Chapter 14: Intellectual Property and Internet LawChapter 14: Intellectual Property and Internet Law

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Introduction Introduction

• Article I § 8 authorizes Congress to “secur[e] for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

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What is Intellectual PropertyWhat is Intellectual Property

• 1. Trademarks.

• 2. Patents.

• 3. Copyrights

• 4. Cyberspace I.P.

What do you think of? What do you think of?

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1. Trademarks1. Trademarks

• A trademark is a word, phrase, symbol or design, or a combination thereof, that make consumers think of a specific product or service and the originator of such a product or service.

• Examples

• Johnny Manziel hasn’t played in an NFL game yet, but he already leads the league in trademarks.

• Manziel has filed for a trademark to the term “Johnny Cleveland”. That makes 10 trademarks that Manziel’s company, JMan2 Enterprises LLC, has filed with the U.S. Patent & Trademark Office.

• Manziel’s other trademarks include “Johnny Football,” “JFF,” “ManzIIiel” and “The House That Johnny Built,” the latter a reference to the renovated stadium at Texas A&M.

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The trademark "Nike," along with the Nike "swoosh," identify the shoes made by Nike and distinguish them from shoes made by other companies

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How to be a TRADEMARKHow to be a TRADEMARK

• Must be Distinct –

• For example, the words "Exxon," "Kodak," and "Apple" bear no inherent relationship to their underlying products.

• Nike “swoosh” symbol.

A. SERVICE MARKA. SERVICE MARK

• When such marks are used to identify services rather than products, they are called service marks.

• Examples:

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• Can you register the name of a musical group or band?

• A band name may function as a service mark for “entertainment services in the nature of performances by a musical group” if it is used to identify live performances.

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B. – SUGGESTIVE MARK B. – SUGGESTIVE MARK

Suggestive Marks—words that suggest meaning or relation but that do not describe the goods themselves

Coppertone (suntan lotion), Gladwrap (food wrap), Greyhound (bus lines

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C. DESCRIPTIVE MARK C. DESCRIPTIVE MARK

• A descriptive mark is a mark that directly describes, rather than suggests, a characteristic or quality of the underlying product (e.g. its color, odor, function, dimensions, or ingredients).

• For example, "Holiday Inn," and "Vision Center"

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GENERIC – NO PROTECTIONGENERIC – NO PROTECTION

• Marks - originally legally protected trademarks, but lost legal protection as used both by the consumers.

• Examples?

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Generic - examplesGeneric - examples

• You no longer think of a particular company when you hear these names

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GenericGeneric• PODS moving and storage was awarded $62

million in damages in a lawsuit against U-Haul over its use of the word "pods.''

• The ruling marked a win over “generic'' — the death of a trademarked word.

• PODS remains a legally protected trademark brand, even if people use the word frequently to describe a container used for moving.

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Still have trademark protectionStill have trademark protection

Close to being generic:

•Coke – Xerox – Crock pot – Jeep – Jetski-

•Jumbotron- Jello- Kool Aid- Bandaid-Frisbee – Mace -

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TRADEMARK PROTECTIONTRADEMARK PROTECTION

• Assuming that a trademark qualifies for protection (distinct etc), how to get trademark rights:

• (1) by being the first to use the mark in commerce; or

• (2) by being the first to register the mark with the U.S. Patent and Trademark

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What is first to use it: What is first to use it:

• ACTUAL SALE OF THE PRODUCT WITH TRADEMARK ON PRODUCT

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• First to sell “Chewy" brand bubble-gum to the public in Murfreesboro, TN

• RIGHT IS GEOGRAPHIC - where sell and expect to expand

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Trademark RegistrationTrademark Registration

• OR Register with U.S. Patent Trademark Office

• RIGHT IS NATIONWIDE BUT MAY BE LIMITED IF OTHERS ALREADY USING MARK.

• Example -if I register the mark "Broadway" in connection with the sale of pizza, the existing "Broadway Pizza" in Boston retains the right to use the name in Boston, but I get the right to use it everywhere else.

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How Long? How Long?

• Forever or until becomes generic–

• Must keep up with filings with government• So long as not generic/diluted

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Trademark InfringementTrademark Infringement

• When can you sue: the standard is "likelihood of confusion.

• Whether intentional or unintentional- doesn’t matter

• LAWSUIT - In the PODS case, the jury ruled U-Haul infringed on PODS' trademarks, causing confusion and hurting business for PODS.

• U-Haul used the word pod to describe its U-Box product. U-Haul used the term on its marketing and advertising materials and started using the word only after PODS became famous.

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Trade DressTrade Dress

• image and overall appearance

• Same protection as trademark.

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Counterfeit GoodsCounterfeit Goods

• This is a growing problem for U.S. companies.

• In 2006 Congress passed the Stop Counterfeiting in Manufactured Goods Act, regardless of whether they are attached to a product.– Criminal Penalties: up to $2 million and 10 years.

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Cyber MarksCyber Marks

• Online trademarks.

• Domain Names.– Conflicts: ICANN, WIPO.

• Anti-Cybersquatting Consumer Protection Act (1999) amended the Lanham Act.

•PATENTS

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Patents – for inventorsPatents – for inventors

• Patent –anyone who invents any new, useful, and non-obvious invention, process.

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RightsRights

• Right for Inventor “to exclude others from making, using, or selling their invention throughout the United States or importing their invention into the United States”

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How Long: How Long:

• How long: for a limited time. (up to 20 years)

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What does "patent pending" mean? What does "patent pending" mean?

• It serves as a warning that a patent may issue that would cover the item and that copiers should be careful because they might infringe if the patent issues.

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Patent Infringement CasePatent Infringement Case

• “Flash of Genius”

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Flash of GeniusFlash of Genius

• He represented himself against Ford, Chrysler.

• He then sued GM, Mercedes, and Japanese companies but missed statute of limitations

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•COPYRIGHT

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COPYRIGHTCOPYRIGHT

• Original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.

• EX: Music – Photographs-Writings – Poems, Plays - Dance - Paintings

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CopyrightsCopyrights

• Copyright protection exists from the moment a work is created in a fixed, tangible form of expression.

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HOW LONG: HOW LONG:

• Right given to author for life plus 70 years.

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• Have to by registration at U.S. Copyright Office if going to sue for copyright violations/infringement

• The use of a copyright notice is no longer required under U.S. law, although it is recommended to give notice.

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To Qualify - CopyrightsTo Qualify - Copyrights

• Must be ORIGINAL

• and fixed in a durable medium

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Copyrights – Who Owns itCopyrights – Who Owns it

• Not necessarily for the author – but employer can own copyright if “Work Made For Hire”

• If you create original piece as part of employment – employer owns

Examples: Examples:

• Mickey Mouse Cartoon – Disney owns

• Can make a cartoon about a mouse but needs to be distinct enough so not thought to be Mickey

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Example Cases: Example Cases:

• Men at Work - "Down Under." The band was accused of stealing the catchy riff from the children's campfire song "Kookaburra Sits in the Old Gum Tree."

• The publisher of "Kookaburra" sued Men at Work, and in 2010 a judge ruled the band had copied the melody.

• The group was ordered to hand over a portion of its royalties. Ham later said the controversy had left him devastated, and he worried it would tarnish his legacy.

Titles of SongsTitles of Songs

• According to THE BELLAMY BROTHERS, the title of the new single is a rip-off of one of their old hits

• It’s not the SONG that sounds similar . . . it’s the TITLE. Britney’s new single is called “Hold It Against Me“, while the Bellamy Brothers had a hit in 1979 called “If I Said You Had a Beautiful Body, Would You Hold It Against Me“.

Example Cases: Example Cases:

• "A title is not copyrightable," said lawyer Brian Caplan, who has more than 20 years of experience in intellectual property and entertainment law.

InfringementInfringement

• Copyright Infringement: whenever unauthorized copying occurs.

• Damages: actual to criminal prosecution.

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When can use copyrightWhen can use copyright

• In the United States, the fair use doctrine, Copyright Act of 1976 as 17 U.S.C. Section 107, permits some copying and distribution without permission of the copyright holder

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‘Fair Use’ Exception‘Fair Use’ Exception

• Exception when material is used for criticism, comment, news, criticism, teaching, research – VERY BLURRED LINE

• Best to get permission from author

Fair Use ExamplesFair Use Examples

• “quotation of excerpts in a review or criticism for purposes of illustration or comment;

• reproduction by a teacher or student of a small part of a work to illustrate a lesson;

• reproduction of a work in legislative or judicial proceedings or reports; in a newsreel or broadcast

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Copyright Protection for SoftwareCopyright Protection for Software

• Computer Software Copyright Act (1980).– Classifies computer software or computer

programs as a “literary work.”

• Who has ever burned a copy of Music CD or Movie for a friend?

• Ever get music off Lime Wire?

• Put “on hold” music without paying

• Music for customer in retail store

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• BMI, ASCAP, and SESAC.

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Rules Playing Music etc. Rules Playing Music etc.

• General - Restaurants and bars under 3,750 square feet or retail establishments under 2,000 square feet are exempt from paying fees for playing radio or TV broadcasts for their customers.

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• Public places that play CDs or hire live musicians (that play cover songs or copy songs) are still subject to being licensed for fees.

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On Hold MusicOn Hold Music

• On-hold music: All on-hold music (even if a radio station is being played on hold) must be licensed. If you use an on-hold service, it is still the responsibility of the business to make sure that service is licensed.

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ASCAP AND SESACASCAP AND SESAC

• ASCAP (www.ascap.com) charges based on the number of speakers: $190 for three or less; each additional speaker is $39 up to a maximum of around $1600. BMI (www.bmi.com)

• SESAC’s (www.sesac.com) fees are based on square footage:

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BMIBMI

• BMI’s annual fee starts at $182 for 2,000-sq.-ft.or less, $570 for 5,000-7,500-sq.-ft., $1,600 for over 17,500-sq.-ft. SESAC charges approx. $160 for anything under 10,000-sq.-ft.

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Unauthorized Music in StoreUnauthorized Music in Store

• Larry Leigh, owner of Leigh’s and Mettie’s women’s clothing stores in Grand Rapids, found out the hard way about penalties for unlicensed music use.

• Several years ago, he received a letter from licensing organization ASCAP stating that he was violating copyright regulations by playing tapes and CDs in his stores. Unfortunately, Leigh got some bad advice from the business that installed his store stereo system, having assured assured him he didn’t need to worry. Two years later, he was sued by ASCAP for $400,000. His attorney informed him that his chances of winning the suit were not good, he settled out of court for a $5,000 fine.

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Copyrights in Digital InformationCopyrights in Digital Information

• Material on internet is copyright so when download software, music without authorization – copyright infringed.

• Congress amended and now criminal for copyright infringe EVEN IF NOT MAKING A PROFIT.

Digital Millennium Copyright Act 1998Digital Millennium Copyright Act 1998

• Gave significant protection to owners of copyrights in digital information

• Exceptions – colleges, scientists etc. – education and non commercial use

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Repairing ComputersRepairing Computers• DMCA Title III modified section 117 of the

copyright title so that those repairing computers could make certain temporary, limited copies while working on a computer.

• IE: loading of a software program into RAM by a computer repair technician makes a copy of the software that is a potential violation of copyright law.

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MP3 (File Sharing Technology)MP3 (File Sharing Technology)

• Peer to Peer (P2P) Networking.

• Lime Wire -The recording industry and LimeWire have reached a $105 million settlement that puts an end to five years of

heated litigation - • Napster Case – held copyright infringement

because helped other get unauthorized copies of music.

• Making unauthorized copies of copyrighted music recordings

• A civil law suit could hold you responsible for thousands of dollars in damages. Criminal charges may leave you with a felony record, accompanied by up to five years of jail time and fines up to $250,000.

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IV Trade SecretsIV Trade Secrets

• Trade secrets may include customer lists, plan, pricing, marketing –

• secret formula- Coca Cola, KFC

• No registration or filing requirements

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Trade SecretsTrade Secrets

• Can include: customer lists, plans, research, formulae, pricing information, marketing techniques.