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Innovation v. Infringement

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by

Jacob Wharton

on 4 May 2016

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Transcript of Innovation v. Infringement

How to Protect Your Design
and Respect Those Who
Came Before You

Copyright protects:
tangible expression of an idea - music, 2-D works (paintings, drawings, graphics), 3-D works (some furniture),literature, photographs, choreographic works

What is
innovation
and what is
infringement
?
Innovation is based on inspiration.
Why do companies protect innovation?
committed to innovation
protects risk takers
makes successful innovation more successful
Copyright good 95 years from publication
Works in the public domain are not protected
Thin copyright protection in traditional furniture
Copyright infringement:
ownership of an original expression
copying of elements of the copyright work that are original
accused work must be "substantially similar"
Patent protection:
Utility patent
Design patent
Patent protection.
What is a patent:
protects reduction to practice of an idea
grant by government to exclude others from making selling, or using
grant in exchange for full disclosure of invention
Utility patent covers
useful process
or product:


Design patent covers the ornamental appearance,
not any functional or utilitarian components.
Utility Patent:
20 years from filing date

Design Patent:
15 years from issuance
Trademarks serve as a source identifier
- identify and distinguish goods and services
Trademarks can be:

words, slogans, pictures, symbols, smells (fishing line), sounds (NBC chimes),
and colors (Tiffany box, Louboutin shoes)
Trademarks are established by
priority of use, distinctiveness, and proper usage (as adjective, e.g., Kleenex brand tissues)
Trademark Levels:

Ashley® brand
Millennium® Division
Rockledge® Group
StayClean® Chair with Mega-Tuff® Upholstery

Trademarks last indefinitely

if use is:
continuous
exclusive
Trade dress:
type of trademark law
whole visual image presented
elements primarily non-functional
Coca-Cola bottle shape
Brand value: $84 billion
Trade secret:
must be kept secret
cannot be reversed engineered
processes
customers/suppliers (maybe)
Trademark infringement:
plaintiff's mark is distinctive, and
defendant's mark is likely to cause confusion among ordinary consumers as to source, sponsorship, affiliation, or approval by plaintiff
Trade dress infringement
plaintiff's design is distinctive and non-functional, and
defendant's design is likely to cause confusion among ordinary consumers as to source, sponsorship, affiliation, or approval by plaintiff
Trade dress infringement cases:
sales
consumer surveys
advertising
unsolicited press
fact specific and expensive
Should you obtain protection?
Are you the creator?
Are the differences in the prior art and your design:
discernible
creative
non-obvious
create a signature look
Can you participate in a trend?
in the public domain
copying "inspiration" or design
Which of the following designs can be protected?
What's the right type of protection?
depends on the design
design patent must be filed as soon as possible but no later than one year after disclosure
"Patent Pending"
Thank you.

Jacob S. Wharton
WCSR.COM
(336) 775-8440
JWharton@wcsr.com
Full transcript