Twomey  Jennings
Anderson’s Business Law and the Legal Environment, Comprehensive 20e
Anderson’s Business Law and the Legal Environment, Standard 20e
Business Law: Principles for Today’s Commercial Environment 2e
Chapter 10
Intellectual Property
Rights and the Internet
Copyright © 2008 by West Legal Studies in Business
A Division of Thomson Learning
Trademarks and
Service Marks
• Trademark is a distinctive motto,
name or symbol on a product.
Service Mark applies to a service.
• Lanham Act grants producer the
exclusive right to register and use the
trademark.
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Trademarks and
Service Marks
• Owners of marks may obtain federal
protection by registering the mark with
the U.S. Patent and Trademark Office
(www.uspto.gov ).
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Trademarks and
Service Marks
Mark distinguishes owner’s goods or services from those of others.
Trademarks identify goods.
Service marks identify services.
Protection by
registration grants
registrant
exclusive rights.
Examples of registrable trademarks:
marks that are coined,
completely fanciful,
or arbitrary
terms suggestive of
some quality of
product
acquired secondary
meaning--surname,
descriptive or geography
Kodak
film
Frigidaire
refrigerators
Philadelphia
cream cheese
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Trademarks and
Service Marks
• Generic Terms (soap, shirts) may never
be protected.
• Trade Dress Protection involves a
product’s total image and the overall
packaging look.
• Limited Lanham Act protection of
product design.
– Courts are now expanding trade dress to
include the design of the product itself.
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Trademarks and
Service Marks
• Trademark owner may obtain injunction
from imitating or duplicating the mark.
• A mark can be abandoned and become
generic. Examples: aspirin, thermos.
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Internet Domain Names
• Cybersquatters: use someone’s trademark
as a domain name.
– Federal Anticybersquatting Consumer
Protection Act (ACPA) of 1995.
– Safe harbor exists for some users.
– Dispute Avoidance under ICANN and
WIPO.
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Copyrights
• A copyright is the exclusive right given
by federal statute to the creator of a
literary or an artistic work to use,
reproduce, or display the work.
• Copyrights run for the life of the creator
plus 70 years after the creator’s death.
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Copyrights
• Copyrights protect literary, musical,
dramatic and artistic work in books,
photographs. Even material on the
internet.
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Copyrights
• A copyright holder has the exclusive
right to:
– Reproduce the work;
– Prepare derivative works;
– Distribute copies;
– Publicly perform the work; and
– Publicly display the work.
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Copyrights
• “Fair Use” is an exception to the exclusive
rights of copyright holders, depending on
four factors: purpose and character; nature
of the work; amount used; and the effect on
the use.
• Digital Millennium Copyright Act of 1998.
– “Safe Harbor” provisions protect internet
service providers from copyright liability.
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Patents
• A patent gives the inventor an exclusive
right for 20 years from the date of
application to make, use, and sell an
invention that is new and useful and
unique (not obvious).
– Utility Patents.
– Design Patents.
– Plant Patents.
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Patents
• To receive a patent, the invention must be
new and not obvious.
– May lead to highly technical hearings before
a patent officer at the US Patent and
Trademark Office.
• Internet Business Methods can be
patentable. Example: Amazon.com “one
click” for purchases.
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Secret Business Information
• Trade secrets are protected under state law
for an unlimited period so long as they are
not made public.
• Defense measures include:
– Non-disclosure agreements.
– Injunctions.
– Exit Interviews.
– Criminal Sanctions under the Economic
Espionage Act of 1996.
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Protection of Computers
and Mask Products
• Protection of computer programs and the
design of computer chips and mask works
is commonly obtained, subject to certain
limitations, by complying with federal
statutes, by using the law of trade secrets,
and by requiring restrictive licensing
agreements.
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Protection of Computers
and Mask Products
• Many software developers pursue all of
these means to protect their proprietary
interests in their programs.
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Protection of Computers
and Mask Products
• Patents have also been obtained for
computer programs.
• Semiconductor Chip Protection Act
protects the design of a computer chip.
• Remedies for violation include:
– Actual Damages and
– Forfeit Profits to Real Owner.
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Summary Comparison of
Intellectual Property Rights
Type of
Intellectual
Property
Protection
Applicable
Standard
Where to
Apply
Duration
Trademarks
Copyrights
Patents
Words, names,
symbols or
devices used to
identify a product
or service
Identifies and
distinguishes a
product or service
Original creative
works of authorship
such as writings,
movies, records, and
computer software
Original creative
works in writing or in
another format
Utility,
design, and
plant patents
Patent and
Trademark Office
Register of
Copyrights
Indefinite so long
as it continues to
be used
Life of author plus 50
years or 75 years
from publication for
“work for hire”
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Trade Secrets
Advantageous
formulas,
devices, or
compilation of
information
New and non- Not readily
obvious
ascertainable,
advances in
not disclosed to
the art
the public
Patent and
No public
Trademark
registration
Office
necessary
Utility and
plant patents
20 years from
date of
application;
design
patents 14
years
Indefinite so
long as secret is
not disclosed to
public
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