Intellectual Property Law

Chapter 1 Lecture Notes

Major points to be addressed in presenting the chapter materials include the following:
1. Intellectual property protects creative endeavor and is thus said to be intellectual. It is
distinguishable from real property and personal property.
2. The protection of intellectual property is necessary to stimulate and promote further
creativity. Authors, musicians, and inventors would have no incentive to engage in
creative effort if the fruits of their work could be misappropriated by others.
3. There are four types of intellectual property: trademarks, copyrights, patents, and
trade secrets.
4. Trademarks:
• Definition: a word, name, symbol, or device used to indicate the origin, quality,
and ownership of a product or service (the term trademark refers to a product
while the term service mark identifies a service)
• Trademarks are governed by the Lanham Act, a federal statute
• Function: to provide guarantees of quality and consistency of the products and
services they identify
• Rights arise from use of the mark although registration offers certain advantages
• Trademarks can last forever if they are properly maintained
5. Copyrights:
• Definition: a form of protection granted to authors of original works of authorship
including literary, dramatic, musical, artistic, and certain other works
• Copyrights are governed by the Copyright Act, a federal statute
• Function: to allow authors to reap the fruits of their creative effort
• Rights arise from the time a work is created in fixed form although registration
offers certain advantages
• Copyrights generally last for the author’s life plus 70 years, after which time they
fall into the public domain and are free for anyone to use
6. Patents:
• Definition: a grant from the U.S. government permitting its owner to prevent
others from making, using, or selling an invention
• Patents are governed by the Patent Act, a federal statute
• Types of patents: utility, design, and plant patents
• Protection is available only for useful, novel, and nonobvious inventions
• Patent rights arise only upon issuance of a patent by the USPTO and have a
limited duration (20 years from the date of filing of utility patent application)
7. Trade secrets:
• Definition: any valuable business information that is not known to others and is
subject to reasonable efforts to maintain its secrecy
• No registration process; governed by state statutes and cases, the new federal
Defend Trade Secrets Act of 2016, and contractual agreements
• If properly protected, trade secrets may last forever
8. Other intellectual property rights exist: semiconductor chip protection, vessel hull
design protection, plant variety protection, right of publicity and other rights relating
to unfair competition (such as passing off, false advertising, and misappropriation).
9. IP rights often intersect and overlap. For example, computer programs are protectable
under copyright law, patent law, and perhaps as trade secrets. While marketing
materials are being developed they are a trade secret; once fixed they are protected by
copyright. Once materials are widely distributed, they lose their status as trade
secrets.
10. Agencies responsible for IP protection:
• USPTO: grants patents and registers trademarks
• Library of Congress/Copyright Office: registers copyrights
11. International Organizations, Agencies, and Treaties:
• INTA. composed of trademark owners and practitioners to promote trademarks
• WIPO. composed of more than 185 member nations and administers various IP
treaties and promotes protection of IP throughout the world
• WTO. composed of more than 160 industrialized nations to deal with trade
matters, including trade disputes and trade matters related to intellectual property
• Berne Convention. 168 member nations; protects literary and artistic works
• Madrid Protocol. Promotes trademark protection for its member countries; U.S.
became a member in November 2003
• Paris Convention. Facilitates patent and trademark protection for its more than
175 member nations
• NAFTA. adhered to by United States, Canada, and Mexico and resulted in some
changes to U.S. trademark law
• TRIPS. establishes minimum levels of protection that member countries must
afford each other with regard to intellectual property
12. IP rights are becoming increasingly important, primarily due to the rapidity with
which information can be communicated. Piracy of IP rights is becoming an
increasing problem, as it causes a loss of revenue to artists, authors, and industry.