Unit 6Intellectual property includes:Trademarks Trade secrets PatentsCopyrights And they have become far more important because the value of these types of intangible assets has increased tremendously in comparison with the value of traditional capital assets Intellectual property law protects certain types of knowledge, ideas and expressions by granting exclusive rights to creators Trademark – any distinctive word, phrase, symbol, or design adopted for the purpose of identifying the origin of goods being offered for sale Trademark infringement occurs when a competitor of the trademark owner uses a mark so similar to the owned trademark that purchasers of the competitor’s goods are likely to be misled as to the origin of the goods that they are purchasing aka a deception is accomplished that permits the competitor to take a “free ride” on the reputation and goodwill of the trademark owner. Also, can occur even if the defendant did not intend too Trademark = service mark A company’s name, its business name, may or may not be protected as a trademark, but if the company uses its name such as Microsoft to serve trademark purposes, the name is protectable asa trademark or service mark Finally, trademark law also protects “trade dress” – very distinctive packaging or nonfunctional product design if it serves the same purpose as a trademark an example would be that a restaurants interior and exterior design are protected as trade dresses The SC has held, for a distinctive nonfunctional product design feature has acquired “secondary meaning” through use over time. However, the court held that the owner of very distinctive packaging does not have to prove it has acquired secondary meaning over time because such is presumed The Lanham Act – governs marks that are used in connection with the sale of goods and service in interstate commerceEach state also has a trademark statute that deals with marks that are used within that state… state trademarks statutes are essentially identical to the Lanham Act For a trademark (service mark) to be legally protectable it must serve as a “source identifier.” This means that, when a substantial number of buyers see or hear the mark, they associate it witha particular source
Courts often say that a mark must have secondary meaning. This means although a term may have some original meaning of its own, when a lot of customers see or hear it they mentally associate it with a particular seller; thus, the term “secondary meaning” describes the same idea as source identifier The 4 categories for determining whether marks are protectable. A potential trademark may be classified as:Generic Descriptive Suggestive Arbitrary or fancifulA generic term is a word or phrase used to describe an entire class of goods or services rather than a particular sellers vision of a good or service A descriptive term merely identifies a characteristic or quality of a product or service, such as its
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- Spring '08