INTELLECTUAL PROPERTY Intellectual Property: Any property resulting from intellectual, creative processes – the product of one or more individual’s mind. The framers of the U.S. Constitution recognized the need to protect and promote intellectual property more than two hundred years ago. Article I, Section 8 empowers Congress [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Laws protecting patents, trademarks, and copyrights are explicitly designed to protect, nurture, and reward inventive and artistic creativity. Licensing: An intellectual property owner may license another party to use the owner’s trademark, copyright, patent, etc. for certain purposes. A licensor must maintain some form of control over the nature and Ch. 8: Intellectual Property and Internet Law - No. 1 Clarkson et al.’s Business Law (11th ed.)
quality of goods or services sold or rendered under the license. Ch. 8: Intellectual Property and Internet Law - No. 2 Clarkson et al.’s Business Law (11th ed.)
TRADEMARK PROTECTION Trademark: A distinctive mark, motto, device, or emblem that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they may be identified on the market and their origins made known. Once a trademark is established, its owner is entitled to exclusive use of the trademark. A trademark may be established either by: (1) registering the mark with one or more states or with the U.S. Patent and Trademark Office pursuant to the Lanham Act , or (2) prior use sufficient to warrant common law protection.
TRADEMARK VIOLATIONS Trademark Dilution: Using a mark similar, but not identical, to a protected trademark. Trademark Infringement: Using a protected trademark in its entirety, or copying it to a substantial degree, without authorization. Only those marks that are sufficiently distinctive from all similar or competing marks will be protected from infringement. Such trademark must enable consumers to (1) identify the manufacturer of the good easily, and (2) differentiate between competing products. Strong Marks: Fanciful, arbitrary, or suggestive trademarks are generally considered to be most distinctive, because the mark usually is unrelated to the nature of the product or service. Secondary Meaning: Descriptive terms, geographic terms, and personal names are not inherently distinctive, but will be protected if consumers associate the specific term or phrase with the particular trademarked item.
Generic Terms: Terms that refer to an entire class of products are not entitled to protection, even if the term was originally the name of a trademarked product.
TRADE DRESS AND SERVICE MARKS Trade Dress: The image and overall appearance of a product ( e.g. , the distinctive decor, menu, layout, and style of service of a particular restaurant). Trade dress is afforded basically the same protection
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