Intellectual Property Basics for Small

Business and Start-ups

Protecting Your Assets and Keeping Out of Trouble

UCEDC NOVEMBER 13, 2014

Tonight’s Objectives •  Discover the intellectual property in your

business •  Identify the legal protections for your intellectual

property o  Identify the steps necessary to secure legal

protections •  Recognize the intellectual property of others,

especially with regard to social media and the Internet

•  Learn how to avoid getting a Cease & Desist letter

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Brief Outline •  Background of Intellectual Property Law •  Types of Intellectual Property protected by law;

how it is protected and how it can be violated o  Ideas o  Trade Secrets o  Brands (Trademarks, Logos, Trade dress) o  Inventions (machines, devices, processes, plants, designs) o  Original works (photos, websites, writings, computer code) o  Right of publicity/privacy (athletes, personalities, kids) o  Domain names

•  Social media and Internet hazards

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Background •  Protection of intellectual property goes back to before

the Revolutionary War •  Based on British common law •  Many aspects of intellectual property (IP) law comes

directly from real property and movable property laws o  Buy, sell and barter o  Rent o  Time-share o  Theft and trespass

•  Constitutional, federally protectable and state statute •  IP protection adds value to any company

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IP Value

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Federal Protection •  The Founding Fathers recognized the need for the

protection of Intellectual Property when they authorized Congress “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Article 1, section 8, clause 8 of the United States Constitution).

•  “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; ” (Article 1, section 8, clause 3 of the United States Constitution)

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Ideas •  Protected by common law (state): by

contract law (breach of confidentiality) tort law (conversion, misappropriation, unjust enrichment)

•  Must be novel, original or creative •  Must be in a tangible form and fully

developed •  Reliance on common law is the least

protection available 11/13/14 UCEDC 6

Idea Protection •  Idea theft is not permissible – theft is theft •  Proving ownership is extremely difficult unless there is a

document trail •  Submission or sharing of an idea by someone outside

the company should be done with a written agreement such as a confidentiality agreement or idea submission agreement

•  Use federal protection if available such as copyright registration, patent application to show original ownership

•  Discourage submission of ideas from outside the business unless you have a process

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Trade Secrets •  Any information which would give a business

an economic competitive advantage •  What you don’t want your competitor to

know •  Need not be novel, original or inventive •  A formula, pattern, compilation (such as a

customer list), program device, method, technique, or process

•  A trade secret is protected as long as it remains a secret

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Trade Secret Protection •  47 states have trade secret statutes including

New Jersey •  Three remaining states, including New York, use

common law torts of conversion, misappropriation and unjust enrichment in trade secret cases

•  Protection by the Federal Economic Espionage Act of 1996 o  Generally protects against 3rd party theft of trade secrets, but not

as relevant for internal breaches whether intentional or inadvertent

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New Jersey Statute 1/9/12 •  Title 56 Chapter 15. New Jersey Trade Secrets

Act §§1-9 - C.56:15-1 to 56:15-9 §10 – Note •  "Trade secret" means information, held by one or more

people, without regard to form, including a formula, pattern, business data compilation, program, device, method, technique, design, diagram, drawing, invention, plan, procedure, prototype or process, that:

•  (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

•  (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

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Common Trade Secret Examples •  Special discounts granted to a single

customer •  Special discounts obtained from a vendor •  Recipe for the secret sauce or cooking

technique •  Exclusive marketing studies •  Customer data

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Trade Secrets and Social Media

•  Standard is “reasonable means to protect” •  Are passwords and follower lists trade secrets? •  What happens when an employee leaves?

o Who owns the LinkedIn® account connecting to customers? Eagle v. Morgan

o Who owns the followers on Twitter if postings are related to a business? Phonedog v. Kravitz

o Who owns the blog and its followers? •  Protection by written policy on ownership and use of

social media accounts as well as contractual clauses

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Protecting Trade Secrets •  Physical Protection – LOCK IT UP! •  Digital Protections – Passwords & Encryption •  Label It – CONFIDENTIAL •  Destroy it – Shred old documents & wipe the data •  Sign them up – Employee confidentiality agreements •  Sign them up, too – Vendors & 3rd Parties NDAs •  Say goodbye – Exit procedures to secure company

property, data, documents •  Monitor – Check if employees transferring files, email •  Don’t Apply for a Patent – Eventual publication •  Be a Good Example

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The Brand •  A trademark is a combination of elements such as words,

feature or device such as designs, sounds, scents that are used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.

•  A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.

•  Trade dress is a form of trademark 11/13/14 UCEDC 14

What can be used as a trademark®?

•  Words (word mark) o  Whatwind®

•  Sound o  MGM lion’s roar

•  Scent o  HIGH IMPACT, FRESH, FLORAL

FRAGRANCE REMINISCENT OF PLUMERIA BLOSSOMS (Clarke’s thread)

•  Color o  In re Owens-Corning Fiberglas

Corp., (C.A.F.C. 1985)

•  Designs and Logos (design mark) o  NBC

•  Stylized lettering o  Coca Cola®

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Trade Dress •  Trade dress can be registered after it has been in use

long enough to have acquired distinctiveness and gained secondary meaning o  [A] mark is inherently distinctive if ‘[its] intrinsic nature serves to identify a

particular source.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992).

•  Examples: particularly distinctive interior design for a retail store (Apple), the color of a shoe sole (Charles Louboutin) or package shape

•  Can be registered on the USPTO Principal Register

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CHOOSING THE BRAND NAME •  The mark must be distinctive to ensure it

identifies a single source for goods or services and ensures that competitors would not be free to use these terms in describing their own goods or services

•  Many domain names are merely descriptive so that search engines can find sites, but are not suitable as trademarks

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Distinctive, Descriptive, Generic •  Inherently distinctive: Most protectable

o  Fanciful or Coined mark – has no meaning at all other than their trademark –Xerox® or Haagen Daz®

o  Arbitrary mark – a mark which does not describe the product - Apple® computers; All-State® insurance

o  Suggestive mark – a mark which indirectly describes the product - Coppertone® suntan lotion or Ivory® soap

•  Merely descriptive; may be registered on Supplemental Register o  Doctor Available® - App that connects you to an available doctor

•  Generic – the word becomes synonymous with the object o  Nylon, kerosene, aspirin

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Pitfalls in Naming •  Your own name may not be available

o  Chanel Jones could not call her beauty salon “Chanel’s Salon” after Chanel, Inc. obtained an injunction

•  References to cultural icons may invoke C&D o  Empire Strikes Bock

•  References to famous people may invoke C&D o  “Here’s Johnny” portable toilets

•  Similarity to registered marks may invoke C&D o  Café Rock now Rock ’n’ Joes

•  Brands must take action against everyone, large or small, or else they may be “naked licensing”

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Likelihood of Confusion

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Protecting the BRAND •  Common law protection ™ is limited to the type of

product or service, the geographic area of use, and a reasonable expansion for each; “the first to use gets the territory”

•  Federal registration ® under the Lanham Act for marks used in interstate commerce grants national area of use for the registered mark

•  Trademarks do not expire as long as they are used in commerce

•  TRADEMARKS ARE FOREVER (sort of)

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Protecting the Brand •  Begin with a professional search and evaluation

to clear your proposed mark •  If an aspect of business is interstate, apply for

registration with the USPTO •  To complete registration of a trademark

submission of specimen showing use in commerce required in addition to allowance

•  Registration with NJ Business Records Service if strictly local business as alternative to USPTO

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Using Trademark symbols •  Symbols used as superscript to the right of the

mark •  ® is only used when federal registration is

complete and certificate of registration issued by the USPTO; used for goods and services, Principal and Supplemental Registers

• ™ can be used for goods and services; “common law mark” used without registration or while registration is pending

•  ℠ can be used for services without registration 11/13/14 UCEDC 23

Patents •  A patent is the right to exclude others from making,

using, offering for sale, or selling the invention in the United States or importing the invention into the United States

•  A patent is not the right to practice the invention •  Patents are territorial; patent rights limited to the granting

country •  System in place to concurrently apply in multiple

countries •  Applications must be co-pending, even if for only one

day

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What is patentable? •  Machine - has moving parts •  Manufacture - no moving parts (i.e. paper clip) •  Composition of matter -chemical (i.e. •  pharmaceuticals) •  Process - method of doing something (i.e.

manufacturing process, computer software) •  New and useful improvements of the above

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Types of U.S. Patents •  Utility

o  Provisional application o  Nonprovisional application

•  Design o  Protects the ornamental appearance of a product (as opposed to

the function of the product)

•  Plant o  Rutgers University holds numerous patents for cranberry

varieties, turf grass and dogwood trees to mention just a few

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Utility and Design Patents

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(12) United States Design Patent (10) Patent N0.:

USO0D700776S

US D700,776 S Citro (45) Date of Patent: *9: Mar. 11, 2014

(54) HAIR BOW CARRYING CASE D533,973 S * 12/2006 Kelsoe et al. .............. .. D30/160 D584,05l S * l/2009 Patascher ..... .. . D3/27l.3

- _ . D64l,248 S * 7/2011 Steger et al. ................. .. D9/607 (71) Applicant. Donna Cltro, SpotsWood, NJ (US) 13655507 S 3/2012 Alcom et a1‘

(72) Inventor: Donna Citro, SpotsWood, NJ (US) * cited by examiner

(**) Term: 14 Years Primary Examiner * Cynthia Ramirez (74) Attorney, Agent, orFirm * Goldstein LaW O?ices, RC.

(21) App1.N0.: 29/439,400 (57) CLAIM

(22) Filed: Dec. 11, 2012 The ornamental design for a hair boW carrying case, as shown (51) LOC (10) C1. .............................................. .. 03-01 and descnbed

(52) g'sséccl' man 1 DESCRIPTION (58) Field of Classi?cation Search FIG. 1 is a perspective vieW of the hair boW carrying case in

USPC ....... .. D3/269, 271.1; D9/432, 661, 663, 600; full lines 229/109’ 116'1’ 116's’ 153’ 156’ 922’ FIG. 2 is an alternate perspective vieW ofthe hair boW carry

_ _ 229/923; 296/457’ 458 ing case shoWn open in full lines, With a hair boW inside the See apphcanon ?le for Complete Search hlstory' carrying case shoWn in broken lines representing environ

(56) R f Ct d mental association matter being for illustrative purposes only e erences 1 e

U.S. PATENT DOCUMENTS

4,887,751 A 12/1989 Lehman 4,936,463 A 6/1990 Tiramani D392,096 S * 3/1998 De Sapio et a1. ......... .. D3/271.3 6,202,851 B1 3/2001 Walker D454,412 S 3/2002 Riley 6,446,688 B1 9/2002 Sutton 6,523,653 B2 2/2003 Roegner D532,582 S * 11/2006 Kelsoe et al. ................ .. D1/109

and forming no part of the claimed invention. FIG. 3 is a front elevational vieW of the hair boW carrying case.

FIG. 4 is a rear elevational vieW thereof. FIG. 5 is a top plan vieW thereof. FIG. 6 is a bottom plan vieW thereof. FIG. 7 is a right side elevational vieW thereof; and, FIG. 8 is a left side elevational vieW thereof.

1 Claim, 5 Drawing Sheets

Plant Patent

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USO0PP22089P3

(12) United States Plant Patent (10) Patent No.: US PP22,089 P3 Jones et a1. (45) Date of Patent: Aug. 23, 2011

(54) FLOWERING DOGWOOD TREE NAMED PP6il95 P 6/1988 LQWTY et a1~ ‘NM1, PP6,305 P 9/1988 Nlcholson

PP6,320 P 10/1988 Nicholson PP7,204 P 3/1990 Ort ,J.

Latin Name: Cornus Florida PP'LZOS P 3/1990 01122, J; Varietal Denomination: NMl PP7,207 P 3/1990 Orton, Jr.

PP7,210 P 4/1990 Orton, Jr. (76) Inventors: Jeff Jones, New Market, AL (US); g $119511, Jr

9 H11 Sheryl Jones’ New Market’ AL (Us) PP8,518 P 12/1993 Phillips

* _ _ _ _ _ PP8,676 P 4/1994 Yamashita et al. ( ) Notlce: Subject to any dlsclalmer, the term of thls PP9’283 P 9/1995 Schmidt

patent is extended or adjusted under 35 PP10,166 P 12/1997 Nicholson U_S_C_ 154(1)) by 0 days_ PP10,423 P 6/1998 Stanley

PP13,069 P2 10/2002 Simmen _ PP13,098 P2 10/2002 Windham et al.

(21) APPLNO" 12/592’831 PP13,099 P2 10/2002 Windham etal. _ PP13,165 P2 11/2002 Windham et al.

(22) Flledi Dec- 3, 2009 PP13,384 P3 12/2002 Lipka 6,677,510 B2 1/2004 Windham et al.

(65) Prior Publication Data PP15,219 P3 10/2004 Orton et al. PP16,309 P3 3/2006 Orton et al.

US 2011/0138509 P1 Jun. 9, 2011 PP17,768 P3 5/2007 Orton et a1.

(51) Int Cl Primary Examiner * Susan McCormick Ewoldt

AZZOI’I’IEy, Agent, orFirm i Polster, Lieder, (52) us. Cl. ..................................................... .. Plt./220 Lucchesl’ LC

(58) Field of ‘Classi?cation Search ............. Plt./220 (57) ABSTRACT See appllcatlon ?le for complete search hlstory.

A Flowering Dogwood named ‘NM1 ’ having a pink bracts (56) References Cited that fade to white over the bloom period, vigorous upright

U.S. PATENT DOCUMENTS PP3,993 P 12/1976 Steppe PP4,300 P 9/1978 Wills PP4,627 P 1/1981 Boyd

growth with good branching, and mildew resistance and also capable of being reproduced reliably by vegetative propaga tion.

9 Drawing Sheets

1 Latin name: Cornus Florida.

BRIEF SUMMARY OF THE INVENTION

The present invention relates to a new and distinct variety 5 of Cornus Florida Flowering Dogwood, referred by its vari etal name ‘NM1’.

Discovery I discovered my Flowering Dogwood tree ‘NM1’ in the

summer of 1999 growing in a production area of a tree nurs- l0 ery in New Market, Madison County, Ala., among a group of cultivated Flowering Dogwood trees. These seedlings were grown from seed planted in the fall of 1997 as understock for budding. The seedlings were thinned and budded in August, 1998. In the spring of 1999, the seedlings were cut back to the 15 bud and the suckers were removed. By the summer of 1999, one tree was growing much faster than the other seedling understocks. This tree was marked and ob served until it ?ow ered for the ?rst time in the spring of 2002. After observing the unique coloration of the bracts, I began budding the new 20 tree in August, 2002.

Propagation ‘NM1 ’ was asexually propagated, by T budding, at my

direction in August, 2002. This propagation and the resulting progeny have proven the characteristics of my new variety of 25 Flowering Dogwood tree to be ?rmly ?xed. Further, these observations have con?rmed that my new variety of tree represents a new and improved variety of Flowering Dog

2 wood as particularly evidenced by the pink bracts that fade from pink to white over the bloom period, vigorous upright growth with good branching and mildew resistance, and which can be reliably asexually propagated.

Uniqueness My Flowering Dogwood tree ‘NM1 ’ was observed to have

pink bracts that fade to white over the bloom period, vigorous upright growth with good branching, and mildew resistance. These characteristics distinguish my new tree from other typical seedling Flowering Dogwood trees and the known cultivars. Use ‘NM1 ’ was observed for a period of time and is believed to

be particularly useful as a specimen tree or in groupings in commercial and residential areas, as well as in parks or natu ral areas where a small, native, ?owering tree is needed. Because of its vigor and mildew resistance, my tree ‘NM1 ’ will bene?t commercial growers who will be able to produce, larger, healthier liners in a short time period using fewer inputs.

BRIEF SUMMARY OF THE INVENTION

Flowering Dogwoods trees are popular trees, and a sub stantial number of them are planted and grown each year. Although primarily known for their spring ?owering, the trees also have good summer habit, excellent fall color, and produce ornamental berries in the fall which are a source of

Requirements •  Useful

o  Patentable subject matter broadly defined including business methods

o  Not a law of nature, abstract idea, a natural phenomenon

•  Novel o  Inventor has 1 year after public disclosure to file, no public

disclosure for applications in Europe and many countries before filing

o  First to file throughout the world

•  Nonobvious o  One of ordinary skill would not see the combination of features

as an obvious solution to the problem

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Patenting Process •  Formal application to USPTO

o  Drawings o  Detailed specification o  Claims that define the metes and bounds of the invention o  Fees o  Oath or Declaration

•  Pendency o  Average 18.4 months for first response from USPTO o  Average 27.4 months to issuance

•  Success o  70.7% patents are granted on initial application o  49.7% applications are granted over all

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Patent Rights •  Upon filing an application, the invention

immediately becomes patent pending. When patent pending is placed on a product, it gives notice to all that the inventor may receive a patent that can be later asserted against potential infringers. If application publishes, lost sales can be collected from date of publication, if infringement suit is successful.

•  Utility patents expire 20 years after filing an application; design patent expires 15 years after issue

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Copyrights© •  Copyrights apply to “original works of authorship”

which works are fixed in a tangible medium of expression

(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

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Copyrights Bundle •  Copyrights are actually a bundle of rights:

(1) to reproduce the copyrighted work in copies or phonorecord (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

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Copyright protection •  Copyright protection begins when the work is fixed in a

tangible medium o  Paper o  Canvas o  Magnetic Tape o  Hard drive

•  Author has up to five years to register the work (3 months before alleged infringement action) if copyrights are to be asserted against a potential infringer

•  If not registered, then cannot seek damages

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Copyright Registration •  Registration is simple, on-line and low fee •  No prior search required •  Must deposit work with Library of Congress •  Copyrights last the lifetime of the author plus 70

years •  Copyrights becomes the property of the author

of the work unless it is a work made for hire by employment or contract

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Right of Publicity •  The right of publicity (ROP) is the right of a

celebrity to control and profit from the commercial use of his or her name, image, likeness, performance (including characteristic moves of athletes), voice, biographical facts, and symbolic representation

•  In majority of states, extends beyond the grave o  Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th

387 (2001)

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Right of Privacy •  The right of privacy (ROP) is the right of any

individual to control the commercial use of his or her name and image o  Intrusion upon seclusion or solitude, or into private

affairs; o  Public disclosure of embarrassing private facts; o Publicity which places a person in a false light in the

public eye; and o Appropriation of name or likeness.

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ROP in NJ •  New Jersey does not have a ROP statute •  New Jersey common law does not distinguish

between Right of Publicity and Right of Privacy •  Whether ROP extends beyond the grave is

unsettled, but assume 50 years •  Some states require that the celebrity exploited

ROP during lifetime for it to extend beyond the grave; NJ law has no precedent to rely on

•  Where the official residence at the time of death controls which state law governs

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Federal ROP •  Federal protection is under the Lanham Act •  Asks whether the use of the celebrity identity is

likely to confuse the public as to whether the celebrity sponsored or endorsed the product or service – false endorsement or false affiliation o  White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th

Cir. 1992)

•  Warning: most athletes and celebrities take these rights seriously

•  News is an established fair use defense

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Domain Names •  Domain name is the URL that identifies your

website; TLD is the top level domain name that comes after the “dot” such .com, .net, .org, etc.

•  Internet Corporation for Assigned Names and Numbers (ICANN) keeps track of the names

•  Cybersquatting is purchasing a domain name which you have no intention to use, with bad faith with intent to profit from the goodwill of a trademark belonging to someone else

•  Register your trademark with the Trademark Clearinghouse to monitor for cybersquatting

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New gTLDs •  ICANN expanding the list of generic TLD •  400 new gTLDs have been delegated to

contractors such as Go Daddy® •  .nyc, .wedding, .work, .ibm to name a few •  Higher potential for cybersquatting •  Purchaser must declare that they are not

infringing a trademark •  Hundreds more gTLDs to launch in near future •  Domain name is not always the best choice for a

trademark, but a trademark can be one of your domain names; buy many variations

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Putting it together •  A product or service can be protected by a

combination of legal instruments; for example a new web-based application o  System and method protected by a patent o  Registration of service mark and domain names o  Copyright registration of screen shots o  Copyright ownership of code through works made for hire

agreement o  Database of subscribers protected as a trade secret

•  FIND YOUR FACEMATE.COM

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Avoiding the C & D •  Copying and Pasting

o Anytime copying and pasting is done from another’s work, it is likely infringement except:

•  Fair Use: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research o Parody?

•  Creative Commons License o Modification of copyright that allows others to use freely

•  Open Source Software

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New issues •  gTLDs (Top Level Domain) and Domain Names

o Do not use someone else’s trademark in your domain name

o Do not use a famous person’s name in your domain name unless they have dead a long time

•  Hashtags and social media o Do not use someone else’s trademark with a hashtag o Do not use a famous person’s name with a hashtag in

a TWEET® or on other social media platforms

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Staying out of court •  Websites and Social Media

o  Own the content (refer to copying and pasting) o  Consent from users to use product endorsements such as

offering a discount for posting a comment o  Don’t use famous people’s image without permission

•  Katherine Heigl suing Duane Reade for $6M for using her image in a tweet

o  Bloggers must disclose that they received a product for free in exchange for a review

o  Use #paidad #sponsored as appropriate

•  Advertising o  Do not refer to teams, big name events, famous people

•  “Order your favorite pizza by 10 am to enjoy while watching “THE BIG GAME” and get 10% off

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IP @ Start-up •  Include IP protection as part of a strategic

business plan •  Include securing IP protection in initial start-up

budget •  Establish procedures to maintain confidentiality •  Include confidentiality agreements as part of

employment contracts or agreements for employees

•  Establish social media policy

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First steps •  Seek qualified legal advice •  Apply for patents, trademark registrations and copyrights

registrations, if appropriate •  Purchase as many domain names as you can afford •  If your IP is monetized, that it is making $$, then you

may have to litigate to assert your rights •  Litigation risk can covered by insurance •  Careful initial preparation aids in recovery through trial or

settlement

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Contact Information

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For Further Information Patricia P. Werschulz, Esq.

Of Counsel Chipperson Law Group, P.C.

Morristown Location 163 Madison Ave, Suite 220-40 Morristown, New Jersey 07960

Phone: (973) 845-9071 Fax: (973) 845-6176

http://www.chippersonlaw.com/

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