ONE

PART

Introduction to
Intellectual Property
CHAPTER 1 Introduction to Intellectual Property Law | 2

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 C H A P TER 1

Introduction to
Intellectual Property Law

C H A P TER O V ER V I E W
Intellectual property law protects the results of human creative endeavor. Intel-
lectual property is generally thought to comprise four separate fields of law:
­trademarks, copyrights, patents, and trade secrets. A trademark is a word, name,
symbol, or device used to identify and distinguish one’s goods or services and to
­indicate their source. Rights in trademarks are created by use of a mark; registration
with the U.S. Patent and Trademark Office (USPTO) is not required, although it of-
fers certain advantages. Copyright protects original works of authorship, ­including
literary, musical, dramatic, artistic, and other works. Just as trademarks are pro-
tected from the moment of their first public use, copyright exists from the moment
of creation of a work in fixed form; registration of a copyright with the U.S. Copy-
right Office, while affording certain benefits, is not required. A patent is a grant
from the U.S. government that permits its owner to exclude others from making,
selling, using, or importing an invention. Patents exist only upon issuance by the
USPTO. A trade secret consists of any valuable commercial information that, if
known by a competitor, would provide some benefit or advantage to the competi-
tor. No registration or other formalities are required to create a trade secret, and
trade secrets endure as long as reasonable efforts are made to protect their secrecy.

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 C H A P TER 1
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Introduction to Intellectual Property law

INTELLECTUAL PROPERTY LAW

BASICS
Intellectual Property Defined

real property
personal property

intellectual prop-
erty

intellectual property (IP)

industrial property

TYPES OF INTELLECTUAL
PROPERTY
intellectual property

The Rationale for Protection

of Intellectual Property

Trademarks and Service Marks

What Is Protectable.

trademark

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 P a r t ONE
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Introduction to Intellectual Property

service mark

Federal Registration of Trademarks.

Copyrights
What Is Protectable. Copyright
et seq
et seq

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 C H A P TER 1
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Introduction to Intellectual Property law

Patents
What Is Protectable. patent

Federal Registration of Copyrights.

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 P a r t ONE
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Introduction to Intellectual Property

Federal Registration of Patents.

et seq

Protection of Trade Secrets.

Trade Secrets
What Is Protectable. trade secret

nondisclosure agreements

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 C H A P TER 1
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Introduction to Intellectual Property law

Other Intellectual Property Rights AGENCIES RESPONSIBLE FOR

INTELLECTUAL PROPERTY
REGISTRATION
U.S. Patent and Trademark Office

U.S. Patent and Trade-

mark Office (USPTO)

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 P a r t ONE
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Introduction to Intellectual Property

Library of Congress
Library of Congress

United
States Patent Quarterly

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 C H A P TER 1
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Introduction to Intellectual Property law

ETHICS
EDGE
DUTY OF COMPETENCE

The duty of competent legal representation is so important that it is the first substantive statement
promulgated by the Model Rules of Professional Conduct of the American Bar Association. Rule 1.1
provides that competent representation requires the legal knowledge, skills, thoroughness, and prepa-
ration necessary for the representation of a client. Thus, although only an attorney may give legal
­advice and counsel a client as to the best strategy to protect his or her intellectual property, parale-
gals are expected to provide competent assistance. Paralegals thus have a duty to keep current with
IP developments and cases in order to fulfill this duty of competence.

INTERNATIONAL
ORGANIZATIONS,
AGENCIES, AND TREATIES

International Trademark Association (INTA) World Trade Organization (WTO)

Berne Convention for the Protection of Lit-

World Intellectual Property Organization erary and Artistic Works (the Berne Con-
(WIPO) vention).

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 P a r t ONE
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Introduction to Intellectual Property

North American Free Trade Agreement

(NAFTA).

Madrid Protocol.

Agreement on Trade-Related Aspects of In-

tellectual Property (TRIPS).

Paris Convention.
THE INCREASING IMPORTANCE
OF INTELLECTUAL PROPERTY
RIGHTS

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 C H A P TER 1
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Introduction to Intellectual Property law

Episode III Revenge of the Sith

TRIVIATRIVIATRIVIATRIVIATRIVIATRIVIATRIVIATRIVIATRIVIATRIVIATRIVIATRIVIA

was the film illegally downloaded most often.

should have access to new technology.

method of steering a boat through shallow waters. The model, made by Lincoln himself, is
-

TRIVIATRIVIATRIVIATRIVIATRIVIATRIVIATRIVIATRIVIATRIVIATRIVIATRIVIATRIVIA

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 P a r t ONE
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Introduction to Intellectual Property

C H A P TER S U M M ARY
The term intellectual property is generally thought of as comprising four over-
lapping fields of law: trademarks (protecting names, logos, symbols, and other
devices indicating the quality and source of products and services); copyrights
(protecting original works of authorship); patents (grants by the federal gov-
ernment allowing their owners to exclude others from making, using, or sell-
ing the owner’s invention); and trade secrets (any commercial information
that, if known by a competitor, would afford the competitor an advantage in
the marketplace). Patents must be issued by the federal government, whereas
rights in trademarks are created by use of marks, and rights in copyright
exist from the time a work is created in fixed form. Nevertheless, registration
of trademarks and copyrights offers certain advantages and benefits. Trade se-
crets are governed by various state laws, and registration is not required for
existence and ownership of a trade secret. Trademarks and trade secrets can
endure perpetually as long as they are protected, while copyrights and patents
will fall into the public domain and be available for use by anyone after their
terms expire.
As our world becomes increasingly reliant on technological advances, greater
demands and challenges are made on IP practitioners. The field is an exciting and
challenging one and offers significant opportunities for hands-on involvement by
IP professionals.

CA S E I LLU S TRAT I ON
POLICIES UNDERLYING IN TELLECTUAL PROPERTY L AW
Case: Mazer v. Stein
Facts:

Holding:

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 C H A P TER 1
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Introduction to Intellectual Property law

CA S E S TUDY AND ACT I V I T I E S

Case Study:

Activities:

ROLE O F P ARALE G AL

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 P a r t ONE
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Introduction to Intellectual Property

I NTERNET RE S OURCE S

D I S CU S S I ON Q UE S T I ON S
1.

2.

3.

4.

The Help

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 C H A P TER 1
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Introduction to Intellectual Property law

5. The Scarlet Letter

6. True Grit

7.

8.

U S I N G I NTERNET RE S OURCE S
1.
a.
b.

c.
2.
a.
b.
c.
3.

4.

5.

Go to http://www.paralegal.delmar.cengage.com for Quizzes, Forms,

Chapter Resources, and additional information.

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