Joined: 31 Jan 2005
|Posted: Wed Sep 18, 2013 11:27 am Post subject: For Class Game: Replacement For Chapter 8
|We have Real, Personal and INTELLECTUAL PROPERTY RIGHTS of value to both businesses and individuals. Modern era of Information Age, computers, and the Internet.
Trade secrets basis of many successful businesses: protected from misappropriation. Federal law provides protections for intellectual property rights E.G.: patents, copyrights, and trademarks. AND businesses and individuals may register domain names to use on the Internet. Infringement: May be stopped and is result in damages.
THE FOLLOWING AREAS:
Sets them apart from competitors. EXAMPLES: product formulas, patterns, designs, compilations of data, customer lists, or other business secrets.
Many either do not qualify or simply are not-patented, copyrighted, or trademarked. Many states adopted the Uniform Trade Secrets Act to give statutory protection to trade secrets.
State unfair competition laws: owner of a trade secret can bring suit for misappropriation against anyone who steals a trade secret. REQUIREMENT: For c/a: defendant (often an employee must have obtained trade secret through unlawful means: e.g.: theft, bribery, or industrial espionage. No tort if no misappropriation. E.G.: Competitor lawfully discovers trade secret by performing reverse engineering (i.e., taking apart and examining a rival's product).
The owner trade secret obliged to take all reasonable precautions to prevent secret discovery. E.G.: Fencing buildings, locks on doors, security guards, etc. If owner fails to take such actions, secret no longer subject to protection under state unfair competition laws.
Remedies: (1) recover profits made by use of trade secret, (2) damages, and (3) obtain an injunction from divulging/ using trade secret.
INTERNET LAW & ONLINE COMMERCE
THE ECONOMIC ESPIONAGE ACT FEDERAL CRIME
One major to address the ease of stealing trade secrets through computer espionage and using Internet. E.G.:, hundreds of pages of confidential information can be downloaded onto small computer disk; additionally, computer hackers steal customer lists, databases, formulas, and other trade secrets. Act provides severe criminal penalties: Organization fined up to $5 M per criminal act & $10M if the criminal act committed to benefit foreign government. Prison terms on individuals up to 15 years per criminal violation, can be increased to 25 years per violation done w/intent to benefit foreign government.
PATENTS AND CYBER PATENTS CONSITUTIONAL PROTECTED
Congress granted powers: Protecting work of inventors and writers. Article I, Section 8 of the constitution provides, "The Congress shall have Power ... To 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."
FEDERAL PATENT STATUTE EXCLUSIVE
Incentive for inventors to invent and make inventions public and to protect patented inventions from infringement. Exclusive: no state patent laws. Applications must be filed w/USPatent and TM office in Wash., D.C. US. Court of Appeals for the Federal Circuit in Washington, DC, created in 1982 to hear patent appeals. Purpose: promote uniformity in patent law.
1995: to bring the U.S. patent system into harmony w/ the other developed nations, Congress made following important changes:
1. Patents for inventions valid for 20 years (instead of previous 17 years.
2.Design patents are valid for 14 years.
3. Term from date application filed instead of when patent issued, as previously.
Period expires: enters the public domain: anyone can produce & sell the invention w/o paying prior patent holder.
U.S. still follows first-to-invent rule rather than first-to file. first person to invent an item or a process is given patent protection over another party first to file patent application.
PATENTING AN INVENTION REQUIREMENTS
Must be novel, useful, & non-obvious. AND, only certain subject matters can be patented. These include (1) machines; (2) processes; (3) compositions of matter; (4) improvements to existing machines, processes, or compositions of matter; (5) designs for an article of manufacture; (6) asexually reproduced
plants; and (7) living material invented by a person. Abstractions and scientific principles cannot be patented unless part of the tangible environment. E.G.: Einstein's Theory of Relativity (E = mc2) cannot be patented.
REQUIREMENTS OF APPLICATION
Written description of the invention and be filed. Applications are complicated. Inventor should hire patent attorney. If granted, assigned patent number. Patent holders usually affix word patent or pat. and number to article. If application filed but not yet issued, patent pending on the article. Any party can challenge either issuance or validity.
Case: Issue: Was subject matter patentable??
1st. Case: J.E.M. Ag Supply v. Pioneer Hi-Bred International, Inc.
Facts: Pioneer obtained patents covering the company�s inbred and hybrid corn and corn seed products. Hybrid plant patent protects plant, its seeds, variants, mutants, and modifications of the hybrid. Pioneer sells its patented hybrid seeds under limited label license that provides: �License is granted solely to produce grain and/or forage.� �Ddoes not extend to the use of seed from such crop or the progeny thereof for propagation or seed multiplications.� The license strictly prohibits �the use of such seed or progeny thereof for propagation or seed multiplication or for production or development of a hybrid or different variety of seed.�
J.E.M. DBA as Farm Advantage, Inc., purchased patented hybrid seeds from Pioneer in bags bearing this license agreement. Pioneer sued Farm Advantage, alleging Farm Advantage infringed its patent and violated license by creating seed. Farm Advantage filed counterclaim arguing not patentable subject matter. The district court granted summary judgment to Pioneer and the court of appeals affirmed. The U.S. Supreme Court agreed to hear the appeal.
Issue: Are sexually reproducing hybrid plants patentable subject matter?
Decision: USSCT: They are.
Reason: The Supreme Court recognized over 20 years ago in Diamond v. Chakrabarty, 447 U.S. at 308 (1980) the language of �101 is extremely broad. �In choosing such expansive terms as �manufacture� and �composition of matter,� modified by the comprehensive �any,� Congress plainly contemplated that the patent laws would be given wide scope.� Chakrabarty: living things were patentable under �101, a manmade micro-organism fell w/in scope of the statute.
Several years after Chakrabarty, (PTO) held plants were within the understood meaning of �manufacture� or �composition of matter� and therefore were w/in the subject matter of �101. In re Hibberd, 227 U.S.P.Q. (BNA) 443, 444 (1985). It has been the unbroken practice of the PTO since that time to confer utility patents for plants. To obtain utility patent protection, a plant breeder must show that the plant he has developed is new, useful, and non obvious. In addition, the plant must meet the specifications of �112, which require a written description of the plant and a deposit of seed that is publicly accessible.
Petitioner Farm Advantage essentially asked the Supreme Court to deny utility patent protection for sexually reproduced plants because it was unforeseen in 1930 that such plants could receive protection under �101. Denying patent protection under �101 simply because such coverage was thought technologically infeasible in 1930, however, would be inconsistent with the forward-looking perspective of the utility patent statute.
ONE-YEAR "ON SALE" DOCTRINE PUBLIC USE DOCTRINE
Patent not granted if invention used by the public for more than one year prior to filing application. Forces inventors to be timely. E.G.:
Cindy Parsons invents new invention on January 1. Allows the public use does not file application til February following year. Lost right to patent.
CONGRESS: THE AMERICAN INVENTORS PROTECTION ACT
(1) Permits inventors to file provisional application pending preparation and filing of final/complete application. Privisional rights for 3 months.
(2) Requires PTO issue patent w/in three years after filing application unless applicant dilatory.
(3) Provides non-patent holders may challenge patent as being overly broad by requesting contested reexamination of application by PTO., within the confines of PTO; its can be appealed to the U.S. Court of Appeals for the Federal Circuit Washington, DC.
FEDERAL PATENT LAW RECOGNIZES FOUR CATEGORIES OF INNOVATION:
(2) articles of manufacture
(3) compositions, and
For centuries, most involved tangible inventions, e.g.: telephone and the light bulb. Next, chemical, polymer, and biotechnology. Now, computer and Internet added.
(Signature), granted a patent for a computerized accounting system that determines share prices through a series of mathematical calculations and then used to manage mutual funds. State Street Bank, another financial institution wanted to offer similar mutual fund program to clients, sued to have Signature's patent declared invalid. Signature defended, arguing that its intangible
model was a "process" protected. The U.S. Court of Appeals, Federal Circuit, upheld the patent as a "practical application of a mathematical algorithm, formula, or calculation, because it produces a useful, concrete and tangible result."
Ensuing: Persons and businesses received patents for business and financial models used over the Internet. Critics contend Congress did not intend to grant patents for intangible processes when it enacted federal patent law. Business plan patent holders counter trend reflects necessary evolution in patent law and claim business plan patterns are to the Internet Age what machine patents were to the Industrial Age. State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368, 1998 U.S. App. Lexis 16869
Patent holders exclusive rights use and exploit tpatents. Infringement when someone makes unauthorized use of another's patent.
(1) money damages equal to a reasonable
royalty rate on sale of infringed articles,
(2) other damages caused by infringement (such as loss of customers),
(3) an order requiring destruction of infringing article, and
(4) an injunction preventing infringer from such action in future. The court has the discretion to award up to treble damages if the infringement was intentional.
1967, Robert Kearns, professor at Wayne State University patented design for electronic intermittent-speed windshield wiper for automobiles and other vehicles. Peddled to many auto manufacturers never reached licensing deal. 1969 manufacturers began producing cars using Kearns's intermittent-speed windshield wiper invention. Virtually all cars sold in US now have as standard equipment. Kearns filed patent infringement lawsuits against virtually all automobile manufacturers.
Ford case trial first. Ford alleged Kearns's patents not valid because of obviousness and prior art. Jury disagreed ordered Ford pay $5.2 million, plus interest, for patent infringement. In 1990, Ford settled by paying Kearns $10.2 million and agreeing to drop all appeals. This represented 50� per Ford vehicle that used the wiper system.
Chrysler case: Kearns fired lawyers represented himself. Kearns won second victory: 1991, jury found Chrysler infringed Kearns's patents and awarded him $11.3 million. Kearns received over $21 million from Chrysler, which amounted to 90� for every vehicle sold by Chrysler with the wiper system.
1993 and 1994, courts dismissed Kearns's lawsuits against 23 other automobile manufacturers, including General Motors, Porsche, Nissan, Toyota, and Honda because Kearns failed to comply with court orders to disclose documents. Thus ended Kearns's legal battle with the automobile industry.
COPYRIGHTS AND SOFTWARE COPYRIGHTS REQUIREMENTS SOLELY FEDERAL NO STATE LAWS
Works of authors and other creative persons from unauthorized use and provides financial incentive for authors to write.
Writing broadly defined: books, periodicals, and newspapers; lectures, sermons, addresses, and poems; musical compositions; plays, motion pictures, and radio and television productions; maps; works of art, including paintings, drawings, sculpture, jewelry, glassware, tapestry, and lithographs; architectural drawings and models, photographs, including prints, slides, and filmstrips, greeting cards and picture postcards; photoplays, including feature films, cartoons, newsreels, travelogues, and training films; and sound recordings published in the form of tapes, cassettes, and compact discs and MP3s.
REGISTRATION OF COPYRIGHTS PROTECTION
Must be original work of the author. Created when author produces work. E.G.: student�s term paper.
Published/unpublished works may registered with US Copyright Office, Washington, DC. Registration permissive & voluntary can be effected any time during the term of the copyright.
1989, U.S. SIGNED BERNE CONVENTION International copyright treaty: eliminated need place the symbol � or the word "copyright" or "copr." on copyrighted work.
THE SONNY BONO COPYRIGHT TERM EXTENSION ACT 1998
Individuals: Life + 70 years.
Businesses: 95 years from first publication; or 120 years from year of creation, whichever shorter.
After:work enters the public domain: anyone can publish work w/o paying prior copyright holder.
COPYRIGHTING SOFTWARE CONGRESS, 1980 COMPUTER SOFTWARE COPYRIGHT ACT, 3
Added computer programs to tangible items protected by copyright law. Creator obtains automatic copyright protection. Registrar of Copyright authorized to accept and record any document pertaining to computer software and to issue a certificate of recordation to the recorder.
CONGRESS SEMICONDUCTOR CHIP PROTECTION ACT OF 1984 "MASK WORK ACT."
Masks used to create computer chips, it�s the original layout of software programs used to create a semiconductor chip.
Copying of substantial and material part; not have to be either word for word/entire work.
(1) the profit made
(2) damages suffered,
(3) an order requiring impoundment and destruction of infringing works, and
(4) an injunction preventing doing so in future. Court discretion: Statutory damages up to $150,000 for willful infringement in lieu of actual damages.
THE NET ACT: CRIMINAL COPYRIGHT INFRINGEMENT NO ELECTRONIC THEFT ACT (NET ACT) CRIMINALIZES CERTAIN COPYRIGHT INFRINGEMENT.
Federal government criminally attack copyright infringement and curb digital piracy.
Willful infringing copyright for purpose of either: commercial advantage or financial gain, or reproduction or distribution, even w/o commercial advantage or financial gain, including by electronic means, where retail value of copyrighted work exceeds $1K. Penalties include imprisonment up to one year
fines of up to $100K.
FAIR USE DOCTRINE COPYRIGHT NOT ABSOLUTE. LAW PERMITS CERTAIN LIMITED UNAUTHORIZED USE OF COPYRIGHTED MATERIALS:
(1) quotation for review/criticism or in scholarly or technical work,
(2) use in a parody or satire,
(3) brief quotation in news report,
(4) reproduction by teacher/student of
small part to illustrate a lesson
(5) incidental reproduction in newsreel or broadcast of event being reported, and
(6) reproduction of work in legislative or judicial proceeding. The copyright holder cannot recover for copyright infringement where fair use is found.
Court had to decide whether there was copyright infringement or fair use.
Second Case: Fair Use: Newton v. Beastie Boys
Facts: James Newton Jr. wrote and copyrighted a composition, �Choir,� in 1978. Fourteen years later, the Beastie Boys incorporated six seconds of the composition into one of their songs without obtaining permission from Newton. Newton subsequently sued for copyright infringement. The Beastie Boys argued that it was �fair use,� and the District Court concurred, basing the decision on the fact that only a few seconds were used. Newton appealed.
Issue: Does the incorporation of a very short segment of a copyrighted musical composition into a new musical recording constitute �fair use,� or is it a violation of the copyright?
Reason: The Court of Appeals held that the use of de minimis copying is �fair use,� since they were looking at 6 seconds of a four and a half minute recording. This practice is now known as �sampling,� and has become quite common. There is no copyright infringement.
Elvis: Many companies and individuals own copyrights to Presley's songs, lyrics, photographs, movies, and appearances on TV shows. Millions of dollars of these copyrighted materials sold or licensed annually. Passport Video video documentary titled The Definitive Elvis, 16 one-hour episodes. Interviewed more than 200 people regarding virtually all aspects of Elvis's life. Passport sold videos commercially for a profit. Approximately 5-10% composed of copyrighted music and appearances of Presley on TV and in movies owned by copyright holders other than Passport. Passport did not obtain permission to use. Elvis Presley Enterprises, Inc., and other companies and individuals that owned copyrights to the Presley works used by Passport sued Passport for copyright infringement. Passport defended, arguing use was fair use. US Dist. Court held favor of copyright holders and enjoined Passport from further distribution. Passport appealed.
Not fair use but instead constituted copyright infringement: "The King is dead. His legacy, and those who "wish to profit from it, remain very much alive." Use was for commercial use rather than nonprofit purpose. Rejected Passport's claim videos consisted of scholarly research that would be protected as fair use. Caused market harm because substitute for the original copyrights and thus deny the copyright holders of the value of their copyrights. Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622, 2003 U.S. App. Lexis 22775 (9th Cir.)
SPECIAL INTERNET PROBLEMS; EASIER TO ILLEGALLY COPY AND DISTRIBUTE: DIGITAL MILLENNIUM COPYRIGHT ACT: DMCA
Software & entertainment companies developed "wrappers" and encryption technology so software pirates/other Internet users devised ways to crack wrappers & protection devices.
� Prohibits unauthorized access to copyrighted digital works by circumventing wrapper/ encryption: Called "black box" protection prohibits simply accessing the protected information and does not require that the accessed information be misused .
However, multipurpose devices that can be used in ways other than cracking wrappers or encryption technology can be manufactured and sold w/o violating.
EXCEPTIONS to liability
Software developers to achieve compatibility of their software w/ the protected work; (2) federal, state, and local law enforcement agencies conducting criminal investigations; (3) parents who are protecting children from pornography or other harmful materials available on the Internet: (4) Internet users who are identifying and disabling cookies and other identification devices that invade their personal privacy rights; and (5) nonprofit libraries, educational institutions, and archives that access a protected work to determine whether to acquire the work.
DMCA IMPOSES: CIVIL AND CRIMINAL PENALTIES.
Recovery of: actual damages from first-time offenders and treble damages from repeat offenders, costs and attorneys' fees, an order for the destruction of illegal products and devices, and an injunction against future violations by offender. An alternative to actual damages: statutory damages of not less than $2,500 and up to $25,000 per act of circumvention.
Criminal penalties for willful violations: committed for "commercial advantage" or "private financial gain": First time violators up to $500K and imprisoned up to 5 years; subsequent violators: fined up to $1 million and imprisoned up to 10 years.
TRADEMARKS AND ONLINE COMMERCE
Company names, advertising slogans commercial logos, to promote sale of their goods and services. E.G.: Nike, Microsoft, Louis Vuitton, and McDonald's millions to gain market recognition from consumers.
FEDERAL LANHAM TRADEMARK ACT 1946 AMENDED TRADEMARKS, SERVICE MARKS, AND OTHER MARKS
Protect owner's investment and goodwill; and prevent consumers confusion
Trademark registered w/U.S. valid 10 years; can be renewed unlimited 10-year periods.
NATIONWIDE EFFECT: constructive notice mark registrant's personal property. Entitled to use registered trademark symbol �, use not mandatory.
Note: Frequently used: "TM" and "SM" no legal significance.
Applicant can register mark if it�s been used in commerce (e.g., actually used in the sale of goods or services). Also register: six months prior to proposed use in commerce, but if not used w/in loses mark. Party other than registrant can submit opposition to proposed registration or the cancellation of a previously registered mark.
MARKS THAT CAN BE TRADEMARKED
Trademarks, service marks, certification marks, and collective marks:
� TRADEMARKS: Distinctive mark, symbol, name, word, motto, or device identifies goods of particular business. E.G.: words: Chevrolet, CocaCola, and IBM.
� SERVICE MARKS. Distinguish services of holder from competitors. Trade names: United Air Lines, Marriott International, and Weight Watchers.
� CERTIFICATION MARKS: Certifies goods and services are of certain quality or originate from particular geographical areas (E.G.:, wines from Napa Valley; or Florida oranges). Owner of the mark usually nonprofit corporation that licenses producers that meet certain standards or conditions to use the mark.
� Collective marks: Cooperatives, associations, and fraternal organizations. E.G.: Boy Scouts of America.
CERTAIN MARKS CANNOT BE REGISTERED. Include (1) flag or coat of arms of the U.S.A. , any state, municipality, or foreign nation; (2) immoral or scandalous; (3) geographical names standing alone (e.g., "South"); (4) surnames standing alone (note surname can be registered if accompanied by a picture or fanciful name, such as Smith Brothers cough drops); and (5) any mark resembles a mark already registered with the federal PTO.
DISTINCTIVENESS OF A MARK
For federal protection, must be distinctive or have acquired "secondary meaning." E.G.: For Xerox and Acura are distinctive. Nike, Inc. has trademarked its Just Do It slogan which has taken on a secondary meaning. Descriptive words w/no secondary meaning cannot be trademarked. E.G.: �Cola� alone.
Owner of a mark can sue third party for unauthorized use of a mark. To succeed:
(1) the defendant infringed the plaintiff's mark by using in unauthorized manner and (2) such use likely to cause confusion, mistake, or deception of public as to origin of goods or services.
Recovery (1) Profits made by infringer through unauthorized use of mark, (2) Damages caused to plaintiff's business and reputation, (3) an order requiring defendant destroy all goods containing unauthorized mark, and (4) an injunction preventing defendant from such infringement in future. Court discretion to award up to treble damages where intentional infringement is found.
�43(a) of Lanham Act protects certain forms of trade dress. This consists of "look and feel" of a product, a product's packaging, or a service establishment. The area of trade dress protection is an evolving area of the law.
U.S.S.CT.: found infringing copying of trade dress. 505 U.S. 763, 112 S.Ct. 2753, 1992 U.S. lexis 4533 Supreme Court of the United States
Does a restaurant's design have to have acquired a secondary meaning before it is protected as trade dress under Section 43(a) of the Lanham Act?
Third Case: Trade Dress: Taco Cabana, Inc. v. Two Pesos, Inc.
Facts: Taco Cabana, Inc., had operated a chain of fast food restaurants in Texas for over ten years. Its establishments were known for their vivid colors and distinctive striping. Two Pesos, Inc., opened a competing chain, with a similar motif. Taco Cabana sued, citing trade dress infringement. Two Pesos argued that the color scheme had not yet acquired a secondary meaning. Both the lower Court and the Court of Appeals found in favor of Taco Cabana. Two Pesos appealed to the U.S. Supreme Court.
Issue: Does a restaurant�s design have to acquire a secondary meaning before it is protected under the Trademark Act?
Reason: The Supreme Court held that trade dress is the total image of a business, and that there is no basis for requiring a secondary meaning for distinctive trade dress protection. It would unduly burden a business if competitors were to be allowed to appropriate the originator�s dress in other markets, and could prevent the originator from expanding into and competing in these markets.
FEDERAL DILUTION ACT
Companies owning trademarks often spend millions of dollars each year advertising and promoting the quality of the goods and services sold under their names. Many of these become household names that are recognized by millions of consumers, E.G.: CocaCola, McDonald's, Microsoft, and Nike. Traditional trademark law protected an infringer used the mark and confused consumers as to the source of the goods or services. For example, if a knockoff company sold athletic shoes and apparel under the name "Nike," there would be trademark
Similar to, but not exactly Owners of marks have valuable property right in their marks that should not be eroded, blurred, tarnished, or diluted in any way by another.
THREE FUNDAMENTAL REQUIREMENTS:
1. The mark must be famous.
2. The use by the other party must be commercial.
3. The use must cause dilution of the distinctive quality of the mark.
Dilution broadly defined as lessening of capacity of famous mark to identify and distinguish its holder's goods and services, regardless of presence or absence of competition between the owner of the mark and the other party. For example, if someone other than Nike had a Web site titled www.nikeathletes.com. it would be unlawful dilution.
Businesses use for communication of INFORMATION AND DATA. COMMERCIAL ACTIVITIES ONLINE
THE WORLD WIDE WEB
Amazon.com and eBay are e-commerce powerhouses sell all sorts of goods and services. Existing brick-and-mortar companies, such as Wal-Mart Merrill Lynch and Dell Computers, sell their goods and services online as well. E-commerce will continue to grow dramatically each year.
In the following case, the court addressed the liability of an ISP.
FOURTH CASE: Internet: John Doe. v. GTE Corporation
Facts: GTE Corporation was an ISP that maintained a high-speed connection and storage space for Franco Productions. Franco Productions uploaded secretly obtained video of the locker room of the Illinois State football team to their site, which was shared with its customers. The football players sued both Franco and GTE, but Franco could not be located and a default judgment was issued against them. The U.S. District Court dismissed the case against GTE, and the football players appealed.
Issue: Is GTE Corporation, as the ISP, liable for damages to the plaintiffs?
Reason: The Circuit Court held that the ISP, following well-established precedent, could not be treated as a publisher or speaker of any information supplied by a provider, and dismissed the case. Equated to telephone company and to USPS not being responsible.
E-commerce using Web sites that can be located. Each identified by unique Internet domain name. E.G.: the domain name for the publisher of this book is www.prenhall.com. Domain names can be registered at Network Solutions, Inc.'s, Web site (www.networksolutions.com) as well as at other sites. An applicant must complete a registration form, which can be done online. It costs less than $50 to register a domain name for one year, and the fee may be paid by credit card online.
Most commonly used top-level extensions for domain names are:
�. com. This extension represents the word commercial and is the most widely used extension in the world. Most businesses prefer a .com domain name because it is a highly recognized business symbol .
� . net. This extension represents the word network, and it is most commonly used by ISPs, Web-hosting companies, and other businesses that are directly involved in the infrastructure of the Internet. Some businesses also choose domain names with a .net extension .
� . org. This extension represents the word organization and is primarily used by nonprofit groups and trade associations.
� .info. This extension signifies a resource Web site. It is an unrestricted global name that may be used by businesses, individuals, and organizations.
� .biz. small-business Web sites.
� .us. U.S. Web sites. Many businesses choose this extension, which is a relatively new extension.
� .cc. This extension was originally the country code for Coco Keeling Islands, but it is now unrestricted and may be registered by anyone from any country. It is often registered bv businesses.
� .bz. This extension was originally the country code for Belize, but it is now unrestricted and may be registered by anyone from any country. It is commonly used by small businesses.
� .name. This r:e,,' extension is for individuals, who can use it to register personalized domain names.
� .museum. This extension enables museums, museum associations, and museum professionals to :egiste- \ Veb sites.
� .coop. This e:<:te::'.sion represents the word cooperative and may be used by cooperative associatiors :.:cund the world.
� .aero. Exclusively reserved for the aviation community. It enables organizatio:-.' 2.:.ci incb'iduals in that community to reserve Web sites.
� .pro. This extension is available to professionals, such as doctors, lawyers, consultants, and other professionals .
� . edu. This extension is for educational institutions.
Use of computer and electronic communications raise special issues of privacy, the federal government enacted the Electronic Communications Privacy Act (ECPA). The ECPA makes it a crime to intercept an electronic communication at the point of transmission, while in transit, when stored by a router or server, or after receipt by the intended recipient. An electronic communication includes any transfer of signals, writings, images, sounds, data, or intelligence of any nature. The ECPA makes it illegal to access stored e-mail as well as e-mail in transmission.
Electronic Communications Privacy Act
The ECPA provides that stored electronic communications may be accessed without violating the law by the following:
1. The party or entity providing the electronic communication service. The primary example would be an employer who can access stored e-mail communications of employees using the employer's service.
2. Government and law enforcement entities that are investigating suspected illegal activity. Disclosure would be required only pursuant to a validly issued warrant.
The ECPA provides for criminal penalties. In addition, the ECPA provides that an injured party may sue for civil damages for violations of the ECPA.
For centuries, national patent, copyright, and trademark laws defined the rights of, authors, and businesses. These laws offered protection within a country's borders but not in other countries. Beginning in the late 1800s, countries began entering into treaties and conventions with other countries that provided international protection of intellectual property rights.
INTELLECTUAL PROPERTY 1. TRADE SECRET
CRA-MAR Video Center, Inc., sells electronic equipment & videocassettes, as does its competitor, Koach's Sales Corp. Both purchased computers from Radio Shack. CRA-MAR used computer to store customer lists, movie lists, personnel files, and financial records. Computer new to CRA-MAR, so Randall Youts, Radio Shack's salesman and programmer, agreed to modify CRA MAR's programs when needed, including customer list program. CRA-MAR decided to send mailing to everyone customer list. Computer unable, so Youts took disks containing customer lists to Radio Shack store to work the program. Koach's came into possession of CRA MAR's customer lists and sent advertising mailings to parties on the lists. CRA-MAR discovered & sued Koach's, seeking injunction against further use of customer lists.
ISSUE: Is a customer list a trade secret that can be protected from misappropriation? Koachs Sales Corp. v. CRAMAR Video Center, Inc., 478 N.E.2d 110, 1985 Ind. App. Lexis 2432 (Ind. App.)
INTELLECTUAL PROPERTY 2. PATENT
�68, Patent No. 3,397,928 (928) issued to Edward M. Galle, executive of Hughes Tool Company. Galle assigned patent, & and other related patents, to Hughes. Twas an O-ring rubber seal used to seal bearings in cone of rock bit that rotated to drill holes in rocks. Used to drill oil wells. Hughes did not license its 928 patent = a substantial commercial success. Smith International, Inc., Hughes's major competitor. From �71 to �84, Smith made more than 460,000 rock bits (sales = $1.3 billion) Contained rubber seals infringed on Hughes's patents. Hughes sued Smith patent infringement requested $1.2B lost royalties + interest. Smith offered $20M to $60M in settlement. Trial court found Smith liable patent infringement. How much should Hughes be awarded in damages? Smith Internat'l, Inc. v. Hughes Tool Co., 229 U.S.P.Q81, 1986 U.S. Dist. Lexis 2847 (Fed. Cir.)
INTELLECTUAL PROPERTY 3. COPYRIGHT
Spiro Agnew resigned as VP; Nixon appointed Ford VP. �74 Watergate scandal, Nixon resigned, Ford acceded presidency, Ford pardoned Nixon. President til defeated by Carter in �76. �73, Ford entered contract w/ Harper & Row, to publish book memoirs. Were to contain significant unpublished materials concerning Watergate & and Ford's personal reflections on that time. Publisher instituted security measures to protect the confidentiality of the manuscript. Several weeks before released, unidentified person secretly brought copy of manuscript tNavasky, editor The Nation, weekly political commentary magazine. Navasky, knowing that possession of purloined manuscript was not authorized, produced a 2,250-word piece titled "The Ford Memoirs" and published it in the The Nation. Verbatim quotes of between 300-400 words, including some of most important parts. Harper & Row sued for copyright infringement. Who wins? Harper f:j Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 1985 U.S. Lexis 17
INTELLECTUAL PROPERTY. 4 COPYRIGHT
The Sony Corporation manufactures (VCRs) used to videotape programs and films shown on T.V. . VCRs used by consumers and others to videotape both copyrighted and uncopyrighted works. Primary use for VCR by consumers for "time-shifting�. Universal City Studios, Inc., and Walt Disney Productions hold copyrights on substantial number of motion-picture and audiovisual works shown on TV & cable stations, which pay them a fee. Some of Universal's and Disney's copyrighted works have been copied by consumers using Sony's VCRs. Universal and Disney sued Sony, seeking an injunction against the sale of VCRs by Sony. Is Sony liable for contributory copyright infringement? Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774, 1984 U.S. Lexis 19 (U.S.Sup.Ct.)
INTELLECTUAL PROPERTY 5. FAIR USE DOCTRINE
�77, NYC teetered on brink of bankruptcy: TV: image of top hatted Broadway showgirl, backed by dancers, chanting: "1-1-1-1-1-1 Love New Yo-o-o-o-o-o-o-rk." Ad campaign = unparalleled success. Crucial was a brief exhilarating musical theme written by Steve Karmin called "I Love New York." Elsmere Music, Inc., owned copyright music. May 20,�78, (SNL) performed comedy sketch on NBC ; SNL�s cast, portraying mayor & members of chamber of commerce of the biblical city of Sodom, seen discussing Sodom's poor public image w/out-of-towners and its effect on tourist trade. Attempt to recast Sodom's image in more positive light, new advertising campaign revealed, w/ highlight song "I Love Sodom" sung a cappella by a chorus line of SNL regulars to the tune of "I Love New York." Elsmere Music did not see humor of sketch sued NBC for copyright infringement. Who wins? Elsmere Music, Inc. v. National Broadcasting Co., Inc., 623 F.2d 252,1980 U.S. App. Lexis 16820 (2d Cir.)
INTELLECTUAL PROPERTY 6. TRADEMARK
Clairol Incorporated manufactures and distributes hair tinting, dyeing, and coloring preparations. �56, Clairol embarked on extensive advertising campaign to promote sale of "Miss Clairol" hair-color preparations; included ads in national magazines, on outdoor billboards, on radio and TV, in mailing pieces, and on point-of-sale display materials to be used by retailers and beauty salons. Prominently displayed slogans "Hair Color So Natural Only Her Hairdresser Knows for Sure" and "Does She or Doesn't She?" Clairol registered slogans as trademarks. During next decade, Clairol spent more than $22M advertising materials, resulting in more than BILLION separate audio and visual impressions using the slogans. Roux Laboratories, Inc., manufacturer of hair-coloring products and a competitor of Clairol's, filed an opposition to Clairol's registration of the slogans as trademarks. Do the slogans qualify for trademark protection? Roux Laboratories, Inc. v. Clairol Inc., 427 F.2d 823, 1970 CCPA Lexis 344 (Cust.Pat.App.)
INTELLECTUAL PROPERTY 7. TRADEMARK
Since �72, Mead Data Central, Inc.,provided computer-assisted legal research services to lawyers and others under the trademark "Lexis." Lexis based on lex, Latin word for law, and IS, for information systems. Extensive sales and advertising, Mead has made Lexis strong mark in computerized legal research field, particularly among lawyers. However, recognized by only 1% of general population, with almost half of this 1% percent being attorneys. Toyota Motor Corporation for many years manufactured autos, markets them in the US. On August 24, �87, Toyota announced new line of luxury autos to be called Lexus. Toyota planned on spending almost $20M marketing and advertising during first nine months of �89. Mead filed suit alleging Toyota's use of name Lexus violated NY�s anti dilution statute and would cause injury to business reputation of Mead and a dilution of distinctive quality of the Lexis mark. Who wins? Mead Data Central, Inc. v. Toyota Motor Sales, USA, Inc., 875 F.2d 1026, 1989 U.S. App. Lexis 6644 (2d Cir.)
INTELLECTUAL PROPERTY 8. GENERIC NAME
Miller Brewing Company, national brewer, produces reduced-calorie beer called Miller Lite. Miller began selling beer under this name in �70s spent millions promoting the Miller Lite brand name on TV, in print, and other forms of advertising. Since July 11,�80, Falstaff Brewing Corporation brewing and distributing reduced-calorie beer called "Falstaff Lite." Miller brought suit under Lanham Act, seeking injunction against Falstaff from using the term Lite. Is the term Lite a generic name that does not qualify for trademark protection? Miller Brewing Co. v. Falstaff Brewing Corp., 655 F.2d 5,1981 U.S. App. Lexis 11345 (1st Cir.)