Thu, 04 Dec 2008

Moral Rights / VARA
Q: Are we responsible for knowing the VARA or any other specific doctrines having to do with moral rights?

A: Although you read the pages on VARA, we didn't discuss it in class, so it probably won't be on the test. You should know what moral rights are, however.

posted at: 19:29 | path: | permanent link to this entry

TM Distinctiveness of things other than words
Q: How do you measure the distinctiveness of non-word trademarks like logos? Do you use the arbitrary/fanciful/suggestive/descriptive/generic scale?

A: You don't apply the a/f/s/d/g scale directly--that is specifically tied to words. You do, however, analogize to that scale. So, to borrow from the example we discussed in Copyright, a very simply drawn house used as a trademark for a realtor might be too simple to be trademarked. You could support this argument by analogy to the "descriptive" quality of words.

Update 12/4 8:30pm: A student pointed out that I misstated the conclusion a bit. If the simple house is analogous to descriptive word marks, then it could probably be trademarked with secondary meaning. I simply meant that the logo might not be inherently distinctive, but I wasn't ruling out distinctiveness through secondary meaning.

posted at: 19:29 | path: | permanent link to this entry

Trademark Use
Q: Rescuecom????

A: We didn't officially cover trademark use in class (I discussed it in passing), so it won't be worth points on the exam.

posted at: 12:50 | path: | permanent link to this entry

Brandir
Q: How many of the tests of conceptual separability for the useful article rule in copyright do we need to know?

A: Not all of them! :) You should definitely know the majority's and dissent's tests. You should also have a list of other tests at the ready, in case you need to compare them closely to whatever fact pattern I might give you. It probably isn't worth spending a lot of your time before the exam trying to discern the subtle differences between the tests which, frankly, are all pretty similar to one another.

posted at: 12:47 | path: | permanent link to this entry

The Six Fair Use examples
Q: Before you get to the four factors to determine whether something is fair use, does the use need to be one of the six examples listed in the preamble to section 107? If so, I don't understand where Sony fits into the examples. Would it be research?

A: The phrase "such as" in section 107 is the tip-off. You don't need to be in the list of exemplary purposes. Many things that don't strictly fit in the list have been held to be fair uses (such as Sony) and sometimes, things in the list are nevertheless held NOT fair use. Still, it's very good for a fair use argument to be in the list.

posted at: 12:41 | path: | permanent link to this entry

Channeling Doctrines
Q: I don't really understand what channeling doctrines are and more importantly how they affect the analysis of a given IP problem. I pretty much just get that they involve the interrelationship between different forms of IP protection.

A: Channeling doctrines describe only a few rules that explicitly hold that you can't get IP protection X for a particular thing because policy considerations suggest that you should go get IP protection Y instead.

One good example of this is Baker v. Selden. In Baker, the court declined to extend Copyright to the blank accounting forms because it would protect an idea--the accounting method--that was more properly the subject of Patent law. Thus, one of the key reasons it denied Copyright protection was because of the existence of another, more restrictive IP.

The other good example we studied is TrafFix. The TrafFix court held found a heavy presumption against extend trade dress protection to a feature claimed in an expired utility patent. One of the reasons for this heavy presumption is it would take something that was supposed to be the subject of narrow patent protection and extend it using broad trade dress protection.

So channeling doctrines ARE NOT simply doctrines that allow you to compare/contrast different forms of IP. They are rules that force you to choose one form of IP by denying you another form of IP to resolve what would otherwise be a conflict between the two.

posted at: 12:40 | path: | permanent link to this entry

Aesthetic Functionality
Q: I don't understand aesthetic functionality!

A: Perhaps the biggest problem is the use of the word, "functionality." It isn't really about functionality at all. Instead, just think of it as a separate rule, and focus on the word "pleasing." Some things are just so inherently pleasing in its design, that if we let one competitor protect it as a trademark, we would be taking too much away from the other competitors. If we let you TM a heart-shaped chocolate box, we let you lock up too much IP, because there is something inherently pleasing about that design.

posted at: 12:38 | path: | permanent link to this entry

Parke-Davis
Q: I am confused about the Parke-Davis line of cases. My understanding is that the process for extracting and purifying is patentable, but the product (adrenaline) is not. Is this correct?

No, this is not correct. Parke-Davis held that a product extracted from nature is patentable if it is in a form that is purer than the form in which it exists in nature. By being purified, it is no longer considered a "product of nature."

posted at: 12:33 | path: | permanent link to this entry

Leftovers from the Review Session
We ended the review session without getting through all of the questions, so I will be populating this webpage with written Q&A covering most of the remaining questions.

posted at: 12:27 | path: | permanent link to this entry