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Introduction to Intellectual Property

Introduction to Intellectual Property. Class of November 17 2003 Trademark Law. Two Registers. Principal Register Supplemental Register. DURATION OF REGISTERED TRADEMARKS. How long are registered trademarks protected?. DURATION OF REGISTERED TRADEMARKS.

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Introduction to Intellectual Property

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  1. Introduction to Intellectual Property Class of November 17 2003 Trademark Law

  2. Two Registers • Principal Register • Supplemental Register

  3. DURATION OF REGISTERED TRADEMARKS • How long are registered trademarks protected?

  4. DURATION OF REGISTERED TRADEMARKS • 10 years (must file affidavit showing current use after 6 years) (1058) • Renewable • Lost if abandoned • What about unregistered marks?

  5. PRIORITY • Zazu Designs v. L’Oreal, S.A. (7th Cir. 1992) (CB p. 572)

  6. INCONTESTABILITY • What is incontestability?

  7. INCONTESTABILITY • After a registered mark in continuous use for 5 consecutive years after registration, mark owner can file an affidavit with USPTO. • Then the right to use such registered mark in commerce is “incontestable” and no one can challenge its validity, registration, or ownership. Park N’ Fly (1985).

  8. INCONTESTABILITY • Defenses that still exist after 5 years e.g.: • Fraudulent registration, abandonment, use of mark to misrepresent source of goods/services, fair use of mark as a name or descriptive term, use of mark to violate antitrust laws, that mark is functional, equitable principles, e.g. laches, estoppel • Most common advantage of incontestability is that owner no longer has to establish secondary meaning where it would be otherwise required.

  9. Elements of an Infringement Action • Ownership of valid registered mark; • The alleged infringer used • In commerce • The mark or a similar symbol • In connection with the sale, offering for sale, distribution or advertising of goods or services; • The use caused likelihood of confusion, mistake or deception (35 USC s. 1114)

  10. Likelihood of Confusion • Sleekcraft factors • (Different circuits have different lists all set forth in respective leading cases such as Polaroid, Squirtco, Roto-Rooter, Beer-Nuts, Elvis Presley etc.) • What are the Sleekcraft factors?`

  11. Kinds of Confusion • Confusion as to source (in absence of direct product competition) • Confusion as to sponsorship • Initial Interest Confusion • Post-Sale Confusion • Reverse Confusion

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