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Consumer-based theory (primary)Provide info to consumer abt a particular product/service re: its source (lwrs information/transx costs)
TRADEMARKincludes any word, name, symbol Producer-based theorymore property based (Protecting TMs gives producers incentives to invest in high quality goods to build good will)
(Qualitex, p.3), or device, or any combo (TD) used to LEGAL BASIS
distinguish a producers goods from those sold by others CONST: The Commerce Clause
STAT: Lanham Act (LA)Covers both registered and unregistered marks, including TRADE DRESS (TD) (LA 43(a)federal CL protection)
a. Factors relevant to likelihood confusion; Sleekcraft, p. 12 a. Descriptive/ClassicA can use mark
i. Strength of mark (strongerless p(confusion)) Proximity of the goods (if the goods are complementary; sold to the same class of ppl, etc) is primary descriptive form (still cant
Similarity of the marks (sight, sound, meaning) Evidence of actual confusion Mkting channels used (if the goods are used in the same confuse consumers); Zatarains, p.6
channelhigher p(confusion)) Type of good/likelihood of close inspection by consumer (more $$$ higher p(inspection)lower i. NOTE: even though this is an affD;
p(confusion) bad faith by (goes to remedy) likelihood of expansion of products the degree of consumer confusion
b. Other types of confusion: confusion as to source (s products not related to s) confusion as to sponsorship (confuses the consumer to believe goes to objective fairness; KP
that s mark is related/sponsored by ) initial interest confusion (consumer is baitedno longer confuseddoesnt go for s product b/c of Permanent, p. 18
inertia; PETA case, p. 13 post-sale confusion (3p confusion after consumer bought product; Rolex hypo) reverse confusion (when the senior, b. Nominative (non-TM use)not using
larger, user trades on the rep of the smaller, junior markshadowing; Big O Tire, p. 71) passing off ( junior mark holder puts his product in TD ~ the s mark to describe s own product,
to seniors) reverse passing off (when the senior mark holder puts his product in TD ~ junior mark holder) rather referential usage
a. NOTE: actual economic harm to OR likelihood of confusion not necessary ii. Expressive: Communicative; NKOB,
b. FamousnessFrom the persp of the general consuming public (NO niche famousness; Lexis/Lexus hypo) p. 19
i. Inferred from: extent of advertising extent of sales extent of actual recognition whether registered 1. 9th Cir test, p. 20
c. AssociationREMEMBER: p(association) p(blurring), a sep inquiry; NOTE: coined (probative p(assoc)) vs. non-coined fanciful marks (p(assoc) 2. 3d Cir test, p. 20
must be proven) iii. Expressive: Parody; Mattel, p. 20
d. BLURRING (impairs the distinctiveness of the mark) 1. 2d Cir Rogers approach for
i. LV v. Haute Diggity Dig, p. 15 factors for blurring: degree of similarity b/t the marks degree of distinctiveness owner engaging in exclusive artistic works, p. 21
use? deg of recognition of famous mark intentional assoc by actual association b/t marks 2. EXCEPT: when uses parody
e. TARNISHMENT (harms the reputation of the mark; Gemini Rising, p. 15) as a designation of source
3) _____INDIRECT LIABILITY, PP. 72; 76ALWAYS req proof of underlying direct infringement 2) _____FUNCTIONALITY DOCTRINE defense;
a. ContributoryInwood test: providing something that contribs to inf and does NOT have sufficient non-infringing use + knowledge of TrafFix, p. 83 (inf)
infringement (REQs >general knowledge; OR willful blindness); Tiffany, p. 76 a. Aesthetic functionality
b. InducingInwood test: based on intentionally inducing the an activity that there is knowledge of infringement; Tiffany, p. 76 b. Utilitarian functionality
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 3) _____GENERICNESS/ GENERICIDE (inf);
4) VALID TM (registered, see p. 9 for reqs, or unregistered) reqs Murphey Bed, p. 16 Natl Biscuit Co., p. 16
a. Distinctivenesshas to function as a source designator; spectrum of dist. a. PolicyYou are aiding consumers b/c of
i. See chart, p. 4 network externalities (costs to
ii. Secondary meaningwhen a consumer associates a descriptive mark w/ a single source of products (inc single, but anonymous source); consumers to use a 2d best term)
NOTE: BOP is on (and is not easy to satisfy w/ direct or indirect evidenc, Zatarain, p.5) 4) _____ABANDONMENT (inf)the use has been
b. Use in commerce (Commerce Clause!) discontd w. the intent not to resume; non-use
i. Unregistered markmore than token usage; Zazu, p. 6 for 3 years = PF abandonment; MLB
ii. Registered markintent to use is sufficient w/ a 6mo allowance window Properties, p. 17
c. Priorityhas to be the senior mark a. Unsupervised licenses; Dawn Donut
i. Unregistered markneed >token usage; Zazu, p.6 dissent, p. 17
1. Only protected in area where products are sold (b/c TM is not supposed to confer broad property rights outside areas w/o consumer b. Rule against assignment in
goodwill) grosstransfer of a mark w/o any
a. Exceptionarea of normal expansion; where rep precedes the product being sold in an area underlying assets is not allowed (a TM is
ii. Registered markpriority date is date of application nws non-usage (intent to use) a goodwill repository)
5) VALID TD (ONLY protectable under 43(a) of LA (Fed CL)) OR PRODUCT DESIGN [line drawing problem b/t product design and TD] 5) _____News reporting (dil)
a. TD can be (but is not necessarily) inherently distinctive (doesnt need 2dry meaning), if it isProtection (Two Pesos, p. 7) 6) _____Non-commercial use (dil); Mattel, p. 21
b. Product designcan never be inherently distinctive (ALWAYS reqs 2dry meaning), Samara Bros, p.8 7) _____Antitrust
c. If either TD or product design is functional NO PROTECTION, nws 2dry meaning 8) _____Laches, estoppel
REMEDIES, PP. 65-66; 70-71 (NOTE: same w/ indirect liability c/a)
1) _____INJUNCTION (1116(a))given as a matter of course (Property rulemakes sense here as it serves to protect a unique good (goodwill); and the REAL damage would be consumers, who are not compd)
a. Affirmative injunctionreq corrective advertising or the inclusion of disclaimers on products that sells
2) _____DAMAGES (liability rule) (1117) less prevalent than w/ injunction (dilution, only if willful); when granted, includes: a) s profits (ONLY in the case of willfulness; Pic Pen, pp. 70-71); b) damages
sustained by (WILLFULNESS3x!!!; Lee, p. 71); c) atty fees (in extreme cases); d) corrective advertising award; Goodyear, p. 71; e) statutory damages ($500<$100k)
3) _____CRIMINAL penalties (TM Counterfeiting Act of 1984; 18 USC 2320)
a. Trafficking in counterfeit marks10yrs in prison (20 for 2d offense); $2MM fine; Forfeiture

COPYRIGHT under 106, the exclusive, but ltd Utilitarian (predominant)in order to support/incentivize Progress, the govt should grant temporary monopolies to authors for their works (in order to
right for an author who has a valid CR to: a) reproduce (p. ensure a FAIR (not excessive) return) | Kantian/natrl rightsthere is a natural obligation to respect the authors ownership in his work
33 w/ ltds); b) prepare derivative works (p. 34; Stallone, LEGAL BASIS
p. 34); c) distribute copies (p. 35; BUT see First Sale CONST: IP Clause (Art I, 8, cl. 8)To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the
Doctrine, p. 35); d) perform/display (p. 35 w/ ltds, p. 36); exclusive Right to their respective Writings and Discoveries.| STAT: 1909 CR Act; 1978 CR Act; 1989 Amendments p/t the Berne Convention | STATE:
e) moral rights (for visual works, p. 36) preempted by 301 of the 1976 CR Act (unless (1) not equiv to CR exclusive rights; (2) not a fixed work of authorship; (3) not w/in statutory subject matter of
1) _____INFRINGEMENT C/A ( 501)= 1) VALID CR/JOINT CR + 2) COPYING + 3) IMPROPER APPROPRIATION 1) _____FAIR USE ( 107)p. 39-44, the ultimate inquiry is
a) Copyingit is a broad grant of the right to prevent others from making exact or substantially similar reproductions; can be proven by direct or whether the CR laws goal of promoting the Progress
circumstantial evidence (access + probative similarity); Arnstein, see chart, p. 37 would be better served by allowing the use rather than
i) Subconscious copying = copying; p. 37 preventing it
b) Improper Appropriationwhether the copied sufficient protected expression to violate s rights; Nichols levels of abstraction test (literal a) Factors
elements), p. 37-38; 9th Cir objective/subjective analysis test, p. 38; Altai Abstraction-Filtration-Comparison test (non-literal elements), p. 39; i) Purpose/character of the use
BUT see, De Minimis Doctrine, p. 38 (1) Bad faith (); Harper & Row, p. 40-41
2) _____INDIRECT LIABILITY, P. 72; 73-75ALWAYS req proof of underlying direct infringement (2) Parody (+) v. Satire; Campbell, p. 41
a) ContributoryProvides technology that facilitates infringement and that isnt capable of substantial (?) non-infringing use + knowledge that the (3) Transformative use (+); Campbell, p. 41
activity is infringing; Sony, p. 73 (a) Blanch test for transformative
b) InducingIntent/active steps to encourage infringement (evidence can be circumstantial) + knowledge that the activity is infringing; Grokster, p. 73 use, p. 42-43; Perfect 10, p. 43
c) Safe Harbors wrt indirect remedies for ISPs/search engines, p. 74 ii) Nature of the CRd work
d) Notice and Takedown procedurefor sites that constain CRd material; Vicacom, p. 75 (1) Published (+) v. Unpublished
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- (2) Factual (+) v. fictional
3) VALID CR = 1) Proper subject matter + 2) Originality (102(a)) + 3) Fixation in a Tangible Medium of Expression + [4) Formalities] + [5) Proper iii) Amt and substantiality of the portion used in
ownership by ] + [5) NOT expired , i.e. duration issue] + [6) Rights have NOT been transferred] relation to the whole work
a) Proper SM, p. 24 (1) Amt AND quality play a role; Harper &
i) Idea/expression dichotomy (102(b))NO love for ideas, procedure, system, method of operation, concept, principle, or discovery; Baker, Row, p. 41
p. 25; Lotus, p. 25 (2) Reverse engineering?; Sega, p. 83
(1) Merger doctrinewhen there are few ways to express an idea, then the two merge to be UNCRable (e.g. Scenes a Faire); Morrissey, p. 26 iv) The effect of the use upon mkt or value of the
ii) Works of authorship (102), pp. 26-281) Literary works; 2) Pic, Graphic, Scul (PGS) works (ltd by Useful Article Doctrine); 3) work
Architectural works (Architectural Works CR Protection Act of 1990, p. 27); 4) Musical works/sound recordings; 5) (1) Negative effects (); Harper & Row, p. 41
Dramatic/Patomime/Choreo works; 6) Motion pics/AV works; 7) Semiconductor chip designs; 8) Vessel Hull designs; 9) Derviative (2) Even mkt effects of potential derivative
works/compilations works; Campbell, p. 42
iii) Works of the US Govt are not CRable 2) ______USEFUL ARTICLE DOCTRINE (PGS works)is
b) Originality, p.22req independent creation and a modicum of creativity (no love for sweatworks; Feist, p. 22-23; but maps are OK; Mason, p. 23) there conceptual seperability; Brandir, p. 82
c) Fixation, p. 24Const mandate as an interp of Writings; TEST, p. 24: sufficiently perm or stable to permit the work to be perceived, reproduced, 3) ______FIRST SALE DOCTRINE ISSUE?, p. 93-94, 95
or otherwise communicated for a pd of more than transitory duration; policyp. 24 4) ______OTHER defenses (p. 44/pp. 664-666)
d) Formalities, p. 24more relaxed over time a) Independent creation
e) Ownership, p. 28author incs employers in the case of works made for hire (WMfH) doctrine (policy, p. 28) b) Consent/license
i) WMfH doctrinepresumption that a work made by an emp (CL definition; CCNV, p. 29-30) w/in scope of empmt is a WMfH c) Inequitable ConductCR owner obtains CR thru
(1) ALSO WMfH if work falls w/in 9 enumerated categories (see p. 29) + agmt signed by both parties stating WMfH fraud
(2) Teacher exception to WMfH doctrine, p. 29 d) CR Misuseif the CR holder has engaged in
f) Duration, p. 31-32; Eldred, p. 31; Golan, p. 31 abusive or improper conduct in exploiting or
g) Termination of Transfer, p. 32-33law is in the biz of giving orig CR owners a 2nd chance to recognize the value in their works after having transferred enforcing the copyright, , p. 92
the rights e) First Amendments right to publish is protected
4) VALID JOINT CR = 1) Valid CR (see above) + 2) 2 Authors + 3) Intention that contributions be merged into inseparable/interdependent parts of a by 1st Am (usually weak arg)
unitary whole; Alamuhammed, p. 30 f) Immoral/Illegal/Obscene WorksBUT cts rarely
a) 9th Cir reqsea author have a independently Crable contribution (not norm) enforce b/c of this tho
b) Joint workstenants-in-common and ea author has equal, undivided ownership interest, p. 31 g) Statute of limitationpost 3 years after actual
c) Collective works, p. 31CR in ea piece is distinct from CR in the whole work; NYTimes, p. 31 infringement
REMEDIES, PP. 65-66; 68-70 (NOTE: same w/ indirect liability c/a)
1) _____INJUNCTION (property rule): Temporary and permanent injunctions allowed | Traditionally granted as a matter of course, but now BALANCING TEST; MercExchange, p.67 | Preliminary injunctions may have issues in
1st Am context; Suntrust Bank, p. 69
2) _____DAMAGES (liability rule) ( 504)EITHER/OR regime, you either get actual (cant be a penalty; Sheldon, p. 69) or statutory damages
a) NO reasonable flr (cf. Patent); but see Deltak, p. 69 | NO PUNITAVE damages generally; but see TVT, p. 70 | Stat damagesNEED REGISTRATION, p. 70. $750<$30K/work, p. 66 |Atty fees, p. 70
3) _____CRIMINAL (506(a)) for intentional acts of infringement for financial gain, p. 66; Piracy and Counterfeiting Amen Act, p. 69
1) Notice and Takedown procedurefor sites that constain CRd material; Vicacom, p. 75

PATENT Utility patents Utilitarian (predominant)in order to support/incentivize Progress, the govt should grant temporary monopolies to authors for their works (in order to ensure a FAIR (not
excessive) return) | Natural rights/personhood theoriesplays less of a role than in other areas of IP
(the focus); Design patents; plant
patents. AIA goes into affect
CONST: IP Clause (Art I, 8, cl. 8)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. | STAT: Patent Act (35 USC)
element from s interpreted claim USE defensejudicially
i) Claim interpretation, p. 59interpd by the Ct; Markman, p. 60. USING: Traditional cannons of claim construction, p. 60; Philips, p. 60 | NOTE: Independent claims v. Dependent created exception
claims; Open transition (comprising) vs. Closed transition (consisting of) vs. means plus function (VERY LTD) to
(1) Added elements to s deviceif all other elements from claim are there the infringement, p. 61; no blocking patent if claim is open infringement that
2) ____INFRINGEMENT UNDER DOCTRINE OF EQUIV C/A ( 271) = 1) VALID PATENT + 2) ALL ELEMENTS INSUBSTANTIAL DIFFERENCE RULE SATISFIED there must be an equivalent for each supports the Progress
element (PHOSITA std); Warner-Jenkinson, p. 62 policy for pure scientific
a) Insubstantial difference inquiry
i) Triple Identity Test, substituted element performs same function, same way, same result Graver, p. 61-62 a) No love for
b) After arising technologiesTEST: whether the patent and the accused device are substantially equivalent as of the time of the infringement, not when the invention was made university
(according to a PHOSITA) research; Duke, p.
i) Substantially equivalent=the element substituted in the accused device for the element set forth in the claim must not be such as would substantially change the way in which the 64
function of the claimed invention is performed; Hughes Aircraft, p.62 b) Use for FDA
ii) BUT major improvements in all the essential elements of the claimed devicethe improved device is non-infringing; Texas Instruments, p. 62 testing purposes
c) LIMITATION OK via Congress
i) Hypothetical claim rulecannot have infringement by DOE if could not have received a patent on a claim covering the accused product or process (271(e)(1), p.
ii) Prosecution history estoppelcannot use DOE to reclaim territory given up in order to obtain the patent 64killing Roche
3) ____JOINT INFRINGEMENTmastermind test via vicarious liability theory; Paymentech, p. 63 decision, p. 64);
4) ____INFRINGEMENT INVOLVING FOREIGN ACTIVITIESsignificant presence test; Research in Motion, p. 63 Merck, p. 64
5) ____INDIRECT LIABILITY, P. 72-73 ALWAYS req proof of underlying direct infringement 2) ______PRIOR USE
a) Contributory (271(c)) develops a component adapted for infringement and is NOT suitable for substantial noninfringing use AND has knowledge that the component was defense (273/AIA), p.
adapted for infringement; C.R. Bard, p. 72; Global-Tech Appliances, p. 73 65, apdx 1prior
b) Inducing (271(b))the induces infringement (e.g., provides instructions) + knowledge of patent AND the infringing activities (or willful blindness); Water Tech, p. 73 commercial use by
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- of a claimed invention,
6) VALID PATENT = 1) Patentable SM + 2) Utility + 3) Novelty + 4) Nonobviousness + 5) enablement/description + [6) NOT expired (20 yrs minus prosec)] which is filed by
a) Patentable SM (101) a any PROCESS (business methods not ok; machine/transformation test not suff; Bilksi, p. 47 | Medical carve-out, 287(c)non-patentability; p. 47), a) Prior= > 1 yr b4
MACHINE, MANUFACTURE, COMPOSITION OF MATTER (Diamond [contrast Funk Bros], p. 46) or IMPROVEMENT thereof; BUT not PRODUCT OF NATURE ( Purification exceptionthe std is application
markedly different from what is found in nature; Parke-Davis, p.46-47) b) commercial use
b) Utility (101) a) operability (it has to workno perpetual motion machine); b) practical utility (substantialgenetic lab mouse as snake food, specific and practical); PTO includes
guidelines, p. 48; Brenner (not a hunting license), p. 49 BUT NOT c) moral/benefical utility; Juicy Whip, p. 50 nonprofit lab
c) Novelty (102)the claim is new compared to prior art (a single ref from any art; AIA globally, p.54, Appdx 1). NOTE: Prior art needs to be reduced to practice and not merely work
experimental; Rosaire, p.50; Picard, p. 51 c) NOTE: not avail, if
i) Statutory bar (102(b)): BARRED ifa) disclosed in printed publication anywhere (In re Hall, p. 51); or b) public use/sale in this country (Egbert, p. 52); c) >1yr prior to patent derived from
app. Policy, p. 51 | NOTE: 3d party actions can bar patentability, p. 52 | ALSO NOTE: Experimental Use exception; City of Elizabeth, p. 52; Fed Cir factors, p. 53 3) ______MISUSEif the
ii) Priority rules/First to invent (now file) system ( 102(g)): Priority goes to first inventor who a) reduces invention to practice; without b) abandonment, suppression or patentee impermissibly
concealment broadened the scope of
(1) First to invent systemif an inventor is first to conceive, but last to file, he will get priority if he was diligent in reducing to practice; Griffith, p. 53 | First to file the patent (ltd mostly to
system (AIA puts into place, p. 54, Appdx 1)brings into alignment w/ intl systems antitrust), p. 92.
d) Nonobviousness (103)NO patent if the A) diff b/t the subject matter claimed and the prior art are such that B) as a whole would have been obvi to a PHOSITA (Graham, p. 56) 4) ______EXHAUSTON
and C) the secondary considerations point to obviousness ISSUE (273(b)(2), sup
i) Prior Art: a single prior art need not disclose the entire claimed invention to bar patent; ref has to be in an analogous art (narrower than w/ novelty). NOTE: No need for rigid TSM p. 152); Quanta p. 94-
test for combining prior analogous refs; KSR, p. 56 | Obvi to try may = obviousness; KSR, p. 57; In re Kubin, p. 57 95
ii) Secondary considerations/objective evidence: may have relevancy in determining obviousness (check on hindsight bias), Graham, p. 57; see factors, p.57
e) Enablement/description (112) you need both enablement (Incandescent Lamp, p. 58) AND written description (w/ best mode disclosed) (Genrty Gallery, p. 59)
REMEDIES, P.65-66; 67-68 (NOTE: same w/ indirect liability c/a) DESIGN PATENTS, p.80protects the aesthetic appearance of a product rather than
1) _____INJUNCTION (property rule): NOT a per se rule any longer; proper test is the MercExchange 4 Factor test, p. 67 its functional features; protection for 14 yrs ; NOTE: can only have one claim
2) _____DAMAGES (liability rule) ( 284): damages adequate to compensate w/ reasonable royalty as a flr 1) INFRINGEMENT C/A = 1) VALID DESIGN PATENT + 2) THE EYE OF THE ORDINARY
a) Lost profits: Valuation problem; Panduit 4 Factor test, p. 68 OBSERVER TEST; GORHAM, P. 81
b) Reasonable royalty: statutory flr; hypothetical negotiation to determine the fair price; Georgia-Pacific factors, p. 68 ---------------------------------------------------------------------------------------------------
c) Willfulness = 3x damages 2) VALID DESIGN PATENT, p. 80-81 = 1) PROPER SM + 2) NOVELTY + 3) ORIGINALITY +
d) Atty fees only in exceptional cases 4) NONOBVIOUSNESS + 5) ORNAMENTAL + 6) NON-FUNCTIONAL
3) CRIMINALNONE a) Originalitymeans not copied from somewhere else, meaning another
person, or nature; a low std

Utilitarian theoryprotecting against the theft of proprietary info encourages investment in such info | Tort theoryemphasizes deterrence of wrongful acts and the
maintenance of commercial morality
CONST: NONE | STAT: Economic Espionage Act, p. 89makes the theft or misappropriation of a trade secret a federal crime | STATE: Uniform Trade Secrets Act, adopted by
most states, p. 85
a) Improper meansDuPont, p. 87; can be proven by circumstantial evidence in (some jx); Pioneer Hi-Bred Intl, p. 87 a) Supremacy clause analysis, p.
i) NOT reverse engineering 93 (no express provision)
b) Confidential relationship abusedconfi rel can be express (e.g. empl; Metallurgical, p. 86) or implied (Dravo, p. 88); NOTE: R.3d of Unfair Competition i) Conflict preemptionNO
41 factors for confi relationship, p. 88 conflict if not
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- patentable; Kewanee
2) VALID TS (UTSA) = 1) Proper Subject Matter + 2) Independent economic value from secrecy + 3) Reasonable efforts to maintain secrecy Oil, p. 86-87
a) Proper subject matter (UTSA 1(4)) info, including a formula, pattern, compilation, program, device, method, technique, or process (1) Doesnt upset
i) Arguably not exhaustive list including?? balance/policy set
b) Economic value from secrecy (UTSA 1(4)(i)must not generally known to all; spending $$ to keep secret is probative of economic value Metallurgical out by PA
Indust., p. 85
i) Known v. Knowablesome cts interpret to mean that a secret must actually be known to break secrecy; Rohm, p. 86
ii) Publication (or selling a product that embodies the secret) generally destroys secrecy, EXCEPT if stolen and then published; Rohne-Poulenc, p.61
iii) Independent discovery also destroys secrecy
c) Reasonable precautions to maintain secrecy (UTSA 1(4)(ii)policy, p. 85; Metallurgical Indust, p. 86
i) Depends on the balancing of costs/benefits; Rockwell, p. 86
REMEDIES (NOTE: no worries abt indirect liability)Under the UTSA, one can get a) INJUNCTIONS; b) DAMAGES; c) or (if not completely compensated by damages) an ACCOUNTING OF THE INFRINGERS PROFITS.

Utilitarian theoryencourages investment in useful activities (overcome Arrows paradox, p. 78) | Tort
OTHER STATE LAW REGIMES Tort-based/K-based theoryemphasizes deterrence of wrongful acts and the maintenance of commercial morality | K theory
CONST: NONE | STAT: NONE | STATE: Tort law (misappropriation); K law

1) _____MISAPPROPRIATION (UNFAIR COMPETITION) C/A (TORT)there is a (quasi) property right basis being unfair competition 2) _____PREEMPTION, p. 79
a) This is the case even if the underlying product was not CRable; news facts INS, p. 76 a) Express preemption (CRA 301)
b) This claim has been narrowed only to cover hot news misappropriation in light of CRA 301; NBA, p. 77; other cts have overturned the hot i) Shrinkwrap license? K is b/t
news doctrine as preempted under CRA like 2d Cir; Barclays Capital, p. 77 two private parites, doesnt create
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- exclusive right (unless antitrust
2) _____IMPLIED K BREACH C/Acan be used as a means to protect ideas that dont rise to the stds of patent protection issue); ProCD, p.92
a) Consideration can be supported by the novelty of the idea to the , not necessarily in absolute; see Nadel factors for subjective novelty, p. 78 ii) Addtl element rule in CR, p. 92
b) Mutual assentstill necessary; Desny, p. 78 b) Supremacy clause analysis, p. 93
3) _____EXPRESS K BREACH C/A license agmts to protect products that fall outside scope of fed IP protection (Patent Act/ LA)
a) Shrinkwrap licensesVALID, ProCD, p. 90 i) Conflict preemptionupset
b) Clickwrap/Browsewrap licensesVALID, if you are req to scroll thru entire agmt, otherwise NO; Specht, p. 90-91 balance?
ii) Field preemption; Bonito Boats
(hull design), p. 84