Intellectual Property and Internet Law

Let’s start by defining
intellectual property. It’s any property that’s
product of an individual’s mind. Some examples would
include books, software, movies,
and music. It goes way back to
the U.S. Constitution. Constitution in
Article 1, section 8, protects intellectual
property, or IP. It says, “Congress shall
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.” So there’s a kind of a
constitutional monopoly for inventors. Ownership of IP is strategically
important in the global economy. We don’t deal locally
that often these days. We’re involved in
global commerce. First type of
intellectual property we’ll talk about
is trademarks. There’s statutory
protection for trademarks including the
Lanham Act of 1946 and the Trademark
Dilution Act of 1995. The Lanham Act provides federal
protection to manufacturers from losing business
to rivals that use confusingly
similar brands and products. Trademark Dilution Act of ’95
amended the Lanham Act to bring federal cause of
action in federal court for trademark
dilution, even when the mark is
unlikely to confuse. Similar marks may give
rise to a dilution. So it doesn’t have to
be exactly the same. Registration
of trademarks are with the US Patent and
Trademark Office, or USPTO. This gives notice
to third parties, and a mark can be
registered if it’s in use or if the mark will be used
within a six-month period. Infringement of trademarks
is the unintentional or intentional substantial
copying of a mark, so again, it doesn’t have
to be complete copying. It doesn’t even have
to be intentional. Courts look at the
distinctiveness of the mark. Fanciful, arbitrary, or
suggestive trademarks are most marks normally not
related to the product. For example, Apple
is really a computer. Another devise is
Starbucks, its coffee. This is a strong mark– a suggestive mark
brings something to mind without describing
the product entirely. A mark can have a
secondary meaning. Descriptive, geographical,
or personal names do not acquire protection
until consumer’s associate the term with
the product. For example, “London Fog”
would seem to do with weather but it’s associated
with coats. Generic terms
get no protection. Examples would be
“bicycle” or “computer.” There’s also service,
certification, and collective marks. Service marks are
similar to trademarks but used
for services. A certification mark
relates to quality. You’ve probably heard of like the “Good Housekeeping
Seal of Approval.” And a collective mark is
used by members of a club, cooperative,
association, or union. Trade dress protects the image
and appearance of a product. For example, if you
think of Starbucks, you probably think of green,
white, lately brown. A trade name indicates all
or part of the business name that is protected. An example
would be Safeway. There’s also protection
against counterfeiting goods. The Stop Counterfeiting in
Manufactured Goods Act of 2006 criminalizes
intentional trafficking in counterfeit goods. One thing you do with
intellectual property is license it. That means you can
allow someone else to use your
intellectual property, or you could use intellectual
property with permission. It’s an agreement that permits
use of a trademark, copyright, or patent in
cyberspace or– it doesn’t have to
be in cyberspace. Owner is the license owner,
and the user is the licensee, and the terms of the use are
delineated in license agreement. Looking at cyber marks,
domain names have been an issue in the past. For example, somebody
has the name Nike. And someone goes
online and cybersquats, or gets the
name This can prevent
some conflict. ICANN is an organization that
tries to prevent those conflicts and mediate
those conflicts. Anti-cybersquatting
legislation is laws related to
cybersquatting, occurs when a third party
registers a domain name that’s the same or similar
to another company’s own trade name. And this has been
turned into law in ’99– Anti-Cybersquatting
Consumer Protection Act. There’s also some attempts
to draw views to a web page by including key
words in meta tags. An example is a case,
Playboy vs. Welles. And then there can be
dilution in the online world. Trademarks can be
diluted on the web. For example,
“Candy Land” is a game, but I have a different
meaning and case 5.2, Hasbro vs. International
Entertainment Group. Patents are a government
monopoly that gives the inventor the exclusive
right to make, use, or sell an invention
for 20 years. There are a couple patent
databases that are listed here. What is patentable? Items that are novel–
not things that are obvious. Almost anything is patentable
excluding the laws of nature, natural phenomena,
abstract ideas. Things like processes,
inventions… those are
patentable. Patent is infringed when the
manufacture, use, or sale of another’s product or design
is done without permission, or without
a license. You see this a lot– patent infringement in
high-tech companies. Generally there’s not an
infringement under US law when a patented product is made
and sold in another country. There’s been a lot of
disputes about patent between Apple
and Samsung. Filed suit with the
International Trade Commission and US History Court alleging
infringement of patents, trade dress,
and trademarks. Those cases are
going back and forth. Most recently, Apple won, and
Samsung owes a large recovery. Remedies for patent
infringement include injunctions or orders preventing
further infringement, damages for
royalties, and reimbursement for
attorney fees and cost. Copyright is an
intangible property right that automatically grants,
by federal statute, to the author for life
plus seventy years. So the other things
I’ve been talking about require
registration. Copyright doesn’t. If it is registered, then that does give you
additional protections ’cause it puts
everyone on notice. Copyright work must be original
and fixed in a durable medium. Ideas are not copyrightable,
they’re not protected. Expression of
that idea– for example,
coming out in a book– that would be
protected. There are some exclusions, and
some things are copyrightable, even if they’re facts. Facts typically aren’t, but a compilation of
facts is protected. If a form or
expression is copied, then it doesn’t have
to be in its entirety– that infringement. Remedies would include
penalties, damages, and criminal action. There’s a
fair use exception. Certain people, organizations
can copy work without penalty. There are statutory
requirements for that. For example, using it
for some educational news or research purpose– how much of it is used,
is it for profit, etcetera. There’s a First Sale
doctrine, section 109(a). Once a person buys or
gives a copyrighted work, the original copyright
holder loses control of its distribution. Modern issues in copyright
include software. In 1980, which isn’t that
modern in these days, but– Computer Software Copyright Act
which include computer programs, included computer
language, binary code, structure, sequence,
and organization, but doesn’t include the look
or feel of the software. Moving forward,
more recently, the digital age, digital information
could be copied. Protection could
be circumvented. Generally anytime
a party downloads software or music without organization,
that’s infringement. There’s a–
’98 DMCA, and SOPA, which was
recently rejected. And PIPA. These are laws that tried
to prevent pirating of digital information
or showing someone how to circumvent
the protection. MP3s and file sharing has
been going on for a long time, even back to Napster
and Grokster. Napster’s tried to
come back a few times. Latest with a subscription
model– that failed. Basically, the idea is you
share files across a network. We even have that today
in cloud computing. Trade secrets are not
intellectual property. They’re confidential, they’re
not filed with the government. Could be something
like a customer list, formulas, pricing. However, theft of trade
secret is a federal crime under the Economic
Espionage Act of ’96. This could also
happen in cyberspace. Theft of trade secrets through
employees emailing information. For example, a customer
list to a competitor. And you don’t have to
memorize these laws or years. They were created, and you can
see case 5.3 for an example of the issues that are dealt
with at an international level. But there’s three
major protections. Internationally there’s
the Berne convention, TRIPS, and the Madrid Protocol.

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