Intellectual Property & Ecommerce Issues

What is Intellectual Property?

• Any product or result of a mental process that is given legal protection against unauthorized use:– patents– copyrights– trademarks– trade secrets

Patents

– Available for inventions and the process necessary to create inventions

• machine, process,article or substance

• novel

• useful

• inventor must apply for the patent

• inventor must diligently seek the patent

Types of Patents

• Utility patents

• Design patents

• Plant patents

Infringement

• Direct

• Indirect

• Contributory

Defenses against Patent Infringement

• Non-infringement

• Invalidity

• Misuse

Copyrights

• Original work in the form of:– literary works– musical works– dramatic works– pantomimes and choreographic works– pictorial, graphic and sculptural works– motion pictures and other audiovisual works– sound recordings

Infringement

• Unauthorized use

• Exceptions:– fair use– look and feel debate

Trademarks(and Service Marks)

• Any word, name, symbol or device . . .adopted and used to identify and distinguish products or services.– Rankings

• fanciful

• arbitrary

• suggestive

• descriptive

• colors

How trademarks work

• You must use them

• they need not be registered, but registration increases your protection

• an abandoned trademark is lost

Infringement

• Elements:

– validity of the mark– priority use of the mark– confusion in the minds of purchasers

Trade Secrets

• Governed under state law

• Must actively protect a trade secret:– notification– identification– security– exit interviews

ECommerce Issues

• Intellectual Property and Technology Go Hand-in-hand

• But, the Internet is much more than just technology– It is a new medium with new risks– It is also a new medium that raises old risks in

new ways

Legal Risk and the Internet

• E-Mail– Raises free speech risks– Raises invasion of privacy risks– Raises contract risks (is an e-mailed offer an

offer? What if it is forwarded?)• Electronic signature

• UCITA – who owns the software you buy

Legal Risk and the Internet

• Naming your website– Domain names can be trademarked– Using someone else’s domain name

inappropriately may be a tort or crime (cybersquatting)

Legal Risk and the Internet

• What about legal issues we haven’t considered yet?