Deck 8: Intellectual Property and Unfair Competition

Question 1

Although the Lanham Act is the federal trademark statute, Section 43(A) of the statute may be invoked in various situations that do not involve trademark rights.

Answer 1

True

Question 2

The basic recovery for copyright infringement is only the owner's actual damages.

Answer 2

False

Question 3

Even though no one else had developed an invention like that of the patent applicant, the application will be denied if, at the time of the invention, the invention would have been obvious to a person having ordinary skill in the area.

Answer 3

True

Question 4

In a copyright infringement case, the successful plaintiff may recover either the damages sustained by the plaintiff or the profits realized by the defendant, but not both.

Question 5

Patent infringement may occur even if the defendant's use did not involve a literal reproduction of the patented item.

Question 6

One may also challenge a patent's validity without first being sued for infringement by filing a declaratory judgment action that seeks a court ruling of invalidity.

Question 7

How can a patentee transfer ownership of the patent to another party?

A) Specification
B) Assignment
C) Delegation
D) Infringement

Question 8

A patent granted on September 2, 1997 will be valid for 17 years from that date unless the patent was for an ornamental design.

Question 9

Under the Restatement's fault requirement for injurious falsehood cases, the plaintiff must prove that the defendant possessed ill will or spite motives toward the plaintiff.

Question 10

The general rule on the duration of a copyright is that it lasts for 50 years from the time the copyrighted work was created and fixed in tangible form.

Question 11

Patent _____ occurs when a defendant, without authorization from the patentee, usurps the patentee's rights by making, using, or selling the patented invention.

A) assignment
B) licensing
C) infringement
D) violation

Question 12

The World Intellectual Property Organization is a leading provider of conciliation for bad faith action.

Question 13

Unlike the inventions protected by patent law, copyrightable works need not be novel.

Question 14

Customer lists are not patentable but may be subject to trade secret protection.

Question 15

There is usually no liability of injurious falsehood for false statements that are made negligently and in good faith.

Question 16

The patent application must include a(n) _____ describing the invention with sufficient detail and clarity to enable a person skilled in the relevant field to make and use the invention.

A) specification
B) drawing
C) proposal
D) idea

Question 17

How long is the legal temporary monopoly that present patent laws provide to the inventor after the filing of the patent application?

A) Ten years.
B) Seventeen years.
C) Twenty years.
D) The lifetime of the inventor.

Question 18

There is no international copyright that automatically protects a copyrighted work everywhere in the world.

Question 19

Which of the following is true of patents?

A) Patents fall under the jurisdiction of state laws.
B) Naturally occurring things are patentable.
C) Abstract ideas are patentable.
D) U.S. patent laws have changed since the mid-1990s.

Question 20

The United States is a first-to-file nation.

Question 21

Which of the following is least likely to fall within the scope of what is protected by the copyright on the work in which it appears?

A) The physical arrangement and ordering of pieces of factual information on pages in a reference book.
B) The melody of a song.
C) The dialogue spoken by actors in a TV commercial.
D) The theme of a short story.

Question 22

Which of the following characterizes the transfer of trademark rights?

A) It is much easier than transferring patent interests.
B) They may only be assigned to another person.
C) They cannot be sold unless it involves a sale of goods.
D) An uncontrolled license is generally not advised.

Question 23

Which of the following statements is true of copyright?

A) Copyrights and patents last forever.
B) There are different copyright rules for pre and post 1978 works.
C) Congress enacts copyright rules under the WIPO.
D) Copyrights for a work-for-hire last for 50 years.

Question 24

Which type of marks is most likely to be registered for trademark protection?

A) Suggestive
B) Arbitrary
C) Descriptive
D) Generic

Question 25

Carlos has written a novel. He wants to protect his intellectual property with a copyright. What must he do first?

A) He must apply to the U.S. Copyright Office for a copyright.
B) He must produce a certificate that he is the original author.
C) He must put the novel in some tangible form, like a hard copy or a compact disc.
D) He must certify that his story is original and novel.

Question 26

Which of the following distinguishes a copyright from a patent?

A) Copyrightable works need not be novel.
B) Copyright law gives exclusive rights to the creator of a work.
C) Copyright laws prevent others from using the work originally created by someone.
D) There are proper copyright laws in the U.S.

Question 27

Which of the following characterizes copyright transfer?

A) Oral transfers are valid and recognized.
B) Ownership can be retained while licensing part of the work.
C) It leads to a transfer of ownership for that period of time.
D) It allows everything except the performance of the work.

Question 28

Which of the following is protected by copyright laws in computer programs?

A) Organization
B) Structure
C) Source code
D) Presentation of information

Question 29

Which of the following kinds of marks are denied placement on the Principal Register?

A) Those which are geographically descriptive
B) Those containing fanciful names
C) Those consisting of surnames
D) Those consisting of government insignia

Question 30

Which of the following characterizes a trademark?

A) It includes generic terms.
B) It is easier to transfer trademark rights compared to patent rights.
C) Federal registration of a trademark lasts for 10 years.
D) Descriptive marks are protected on the basis of their primary meaning.

Question 31

The damages recoverable in a patent infringement case cannot be less than:

A) court costs and interests.
B) reasonable royalty for the invention by the creator.
C) reasonable royalty for the use of the invention by the infringer.
D) three times the damages actually suffered, and to be decided by the court.

Question 32

Most of the court's attention in trademark infringement cases is concerned with the:

A) dispute over profits made by the defendants.
B) likelihood of confusion over the trademark.
C) time period of the trademark rights.
D) generic nature of the disputed trademark.

Question 33

According to the CTEA, the protection period for pre-1978 works is:

A) 50 years.
B) 65 years.
C) 75years.
D) 95 years.

Question 34

Eleanor Rigby is an employee of Strawberry Fields Music, Inc., a firm that specializes in the preparation of original music for possible use by advertisers in TV and radio commercials. In January 2000, Rigby wrote a song that is protected by copyright. She wrote the song as part of her regular duties as a Strawberry Fields employee. Rigby and Strawberry Fields did not have a written agreement concerning ownership of the copyright on the song. In February 2000, Rigby and Strawberry Fields published the song by making large numbers of copies available to the public. Statements A through D deal with ownership of the copyright on the song and with the duration of the copyright. Which statement is legally accurate?

A) Rigby owns the copyright, which will expire 50 years after her death.
B) Rigby owns the copyright, which will expire in 2100.
C) Strawberry Fields owns the copyright, which will expire in 2070.
D) Strawberry Fields owns the copyright, which will expire 50 years after Rigby's death.

Question 35

Any word, name, symbol, device, or combination thereof used by a manufacturer or seller to identify its products and distinguish them from the products of competitors is called a:

A) copyright.
B) trademark.
C) signature.
D) patent.

Question 36

What is the basic recovery for copyright infringement?

A) Only the owner's actual damages
B) Only the attributable profits by the infringer
C) Owner's actual damages and the attributable profits of the infringer
D) Punitive damages

Question 37

What allows a defendant to be held liable for infringement even though the subject matter he used contained elements that were not identical to those described in the patentee's claims of invention, but nonetheless, may be seen as equivalent to those of the patented invention?

A) Literal infringement
B) Double jeopardy clause
C) Strict liability
D) Doctrine of equivalents

Question 38

What can the plaintiff usually elect to receive in lieu of the basic remedy in a case of copyright infringement?

A) Punitive damages
B) Liquidated damages
C) Special damages
D) Statutory damages

Question 39

Goods lawfully bearing trademarks or using patents and copyrighted material but entering the American markets without authorization are called _____.

A) counterfeit goods
B) Shanzai goods
C) black market goods
D) gray market goods

Question 40

A copyright comes into existence upon the:

A) creation and fixing of a protected work.
B) creation of an idea.
C) creation of a protected work.
D) creation of a message.

Question 41

A trademark owner who wins an infringement suit may obtain a(n) _____ against uses of the mark that are likely to cause confusion.

A) license
B) assignment
C) injunction
D) writ

Question 42

What is the first-to-invent rule?

Question 43

A firm claiming a trade secret must show that it:

A) took reasonable measures to ensure secrecy.
B) gave adequate compensation for the work.
C) has a license to produce the product.
D) has enough research to back the product.

Question 44

Why are noncompetition agreements disfavored by the law?

Question 45

Which of the following permits a firm to register a trademark in all its signatory nations simultaneously by filing an application for registration in any signatory nation and was joined by the United States in 2003?

A) The Berne Convention
B) The Paris Convention for the Protection of Industrial Property
C) The Madrid Protocol
D) The Kyoto Protocol

Question 46

A trade secret differs from a patent, in that, a trade secret:

A) grants a monopoly to the creator.
B) stimulates creative activity.
C) is guarded by the creator.
D) is nonpublic by definition.

Question 47

In case of conflict of ownership between employee and employer over a trade secret, the employer is normally held to be the owner when:

A) the employee agreed to divulge or use trade secrets.
B) other employees had no contribution in the work.
C) the employee was hired to do work related to it.
D) the employee was not given adequate compensation for the work.

Question 48

Which of the following is true of an injurious falsehood case?

A) It is the same as a tort of defamation.
B) The degree of fault required for liability is unclear.
C) Damages for emotional distress are not recoverable.
D) There is liability for false statements made in good faith.

Question 49

In order to qualify as a trade secret, it must:

A) be developed through research.
B) be known to the general public.
C) be the work of a company.
D) possess sufficient value or originality.

Question 50

Which of the following is also termed slander of title or a trade libel?

A) Defamation
B) Injurious falsehood
C) Copyright violation
D) Plagiarism

Question 51

Which of the following sometimes serves as an alternative to claims of trademark infringement?

A) Trademark abandonment
B) Trademark dilution
C) Trademark protection
D) Trademark disparagement

Question 52

What is the main aim of commercial torts?

A) To enable product creation for commercial purposes
B) To provide immunity in cases of fraud
C) To maintain standards of commercial morality
D) To ensure smoother commercial negotiations

Question 53

Which of the following characterizes section 43 (a) of the Lanham Act?

A) It is a consumer remedy.
B) It addresses everything except advertisements.
C) It is available only to commercial parties.
D) It creates a state law of unfair practices.

Question 54

Susan was hired by Teddy & Co. as a sales woman. However, the management on seeing her intelligence and capabilities allowed her to use the office library and research facility to create an inventive product. Susan now wants to patent the product in her own name. This is not permissible under the:

A) doctrine of equivalents.
B) respondeat superior doctrine.
C) shop right doctrine.
D) doctrine of assignment.

Question 55

The _____ that the plaintiff is required to prove are his usual-and typically his only-remedy in injurious falsehood cases.

A) special damages
B) statutory damages
C) compensatory damages
D) punitive damages

Question 56

In a case of intentional interference, a defendant generally escapes liability when his contract interference:

A) was guided by public interest.
B) was defamatory in nature.
C) was regarding prospective competitive advantage.
D) was guided by a void bargain.

Question 57

Discuss one criticism of the first-to-file policy.

Question 58

What is patent infringement?

Question 59

A trademark is considered to be abandoned when:

A) the owner fails to use it.
B) it acquires a generic meaning.
C) it has been obtained by fraud.
D) it is suggestive or arbitrary.

Question 60

In a lawsuit for intentional interference with contractual relations, the existing contract includes:

A) void bargains
B) illegal contracts
C) contracts to marry
D) unenforceable contracts

Question 61

CW, Inc. publishes Consumer Watchdog, a magazine whose articles consist of the writers' personal experiences with and reactions to a variety of products. In the June 1997 issue of Consumer Watchdog, a review included this statement: "Fungus Co.'s "Fungo" brand athlete's foot powder doesn't cut the mustard in comparison to most athlete's foot powders on the market--and I've tried them all, sports fans. Fungo fails to attack athlete's foot with enough force because the product doesn't contain AF88, the active ingredient in any decent athlete's foot powder." In fact, Fungo contains as much AF88 as any other athlete's foot powder on the market. Fungus Co. has filed suit against the writer and CW on the theory that the above statements violated section 43(a) of the Lanham Act. On these facts, should Fungus win the section 43(a) case? Why or why not?