Business intellectual property

timer Asked: May 12th, 2019
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Question Description

Andy King owns a small sandwich shop in Boca Raton, Florida. The shop is called "Andy The Burger King" and has been open for about one month.

Andy sells typical “burger place” food, including hamburgers, chicken sandwiches, french fries, onion rings, sodas and milkshakes. As a nod to his Cuban heritage – his mother was born in Havana – he also sells Cuban sandwiches in two sizes: “The Regular” and “The Whopper.”

In his shop, Andy enjoys playing a variety of music over the speaker system. Generally, he plays whatever music he recently bought on his own and downloaded to his iTunes account. Lately, his favorite to play for his customers has been “Night Visions,” an album by the band Imagine Dragons.

Andy receives two letters in the mail. The first is from the Burger King Corporation, demanding that he cease and desist the use of the name of his restaurant and the name of the large Cuban sandwich. The second is from Broadcast Music, Inc., on behalf of Imagine Dragons, advising that he must pay royalty fees to the band or stop playing the music. Both companies write that if action is not taken immediately, they will sue Andy.

What are the basics for each potential lawsuit, what are the legal analysis (including the "elements" of each legal claim) that each plaintiff (Burger King and BMI/Imagine Dragons) could use to make its argument, what defenses could Andy use, and how do you think that each case would be decided in court?

You shall be graded on your complete and proper explanations, research and language usage, all as noted below. The report must be submitted in typed, double-spaced form.

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pop pop pop QUIZQUIZQUIZ Intellectual property includes which of the following: a. Trademarks and trade secrets b. Patents c. Copyrights d. All of the above 11-1 Justification for Intellectual Property ➢ Similar to the private property system ➢ Exclusive right to intellectual property gives incentive to new inventions ➢ U.S. Constitution protects intellectual property for limited times 11-2 Intellectual Property and Competition ➢ Property rights provide exclusivity to firms and individuals ➢ Economic return on investment encourages creation of more information ➢ Intellectual property is essential to maintain the growth of creative research and development (R&D) 11-3 Capturing Intellectual Property ➢ Certain steps need to undertaken to transform knowledge into valuable intangible assets ➢ Strict deadlines are applicable for asserting rights of some intellectual property ➢ Failure to follow the rules can position the product in public domain 11-4 Trade Secrets Knowledge Or Info Kept Secret (reasonable measures taken) Economic Value Uniform Trade Secrets Act 11-5 Establishing the Existence of a Trade Secret ➢ Conduct a trade secret audit to identify confidential knowledge-based resources ➢ Preserve secrecy ➢ Lock written material ➢ Secure computer-stored knowledge with firewalls and encryption ➢ Impose confidentiality restrictions ➢ Regulate visitors ➢ Ask employees, customers, and business partners to sign nondisclosure agreements 11-6 Case 11.1 - Trade Secret ➢ Case ➢ Al Minor & Associates, Inc. v. Martin ➢ 881 N.E.2d 850 (Ohio, 2008) ➢ Court of appeals ➢ Issue ➢ AMA filed a lawsuit against Martin, claiming that he violated Ohio’s Trade Secrets Act by using confidential client information to solicit clients 11-7 Demonstrating Misappropriation ➢ Misappropriation occurs when one improperly acquires or discloses secret information ➢ Independent creation and reverse engineering are exempted ➢ Employee mobility and trade secrets ➢ Confidentiality contracts forbid employees from disclosing the knowledge obtained in workplace ➢ Employers can enforce agreements not to compete only when there is a valid business purpose for the contract 11-8 Civil Enforcement of Trade Secrets ➢ Trade secret owners can acquire injunction ➢ Injunction: Order by a judge either to do something or to refrain from doing something ➢ Owners can obtain damages from people who misappropriate trade secrets 11-9 Criminal Enforcement of Trade Secrets ➢ Economic Espionage Act (EEA) ➢ Considers stealing trade secrets a crime ➢ Punishment ➢ Individuals - Fines and up to 10 years’ imprisonment ➢ Organizations - Up to $5 million in fines ➢ Provisions ➢ Makes one liable for standard trade secret misappropriation ➢ Addresses misappropriation to benefit a foreign government 11-10 Patent Law New invention Legal monopoly 11-11 Figure 11.1 - Types of Utility Patents 11-12 Obtaining a Patent 2.Filing fee 1.File application 3.Explain invention Patent – exclusive right to invention 4.Show difference from prior art 5.Describe patentable aspects 6.Evaluation by the patent examiner 11-13 America Invents Act ➢ Revised to a first-inventor-to-file system ➢ Increased the ability of companies to: ➢ Keep some internal processes a secret ➢ Avoid infringing another’s patent through prior user rights 11-14 Patentable Subject Matter ➢ Validity of a patent can be tested by scrutinizing its subject matter ➢ Certain categories of subject matter cannot be patented ➢ Do not represent true inventions ➢ Supreme Court’s views on patentable subject matter refer to concept preemption 11-15 Case 11.2 - Patentable Subject Matter ➢ Case ➢ Association for Molecular Pathology v. Myriad Genetics, Inc. ➢ 133 S. Ct. 2107 (2013) ➢ Supreme Court ➢ Issue ➢ Plaintiffs filed lawsuit against Myriad Genetics objecting their patent claims over genes which increase the chance of developing cancer 11-16 Characteristics of Patents Novelty • Something new and different from the prior art Nonobviousness • Ability of an invention to produce surprising or unexpected results Utility • Must do something useful 11-17 Patent Enforcement ➢ Purpose of law ➢ To allow inventions in the public domain after the limited period of legal property right ➢ Patent owner can sue against infringement for injunction and damages ➢ Inventions can cover methods and articles that can overlap 11-18 Figure 11.2 - Overlapping Intellectual Property Rights 11-19 Patent Trolls and the Litigation Threat ➢ Overlapping rights provide an opportunity for firms to purchase patent rights and sue companies ➢ Patent trolls ➢ Non-producing patent owners who impose high costs by enforcement ➢ Do not contribute much to the innovation environment ➢ Subject to fines if the assertions of infringement are vague and unsupported 11-20 Trademarks Marks on what is produced to represent the origin of goods & services Recognizability or distinctiveness Protection against confusion 11-21 Marks Protected by the Lanham Act of 1946 Trademark Service mark Collective mark Certification mark Trade dress 11-22 Food for thought… Imagine that you were blindfolded and taken into a national fast food /restaurant franchise or a national chain department store. When you took the blindfold off, would you likely know the name of the department store chain or national fast food /restaurant franchise? That is the power and importance of trade dress. 11-23 Trademark Registration ➢ Usage of mark in interstate commerce requires registration with PTO ➢ Mark must be distinctive ➢ PTO places the mark in the Official Gazette ➢ Registered on the Principal Register if the mark is acceptable ➢ Must be renewed every 10 years ➢ Provision of full trademark status for a name or descriptive term ➢ To be listed on the Supplemental Register for five years and acquire a secondary meaning 11-24 Trademark Enforcement ➢ Law protects the owner from unauthorized use of the mark ➢ Establishes civil and criminal violation ➢ Infringement: Civil violation of a trademark ➢ Remedies include damages and injunctions and orders to destroy infringing products ➢ Generic marks cannot be protected ➢ Manufacturing and trafficking counterfeit trademarked products is a criminal violation 11-25 Case 11.3 - Trademark Confusion ➢ Case ➢ Kraft Foods Group Brands LLC. v. Cracker Barrel Old Country Store, Inc. ➢ 735 F.3d 735 (7th Cir. 2013) ➢ Issue ➢ Plaintiff filed a suit against the defendant claiming that consumers will be confused by the similarity of the logos and Kraft will be blamed for any dissatisfaction with CBOCS products 11-26 Trademark Issues on the Internet ➢ Relationship between website domain name and trademark ➢ People attempt to register domain names containing well-known trademarks that does not belong to them ➢ Anticybersquatting Consumer Protection Act, 1999 ➢ Provides remedy of statutory damages and transfer of trademark domain name to its owner 11-27 Trademark Dilution ➢ Federal Trademark Dilution Act, 1995 ➢ Prohibits the usage of a mark same as or similar to another’s trademark to dilute its significance, reputation, and goodwill ➢ Types ➢ Blurring - When usage of a mark blurs distinctiveness of a famous mark ➢ Tarnishment - When usage of a mark creates a negative impression about the famous company 11-28 Copyright Monopoly Copying and marketing Limited period of time Original expression 11-29 Copyright Ownership ➢ Copyright law grants property in certain creative expressions ➢ Prohibits others from reproducing it without the owner’s permission ➢ Criteria for copyright protection ➢ Work must be original ➢ Must be fixed in a tangible medium of expression ➢ Must show creative expression 11-30 Copyright Infringement ➢ The owner has to establish that defendant violated his or her exclusive rights of: ➢ Reproduction ➢ Creation of derivative works ➢ Distribution ➢ Performance ➢ Display ➢ Criminal penalties are applicable for willful infringement ➢ Piracy: Large-scale copyright infringement 11-31 Copyright Fair Use ➢ Copyright Act ➢ Specifies that fair use of copyrighted materials is not an infringement of the owner’s property ➢ Fair use includes copying for criticism, comment, news reporting, teaching, scholarship, or research ➢ Factors considered by courts ➢ Purpose and character of the use ➢ Nature of work ➢ Amount and substantiality of the portion used ➢ Effect of the use upon the potential market 11-32 Case 11.4 - Copyright Fair Use ➢ Case ➢ Campbell v. Acuff-Rose Music, Inc. ➢ 510 U.S. 569 (1994) ➢ Supreme Court ➢ Issue ➢ Acuff-Rose Music, Inc., sued 2 Live Crew members for recording and selling a parody of the copyrighted song Oh Pretty Woman 11-33 Copyright in the Digital Age ➢ Illegal to produce or assist in the production of copies that violate the law ➢ Person is held liable for: ➢ Contributing to another’s infringement ➢ Obtaining financial benefit ➢ Supervising the infringement ➢ Criminal and civil lawsuits for file sharing copyrighted material persist in the Internet 11-34 Digital Millennium Copyright Act ➢ Prevents the production or sales of a product or service designed to circumvent technological protections ➢ Protects Internet service providers from liability ➢ Violations of the act permit civil remedies ➢ Injunction ➢ Actual and statutory damages ➢ Up to 10 years’ imprisonment for circumventing for financial gain 11-35 pop pop pop QUIZQUIZQUIZ Copyright gives the owner the _____ right to reproduce, distribute, perform, display the protected work. a. Exclusive b. Shared c. Human d. Limited 11-36 think think think TANK TANK TANK Which is not an allowable fair use of copyrighted material? a. Teaching b. Research c. Profits d. Reporting 11-37 International Intellectual Property Rights ➢ World Trade Organization (WTO) ➢ Administers Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) ➢ Requires member countries to provide protection for all forms of intellectual property ➢ World Intellectual Property Organization (WIPO) administers: ➢ Patent Cooperation Treaty (PCT) ➢ Madrid System for International Registration of Marks 11-38 Conclusion ➢ Intellectual property serves the common good ➢ Adequate enforcement and social recognition are essential to provide incentive for private productive effort ➢ Enforcement of intellectual property is vital to nations that are part of the global trading system 11-39 ...
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School: Carnegie Mellon University



Business Intellectual Property; The Case of Andy King
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Business Intellectual Property; The Case of Andy King
Business intellectual property is a group of ideas and opinions of a business, which give
the owner exclusive rights to those business ideas, confirming nobody else can copy them
without permission (Dutfield, 2017). Intellectual property is insubstantial, unlike the physical
assets of a business such as cars. There are various types of intellectual property which include;
trade secrets, patents, copyrights and trademarks (Hook, 2017). The exclusive rights of the
intellectual property encourage creativity, generating more room for new inventions and
First Lawsuit
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