Exam 2 notes - Chapter 9: Intellectual property law is...

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Chapter 9: Intellectual property law is based on several fundamental concepts. o Intellectual property law protects certain types of knowledge, ideas, and expressions by granting exclusive rights to creators. o When someone else violates these rights, the violator is actually engaging in a form of competition. It is a type of competition that has been declared unlawful, but it is competition nonetheless. The most important type of competition is the competitive rivalry to innovate o Even though there is a general consensus that intellectual property laws benefit society in the long run, such laws can go too far. An ideal system provides protection to intellectual property that is no greater than is necessary to create and maintain the desired incentives to innovate and create over time. Moreover, a country cannot fully participate in today’s global economy without a full slate of intellectual property laws and effective means for enforcing them. This is one of the fundamental obligations of all nations that are members of the WTO. o TRIPS (Trade-Related Intellectual Property Rights – Uruguay round of Negotiations on General Agreement on Trade and Tariffs) Trademarks: any distinctive word, phrase, symbol, or design adopted for the purpose of identifying the origin of goods being offered for sale o Acts as a symbol to identify goods or services and also motivates businesses to maintain or improve the quality of their goods or services over time to reap the benefits of a well-earned public trust in a mark. o 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. A deception occurs that permits the competitor to take a free ride on the reputation and goodwill of the trademark owner. Can occur even if the defendant did not intend it, or know about it. o Trademark law also governs service marks – used to identify the origin of services. o Trademark law also protects “trade dress” – very distinctive packaging or nonfunctional product design if it serves the same purpose as a trademark. o Protectability of Marks
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For a mark to be legally protectable, it must serve as a source identifier – when a substantial number of buyers see or hear the mark, they associate it with a particular source. i.e. A mark must have secondary meaning i.e. It must serve a branding function Courts have developed 4 categories of trademarks to assist them in determining whether marks are protectable: Generic: word or phrase used to describe an entire class of goods or services rather than a particular seller’s version of a good or service. Only when a generic term is used in connection with a product or service totally unrelated to its original meaning and does serve a branding purpose, it can be a protectable mark Descriptive: merely identifies a characteristic or quality of a product or
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Exam 2 notes - Chapter 9: Intellectual property law is...

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