Fundamentals of Business Law, 10E: Roger Leroy Miller

FUNDAMENTALS OF
BUSINESS LAW, 10E

ROGER LEROY MILLER
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INTELLECTUAL
PROPERTY
CHAPTER 5
LEARNING OBJECTIVES
1. What is intellectual property?

2. Why is the protection of trademarks
important?
3. How does the law protect patents?
4. What laws protect authors’ rights in
the works they create?
LEARNING OBJECTIVES (CONT’D)
5. What are trade secrets, and what

laws offer protection for this form of
intellectual property?
INTRODUCTION
• Intellectual property is any property

resulting from intellectual, creative
processes, such as books, software,
music, apps.
• Businesspersons need to protect their
intellectual property globally.
• Consider, for instance, the importance
of intellectual property rights to
technology companies.
TRADEMARKS AND RELATED
PROPERTY
• A trademark is a distinctive word,
symbol, or design that identifies the
manufacturer as the source of the
goods and distinguishes its products
and services from those made or sold
by others.
PROPERTY
• Generally, to be protected, a
trademark must be sufficiently
distinctive from all competing
trademarks.
PROPERTY
• Statutory Protection of Trademarks
• Lanham Act of 1946
• Federal Trademark Dilution Act of 1995
• The Lanham Act was enacted in part to
protect manufacturers from losing business
to rival companies that used confusingly
similar trademarks.
PROPERTY
• The Lanham Act incorporates the
common law of trademarks and provides
remedies for owners of trademarks who
wish to enforce their claims in federal
court.
• Many states also have trademark statutes.
PROPERTY
• Trademark Registration
• Trademarks may be registered with the
state or federal government.
• To register with the federal government,
one must file with the U.S. Patent and
Trademark Office in Washington, D.C. This
gives nationwide notice that the
trademark belongs exclusively to the
registrant and allows use of the symbol ®.
PROPERTY
• Trademark Infringement
• Occurs when one uses a mark that is the
same as, or confusingly similar to, the
protected trademark, service mark, trade
name, or trade dress of another without
permission when marketing goods or
services.
PROPERTY
• Distinctiveness of the Mark
• Only trademarks deemed sufficiently
distinctive from all competing trademarks
will be protected by the Lanham Act.
• Strong marks—fanciful, arbitrary, or suggestive trademarks
are considered most distinctive
• Suggestive trademarks—bring to mind something about a
product without describing the product directly
• Secondary meaning—arises when customers associate a
specific term or phrase with specific trademarked items
• Generic terms—refer to an entire class of products and
do not receive protection
PROPERTY
• Service, Certification, and Collective Marks
• Service mark is a trademark that is used to
distinguish services (rather than products).
• Certification marks include “UL Tested.”
• Collective mark is a certification mark when used
by members of an organization.
PROPERTY
• Trade Dress
• Trade dress refers to the image and overall appearance of
a product.
• Counterfeit Goods
• Imitate trademarked goods but are not genuine
• Trade Names
• Trade name indicates part or all of a business’s name.
• Licensing
• Licensing is an agreement permitting the use of a
trademark, copyright, patent, or trade secret for certain
limited purposes.
PATENTS
• A patent is a grant from the

government that gives an inventor the
exclusive right to make, use, and sell
an invention for a period of twenty
years (fourteen years for a design
patent) from the date when the
application for a patent is filed.
PATENTS
• In 2011 Congress passed the America

Invents Act. Now the first person to file
an application for a patent on a
product or process will receive patent
protection.
• The law established a nine-month limit
for challenging a patent on any
ground.
PATENTS
• Searchable Patent Databases

• Patents can be registered at the U.S. Patent
and Trademark Office (www.uspto.gov).
• What Is Patentable?
• To be patentable, an invention (or a
discovery, process, or design) must be
genuine, novel, useful, and not obvious in light
of current technology.
• Computer software may be patented.
PATENTS
• Almost anything is patentable, except the

laws of nature, natural phenomena, and
abstract ideas (including algorithms).
• Even business processes or methods are
patentable if they relate to a machine or
transformation.
PATENTS
• Patent Infringement
• Occurs when one uses or sells another’s
patented design, product, or process
without the patent owner’s permission.
• The patent holder can sue the infringer in
federal court and request an injunction.
He or she must prove irreparable injury to
obtain an injunction against the infringer.
PATENTS
• Remedies for Patent Infringement

• The patent holder may sue for relief in
federal court.
• The patent holder can seek an injunction
against the infringer and also request
damages for royalties and lost profits.
• The patent holder can also request
damages and attorneys’ fees. If the
infringement was willful, the court can
grant treble damages.
COPYRIGHTS
• A copyright is an intangible property

right granted by federal statute to the
author or originator of certain literary
or artistic productions.
• What Is Protected Expression?
• Works that are copyrightable include
books, records, films, artworks,
architectural plans, menus, music videos,
product packaging, and computer
software.
COPYRIGHTS
• The Copyright Act of 1976, as

amended, governs copyrights.
• Works created after January 1, 1978,
are automatically given statutory
copyright protection for the life of the
author plus 70 years.
COPYRIGHTS
• Copyrights owned by publishing

companies expire 95 years from the
date of publication or 120 years from
the date of creation, whichever is first.
COPYRIGHTS
• Copyrights can be registered with the

U.S. Copyright Office in Washington,
D.C. (www.copyright.gov).
• A copyright owner no longer needs to
place a © or Copyright on the work,
however, to have the work protected
against infringement.
COPYRIGHTS
• Copyright Infringement
• Occurs whenever the form or expression of
an idea is copied without the permission of
the copyright holder.
• An exception applies if the copying is
deemed a “fair use.” Courts determine
whether a particular use is fair on a case-
by-case basis, as the guidelines are very
broad.
COPYRIGHTS
• Copyright Protection for Software

• In 1980, Congress passed the Computer
Software Copyright Act, which amended
the Copyright Act of 1976 to include
computer programs in the list of creative
works protected by federal copyright law.
TRADE SECRETS
• A trade secret is basically information

of commercial value. It includes
customer lists, plans, research and
development, and pricing information.
TRADE SECRETS
• State and Federal Laws

• Today most states’ laws are based on the
Uniform Trade Secrets Act.
• The Economic Espionage Act of 1996 made
theft of trade secrets a federal crime.
• Trade Secrets in Cyberspace
• Computer technology undercuts a firm’s
ability to protect its confidential
information.
EXHIBIT 5.1
INTERNATIONAL PROTECTION FOR
INTELLECTUAL PROPERTY
• Various international agreements
provide international protection for
intellectual property.
• Berne Convention
• Trade-Related Aspects of Intellectual
Property Rights (TRIPS agreement)
• Anti-Counterfeiting Trade Agreement
• The Berne Convention of 1886
• If a U.S. citizen writes a book, every country
that has signed the convention must
recognize her or his copyright in the book.
• The U.S. joined the Berne Convention in
1989.
• 1994, Congress enacted Uruguay Round Agreements Act
(URAA)
• The TRIPS Agreement
• 1994 agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS),
which provides for enforcement
procedures in over 100 countries that
signed the agreement.
• Generally, a member nation cannot give
its own citizens favorable treatment
without offering the same treatment to
nationals of all member countries.
• The Anti-Counterfeiting Trade
Agreement
• Eight countries signed in 2011
• Goal is to increase international
cooperation, facilitate the best law
enforcement practices, and provide a
legal framework to combat counterfeiting.

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Fundamentals of Business Law, 10E: Roger Leroy Miller

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FUNDAMENTALS OF

BUSINESS LAW, 10E

1. What is intellectual property?

5. What are trade secrets, and what

• Intellectual property is any property

• A patent is a grant from the

• In 2011 Congress passed the America

• Searchable Patent Databases

• Almost anything is patentable, except the

• Remedies for Patent Infringement

• A copyright is an intangible property

• The Copyright Act of 1976, as

• Copyrights owned by publishing

• Copyrights can be registered with the

• Copyright Protection for Software

• A trade secret is basically information

• State and Federal Laws

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