Study Guide Part 2 (M37-55) LEB 320F Final Exam 2023 Update

Study Guide Part 2 (M37-55) LEB 320F Final Exam 2023 Update Introduction to Intellectual Property and Trademarks (M37) - *Intellectual property law is based on several fundamental concepts. 1. intellectual property law protects certain types of knowledge, ideas, and expressions by granting rights to creators. 2. when someone else violates these rights, the violator is engaging in a type of competition that has been declared unlawful. Experience has taught us that some conduct which enhances competition in the short run may actually harm competition in the long run. Imagine that a company invests time, energy, and money in coming up with a new invention that provides a benefit to society, and a copycat begins making and selling the same product. If the inventing company has no way to protect its investment, it is less likely to make the same kind of investments in the future. In many sectors of the economy, the most important type of competition is the competitive rivalry to innovate. 3. even though there is a general consensus that intellectual property laws benefit society in the long run, such laws can go too far. If, for example, too many patents are granted on inventions that really don't deserve such protection, society pays the shortterm price of less competition but does not receive the long-term benefits from genuine innovation. The best system provides protection to intellectual property that is no greater than is necessary to create and maintain adequate incentives to innovate and create over time. No system is ideal. No nation's intellectual property laws, including the United States', are perfect. Most experts continue to believe, however, that societies are better off with imperfect laws than without them. **TRADEMARKS* - protect four things; distinctive words, phrases, symbols, and devices. NOTE: Trademarks last forever if maintenance, renewal and (timely) files all documents. Learning Example: Walter makes watches. No smart watches, digital watches, or even battery powered watches for him - he works with tiny gears and makes old fashioned mechanical watches. One summer, he invents a new configuration of gears that allows for a watch to keep track of multiple time zones in an entirely new way. He calls the new watch the "Neptune", and plans to start selling it in his shop. Which of the following can Walter probably trademark? A. The design for his new kind of gear movement B. The name of his new kind of watch: "Neptune" C. Both A and B NOTE: Product names are often trademarked. Designs and inventions are usually protected as trade secrets or with patents, which are described over the next two modules. (B) (Protectability of Marks) **GENERICIDE* - "losing protection" Owners brand/not general description/type of good or service (Companies are proactive to fight to keep) 50+ years *GENERIC* - "Describes an entire class" not initially deemed generic, becomes over time. Example: Water or Apples (actually selling the described term) (NOTE PROTECTABLE) *DESCRIPTIVE* - "Secondary meaning" - Ex. Dell (PROTECTABLE) *SUGGESTIVE* - "Suggest rather than describe" - Ex. Morning Blast (Energy Drink), Roach Motel (Roach Bait) *ARBITRARY* - "Fanciful" - Apple (Phone), Camel (Cigarettes), Shell (Gas) Learning Example: Walter makes watches. No smart watches, digital watches, or even battery powered watches for him - he works with tiny gears and makes old fashioned mechanical watches. One summer, he invents a new configuration of gears that allows for a watch to keep track of multiple time zones in an entirely new way. He calls the new watch the "Neptune", and plans to start selling it in his shop. What type of mark is "Neptune"? A. generic B. descriptive C. suggestive D. arbitrary NOTE: The name "Neptune" as applied to the watch has no relationship to the planet Neptune or the mythical figure Neptune. As such, it is an arbitrary mark like Apple for electronic devices. (D) University of Texas v. KST Electric, Ltd. U. S. District Court, Western District of Texas, 550 F.Supp.2d 657 (2008) (M38) - (Trademarks) KST was started by Kenneth and Suanna Tumlinson in 1994. They are avid fans of University of Texas athletics and have had season tickets to the football games for many years. They used the "discontinued" Longhorn Logo shown below, and there is a dispute between UT and KST as to whether KST has totally discontinued use of that mark. However, in 1998 KST designed and began to use the so-called Longhorn Lightening (sic) Bolt Logo (or "LLB Logo") shown below. The logo's design consists of a longhorn silhouette with a "K" on the left cheek area of the longhorn, an "S" on the right cheek area, a "lightning bolt T" (spelled "lightening" by KST) in the face of the silhouette, and the words "ELECTRIC, LTD." in the space between the horns. In March 2002, when UT learned of the LLB Logo, UT asked KST to cease using that logo. KST refused. Eventually, in December 2006, UT filed suit. KST filed a motion for summary judgment in its favor. Below is the district court's opinion and ruling on KST's motion. (Re-Cap) (Going to trial) Trademark Infringement, and Unfair Competition (Successful Ruling) Dilution ("Infringement" - likelihood of confusion) Infringement-Anti Dilution Trade Secrets (M39) - **Trade Secret* - any type of knowledge that is not generally known/readily available through legal means. NOTE: Trade secrets last forever if "reasonable security" is in place Learning Example: Let's add some facts to the hypothetical we have used before. Walter makes watches. One summer, he invents a new configuration of gears that allows for a watch to keep track of multiple time zones in an entirely new way. He works alone for countless hours, and does not share his work with anyone. The new configuration was very difficult to dream up, and required a significant amount of expertise and imagination. He calls the new watch the "Neptune", and plans to start selling it in his shop. It starts selling very well very quickly. Is Walter's design the kind of thing that can be protected as a trade secret? A. Yes B. No NOTE: The watch design checks all 4 boxes from the items listed above the example. (A) Learning Example: DuPont was constructing a large refining plant designed to enable the use of its new, secret process for producing methanol. Someone who knows a great deal about such refining processes could figure out how DuPont's new process worked by seeing and studying the facility under construction, and so DuPont put security measures in place as the plant was under construction, including a privacy fence around the construction site, restricted access with locked gates, ID checks, and guards who patrolled the perimeter. But, a competitor rented a small airplane, flew over the construction site, and took aerial photographs. (In more modern times, drones would make this kind of thing much, much easier.) DuPont sued. The defendant competitor claimed that the plant design should not count as a trade secret because DuPont did not take reasonable steps to protect the design. Will the plant design be determined to be a trade secret? A. No, because it is not the kind of thing that can be a trade secret. B. No, because DuPont did not take reasonable measures to protect the design. C. Yes NOTE: The plant design clearly gives DuPont an advantage and is the kind of thing that can be protected as a trade secret. And, although DuPont did not have perfect security, it took a significant number of measures to keep prying eyes away from the construction site. It could perhaps have built a dome over the sight, but extreme measures are not required to meet the four part reasonable security standard. (C) INTEGRATED CASH MANAGEMENT SERVICES v. DIGITAL TRANSACTIONS, INC. U.S. Court of Appeals, 2d Circuit, 920 F.2d 171 (1990) (M40) - (Trade Secret)...