Principles of Intellectual Property Law
Author:
Myers, Gary
Edition:
3rd
Copyright Date:
2017
24 chapters
have results for sports intellectual property
Introduction 12 results (showing 5 best matches)
- Intellectual property is, in my opinion, the most fascinating, rapidly changing, and analytically complex area of the law that you will encounter today. Intellectual property protections—which include the law of copyright, patents, and trademarks—come into play in fields as diverse as entertainment, sports, aviation, automobiles, biotechnology, and retail franchising. Every new movie, song, pharmaceutical product, brand-name product, and video game presents material that is protectable under one or more Intellectual Property paradigms. As the 2012 edition of this book went to press, for example, Apple had just won a $1 billion verdict against Samsung for infringement of Apple’s patents. As this 2017 edition goes to press, the Supreme Court just reviewed this verdict and decision, which continues to make its way through the federal court system.
- This book is designed to provide an overview of the entire field of intellectual property, covering the three main areas of federal intellectual property, as well as related state rights. The focus is on United States law, but relevant international treaties and some points of comparative law are also addressed. This is an ambitious task, and some narrow topics will necessarily receive only brief treatment, as each of the major topics in intellectual property could fill an entire book of this size.
- The structure of this book follows a consistent pattern throughout the various areas of intellectual property law. With regard to each type of intellectual property right, the book addresses issues of validity, ownership, infringement, defenses, and remedies. Validity is concerned with the threshold for establishing a particular type of right; ownership addresses the establishment of priority in those rights, while infringement addresses the proof that must be adduced to show a violation of the right. The discussion of defenses focuses on limitations on intellectual property rights and affirmative defenses that can be asserted even if the plaintiff establishes a prima facie case of infringement. Finally, the book briefly surveys remedies available for violation of each type of intellectual property right.
- Intellectual property has helped define our culture, our economy, and our lifestyle. Every new and innovative product—from the latest iPhone to the newest pharmaceutical product or medical device—is protected by patent law. The massive and pervasive technology firms that have defined our culture and altered how we interact with each other and with society in this century—Apple, Facebook, Google (Alphabet), Amazon, and Microsoft—all depend to varying degrees on their intellectual property. Each of these companies possesses proprietary technology protected by a portfolio mix of patent, copyright, and trade secret law, and each draws considerable value from the value of their brands, which are protected by trademark law. Our lifestyles are transformed by innovations that are secured by the protections of intellectual property law. As we approach a time when virtual reality technology, self-driving cars, and vast libraries of streaming content become a normal part of our lives,
- This book can serve as a free-standing introduction to intellectual property for readers with no background in the field. This book is also designed to be used as a companion text for any intellectual property casebook, but it includes discussion of many of the cases featured in
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Chapter 1. Overview 28 results (showing 5 best matches)
- The third point is that society might choose to provide Intellectual Property rights in order to stimulate and reward the creation of Intellectual Property. Without this incentive, there would be little or no financial reward for the creation of Intellectual Property, because it would be quickly used by others without any payment or permission. Jefferson made a philosophical observation here as well—suggesting that there is no “natural right” to Intellectual Property, and that instead the basis of Intellectual Property protection is the overall benefit that inures to society from the creation of Intellectual Property. This viewpoint differs substantially from the natural rights theory, which is much more influential in Continental Europe and elsewhere in the world, and which suggests the rights to creative works inherently belong to their creators by virtue of their labor and efforts. Interestingly, Jefferson
- Similarly, an invention or book has the characteristics of a public good. Once it is produced, others can imitate or copy the innovation or creative effort. These imitators or copiers are known as free riders. To solve this free rider problem, Intellectual Property law provides property rights in the invention or creative work. Absent these protections, there would not be sufficient incentives for investment in research and development or creative endeavor. Yet the fundamental irony of Intellectual Property is that once the invention or creative work has been made, the use of that Intellectual Property by others does not diminish it. This is Thomas Jefferson’s point in the quotation above.
- Intellectual Property law is designed to accommodate these conflicting aspects of the public good problem. On the one hand, Intellectual Property law provides property rights to encourage invention and creativity. On the other hand, the Intellectual Property Clause, which is found in Article I, Section 8, Clause 8 of the Constitution, mandates that copyright and patent rights cannot be perpetual, so that upon expiration the Intellectual Property can be freely used at no cost: “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.” Thus once a copyright or patent has expired, the information protected by these IP rights will fall into the public domain, as discussed below.
- Trying to provide an overview of a field as all-encompassing and crucial as Intellectual Property is a daunting task. One useful way to begin is to look at how Intellectual Property has been viewed historically, starting with one of the Founding Fathers, Thomas Jefferson. The following quote is frequently cited by commentators in the Intellectual Property field, although they often only include the first four sentences, rather than the five that are quoted here:
- The second point found in Jefferson’s letter is that information is not readily appropriated. This fact is one of the fundamental conundrums of Intellectual Property—once information is created, it is difficult to prevent others from making use of it. Unlike fencing a field, storing oil in a tank, or harvesting grain, there is no readily apparent way to appropriate or take control of Intellectual Property, particularly in a state of nature. Without the legal constraints of Intellectual Property law, information would be free. Unfortunately, however, there would be no financial incentive to create new information or innovations.
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Chapter 5. Copyright Defenses 15 results (showing 5 best matches)
- The overarching theme of the misuse doctrine is that appropriate limits should be placed on Intellectual Property rights. The misuse doctrine is an integral part of both patent and copyright law, offering an affirmative defense to infringers when the Intellectual Property owner has allegedly overstepped its rights. Similarly, the antitrust laws place limits on the exercise of Intellectual Property rights. These issues have been the subject of public debate, for example, in studies and hearings about competition in Intellectual Property conducted by the Federal Trade Commission and Justice Department. Strikingly, despite the importance of the interaction between antitrust and Intellectual Property policy, there is no general framework or paradigm to analyze potential conflicts between these two fields. The balance between Intellectual Property and antitrust policy must be struck by reference to the policies and analytical framework inherent in patent and copyright law, and from the...
- The balance between these two fields can lead to varying results. For example, if it is found that Intellectual Property law expressly or implicitly permits or reserves certain rights to owners of patents or copyrights, then the exercise of those rights is likely to raise fewer antitrust concerns. On the other hand, when Intellectual Property doctrine is expressly designed to constrain the exercise of particular rights, then there is likely to be heightened scrutiny of conduct that is designed to circumvent these limits. Finally, if Intellectual Property law is silent on the particular practice in question, then the standard analytical methods of antitrust law and economics are most likely to be applied. These at least are my overall conclusions about
- frivolous. The company claims an absolute and unfettered right to use its Intellectual Property as it wishes: “[I]f Intellectual Property rights have been lawfully acquired,” it says, then “their subsequent exercise cannot give rise to antitrust liability.”. . . . That is no more correct than the proposition that use of one’s personal property, such as a baseball bat, cannot give rise to tort liability.”
- International Intellectual Property always involves a delicate balance. One goal is to offer a sufficient level of Intellectual Property protection to enable and protect investments in innovation and creativity. There is also a public interest goal in access to creative works. The foundational treaty, as mentioned, is TRIPS, which provides minimum standards for international protection in the areas of copyright, trademarks, geographical indications, and integrated circuits. This author has written an article contending that the expanded exemption adopted in the Fairness in Music Licensing Act should be abolished and the United States should be brought back into compliance with international agreements protecting basic public performance rights.
- The misuse doctrine, which is an important part of both patent and copyright law, plays a fundamental role in delineating the boundaries of Intellectual Property rights. Often Intellectual Property owners seek to obtain rights or otherwise seek benefits that are not within the scope of the rights granted to them by Congress. The misuse doctrine covers behavior in which a patent or copyright owner attempts to extend its power beyond the boundaries of the lawful rights under the patent or copyright.
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Chapter 2. Copyrightable Subject Matter 13 results (showing 5 best matches)
- The extent to which each of these ten assertions are incorrect (at least in part) will become clear in the next several chapters. Within each major field of intellectual property, this book is organized based on the main elements of an intellectual property claim. Consider the case of a copyright. Those elements are:
- clearly established that the Intellectual Property Clause does not authorize copyright protection for works that do not satisfy a minimum standard of creativity, as well as that the Copyright Act does not cover such works. In that sense, the ruling in
- implies that the Intellectual Property Clause would not provide Article I authority to Congress for a database law. The alternative, of course, is for Congress to anchor the database law in its Commerce Power. It is clear that the development, marketing, and sale of databases would be activity in interstate and foreign commerce, and thus within Congress’ power to regulate. The real issue would be whether using the Commerce Clause as a basis for the database law constitutes an impermissible end-run around the limited authority Congress possesses under the
- Paul J. Heald & Suzanna Sherry, Implied Limits on the Legislative Power: The Intellectual Property Clause As an Absolute Constraint on Congress, 2000 U. Ill. L. Rev. 1119, 1178–79
- We entertain no doubt that the constitution is broad enough to cover an act authorizing copyright of photographs, so far as they are representatives of original intellectual conceptions of the author.
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Chapter 19. Idea Protection & Misappropriation 6 results (showing 5 best matches)
- Lange, LaFrance, Myers, & Lockridge, Intellectual Property: Cases & Materials
- origins, and its potential for conflict with the Intellectual Property Clause or federal doctrinal law. Yet the case is far from dead.”
- Ideas might be called the “poor stepchild” of Intellectual Property law. Copyright law specifically disavows any protection for ideas in the express language of section 102 of the Copyright Act. Clear patent law precedent also establishes that an abstract idea or concept is not eligible for patent protection. Trademark law protects branding ideas but only if they have been used in commerce or for a limited time in an intent-to-use trademark application; once again, abstract marketing or branding ideas do not receive trademark protection. Trade secret law might protect an idea, but only if it provides a business advantage over competitors, it is the subject of reasonable secrecy measures, and it is not generally known or used in the industry. So the question becomes how does a party protect an idea and how can that idea be conveyed or transferred to the party who has the greatest willingness to pay for it. Contract law provides the principal avenue for protection of ideas.
- Monumental Properties of Georgia, Inc. v. Frontier Disposal, Inc.,
- In that case, an employee brought suit against a former employer, claiming the wrongful appropriation of an idea or plan for leasing and managing residential rental property. The court held that the plan was not novel, which was an essential element of the claim. The plan did not create anything new to the real estate industry, but was merely somewhat better than existing business methods. The court set forth the following elements and analysis in reaching this conclusion:
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Chapter 13. Patentable Subject Matter 14 results (showing 5 best matches)
- In 2015, the PTO issued over 325,000 patents. Patents protect a variety of important innovations and they form the core of the intellectual property portfolios for many companies, as well as other entities, such as universities. According to the Intellectual Property Office (IPO), the top 10 entities owning utility patents in the United States in 2015 are:
- David A. Balto, Intellectual Property and Antitrust: General Principles, 43 IDEA 395 (2003)
- The overlap between copyright and design patent law presents the inevitable question of interest to designers who wish to maximize the Intellectual Property protections for their work—can a designer obtain
- . The Patent Office disclosure includes detailed descriptions of each patent, along with accompanying drawings and specifications. Moreover, although patent protection is broader in scope than other forms of Intellectual Property protection, it is much shorter in duration and more difficult to obtain than trademark or copyright protection.
- To be patentable, an invention must meet stringent statutory standards. Two crucial requisites are the novelty and non-obviousness requirements. To meet the novelty standard, an invention must not be found in the prior art—the base of existing public knowledge. In contrast, copyright law merely requires originality, meaning only that the work must not itself have been copied from others. Non-obviousness requires that the invention differ from the prior art in a meaningful way—what is sometimes called an inventive step—a requirement discussed more fully below. Because of the demanding nature of these statutory standards, the process of obtaining patent protection is far more rigorous than the process of obtaining any other form of intellectual property protection. Even after issuance by the Patent Office, a patent is vulnerable to legal challenge in court, and historically approximately half of all litigated patents are ultimately found to be invalid in federal court.
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Chapter 11. Trademark Remedies 1 result
- Injunctive relief is not the norm in most areas of the law, and the showing typically required to obtain such relief is difficult to make outside of Intellectual Property and a few other fields. Injunctions are frequently granted in the Intellectual Property field, although the decision whether to issue an injunction is always decided on a case-by-case basis. In trademark law, the injunctive relief enables the trademark owner to maintain control over its marks and prevents consumer confusion or deception. The payment of a license fee—a type of compulsory license, in effect—would prevent the trademark owner from retaining control over its brand name and good will. A disclaimer may be helpful in some instances, but is often inadequate to dispel confusion, particularly if the disclaimer is commonly (and easily) removed, or is not very prominent. Thus, courts frequently issue injunctive remedies in trademark cases, as long as the plaintiff satisfies the standard requisites under...
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Table of Contents 3 results
Chapter 16. Patent Defenses 3 results
- The misuse doctrine in patent law plays a fundamental role in delineating the boundaries of Intellectual Property rights. Often Intellectual Property owners seek to obtain rights or otherwise seek benefits that are not within the scope of the rights granted to them by Congress. The misuse doctrine covers behavior in which a patent owner attempts to extend its power beyond the boundaries of the lawful rights under the patent.
- Herbert Hovenkamp, Mark D. Janis & Mark A. Lemley, Intellectual Property & Antitrust: An Analysis of Antitrust Principles Applied to Intellectual Property Law,
- One point that appears to be settled is the proposition that patent owners are not categorically exempt from standard antitrust analysis. As the Federal Circuit succinctly stated: “Intellectual property rights do not confer a privilege to violate the antitrust
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Chapter 20. Sui Generis Intellectual Property Rights 10 results (showing 5 best matches)
- statutory Intellectual Property rights have been enacted under federal law. A
- the trademark or other intellectual property rights of the person, if any, in the domain name;
- clearly established that the Intellectual Property Clause does not authorize copyright protection for works that do not satisfy a minimum standard of creativity, as well as that the Copyright Act does not cover such works. In that sense, the ruling in
- would imply that the Intellectual Property Clause would not provide Article I authority to Congress for a database protection law. The alternative, of course, is for Congress to anchor the protection database law in its Commerce Power. The development, marketing, and sale of databases would be activity in interstate and foreign commerce, and thus is arguably within Congress’ power to regulate. It would appear the High Court would uphold such a law as long as it was not deemed to be an attempt to take an end-run around the limitations on congressional power in the Intellectual Property Clause.
- The controversy surrounding SOPA and PIPA highlights the central challenge of Intellectual Property law—how to protect the legitimate interests of creators and of society by rewarding innovation and creativity, while at the same time allowing for the development of a robust competitive economy and a free and open society, particularly on the Internet. Technology has posed a challenge to Intellectual Property law since the days of the first printing presses. Today, those challenges are even more pressing and potentially devastating, as demonstrated by the severe contraction of the music industry. Yet, these changes can provide opportunities for new forms of creativity and of commerce. As IP law develops, it is important to maintain an awareness of the balance, avoiding both extreme overprotection of rights-holders and blatant free riding on the creative efforts of others.
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Chapter 9. Trademark Infringement 5 results
- the court addressed a claim involving the other theory of liability for dilution—tarnishment or injury to business reputation. The court found the defendant’s “Enjoy Cocaine” poster, which also made use of the Coca-Cola color scheme, did tarnish the Coca-Cola mark. It is worth considering the circumstances in which another’s use of a well-known name would tarnish the mark. The ultimate question is whether a defendant should be permitted to use the well-known imagery of a trademark to highlight, strengthen, or make more humorous its message. Those who view Intellectual Property rights as somewhat akin to tangible property rights would say “of course not, just as they would have no right to take my microphone or billboard or hillside and print their message on it.” Others would distinguish Intellectual Property from tangible property and would argue that there should be more room for creative expression that makes some use of or evokes trademark imagery. Ultimately, the question is...
- memories,” and Rodney Dangerfield’s “Take my wife please” and “I don’t get no respect.” Foxworthy has successfully obtained Intellectual Property protection for most of his act: his introductory slogan is protected as a trademark and the actual text or expression of his jokes is arguably protected under copyright law. Of course, Foxworthy’s name and image are protected under the right of publicity and possibly other theories as well (this right is discussed in Chapter 12). This case thus illustrates the many Intellectual Property weapons in a successful marketer’s arsenal.
- Lange, LaFrance, Myers, & Lockridge, Intellectual Property: Cases & Materials
- Sports Authority, Inc. v. Abercrombie & Fitch, Inc., 965 F. Supp. 925 (E.D. Mich. 1997)
- involves claims of trademark infringement in the context of claims involving commentary making use of a well-known trademark. The defendant sold t-shirts highlighting the threat of nuclear war, and the shirts were imprinted with a satirical “Mutant of Omaha” mark and a stylized logo reminiscent of the plaintiff company’s Indian-head logo. The district court found in favor of Mutual of Omaha; the Eighth Circuit, viewing the “likelihood of confusion” finding as a fact issue, held that the lower court’s ruling was not clearly erroneous. This case may present a situation in which the standard of review played an important role, as did Mutual of Omaha’s showing of “actual confusion” through its survey evidence. Another significant factor that explains the result is the court’s adoption of a “property” approach to trademarks, drawing an analogy to the rule that real property cannot generally be used for a message because alternative avenues exist for expressing the message.
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Chapter 3. Copyright Ownership 13 results (showing 5 best matches)
- works that had been left previously unprotected under prior state copyright law. Justice Ginsburg also noted prior restorations of protection under patent law, suggesting by analogy that the Intellectual Property Clause was not a bar to such actions. Next, the Court noted that
- The Intellectual Property Clause of the Constitution states that Congress has the 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.”
- the Supreme Court addressed the constitutionality of section 104A, discussed above, which restored the copyright in works of foreign origin that had entered the public domain in the United States because of failures to comply with formalities or for other technical reasons. The Court held that restoration of the copyright in foreign works did not violate the Intellectual Property Clause (specifically, the “limited times” and “progress” clauses) or the First Amendment.
- the court rejected a claim that the statute and regulations exempting certain works from deposit requirements violated the Intellectual Property Clause.
- Intellectual property is thus the “currency” of many entertainment and media industries. Copyright law has a number specific rules that have a major impact on these licenses and assignments of rights. Section 204 requires that transfers of copyright be memorialized in a signed writing—in effect, establishing a federal “statute of frauds” (
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Chapter 4. Copyright Infringement 16 results (showing 5 best matches)
- The Beijing Treaty on Audiovisual Performances addresses the intellectual property rights of authors in audiovisual performances. This treaty has also been signed but not ratified by the Senate as of as of November 2016. A summary of this treaty can be found here:
- Thomas F. Cotter, The Procompetitive Interest in Intellectual Property Law, 48 Wm. & Mary L. Rev. 483 (2006)
- Congress enacted the Digital Millennium Copyright Act (DMCA) in 1998 to implement the World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty), which requires signatory countries to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors of copyrighted works, when the circumvention is not authorized by the author or permitted by law.
- as the death knell for attribution claims under the Lanham Act. Laura A. Heymann, for example, observed: “Although a cornerstone of the European moral rights regime, a right to attribution (or, relatedly, a right to a disclaimer of nonattribution) has never had more than a toehold in United States intellectual property law. And whatever such rights federal courts had been willing to find in the Lanham Act have now largely been eviscerated following the United States Supreme Court’s 2003 decision in
- , the implications of this case for Intellectual Property law remain unclear at this point. A narrow reading of
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Chapter 12. The Right of Publicity 2 results
- John McMillen & Rebecca Atkinson, Artists and Athletes: Balancing the First Amendment and the Right of Publicity in Sport Celebrity Portraits, 14 J. Legal Aspects Sport. 117 (2004)
- The right of publicity has received considerable media attention in recent years because of claims asserted by collegiate athletes that their publicity rights were violated by the uncompensated uses of their names and likenesses in connection with college sports, and particularly in video games depicting college-level matches. Relevant cases include
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Chapter 6. Copyright Remedies 3 results
- Section 504 sets forth monetary remedies for copyright infringement. In general, an infringer of copyright is liable for either (1) the copyright owner’s actual damages and any additional profits of the infringer or (2) statutory damages, as provided in section 504(c). The first of these options is a typical remedy in the Intellectual Property field, and indeed in many other areas of the law as well. In essence, this option allows the copyright owner to recover compensatory damages for the loss it suffered or the gain the defendant obtained. The second option, statutory damages, is a much more unusual provision, as discussed below.
- (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” The Court rejected the Federal Circuit’s presumption that injunctions should be routinely granted in patent cases. The Court’s decision makes it clear that injunctions are only granted when the four-part showing is made. In practical effect, the patent owner is likely to be able to make this showing in most (but not all) cases. Although not directly applicable to copyright litigation, the ruling reaffirms the principle (reflected in the copyright cases cited above) that a plaintiff asserting Intellectual Property rights has the burden of proving the four-part test for injunctive relief on the specific facts of each individual case.
- Often damages in copyright cases are difficult to prove or to quantify, and Congress has provided for a relatively unique alternative method for allowing copyright owners to obtain monetary relief—the statutory damage claim. This remedy is not found in most other areas of Intellectual Property law, and indeed is quite unusual in the law more generally. Section 504(c) establishes the general range for statutory damage awards: “the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just.” Accordingly, the factfinder can award statutory damages in an amount ranging from $750 to $30,000 per copyrighted work. For...
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Chapter 14. Patent Ownership 6 results (showing 5 best matches)
- Aside from the specific term extensions described above, patents cannot be extended or renewed. Once the patent expires, the innovation is in the public domain, where it can be freely used by others without payment or permission. Many patent holders seek to have some continuing patent protection by patenting improvements on their existing products, but the basic underlying invention would still be in the public domain. This result is consistent with the operative language and fundamental purpose of the Intellectual Property Clause, which permits patent protection for “limited Times.”
- : “The history of litigation involving employer-employee rights in inventions indicates that, absent a specific agreement, an employer’s rights arise from the inventor’s employment status. Those inventions made by an employee ‘employed to invent’ are typically the property of the employer, while those made by other employees in ‘general employment’ of a noninventive nature, using the employer’s property, are typically
- facilities, and materials to attain a concrete result, the latter is in equity entitled to use that which embodies his own property and to duplicate it as often as he may find occasion to employ similar appliances in his business. But the employer in such a case has no equity to demand a conveyance of the invention, which is the original conception of the employee alone, in which the employer had no part. This remains the property of him who conceived it, together with the right conferred by the patent, to exclude all others than the employer from the accruing benefits.
- Subject to the provisions of this title, patents shall have the attributes of personal property. Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing. The applicant, patentee, or his assigns or legal representatives may in like manner grant and convey an exclusive right under his application for
- the invention, which shop right is co-extensive with the business requirements of the employer; that is to say, because the servant uses his master’s time, facilities and materials to attain a concrete result, the employer is entitled to use that which embodies his own property and to duplicate it as often as he may find occasion to employ similar appliances in his business.
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Chapter 10. Trademark Defenses 2 results
- the court rejected various defense arguments that plaintiff had abandoned the “Cohiba” trademark for cigars. Several cases involving well-known names in sports also provide useful illustrations. First, in
- These doctrines vindicate the trademark law policy protecting consumers against confusion and deception. For trademark lawyers, this doctrine highlights the importance of being certain that the proper contractual language is used in all documentation of transfers of trademark rights. Finally, as in other areas of Intellectual Property, courts will entertain a variety of equitable defenses, such as acquiescence and laches.
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Table of Cases 5 results
Chapter 8. Trademark Ownership 1 result
- is a useful springboard for consideration of the purpose of the ITU provision. Importantly, this provision is an example of the trend toward international harmonization in Intellectual Property law. Many foreign nations premise the acquisition of trademark rights upon the filing of applications akin to the ITU application, while American law required a showing of actual use in trade, as illustrated by
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Chapter 7. Trademark Validity 4 results
- Although these are good reasons to provide protection for trademarks, there is a balance of interests in this field, just as in other areas of Intellectual Property law. For example, no one is entitled to a monopoly on the name of a product—such as “cola” or “automobile.” These words are necessary to identify the product being sold, and permitting any one producer to monopolize these terms would give that firm an unfair advantage in the market. Similarly, if a firm chooses a highly descriptive word as its trademark (such as “green”), it will be entitled to less protection that if it selects a more distinctive name. Other firms may, in good faith, seek to use the descriptive term to refer to the product—not to usurp good will or confuse consumers. Thus, a balance must be struck in trademark law
- Lange, LaFrance, Myers & Lockridge, Intellectual Property: Cases & Materials
- Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 613 (9th Cir. 1989)
- Where, as here, however, the infringing party has previously sold his business, including use of his name and its goodwill, to the plaintiff, sweeping injunctive relief is more tolerable. Goodwill is a valuable property right
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Chapter 18. Trade Secret Law 2 results
- Therefore, a company might make use of trade secret law during preliminary stages of product development, while eventually seeking patent protection for some or all aspects of its proprietary information. Subject to the requirements of patent law (for example, requiring patent applications to be filed within one year of public use or of placing a product on sale), both fields of intellectual property law can be invoked when appropriate. Of course, to the extent material is disclosed or claimed in a patent, it ceases to be eligible for trade secret protection. Nonetheless, a company might seek to claim patent protection for aspects of its product that will be apparent or easily reverse engineered upon marketing and sale of the product, while retaining trade secret protection on aspects of the manufacturing process that are not readily reverse engineered. Unlike patent law, which provides exclusive rights against any party that makes, uses, sells, offers to sell, or imports the...
- The trade secret owner can obtain ex parte remedies in extraordinary circumstances. Ex parte proceedings are an extraordinary procedural avenue, as they are conducted without notice or an appearance by the defendant or defense counsel. The court can issue an order providing for the seizure of property necessary to prevent the dissemination of the trade secret, based on a sworn affidavit or verified complaint.
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- Publication Date: January 27th, 2017
- ISBN: 9781634607599
- Subject: Intellectual Property
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: Intellectual property has helped define our culture, our economy, and our lifestyle. This book provides a comprehensive survey of the entire field of intellectual property, including copyrights, patents, trademarks, trade secrets, unfair competition, and the right of publicity. It is designed to be reader-friendly and is up-to-date through October 2016, including many new important Supreme Court decisions in copyright, patent, and trademark law. It can be a study guide for an intellectual property survey course or used as a useful introduction or refresher for anyone interested in the field. The book focuses primarily on three main federal intellectual property rights – copyrights, patents, and trademarks – along with the new federal trade secret law and important areas of state law protection (such as the right of publicity).
