To clarify...

• Constitutional law: dictates power of government and fundamental rights

– Copyright/Patent laws stem from Constitution

• Statutory law: acts or statutes enacted as law by legislature

– Copyright/Patent are historically statutory laws (1790 Copyright Act)

– Codification: formalizing laws into legal code (text)

• Common law: judge made laws that are built on prior cases (precedent)

– Trademark has it's origins here, but eventually became statutory

RP3D (Exclusive Rights)

• 5 Exclusive rights of copyright holder

• 1) Reproduce

• 2) Perform publicly

• 3) Distribute copies

• 4) Display publicly

• 5) prepare Derivatives

T®adema®k

®

The Ring

We Live in a World Where People Own…

“You’re Fired!”

“That’s Hot”

19-0™

• “19-0” “19-0 The Perfect Season” “The Perfect Season”, 2008

– New York Post “18-1”

• Three Peat®– 1989, Riles & Co.

– Byron Scott

– Chicago Bulls, '93/'98

– Yankees, 2000

– Lakers, 2002

– Three-Pete™, 2005

Duh, Winning®

Snooki®

Bollier says T®adema®ks...

• Show “competitive advantages of monopolizing culture” (p. 82)

• Brands are embedded in language/culture

• Allows corporations to protect themselves from competition

• Instruments for censorship

T®adema®k Basics

• 15. U.S.C. 1127: "any word, name, symbol, or device, or any combination thereof . . . used by a person . . . to identify and distinguish his or her goods . . . from those manufactured and sold by others and to indicate the source of the goods, even if that source is unknown."

• Prevents consumer fraud, counterfeiting, and confusion in the market; source of good/service

• 15 U.S.C. aka Lanham Act

• Titles (books, films, etc.), domain names, celebrity slogans

– ^Not copyrightable

Trademarks

T®adema®k Basics Cont'd

• Get trademark protection by:

– 1. Registering w/ USPTO, $335 fee + legal fees, 5th-6th year renewal and then ever 10 years

– 2. Being first to use it in commerce

• Trademark is an adjective that modifies a noun; NOT a verb or noun (Miller Lite beer, Winston cigarettes, etc., but not “googling” or “take an Aspirin”)

• You can lose trademark protection through:

– 1. abandonment, after 3 years of non-use=public domain; but potentially perpetual

– 2. improper licensing or assignment

– 3. genericization

Lanham Act

• 1946

• 15 U.S.C.

– Title 15 regulates trade and commerce in U.S., notably anti-trust (competition laws)

• Primary federal trademark statute

• Sets requirements for receiving a federal mark

• Remedies for infringement

• “likelihood of confusion” test

Federal Trademark Dilution Act of 1995

• Owners of “famous” marks have right to silence uses of their marks that blur or dilute their marks

• Had to show actual “dilution”

• Amended by: Trademark Dilution Revision Act (2006)

– Proves “likelihood” of dilution, don't have to show actual dilution

– Likely because of Victor's Little Secret case and corporate lobbying

Types of Ma®ks

• ® is a federally registered mark

• ™ is an unregistered mark or common law mark, protected by common law/state law, geographically restricted

• ℠ is a service mark, used to promote branded services (Comcast Xfinity, UPS, Fedex, Lube I USA, etc.)

• State and federal laws

Nonconventional T®adema®ks

• Sound marks (aural marks): NBC chimes, “Sweet Georgia Brown” (Globetrotters theme), AT&T spoken, Law & Order, Metro-Goldwyn-Mayer lion roar

• Color marks

• Motion marks

• Hologram marks

• Shape marks

“Trade Dress” (not utility functions)

4 Types of T®adema®ks

• Distinctiveness is KEY! More distinct the better!

• 1. Arbitrary or fanciful: mark that bears no logical relationship to the underlying product

– Fanciful (coined): Exxon, Kodak, Reebok

– Arbitrary (common words used uniquely): Apple, Amazon, Dutch Boy, Grey Goose

• 2. Suggestive: indicates nature/quality or good/service associated w/ mark; requires perceptive imagination of audience (Blu-ray, Coppertone, etc.)

4Types of T®adema®ks Cont'd

• 3. Descriptive: Mark acquires “secondary meaning” when mark is associated with producer and not the good. (Bank of America); low trademark protection

– Term has dictionary meaning, but takes on “secondary meaning” when used in connection with products that relate to that meaning

• 4. Generic: distinctive mark has become generic term. (Aspirin, Heroin, Zipper, Yo-Yo, etc). NO trademark protection

– Band-aid, Kleenex, Xerox have ALMOST became generic.

Name That Ma®k!

• Fanciful

• Arbitrary

• Generic

• Arbitrary

• Suggestive

• Descriptive

• Suggestive

• Arbitrary

Google® v. googling