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Flashcards

Intro To IP

Jani Mikel Intro to Intellectual Property English 133 cards

Cards in this deck (133)

  1. 1What is a trade secret ?1) information (2) reasonable measures are taken to keep the information secret and (3) the information has some economic value, through not being generally known by others.
  2. 2What are the 6 factors in determining if trade secret exists?1. the extent to which the information is known outside of P's business
    2. the extent to which the information is known by employees and others in P's business
    3. extent to measures taken by the P to guard the secrecy of the info
    4. value of the info to competition
    5. amount of time, money, effort put into development
    6. ease or difficulty with which the info could be properly acquired or duplicated by others
  3. 3What is the arrow paradox?situations in T.S. where in order to try to figure out the value of something, you destroy it.
  4. 4How many states use the UTSA?47 and D.C.
  5. 5Usual posture of D's TS litigation?1. You didn't have a trade secret
    2. If you did, I didn't take it
    3. if I did, I already had it
    4. If I didn't already have it, it was worthless anyway
  6. 6Do trade secrets terminate?They are only terminated once they are no longer secrets
  7. 7What is misappropriate of a trade secret?A plaintiff shows that it possesses a trade secret and that defendant is using that trade secret in breach of an agreement, confidence, or duty or because of discovery by improper means
  8. 8What is the distinction between lenght of injunction and scope of injunction?only allowed to enforce injunction on trade secret, but not personal knowledge even if gained from former employer/competitor. Scope harder to police so parties litigate length more.
  9. 9What is the public domain?intellectual commons. Reflects balance between incentive to foster creativity ensuring that privatization does not stifle competition and innovation. Consists of works i) ineligible for copyright, ii) created before CR law existed, iii) whose CR has expired, or iv) that have been given freely to the public by their authors.
  10. 10What is the term of the copyright?Life of the author plus 70 years after death. CR must be renewed so not to enter public domain
  11. 11What is a fixed work?a work is fixed in a tangible medium when its embodiment in a copy or is sufficiently permanent or stable to allow it to be perceived, reproduced, or otherwise communicated for a period more than transitory. Sounds and images that are being transmitted are “fixed” for these purposes if a fixation is being made simultaneously with transmission.
  12. 12What does copyright protect?Copyright protects only the expression of an idea, not the idea itself. “standard elements” not protectable (part of public domain). “original elements” are protectable.
  13. 13What is the merger doctrine?courts will not protect a CR work from infringement if the idea underlying the CR can be expressed in only one way. (Effectively turns CR into patent, yet patent acquisition has much higher standard.)
  14. 14What constitutes a compilation?a work formed by (1) the collection and assembling of preexisting materials or of data that are (2) selected, coordinated, or arranged in such a way that (3) the resulting work as a whole constitutes original work of authorship. (All 3 are elements that must be met)
  15. 15What 2 elements must be proven for copyright infringement?1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.
  16. 16What are the subjects of copyright?(1) literary works, (2) musical works, including words, (3) dramatic works, including accompanying music, (4) pantomimes and choreographic works, (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; (8) architectural works.
  17. 17What are the six exclusive rights of CR owners under § 106?1) to reproduce; (2) to prepare derivative works; (3) to distribute copies or phonorecords of the copyrighted work tot eh public by sale, rental, lease, lending; (4) to perform the copyrighted work publicly; (5) to display the copyrighted work publicly (in case of pictorial, graphic, sculptural, etc.); (6) to perform publicly by means of a digital audio transmission (in case of sound recordings).
  18. 18What is substantial similarity?if the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same. Not wholly original rule – more discerning observer compares the “total concept and feel” of the works for substantial similarity.
  19. 19What are the defenses for trade secrets?1 - Honest Discoverer
    2. Reverse Engineering
    3. Innocent Wrongful User
    4. Trade Secret Termination
  20. 20What is the exception to trade secret termination?1. confidential disclosure
    2. contract
  21. 21What are the statutory damages for copyright infringement?$ 750 to $ 30 k. Up to 110k for willful infringement. Willful usually only time statutory damages exceed D's profits.
  22. 22Are courts allowed to grant injunctive relief for copyright infringement?Court discretion to grant temporary or permanent injunctions. Permanent injunction is only appropriate where substantial likelihood of continuing future infringements.
  23. 23What are the factors that contribute to levels of statutory damages?willfulness, value of copyright, expenses saved and profits gained by D, lost revenues for P, D’ cooperation in providing records, need to deter D and others from future infringement.
  24. 24What are the possible remedies for copyright infringement?statutory damages, injunctive relief, attorney fees.
  25. 25What are the factors to consider in attorney’s fees as remedy for copyright infringement?who is prevailing party? Frivolousness, motivation, objective unreasonableness of arguments put forward) – substantial weight put here
  26. 26How to establish copyright infringement?1) ownership, 2) copying – established by direct or indirect (a: access to work and b: similarity between critical things in each), 3) after finding copying then must show substantial similarity between D’s work and protectable elements
  27. 27What is the substantial similarity test?ordinary observer v. more discerning observer: When only some of the design enjoys copyright protection, the reasonable person standard is a more discerning observer. First look at details, then “total concept and feel”
  28. 28what is Pictorial, graphic, and sculptural work 17 USC § 102 (a)(5)?include 2D and 3D works of fine, graphic, and applied art, photos, prints, and art reproductions, maps, globes, charts, diagrams, models and technical drawings, including architectural plans.
  29. 29What is the Copyright protection for design of a “useful” PGS article?Only the purely expressive/artistic elements which could exist and be identified separately from the utilitarian/functional aspects can be protectable.
  30. 30What is test for determining artistic vs. functional aspects of useful PGS article?“Conceptual separability”: Doesn’t have to be physically separable. If design elements reflect merger of aesthetic and functional considerations, artistic aspects not conceptually separable. Where design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences, conceptual separability exists.
  31. 31What is the difference between Idea and Expression in Computer Software (copyright) ?Expression adopted by the programmer is the copyrightable element in a computer program. Actual processes or methods embodied in the program are not within scope of copyright. (Copyright in software really only protects rank piracy)
  32. 32What is the substantial similarity test for computer software?Abstraction-Filtration-Comparison. Process about isolating the expression of the software.
  33. 33What is the breakdown of abstraction, filtration, and comparison?1) Abstraction. Highest level of abstraction: abstract idea, next level more specific etc. 2) Filter. External factors, efficiency considerations, and public domain removed in the comparison to see what was taken from the computer program. 3) Comparison
  34. 34What is Architectural Works 17 USC § 102 (a)(8)?design of building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. Includes overall form as well as arrangement and composition of spaces and elements in the design, does not include individual standard features.
  35. 35What is probative similarity?(when not having direct evidence) a sufficient degree of similarity exists between copyrighted and the allegedly infringing work to give rise to an inference of actual copying. (I.e. some things may be probative of infringement even if copyright doesn’t connect to those specific elements)
  36. 36What is a derivative work?work based on one or more preexisting works. (e.g. movie version, translation, editorial revision.) Unlike compilations, requires process of recasting, transforming or adapting one or more pre-existing works
  37. 37How to get copyright protection for derivative works?1) Need permission from the original copyright holder 2) © covers only the new expression. Does not affect or enlarge scope of © in preexisting material.
  38. 38What is the originality requirement for derivative works?Not more demanding than the originality requirement for other works. Inquiry is whether there is sufficient nontrivial expressive variation that makes derivative distinguishable from underlying work in meaningful way.
  39. 39what are co-authored works?Authors of a joint work both own 100% of the copyright. Undivided interest.
  40. 40How do you determine whether a party is an employee absent an agreement?hiring party’s right to control manner and means by which product is accomplished, the skill required, source of instrumentalities and tools, the location of the work, duration of relationship b/w the parties, whether hiring party has right to assign additional projects to hired party, extent of hiring party’s control over when and how long to work, method of payment, the hired party’s role in hiring and paying assistants, whether work is part of the regular business of the hiring party, whether hiring party is in business, provision of employee benefits, tax treatment of the hired party.
  41. 41what is Work of visual art (17 USC § 101)?includes “a painting, drawing, print or sculpture, existing in a single copy” or in a limited edition.
  42. 42what are moral rights of artist in “work of visual art”?Moral rights protect what an artist retains after relinquishing ownership (and © of tangible object). Right of attribution and right of integrity.
  43. 43What is the right of attribution?right of attribution – right of artist to be recognized by name as the author of his work or to publish anonymously or pseudonymously, the right to prevent the author’s work from being attributed to someone else, and to prevent author’s name being used on works by others.
  44. 44what is the right of integrity?Right of integrity – allows author to prevent any deforming or mutilating changes to his work, even after title has been transferred.
  45. 45What is fair use?affirmative defense for © infringement. Use for purposes such as criticism, comment, new reporting, teaching, scholarship, or research is not an infringement.
  46. 46What are the four factors of fair use?1. ) purpose and character of the use, including whether such use is of a commercial nature or for nonprofit educational purposes, 2) the nature of the copyrighted work (is it significantly original or creative? More protection. Is it functional by nature? Less protection), 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (quantity and quality), 4) the effect of the use upon the potential market for or value of the copyrighted work.
  47. 47Does fair use work in reverse engineering?1. Where disassembly in the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and there is a legitimate reason for seeking such access, disassembly is a fair use. (I.e. when copying is the only way to get to the unprotected elements of CPU software / only way to read code, then fair use.
  48. 48What are patents?grant of a statutory monopoly meant to encourage invention by rewarding inventor with right (limited to a term of years fixed by the patent) to exclude others from the use of his invention. Must be useful, novel, and non-obvious.
  49. 49What is novelty in patent?Claimed invention was 1) patented, 2) described in a printed publication, 3) or in public use or 4) on sale, or 5) otherwise available to the public before effective filing date of current claimed invention –current system 1st to file, not 1st to invent
  50. 50Is there public use in patent?Once inventor allows the public to use the invention, a patent cannot be taken on that invention.
  51. 51What are the requirements for public use in patents?1) Only one of the invention needs to be publicly used. (A larger number may strengthen the case, however.) 2) Does not depend on number of persons to whom its use is known. Giving or selling invention to one person without limitation, restriction or injunction of secrecy, and if it is so used, this is public use. 3) Invention does not have to be “seen”. (e.g. cog inside watch). If machine of which invention forms a part is used without restriction of any kind, use is public.
  52. 52What is the experimental use exception?judicially created exception to public use if used as a genuine experiment, and wholly an experiment. Supports perfecting invention prior to patent. If $ changed hands for, exception less likely to be granted.
  53. 53What is the duty of candor?“filers have duty to disclose material info to patent office.” designed to force info from inventor to patent office. Idea: as the inventor, you are more versed, you should disclose the prior art you know to the patent office.
  54. 54What is Post-“KSR” non-obviousness?Does a person with ordinary skill in the art have “reason to combine” references from prior art and come up with your invention? Makes finding a patent obvious easier.
  55. 55What is the disclosure requirements for Patent: 35 USC § 112?1) written description 2) enables PHOSITA to make or use 3)shows best mode and definiteness. 4)Definiteness = what are you claiming as your invention (scope of protection).
  56. 56What is inequitable conduct?judicially created. Intentionally failing to disclose prior art or misrepresenting material facts is inequitable conduct. If found, invalidates entire patent and family of related patents. Unlike other defenses that go claim by claim.
  57. 57What are the requirements for inequitable conduct?1) intent: a) clear and convincing evidence of intent, b) intent proven by totality of circumstances, c) intent to deceive must be single most reasonable inference AND 2) materiality: but-for materiality – causation (i.e. had this been disclosed, patent would not have been issued)
  58. 58what is patent infringement?1) make, 2) use, 3) offer to sell or 4) sell any patented invention without authority.
  59. 59what are the four methods of patent infringement?1) direct infringement, 2) actively induce (e.g. selling manual outlining someone’s patented process), 3) indirect infringement (e.g. selling apparatus minus some key part), 4) doctrine of equivalents
  60. 60What are the 2 parts of patent infringement?1) claim construction (construe claims and what things mean), 2) comparison (compare every element of claim to alleged infringer). When every element of properly construed claim present, direct infringement. If every element not present, no D.I.
  61. 61What are the four sources of claim construction?1) claim language itself, 2) specification (i.e. technical disclosure), 3) prosecution history (i.e. what was told to the patent office and through process), AND IF STILL AMBIGUOUS, 4) extrinsic evidence (expert advice, technical dictionaries, treatise, scientific principles). If extrinsic at odds with intrinsic, discard extrinsic
  62. 62What is D’s posture in claim construction?(infringement v. invalidity): Every D says: if it’s construed as a narrower claim, then I’m not within that claim (didn’t infringe). If it’s construed as a broader claim construction, it’s not specific, so your patent claim must be invalid. (Much of P litigation ends in settlement post-construction).
  63. 63What is the doctrine of equivalents?Does every element of the patent claim have a literal or equivalent in the accused device?
  64. 64What are the limitations to the doctrine of equivalents?prior art: if your patent covers existing patent by d.o.e., your patent is invalid. 2) all elements rule: every element of claim must be present literally or equivalently 3) prosecution history estoppel – you told the PTO “it’s important for my process to be from 6 to 9” to get a valid patent. You can’t later say, well 5 is equivalent too.
  65. 65What is contributory infringement?whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial non-infringing use, shall be liable as a contributory infringer.
  66. 66What is patent misuse?describes the category of situations where a patent holder improperly tries to exceed, or succeeds at exceeding the scope of the patent grant.
  67. 67What are laches?a claim by the defendant that the patentee unreasonable delayed filing suit after becoming aware of the alleged infringement resulting in a material prejudice to the defendant.
  68. 68What is the burden to prove laches?1. The plaintiff’s delay in filing suit was unreasonable and inexcusable and
    2. The defendant was materially prejudiced by the delay
  69. 69What is the Alice corporation two part test?1. Determine whether the claims at issue are directed to one of those patent ineligible claims or concepts
    2. Examine the elements of the claim both individually and “as an ordered combination” to determine whether the additional elements are transformative and make a patent eligible application
  70. 70What is 2 part test for on- sale?1. Is there a commercial offer for sale?
    2. Is the invention ready for patenting?
  71. 71What is equitable estoppel?the defendant reasonably relied on the plaintiff assertion that it would not bring an infringement claim. To establish the defense of estoppel, a defendant must prove the following three elements
  72. 72What are the three elements that defense must establish to prove equitable estoppel?1. The patentee, through misleading conduct, led the defendant to reasonably intend to enforce its patent against the defendant
    2. The defendant relied on that conduct
    3. The defendant will be materially prejudiced if the patentee’s suit can proceed.
  73. 73What are two alternative compensations patentee's can receive for infringement?Loss profit and reasonable royalty.
  74. 74What are patent infringement defenses?1. Non-infringement, absence of liability for infringement, or unenforceability
    2. Invalidity of the patent or any claim in suit on any ground specified in this title as a condition for patentability
    3. Invalidity of the patent to any claim in suit for failure to comply with any requirement of this title
    4. Any other fact or act made a defense by this title.
  75. 75What is moral utility?the word “useful” means that the invention should not be frivolous or injurious to the well-being, good policy, or sound morals of society.
    (i.e. contraceptives, birth control, hammer)
  76. 76What is the epistemological argument against moral utility?The purpose of patent is to push the boundaries of knowledge. There are other agencies and regulatory requirements that must be met.
  77. 77What are the two methods to determine whether there is equivalence?Triple Identity Test or Substantiality
    Test
  78. 78What is the triple identity test?It performs substantially the same function in substantially the same way to yield substantially the same result.
    Better suited for mechanical process.
  79. 79What is the substantiality test?Equivalent if new invention only has insubstantial differences from the patented invention Insubstantial as to 1 w/ ordinary skill in the art
    Better suited to chemical processes
  80. 80On what basis of inquiry is equivalence determined?Determination of Equivalence is applied as an objective inquiry on an element by element basis
  81. 81who has priority in patent?the first to file has priority not the first person to invent
  82. 82What is the rule about obviousness?Not patentable if it would have been obvious to anyone with skill in the art, b/c you really haven’t invented anything.
    When you say you have invented something, in the eyes of the law, an invention is defined as a non-obvious improvement over the prior art, i.e., that which is known.
  83. 83what is rule for obviousness?Invention is obvious if the teachings of the prior art would have suggested the claimed invention to a person of ordinary skill in the art
  84. 84what is patent infringement?another, w/o authority, makes, uses, offers to sell, or imports into U.S. the patented item during the patent duration
  85. 85What is the duration of the patent?20 years. After 20 years the patent is put back into the public domain.
  86. 86Can a person infringe during the patent period?No there is no infringement during pendency period but may be entitled to royalties if the patent is issued.
  87. 87Is there an intent requirement for patent infringement?NO
  88. 88What does not constitute infringement?possessing the infringing item or giving the infringing item
  89. 89what are the exclusive rights of the patent owner?making, using, selling, offering, and importing the claimed invention. The right to exclude and license is exclusive to patent owner.
  90. 90what is the test for obviousness?1. i) Research the scope & content of the Prior Art
  91. 91What are some sources that help to elicit the ordinary meaning?the claim themselves, the rest of the speculations, and the prosecution history.
  92. 92What is prosecution history estoppel?If during the patent prosecution π was required to narrow their claims to receive a patent, Equivalence won’t be used to broaden the claims.
    Limitation to Doctrine of Equivalence.
  93. 93What is the burden of Prosecution History Estoppel?Burden is on the patent holder to establish the reason for an amendment during patent prosecution
  94. 94Are there ways to overcome Prosecution History Estoppel?Good reasons is PTO requests to limit language, w/o intent to limit application of doctrine of equiv. .
    However, Ct will presume the reason for amendment was related to patentability
  95. 95What is a reasonable royalty?the amount of royalty payment that a patent holder and the infringer would have agreed to in a hypothetical negotiation taking place at a time prior to when the infringement first began
  96. 96what is the four part test for injunctions?1. Can show the likelihood success
    2. Balance of hardships
    3. Plaintiff will suffer irreparable harm
    4. It is in the public interest to grant the junction
  97. 97What are the different types of trademarks?1. arbitrary or fanciful
    2. Suggestive
    3. Descriptive
    4. Generic
  98. 98What are arbitrary trademarks?An arbitrary trade name is a common word or symbol that is applied in a manner not suggestive or descriptive o the business.
    Qualify for Lantham Act
  99. 99What is a fanciful trade name?is a word coined expressly for use as a a trade name or an obscure or archaic term not inherently familiar to buyers.
  100. 100What is a suggestive trade name?they require use of the consumer's ingenuity to envisage the nature of the product or service
    Qualify for protection under the Lantham Act
  101. 101What is a descriptive trade name?describes the intended purpose, function, or use of the goods, the size of the goods, the class of the users of the goods, a desirable characteristic of the goods, the nature of goods, or the end effect upon the user.
    May qualify for Lantham Act if secondary meaning is present
  102. 102What is a generic trade name?The actual names of the goods or services and thus cannot be distinctive of a unique source.
    Cannot be protect because doing so would effectively remove words of common usage from the commercial vernacular and would create a monopoly
  103. 103What is a secondary meaning?refers to the meaning developed second in time. The way the descriptive name becomes a source identifier as a “significant number of prospective purchases connect the term with a particular entity
  104. 104What is a trade name?a symbol used to distinguish companies, partnerships, and business.
  105. 105What is a trade mark?refers to symbols used to distinguish goods and services
  106. 106what are the requirements for a federal trademark registrations on principal register?1. use in interstate commerce
    2. mark must be distinctive
    3. not be statutorily barred
  107. 107What is the test for use in commerce?Must be bona fide use of mark in ordinary course of trade, not merely to reserve a right. Was use sufficiently public to identify or distinguish marked goods in appropriate segment of public mind
  108. 108Arbitrary/fanicifuldistinctive simply b/c it's used. Did not exist.
    ex: lexus, polaroid
  109. 109suggestivecould be distinctive but designed to suggest product in your mind. Some descriptive component.
    ex: coppertone, Citibank
  110. 110Descriptivemust be used for a long time to develop secondary meaning
    ex: raisin bran, beernuts
  111. 111genericsource of the good and the good have collapsed
    ex: aspirin was a brand name
  112. 112Likelihood of confusion test factors for company and trade names?1. degree of similarity of the names
    2. manner and method P and D use the names
    3. strength of name
    4. length of time parties used name without actual confusion
    5. intent of a party in adopting the name
    6. other factors that would tent to reduce any tendency to confuse another customer about source
  113. 113Factors that support finding secondary meaningDirect evidence - consumer testimony and consumer surveys
    Circumstantial evidence: exclusivity, length, manner of use; amount and manner of advertising; amount of sales and number of customers; established place in market
  114. 114What are the major causes for trademark infringement?1. likelihood of confusion of a registered mark
    2. likelihood of confusion of a unregistered mark
    3. dilution by blurring
    4. dilution by tarnishment
    5. cybersquatting
  115. 115What are the likelihood of confusion test factors for trademark infringement?1. strengths of P's mark
    2. relatedness of the goods
    3. similarity of the marks
    4. evidence of actual confusion
    5. marketing channels used by parties
    6. probable degree of purchaser care and sophistication
    7. D's intent to confuse
    8. likelihood of either party expanding product line.
  116. 116what are the 3 factors for relatedness of products?1. Do parties compete directly
    2.if goods and services are somewhat related but not competitive
    3. if product are unrelated, confusion highly unlikely
  117. 117What makes a trademark incontestable?If a mark has been registered and used continuously for 5 consecutive years, it is incontestable, and can be challenged only through generic or abandonment.
  118. 118What is an ITU application?Intent to Use Application. Have to actually use mark to become registered.
  119. 119What are two elements of classic trademark?Priority and similarity
  120. 120What is dilution?the lessening of the capacity of a faous mark to identify and distinguish goods and services
  121. 121What is the 5 part test for dilution under FTDA:senior mark must be: 1) famous and 2) distinct.
    Junior mark must be 3) in commerce 4) have begun subsequent to senior mark before becoming famous and 5) cause dilution of the distinctive quality of the senior mark
  122. 122How can you distinguish between suggestive marks and descriptive marks?Ask 1. whether the purchaser must use some imagination to connect the maker to some characteristic of the product.
    2. whether competitors have used the term descriptively or rather as a trademark
    3. Whether the proposed use would deprive competitors of a way to describe e their goods.
  123. 123What is trade dress?It is the total image of the business. It can include shape and general appearance of business, identifying sign, decor, uniforms.
    Trade dress that is inherently distinctive and protectable under § 43 (a) even where secondary meaning not shown.
  124. 124What is the general rule regarding distinctiveness?An identifying mark is distinctive and capable of being protected if it either 1) is inherently distinctive OR (2) has acquired distinctiveness through a secondary meaning.
  125. 125What is the test for PTO denying "geographic" trademark names?PTO must deny registrations if 1) the primary significance of the mark is a generally known geographic location 2) the consuming public is likely to believe the mark indicated the geographic origin of thegoods, although good did not come from there 3) misrepresentation was a material factor in the consumer's decision
  126. 126What changed in trade dress after the Walmart decision?Not every kind of trade dress is inherently distinctive. Packaging could be inherently distinctive, but product design need to acquire secondary meaning.
  127. 127What is reverse confusion?a larger, more powerful company uses the trademark of a smaller , less powerful senior user and thereby causes likely confusion as to source of senior user’s goods or svcs. “Junior user” is junior in time, but senior in market dominance or size. (Senior user has superior TM rights, but loses the value of its trademark, which is product identity, corporate identity, and control over its goodwill and reputation.)
  128. 128What is dilution by blurring?association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark. Regardless of presence or absence of actual or likely confusion, competition, or actual economic injury.
  129. 129what id dilution by tarnishment?association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark. TM may be tarnished by being linked to products of shoddy quality, or is portrayed in an unwholesome or unsavory context.
  130. 130What is the first-sale defense?a purchaser who does no more than stock, display and resell a producer’s product under the producer’s trademark, does not violate Lanham act. (okay to re-sell the actual copyrighted / TM’d item)
  131. 131What is the classic fair use defense to TM infringment?Affirmative defense available to party who uses the same words as the mark not as a mark, but descriptively on own product. Must be used accurately.
  132. 132What nominative fair use?when the alleged infringer uses the mark to describe the TM holder’s product, even if alleged infringer’s ultimate goal is to describe his own product. Also occurs if only practical way to refer to something is to use the trademarked term. (e.g. Mike’s Volkswagen repair or “better than Tide”)
  133. 133What is the two part nominative fair use analysis?1. 1) likelihood of confusion analysis (burden on P) 2) then burden on D to show a) the use of P’s mark is necessary to describe both the P’s product and the D’s product, b) the D only uses so much of the P’s mark as is necessary to describe P’s product, c) that the D’s conduct or language reflect the true and accurate relationship b/w plaintiff and D’s products. (same legal framework as classic fair use: 1. Likelihood of confusion, 2. Raise your defense)

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Intro to Intellectual Property Flashcards on Intro To IP, created by Jani Mikel on 03/12/2016.
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