Clark_11e-AM-Ch08.doc

Clark_11e-AM-Ch08.doc - C HAPTER 8 INTELLECTUAL P ROPERTY...

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61 C HAPTER 8 I NTELLECTUAL P ROPERTY AND I NTERNET L AW A NSWER TO C RITICAL A NALYSIS Q UESTION IN THE F EATURE INSIGHT INTO E-COMMERCE—CRITICAL THINKING—INSIGHT INTO TECHNOLOGY (PAGE 175) What has changed in the world of technology since the Betamax decision? Does the fact that more and more intellectual property is being digitized and is available online alter the underlying reasoning behind the Betamax deci- sion? The development of other technology that is capable of copyright infringing and non-infringing uses includes personal computers, Apple’s iPod, TiVo digital video re- corders (DVRs), CD-Rom burners, peer-to-peer (P2P) software, and search engine capa- bilities. No, the availability of more intellectual property online does not alter the rea- soning of the Betamax decision—holding a creator of new technology liable for a third party’s copyright infringement would “chill” further developments. Yes, the availability of more intellectual property online does alter the reasoning of the Betamax decision, at least with respect to new technologies that have only infringing uses. A NSWERS TO Q UESTIONS AT THE E NDS OF THE C ASES CASE 8.1—(PAGE 159) WHAT IF THE FACTS WERE DIFFERENT? Suppose that Coca-Cola had been trying to make the public believe that its product contained cocaine. Would the result in the case likely have been dif- ferent? Yes. The product in this case did not actually contain cocaine. To advertise that it did would be to commit fraud. A court will refuse to grant relief to a complaining party who commits fraud. CASE 8.2—(PAGE 163) THE E-COMMERCE DIMENSION Under the reasoning of the court in this case, would the use of a purported trademark solely on a Web site satisfy the “use in commerce” requirement?
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62 UNIT TWO: TORTS AND CRIMES Explain. Under the court’s reasoning in the Menashe case, the use of a purported mark on a Web site alone would likely qualify as “use in commerce,” assuming of course that the use was sufficiently prominent. The court cited other uses of the mark—displays in stores and catalogues—but included the use of the mark on the defendant’s Web site “to- gether with pictures and descriptions of the goods” to hold that the circumstances met the test. THE LEGAL ENVIRONMENT DIMENSION Why is it important to allow a trademark’s assertive owners—which in this case were the ITU applicants Menashe and Quock—to preemptively defend against the use of the mark by another party? The court in the case stated two reasons for allowing the ITU applicants to proceed in this situation. The court pointed out that Menashe and Quock argued the mark was descriptive, in which circumstance, as explained in the excerpt, they would have priority to it. Also, “policy considerations are important here, especially the promotion of certainty in business transactions by fixing an applicant's priority right as of the date of its filing an applica- tion, and the encouragement and reward of early filing so as to put claims to marks on the public record as soon as possible.” If the court declined the case, “Plaintiffs would be
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This note was uploaded on 10/11/2010 for the course MGT 301 taught by Professor Pederson during the Fall '10 term at SUNY Stony Brook.

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Clark_11e-AM-Ch08.doc - C HAPTER 8 INTELLECTUAL P ROPERTY...

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