An Overview of Intellectual Property,

Product Safety & Development

Alice Au Amanda Schaffer

Fawn HorvathMarie Camacho

•Trademarks •Copyrights•Patents•Right of Publicity

Intellectual PropertyIntellectual Property

What is a trademark?

TRADEMARKTRADEMARK

Any word, name, symbol or device used to identify goods or services and

distinguish them from the goods or services of others

What is the difference between a ® and a ™?

TRADEMARKTRADEMARK

A ® indicates that someone has a federally registered

trademark while a ™ indicates that someone is

claiming common law rights.

POPULAR TRADEMARKSPOPULAR TRADEMARKS

• Sound ?

What Else Can Function As a What Else Can Function As a Trademark?Trademark?

-Brown for shipping

• Color ?

• MotionMGM Lion

COUNTERFEIT (a/k/a “Passing Off”)

TRADEMARK TRADEMARK INFRINGEMENT INFRINGEMENT

“FOUIS VUITTON”

• Test for infringement = is there a likelihood of confusion as to the source of the goods or services

• Actual confusion not required

TRADEMARK TRADEMARK INFRINGEMENT INFRINGEMENT

TRADEMARK TRADEMARK INFRINGEMENT INFRINGEMENT

• Protects overall graphics and shape of a product or its packaging

• Must be non-functional• Enforced like any other trademark• Examples: Coca-Cola bottle, Keds

shoes (blue rectangle on shoe heel), Bloomingdale’s bags

TRADE DRESSTRADE DRESS

• Automatic right in original designs and creations put in tangible form (notice (©) is optional)

• Steps to establish a copyright:• Create and fix an original work• Publish/distribute/offer for sale to

the public

COPYRIGHT COPYRIGHT

What Does Copyright What Does Copyright Cover? Cover?

•Music•Photographs•Writing

•Graphics

•Characters

•Icons

•Paintings

•Film

What Does Copyright What Does Copyright Cover? Cover?

•Not Protected:- Ideas-Shapes and Functional Features of Apparel

•Protected: Expression

•Substantial Similarity

- To an ordinary person- Based on overall impression

(not number of changes)

COPYRIGHT COPYRIGHT INFRINGEMENTINFRINGEMENT

What is the test for infringement?•Idea vs. Expression

PATENTSPATENTS

Utility: process, machine, manufactured item, etc.Business Method•Typically last 20 years

Design: ornamental shape of useful item•Last only14 years

A license is a contract permitting the use of

someone else’s intellectual property.

LICENSINGLICENSING

What is a License?

• Advertising: Film clips, songs, even old commercials (ex: Geico)

• Licensed Merchandise (often animated characters or celebrities) - Hannah Montana lunchbox - Elmo plush toy

• Within other Creative Works - Song or movie clip in movie

When Do You Need A When Do You Need A License?License?

Right of PublicityRight of Publicity• The Right of Publicity - the right of any individual to

control the commercial use of his/her name, image, likeness or some other aspect of identity, limited under U.S. law by the First Amendment.

– Photos– Voice– Famous quotes

• Right of Publicity is a state law-based right, as opposed to Federal, and can vary significantly from state to state. – Ex: Indiana - 100 years after death and includes

signature, photograph, gestures, distinctive appearances, and mannerisms.

– California Celebrities Rights Act extended the personality rights for a celebrity to 70 years after their death.

Product DevelopmentProduct Development

• Practical Business Concerns: Who, How, When, How much?

• Product Safety• Other Considerations

– Marketing Claims• “Eco”, “Green”,

“Organic”

– Geo-Political Issues

PRODUCT SAFETYPRODUCT SAFETY

Who is Involved? What role do they play? •Product Designers & Evaluation Teams: must develop safe products and conduct product safety testing.

•Suppliers and Vendors: must comply with all laws and our contract requirements.

•Marketing and Advertising Team: must design packaging with the appropriate use, care, and safety warnings.

• Small Parts• Lead in Paint• Lead in Substrates

Children’s Toys: Highly Children’s Toys: Highly RegulatedRegulated

Key Toy Safety Standards:

Federal, Industry Standards, State Laws• Consumer Product Safety Improvement Act of 2008 (CPSIA)• ASTM F963 Toy Safety Standard • State & Local Regulations

Product Safety: Small Parts in Product Safety: Small Parts in ToysToys

Small Parts Standard

•The Small Parts Tube

•Created to Prevent Choking Hazards – Under 3 yrs of age

Product Safety: Lead in Kids’ Product Safety: Lead in Kids’ ProductsProducts

Lead In Paint & In Substrate

• Paint Standard – 90 ppm paint on products used by children.• Substrate Standard – 100 ppm• Does not cover appliances, household products.• Can cause stunted brain development in young children.• Hand to mouth exposure.

If a product fails a CPSC Regulation, the product is illegal and must be recalled.

Product RecallsProduct Recalls

• Why Make That Marketing Claim?

– “100% organic cotton, earth friendly”– “Lose 20 lbs in 10 days!”– “Remove all wrinkles in 30 days”– “4 out of 5 doctors approve”

• Does It Really Do That?• What’s the Proof? Is it true?• Testing and Certification

Requirements– Show Me The Evidence.– Challenge the Four Corners of

the Document.

Product Development: Testing & Product Development: Testing & CertificationCertification

Product Development: Geo-Politics & Product Development: Geo-Politics & SourcingSourcing

US Trade Embargos:

• Cuba• Iran• Myanmar (Burma)• North Korea• Sudan• Syria

Laws Affecting International Commerce:•LACEY Act•Dodd Frank Act & Conflict Minerals

– Tungsten, Tin, Tantalum, & Gold

We hope you enjoyed this overview of Intellectual

Property, Product Safety and Development.

Feel free to ask any questions!

THANK YOU!THANK YOU!