reduce a form of piracy known as casual copying
• Casual copying is when people share software in a way that infringes on the software’s end-user license agreement (EULA)

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U.S. Laws for Trademarks and Copyright

• The following sections discuss U.S. laws concerning trademarks and copyright

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The Digital Millennium Copyright Act (DMCA) of 1998

• Act was signed into law and passed on October 28, 1998, by President Clinton
• Subdivided into five titles:
• WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998
• Online Copyright Infringement Liability Limitation Act
• Computer Maintenance Competition Assurance Act
• Miscellaneous provisions
• Vessel Hull Design Protection Act

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The Lanham (Trademark) Act (15 USC § § 1051-1127)

• First passed on July 5, 1946
• Signed into law by President Harry Truman
• Concerns activities like trademark infringement, trademark dilution, and false advertising
• Subdivided into four chapters
• Doctrine of “Fair Use”
• Mentioned in Section 107 of the Copyright Law
• Result of a number of court decisions over the years

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The Lanham (Trademark) Act (15 USC § § 1051-1127)

• Copyright violation can be investigated in the following ways:
• Explanations of parties and third persons
• Testimonial evidences
• Written and material evidence
• Audio and video records
• Conclusions of experts
• Establish, at least approximately, the volume of the obtained revenue from the violation of copyright and adjacent rights

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Online Copyright Infringement Liability Limitation Act

• Sec. 512. deals with limitations on liability relating to material online
• Contains the following sections:
• Limitation
• Protection of Privacy
• Limitation based upon removing or disabling access to infringing material
• Other defenses not affected
• Misrepresentations

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Indian Laws for Trademarks and Copyright

• This section covers:
• The Patents (Amendment) Act, 1999
• Trade Marks Act, 1999

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The Patents (Amendment) Act, 1999

• Act may be called the Patents (Amendment) Act, 1999
• Shall be deemed to have come into force on the 1st day of January, 1995

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Trade Marks Act, 1999

• Act was signed into law and was passed on December 23, 1999, by the Indian parliament
• Law repealed and replaced the Trade and Merchandise Marks Act
• Law provides the registration of trademarks relating to goods and services

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Japanese Laws for Trademarks and Copyright

• This section covers:
• Trademark Law
• Copyright Management Business Law (4.2.2.3 of 2000)

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Trademark Law

• Promulgated in Japan on June 12, 1996
• Entered into effect on April 1, 1997
• Some principal changes include:
• Three-dimensional trademarks consisting of the shape of goods or their packaging may be registered
• Collective trademarks may be registered
• Associated trademarks registered or pending on April 1, 1997, are deemed to be independent trademarks
• No longer necessary to publish a Notice of Assignment of a registered trademark

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Copyright Management Business Law (4.2.2.3 of 2000)

• Enacted in November 2000
• Main purpose: to facilitate the establishment of new copyright management businesses in order to respond to the development of digital technologies and communication networks

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Australian Laws for Trademarks and Copyright

• The Trade Marks Act 1995
• Specifies when:
• A person is guilty of an offense
• A person falsifies a registered trademark
• Also specifies the penalty for offense
• The Copyright Act of 1968: Section 132
• This law specifies offenses relating to infringing copies

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U.K. Laws for Trademarks and Copyright

• This section covers:
• The Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002
• Trademarks Act 1994 (TMA)

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The Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002

• Signed into law and passed on July 24, 2002
• Amends the criminal provisions in intellectual property law
• Three main powers:
• Increases the penalties for the offense of copyright theft to 10 years to match trademark law so it is no longer a low risk option for organized crime
• Strengthens search warrant provisions to make it easier to expose counterfeiting and piracy
• Gives greater powers to allow rights to owners to obtain forfeiture of infringing material to reduce the current potential return for criminals

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Trademarks Act 1994 (TMA)

• Act was signed into law and passed on July 1, 1995
• Law amends the registration of trademarks and protection of registered trademarks

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Chinese Laws for Trademarks and Copyrights

• This section covers:
• Copyright Law of People’s Republic of China (Amendments on October 27, 2001)
• Trademark Law of the People’s Republic of China (Amendments on October 27, 2001)

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Copyright Law of People’s Republic of China (Amendments on October 27, 2001)

• Article 1
• The purpose of protecting the copyright of authors in their literary, artistic, and scientific works and the copyright-related rights and interests
• Article 2
• Works of Chinese citizens, legal entities, or other organizations, whether published or not, shall enjoy copyright in accordance with this Law

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Trademark Law of the People’s Republic of China (Amendments on October 27, 2001)

• Law was enacted to:
• Improve the administration of trademarks
• Protect the exclusive right to use trademarks
• Encourage producers and operators to:
• Guarantee the quality of their goods and services
• Maintain the reputation of their trademarks to protect the interests of consumers, producers, and operators and promote the development of the socialist market economy

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Canadian Laws for Trademarks and Copyrights

• Copyright Act (R.S., 1985, c. C-42)
• Grants protection to an architectural work, artistic work, Berne convention country, commission, book, broadcaster, choreographic work, cinematographic work, collective society, work, or combination of these
• Trademark Law
• States that if a mark is used by a person as a trademark, it shall not be held invalid merely on the ground that the person or a predecessor in title uses it or has used it for any other of those purposes or in any other of those manners

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South African Laws for Trademarks and Copyright

• Trademarks Act 194 of 1993
• Provides the registration of trademarks, certification trademarks, and collective trademarks
• Copyright Act of 1978
• Regulates copyright and provides for matters incidental thereto
• Patents Act No. 57 of 1978
• Provides for the registration and granting of letters patent for inventions and for matters connected therewith

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South Korean Laws for Trademarks and Copyright

• Copyright Law Act No. 3916
• Protects the rights of authors and the rights neighboring on them
• Promotes fair use of works in order to contribute to the improvement and development of culture
• Industrial Design Protection Act
• Encourage the creation of designs by ensuring their protection and utilization so as to contribute to the development of industry

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Belgian Laws for Trademarks and Copyright

• Copyright Law, 30/06/1994
• Protects literary and artistic works from unauthorized usage
• Trademark Law, 30/06/1969
• Approves the Benelux Convention Concerning Trademarks and Annex, signed in Brussels on March 19, 1962

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Hong Kong Laws for Intellectual Property

• Article 139 of the Basic Law
• States that government shall formulate policies on science and technology and protect achievements in scientific research
• Article 140 of the Basic Law
• Protects the rights of authors in their literary and artistic creations

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Summary

• A trademark is a word, phrase, symbol, or design that identifies and distinguishes the goods of one party from those of others
• Copyright is a form of protection provided to the owners of original works
• Plagiarism is using others’ ideas and words without clearly acknowledging the source of that information

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Summary

• According to the USPTO, “A patent is a property right granted to the inventor by the USPTO to keep others from making, using, or selling the invention without authorization”
• Intellectual property is a product of intellect that includes copyrights and trademarks for commercial use
• DRM is access control technology used by manufacturers, publishers, and copyright holders to limit the usage of digital devices or information

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