Review Notes for Copyright and Trademark

Topics: Law, Secrecy, Trade secret Pages: 5 (1078 words) Published: April 15, 2014
Idea Protection

DURATION: forever
oProtectable under property or contract theory (mostly contract theory). oObligation to pay, if the idea was novel or used by the defendant, and the idea is in concrete for and there was an expectation that defendant would pay for use. •Express, implied, quasi contracts

Quasi contract claim: someone has been unjustly enriched/unjust enrichment claim—parties may not even know each other. REQUIRES A HIGH LEVEL OF NOVELTY oE.g. Entertainment industry; unsolicited pitch that is used. Expect payment for the idea if it is used. •General novelty: it is novel to the industry

Recipient novelty: it is novel to the recipient

Trade Secrets

What is a trade secret? ANY information that gives your client a competitive advantage by others not knowing and they take reasonable steps to keep it a secret. •How do you protect you trade secrets?

How do you get these trade secret rights?
oCommon law/state law (NJ enacted statutory trade secret law). oEspionage Act – Federal law (Clinton signed into law).
oGet it by keeping the trade a secret
DURATION: forever

Trademarks™ ® /Service Marks ℠
Any device that is capable of distinguishing your product or service from another

DURATION: forever
How do you get Trademark rights?
oThrough use
oCommon law
oFederal Law
ITU: bonafide intent to use
Prevent a likelihood of confusion
Must be deemed inherently distinctive
oCoined/fanciful mark
E.g.: Apple for computers; Camel for cigarettes
TEST: do others have to call their computer apple? Do others need this word to call their product or service? NO = distinctive oSuggestive
E.g. Coppertone
Don’t have to prove/show secondary meaning
Prove secondary meaning through surveys
E.g.: Custom-blended for gas: wont allow evidence for secondary meaning. •Once a mark is protectable, doesn’t mean it is protectable for forever (e.g. Nylon lost protectability). •Intent to use (ITU) application (1b) application—client not in interstate commerce but what to establish the record that they intend to do that. oSenior versus junior

Putting other trademark users on notice
oITU; Notice of allowance; 6 month period, potentially get another 5 six-months with extensions (have to file a statement of use before expiration of each 6 month period (SOU) explaining why you are not ready; product development, market research, etc); client gets a certificate of registration. •Notice of allowance means that it is allowed to become a registered mark •SOU (application with a 100$ fee and a specimen of its use in interstate commerce (e.g. a label) and date that this was put into interstate commerce) means that the client gets the R once in interstate commerce oStatement of use moves 1B to 1A category

1A application is for clients who are already using the trademark in interstate commerce already. •Might still be a common law user even if federal registration paper work has been abandoned/dead

§43(a); 15 U.S.C. 1125(a) – confusion

§9 filing: renewal –have to renew every 10 years (have to file before expiration of every 10 year period) o§8 filing: affidavit of continued use (have to file a §8 with every §9 renewal). •You can get a notice of abandonment, but you can revive if you pay a fee. oE.g. one day off you can ruin seniority that you have created for your client o2 month grace periods; 6 months grace periods (for §9 & §8 filings)

Deceptive: you cannot register a deceptive mark (it is deemed unlawful). •Deceptively mis-descriptive mark: can be registered only if it has secondary meaning. oMis-described (might deceive) but it is saved because it has secondary meaning •Shapely test: it is not material to the people who buy it •E.g. Arizona Ice Tea.


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