Infringement of Trademarks, Trade Names, Patents, and Copyright.
A. Introduction. The text uses a term called "passing off" which is falsely inducing buyers to believe that
one product is another.
1. Things included in "Passing Off." Passing off includes Infringement of a trademark, a trade
name, a patent, or a copyright.
B. Infringement of Trademarks and Service Marks.
1. Definition of Trademark. A trademark is special or distinctive mark, logo or device a
manufacturer places on his product to distinguish it from others.
2. Why are trademarks important?
Answer. One of the primary purposes is to distinguish products. This distinction is
important so that customers may make informed decisions.
3. Things that are not Trademarks.
Names, words, place that are descriptive are usually not
trademarks and can be used by anyone. Uncommon words may be trademarks.
4. Definition of Service Mark. A service mark is similar to a trademark, but it is used to distinguish
services versus products.
1. Bart Simpson would probably be a service mark.
5. When Does Infringement Occur. Trademark Infringement usually occurs after the trademark or
service mark has been registered and someone attempts to copy it.
a. Vuitton v. Crown Handbags.
(1) Facts. Crown offered for sale and sold to an undercover agent of Vuitton,
handbags which imitated Vuitton's trademark.
(B) Vuitton sued Crown for trademark infringement.
(2) Court's Decision. The court held that Crown was in fact guilty of trademark
infringement and assessed damaged and enjoined Crown from selling the bags in
the future.
(A) The court held that Vuitton would suffer because of loss profits and
customers would suffer because they were purchasing inferior
merchandise.
C. Infringement of Trade Names.
1. Definition of Trade Names. Trade Names are names used to identify a business such as Brooks
Brothers, Aigner, Alexander Julian.
a. The Trade Name is Usually Directly Related to Goodwill. Generally, the Trade Name is
directly related to the good will of the business. This happens when the Company
establishes a reputation of providing top products or services.
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b. Generic Use of a Name. One of the biggest problems occur when a trade name acquires
generic use. Some of the more common trade names that are becoming generic are (1)
aspirin, (2) Clorox, (3) Kleenex and (4) Xerox.
Read the Coca-Cola Case - p. 85
D. Infringement of Patents.
1. Definition of Patent. AS the text states, a patent is a grant from the government that gives an
inventor exclusive right to make and sell a product for a given period of time (Usually 17 years).
2. Requirements to Obtain a Patent. In order to obtain a patent, the inventor must show that the
item is genuine, novel and useful.
3. Primary Purpose of a Patent. A patent's primary purpose is to give notice to others who may
want to make the same item.
a. Patents are very popular especially in the pharmaceutical industry.
4. Notice the Difference in Price. Once a company has a product that is useful and they have
patented it, the price is usually very high.
a. Once the patent ends, and other companies are allowed to produce the same product, the
price drastically drop.
E. Infringement of Copyright.
1. Definition of Copyright. A copyright is a statutory right given to authors or originators of
literary or artistic productions.
2. Computer Programs Copyright Protected. The biggest change in copyright has come in the
copyrighting of computer programs such as Lotus 123, WordPerfect, Symphony, and Harvard
Graphics.
3. When does Infringement Occur. Copyright infringement occurs when someone copies or
reproduces the originator's work without his permission but more importantly without paying
for it.
a. The reproduction does not have to be exact. If a substantial portion is reproduced, a
copyright infringement exits.
4. Copyright Act. Section 107 of the Copyright Act permits copyrighting under certain conditions.
Look at page 86.
F. Theft of Trade Secrets.
1. Definition of Trade Secrets. Trade secrets are information or processes used by a business to
obtain a competitive edge. This includes (1) customer lists, (2) marketing techniques, and (3)
secret formulas.
2. How they are Protected. Trade secrets are usually protected by the company requiring all
employees not to divulge the information while employed or upon leaving their employment.
