Had to pass Trademark Counterfeiting Act o It provides escalating criminal penalties for multiple offenders. o A second offender, if an individual, can be fined up to $5 million, imprisoned for up to 20 years, or both. Corporations may be fined up to $15 million. Anti-Dilution Statutes - These are extensions of the “likelihood of confusion”
o It prohibits uses of some marks even where the goods or services are not similar and there is no likelihood of confusion o The Federal Trademark Dilution Act (FTDA) protects “famous” trademarks only A mark is only famous if it is very widely known by the general public, no just within a local geographic area or niche market The defendant has to prove a likelihood of blurring or tarnishment Blurring: diminishing (diluting) a mark’s distinctiveness Tarnishment: undermining the positive image of the mark if it is no longer restricted tot the quality of products a consumer would normally expect from a brand - UNIVERSITY OF TEXAS V. KST ELECTRIC - KST electric used a modified version of the discontinued longhorn logo for their store and UT asked them to cease using the logo, KST refused and UT sued. KST filed for summary judgment - Trademark infringement and unfair competition are cause for action the element to be looked at is the “likelihood of confusion”: are customers likely to believe their products are affiliated to UT in some way o Look at: The mark infringed Similarity between the marks Similarity of the products and services Identity of retail outlets and purchasers Identity of the advertising media used Defendants intent: did not copy the LSL in bad faith Evidence of actual confusion o UT bears the overall burden of proof on the famousness issue, to avoid summary judgment they must demonstrate the fact that LSL is “famous” UT's mark is famous only in a niche market and therefore not protectable under the TDRA. Dismissed. Anti-Cybersquatting Consumer Protection Act - Cyber squatter: someone who registers an Internet domain name (1) o That is the same as or confusingly similar to someone else's protected trademark, (2) o Where there is a bad faith intent to commercially exploit the trademark, and (3) t o He likely effect is to either cause confusion, or, if the mark is famous, to cause dilution - ACPA: determines who is one through eight questions to determine if intent was good or bad
International Trademark Concerns - Madrid Agreement: allow for one centralized filing of a trademark application in a member country and payment of a single filing fee o Protocol is the application is forwarded to the other member countries designated by the applicant TRADE SECRETS - Trade secret: any type of knowledge that is not generally known and isn’t readily available through legal means o Trade secret and patent law can be used to protect knowledge, the definition of what kind of knowledge can be protected is much broader in trade secret law - To bring a trade secret misappropriation case, the plaintiff must prove: 1.
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- Spring '08