Business Law Final Essay

CHAPTER 5: INTELLECTUAL PROPERTY
Intellectual Property: any property resulting from intellectual, creative processes – products of an individuals; mind
Trademark: distinctive marl, motto, device, or emblem that a manufacturer affixes to the goods it produces so that they may be identified on the market and their origins made known (10 YEAR PERIOD – RENEWABLE)
CASE 5.1 – Coca-Cola v. Koke Co. of America
Koke can’t use the name because Coke was so common and well known, but Dope wasn’t an infringement
Trademark Dillution: protect distinctive or famous trademarks from certain unauthorized uses even when the use is on noncompeting goods or is unlikely to confuse (since 1995)
Doesn’t have to be identical, can just be similar
Ex Sambuck’s vs. Starbucks
Trademark Registration
Can be registered if
1: it is currently in commerce
2: the applicant intends to put the mark into commerce within 6 months
Trademark Infringement: someone else uses the trademark in its entirety or copies it to a substantial degree, intentionally or unintentionally (use without authorization) ()
TEST = LIKELIHOOD OF CONFUSION
DON’T need to prove that the defendant acted intentionally or that the trademark was registered
Injunction: prevents further infringement recover damages, plus the profits that infringer wrongfully received, destruction of goods bearing the mark…
Distinctiveness
Strong Marks: fanciful, arbitrary, or suggestive  taken from outside the context of the particular product
Fanciful: invented words…Xerox
Arbitrary: use common words in fictitious ways or by arbitrary manner…Dutch Boy (can of paint), can be a letter
Suggestive: Bring to mind something about a product without describing the product directly…Dairy Queen
Secondary Meaning: descriptive terms, geographis terms, and personal names are not inherently distinctive and don’t receive protection under the law until they acquire a secondary meaning
Generic Terms: terms that refer to an entire class of products (bicycle or computer)  receive no protection even if they acquire a secondary meaning
ALSO: if trademark term becomes generic, it gets no protection
Rollerblade, windsurfer, walkman, kleenex
Service, Certification and Collective Marks
Service Mark: trademark that is used to distinguish services (rather than the products) of one person/firm from those of another
Certification Mark: used by one or more persons, other than the owner, to certify the region, materials, mode of manufacture, quality, or other characteristic of specific goods or services
“Good Housekeeping Seal of Approval”, “UL Tested”
Collective Mark: used by members of a cooperative, association, union or other organization
At end of movie credits
Trade Dress: image and overall appearance of a product  can include all or part of the total image or overall impression created by a product or its packaging
Counterfeit Goods
Stop Counterfeiting in Manufactured Goods Act: crime to intentionally traffic in counterfeit goods/services, or to knowingly use a counterfeit mark on or in connection with goods/services
Penalties: can be fined up to $2 M or imprisoned for up to 10 years. If guilty, the court will order defendant to forfeit the products  destroyed in addition to any property used in commission of the crime. Defendant must also pay restitution
Trade Names: used to indicate all or part of a business’s name, whether the business is a sole proprietorship, partnership or corporation  directly related to business and its goodwill
Cyber Marks: trademarks in cyberspace
Domain Names: part of internet address
Cybersquatting: person registers a domain name that is the same as, or is similar to, the trademark of another and then offers to sell the domain name back to the trademark owner
Anticybersquatting Legislation: illegal to register, traffic in, or use a domain name (1) if the domain name is identical or confusingly similar to the trademark of another and (2) is the person

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