The most common difficulty a brand owner faces is the prospect of too much success: if a brand generically represents the product itself, it can lose brand exclusivity. Famous examples are aspirin, escalator and cellophane. The threat is constant. Trademark owners can protect themselves in a variety of ways against their trademarks becoming generic. Software companies need protection against unauthorized copying to recoup their investments, but the use of patents to do so raises questions. Patents are granted for a limited period of time, for example 20 years from the filing date for plant and utility models and 14 or 15 years for design patents. Patents granted in the United States offer protection only in the United States. To extend protection to other countries, the applicant must submit an application to the government agency of that country. A process is a method of processing a material to produce a specific physical change in the character or quality of the material, usually an industrial or technical process. A machine is a device that uses energy to get the job done. The term manufacturing refers to a process in which an item is made by people across art or industry. A substance composition may contain a mixture of ingredients or a new chemical compound. An improvement is any addition or modification of a known process, machine, manufacture or composition.
Under the Federal Trademark Dilution Act of 1995, companies whose trademarks dilute the value of an earlier trademark may be held liable for damages. The law provides that owners of high-value trademarks have property rights that must not be undermined, scrambled, obscured or diluted in any way by any other. However, as an applicant, the proprietor of the mark must prove (1) that it is a well-known mark, (2) that the use of a similar mark is commercial and (3) that such use leads to a dilution of the distinctive character of the mark. For example, a t-shirt manufacturer that advertises a red and white shirt with the Buttweiser brand may be held liable to Anheuser-Busch, or a pornographic site called Candyland could be held liable to Parker Brothers, the board game company. Interesting cases have already been filed under this law, including a Victoria`s Secret case against a small adult store in Kentucky called Victor`s Little Secret. Note that, unlike most previous trademark laws, the purpose is not to protect the consumer from confusion as to the origin or provenance of the goods or services sold; For example, no one who goes to Candyland`s website would think Parker Brothers was the source. An exclusion from their use would have the undesirable effect of impeding the free flow of information on the Internet, which is certainly not an objective of trademark law. As a result, the use of trademark terms in metatags satisfies the first part of the nominative use test. We conclude that meta tags also meet the second and third elements of the test.
Metatags use only as many Marks as are reasonably necessary, and nothing is done in connection with them to suggest sponsorship or endorsement by the Trademark Owner. We would like to point out that our decision may differ if the metatags repeatedly list the term trademark in such a way that the welles website appears regularly through Prince Edward Island when searching for one of the trademark terms. Check out FindLaw`s Patents section for a detailed discussion on this topic or learn more on our country-specific patent law legal answers page. First, the goods or services in question must be a good or service that cannot be easily identified without the use of the mark; second, only the quantity of trademark or mark that is reasonably necessary to identify the product or service may be used; and third, the user cannot do anything that would suggest sponsorship or approval by the trademark owner in relation to the trademark. The patent owner is granted the exclusive right to prevent others from producing, using, offering for sale or selling the patented invention. See 35 U.S.C. § 154. Prior to the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), which accompanied the GATT Round of URUGUAY, patents were granted for a non-renewable period of seventeen years, measured at the date of grant. According to the applicable legal provisions, the term of protection of utility models is twenty years, measured at the filing date (35 U.S.C. § 154), with extensions of up to five years being allowed for drugs, medical devices and additives (35 U.S.C. § 156).
The current term of protection for design patents is fourteen years from the date of filing. See 35 U.S.C. § 173. Section 102 of the Copyright Act excludes copyright protection for any « idea, process, process, system, function, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated or incorporated. » 17 United States Code, section 102. Grokster had argued, on the basis of Sony v. Universal Studios, Sony v. Universal Studios, 464 U.S. 417 (1984). that the sale of their photocopiers (such as the Betamax VCRs at issue in this case) does not constitute a contributory offence « when the product is used on a large scale for legitimate and non-reprehensible purposes ». The plaintiffs successfully argued that Sony`s safe harbor concept requires proof that non-infringing use is the primary use in terms of product benefit. The background or wallpaper of Welles` website consists of the repeated abbreviation « PMOY `81, » which stands for « Playmate of the Year 1981. » Welles` name or likeness does not appear before or after « PMOY `81 ».
The pattern created by the repeated abbreviation appears as the background of the different pages of the website. Since we accept, for the purposes of this remedy, that the abbreviation « PMOY » is indeed entitled to protection, we conclude that the repeated and stylized use of this abbreviation does not pass the test of nominative use. Patents encourage companies or individuals to continue to develop innovative products or services without fear of harm. For example, big pharma can spend billions of dollars on research and development. Without patents, their drugs could be duplicated and sold by companies that do not seek or invest the capital needed for research and development. The novelty requirement § 102 described under 35 U.S.C. consists of two different requirements; Novelty and legal obstacles to patentability. Novelty presupposes that prior to the invention by the patent applicant, the invention was not known in that country or used by others in that country or patented or described in a printed publication in that country or in any other country. See 35 U.S.C. § 102(a). In order to meet the novelty requirement, the invention must be new. The legal prohibition refers to the fact that patented material must not have been publicly used or offered for sale or described in a printed publication in that country more than one year before the filing date of a U.S.
patent application in that country or in another country. See 35 U.S.C. § 102(b). In other words, patent rights are lost if the inventor is reluctant to apply for patent protection for too long.