Elizabeth Scripturient (the delinquent, ecumenical (hermionesviolin) wrote,
Elizabeth Scripturient (the delinquent, ecumenical
hermionesviolin

Intellectual Property (Class #5) July 6 [notes]

Trade Secrets
1. secret from the competition
2. reasonable measures
3. misappropriation

Trademarks
- federal law thereon derives from Commerce Clause
- "what else is a brand but a trademark staying out late at night?"
- were first form of IP (Egypt/Mesopotamia -- artisans marking craft as their own work ... Cate and I weren't sure this works; is it more comparable to an artist signing his/her own work?)
- as consumers lost personal connection with manufacturer, they came to rely on brand cues
- signify source of goods (purpose of TM)
- makes markets more efficient and competitive
- have become ends in themselves -- display of trademarks has become end in itself (e.g. Tommy Hilfiger clothes)
- must be: distinctive
- genericide -- e.g. Escalator
- not just are marks same/similar but
use by diff. manufacturer/seller can lead to confusion of buyers in the marketplace
- "trade dress" e.g. Coke bottle
- Harley Davidson trademarked its distinctive roar
- "TMs are very egalitarian, democratic ... so long as you have money" [I thought, "That's not so much democracy as capitalism, though the two are linked."]
- secondary meaning
- only valid if being used ("has to be out there, slugging it out in the marketplace")
-- has to be used with an actual product, service, etc. (within 6 months)
- if you're not using it, it's no longer a valid trademark
-- valid for 10 years after issue
- federal TM law dates from 1946; states before then
- 42 categories (e.g. printed matter, vehicles, firearms)

- strength of the mark:
* fanciful
made-up words
can only refer to the product
* arbitrary
arbitrary application of pre-existing words (e.g., Blackberry, Apple)
* suggestive
suggests some quality of the product
* descriptive
not eligible for TM unless it has acquired a secondary meaning
* generic

-nominative (fair use) for companion products
- names are considered descriptive -- no TM without secondary meaning
- collective and certification (e.g., Good Housekeeping Seal of Approval)

Zatarain's (New Orleans)
court says: "fish fry" has acquired a secondary meaning (but "chick-fry" has not)

Wal-Mart vs. Samara Bros.
SJC says the design
trade dress isn't inherently distinctive; needs secondary meaning

AMF (Silkcraft) vs. Sleekcraft
- strength, proximity, similarity, evidence of actual confusion, marketing channels used, type of goods and degree of care likely to be exercised, defendant's intend in selecting the mark, likelihood of expansion of the product lines

dilution: famous mark that is being used in cheap/tawdry way that diminishes (e.g. Rolex)

initial intent confusion

proper use of geographic nouns

Nantucket shirts -- denied because no association, then granted because no association

- to trade on the "mark"
Tags: harvard: ext.: course: intellectual prop
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