Intellectual Property
This lecture will cover material from chapter six of the text on intellectual property
law. There are three main types of intellectual property protection that we will
cover: trademarks, patents and copyrights. A trademark is a distinctive word,
name, mark, motto, device or emblem that is stamped, printed or affixed to goods so
that consumers may easily identify them on the market. This identification allows
producers to capitalize on what ever value is associated with the mark, and it allows
consumers to quickly ascertain the origin of the goods in question. For example,
McDonald’s trademarked golden arches quickly give consumers an idea of the food they
can get at the restaurant.
At the federal level, this protection is provided by the Lanham Act. The Lanham act
prohibits trademark infringement. This is defined as marks which create a likelihood
of confusion. For example, a restaurant names McDonnel’s with a golden arch may
confuse potential consumers about whether they are going to McDonald’s. However,
the consumer may not be confused by an Automotive Repair shop with the same name
due to the fact that McDonald’s is not known for automotive repair. The Lanham act
was amended in the 1995 to provide for a new cause of action known as dilution.
Dilution allows a markholder to prohibit others from tarnishing or blurring the mark if
certain prerequisites are met.
For example, under the previous example, McDonald’s may have a claim against
McDonald’s Automotive repair shop under a dilution theory if McDonald’s can prove that
the repair shop is tarnishing their brand (perhaps by producing a substandard product)
or by blurring it (by making the McDonald’s name less distinctive). Finally, it’s
important to note that marks are categorized by type. Some types of marks are
considered to be stronger than others. Arbitrary and fanciful marks are the strongest.
Fanciful, suggestive, and arbitrary (common words not ordinarily associated with the
product) trademarks are generally considered to be the most distinctive. Marks that are
merely descriptive, including names and geographical regions are not trademarkable
without a showing of secondary meaning. Secondary meaning arises where consumers
start to think of the product name before the original meaning.
Patents are an exclusive right to make, use and sell an invention for twenty
years. In order to acquire a patent, the inventor must apply for one with the U.S.
Patent and Trademark office. This application requires the inventor to show (among
other requirements) that the invention, discovery, process, or design is genuine, novel,
useful, and not obvious in light of current technology. This patent gives the owner the
right to sue for infringement of the idea. A successful suit would entitle the plaintiff to
injunctive relief or damages.
The final type of intellectual property we will discuss is copyright. A copyright is
an intangible right granted by the Copyright Act. The author of a work gains these
rights automatically though registration with the U.S. Government does give the author
certain additional benefits. Currently, this protection lasts for the life of the author plus
70 years, and literary works, musical works, dramatic works, and other similar works
will all qualify for protection. Again, the owner of the copyright is entitled to sue for
copyright infringement. Infringement occurs when the form or expression of an idea is
copied in substantial part. The remedies for this infringement range from the infringer's
profits to injunctions demanding the cessation of infringement.
Torts
This week’s lecture will cover torts.
In some ways, torts are similar to crimes. Often, there is a wrong committed, and
indeed, many crimes also include the commission of a tort. In fact, a tort also
consists of elements each of which must be proven true by a preponderance of
the evidence (this means that it is more likely than not that the elements are
satisfied). However, as touched upon last week, a tort is a civil action where the
plaintiff brings a suit against the defendant. As a civil action, the state is not a party
and jail time is never at issue in a tort action.
This does not mean that torts are not a controversial issue. The infamous McDonald’s
coffee case, where a woman successfully sued McDonald’s for hot coffee spilt in her lap,
has become one rallying point for people decrying the excesses of the tort system. And
many prominent commentators view tort reform is a serious issue in this country.
However, this lecture will mostly avoid addressing these complexities and will instead
focus and further explaining what torts are.
We will discuss two broad categories of torts: intentional torts and negligence. As
we continue, please note that these torts consist of elements. The plaintiff must prove
each of these elements in order to be entitled to a judgment.
The first type of tort is an intentional tort. These torts require proof on intent.
For these purposes, intent means that the defendant intended the
consequences of his actions or knew with substantial certainty that certain
consequences would follow from the act. Battery is an example of an intentional tort.
Battery requires proof of an unexcused, harmful, or offensive touching to the body or
something touching the body and intent. Thus, if the defendant pushes the plaintiff,
the defendant is liable for battery if the conduct was unexcused and the defendant
intended to push the plaintiff or knew that his actions would lead to the plaintiff being
pushed.
The second type of tort we need to discuss is negligence. Negligence is a very
important tort. The elements of the negligence tort are: 1) existence of a duty
of care; 2) the breach of this duty; 3) a legally recognized injury; and 4) the
breach of the duty must cause the injury.
Although this area of law has a
significant amount of complexity, the important issue to recognize in relation to
negligence is that the law generally imposes a duty to act reasonably. This duty is owed
to those who may be foreseeably injured by a failure to act reasonably.
For example, a motorist carrying a passenger owes duties to drive reasonably to other
motorists and his passenger as these people may be injured if the driver is not paying
sufficient attention to the road. Reasonably in this context is an objective standard. It
is the answer to the question: how would a reasonable person act in the same
circumstances? This tort differs from intentional torts due to the lack of the intent
requirement.
It does not matter for purposes of negligence whether the defendant intended to cause
the injury. What matters is whether the defendant should have been aware his conduct
could lead to injury. In these cases, often a jury will be required to determine what a
defendant should have been aware of.
The final element to discuss is causation. There
are two types of causation. Causation in fact is satisfied if it can be shown that
the injury would not have occurred without the breach of the duty. Proximate
cause is a legal standard that works to cut off liability if it would be unfair to hold a
negligent defendant liable for an injury where there is an insufficient connection
between the act and the injury. Courts often use foreseeability to determine if this
standard has been met. If the plaintiff’s injury is not a foreseeable result of the
defendant’s negligence, there is no proximate cause, and the defendant will not be held
liable.
With this introduction, I would like to encourage you to refer to your text for more
details on specific torts and potential defenses.
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