Review Notes for Copyright and Trademark
Idea Protection
• DURATION: forever o Protectable under property or contract theory (mostly contract theory). o Obligation to pay, if the idea was novel or used by the defendant, and the idea is in concrete for and there was an expectation that defendant would pay for use.
• Express, implied, quasi contracts
• Quasi contract claim: someone has been unjustly enriched/unjust enrichment claim—parties may not even know each other. REQUIRES A HIGH LEVEL OF NOVELTY o E.g. Entertainment industry; unsolicited pitch that is used. Expect payment for the idea if it is used.
• General novelty: it is novel to the industry
• Recipient novelty: it is novel to the recipient
Trade Secrets
• What is a trade secret? ANY information that gives your client a competitive advantage by others not knowing and they take reasonable steps to keep it a secret.
• How do you protect you trade secrets?
• How do you get these trade secret rights? o Common law/state law (NJ enacted statutory trade secret law). o Espionage Act – Federal law (Clinton signed into law). o Get it by keeping the trade a secret
• DURATION: forever
Trademarks™ ® /Service Marks ℠ Any device that is capable of distinguishing your product or service from another
• DURATION: forever
• How do you get Trademark rights? o Through use o Common law o Federal Law
• ITU: bonafide intent to use
• Prevent a likelihood of confusion
• Must be deemed inherently distinctive o Coined/fanciful mark
• E.g.: Apple for computers; Camel for cigarettes
• TEST: do others have to call their computer apple? Do others need this word to call their product or service? NO = distinctive o Suggestive
• E.g. Coppertone
• Don’t have to prove/show secondary meaning
• Prove secondary meaning through surveys o Descriptive
• E.g.: Custom-blended for gas: wont allow evidence for secondary meaning.
• Once a mark is protectable, doesn’t mean it is protectable for forever (e.g. Nylon lost
• DURATION: forever o Protectable under property or contract theory (mostly contract theory). o Obligation to pay, if the idea was novel or used by the defendant, and the idea is in concrete for and there was an expectation that defendant would pay for use.
• Express, implied, quasi contracts
• Quasi contract claim: someone has been unjustly enriched/unjust enrichment claim—parties may not even know each other. REQUIRES A HIGH LEVEL OF NOVELTY o E.g. Entertainment industry; unsolicited pitch that is used. Expect payment for the idea if it is used.
• General novelty: it is novel to the industry
• Recipient novelty: it is novel to the recipient
Trade Secrets
• What is a trade secret? ANY information that gives your client a competitive advantage by others not knowing and they take reasonable steps to keep it a secret.
• How do you protect you trade secrets?
• How do you get these trade secret rights? o Common law/state law (NJ enacted statutory trade secret law). o Espionage Act – Federal law (Clinton signed into law). o Get it by keeping the trade a secret
• DURATION: forever
Trademarks™ ® /Service Marks ℠ Any device that is capable of distinguishing your product or service from another
• DURATION: forever
• How do you get Trademark rights? o Through use o Common law o Federal Law
• ITU: bonafide intent to use
• Prevent a likelihood of confusion
• Must be deemed inherently distinctive o Coined/fanciful mark
• E.g.: Apple for computers; Camel for cigarettes
• TEST: do others have to call their computer apple? Do others need this word to call their product or service? NO = distinctive o Suggestive
• E.g. Coppertone
• Don’t have to prove/show secondary meaning
• Prove secondary meaning through surveys o Descriptive
• E.g.: Custom-blended for gas: wont allow evidence for secondary meaning.
• Once a mark is protectable, doesn’t mean it is protectable for forever (e.g. Nylon lost