Protecting the Product Idea

In the past few decades, our society has added information and innovation to the formula for producing wealth. Now, knowledge is considered every bit as much a factor in making money as labour, capital, land, plant, and equipment. Moreover, ideas are important “assets” of a company. Consequently, the law affords ideas protection.

Any tangible medium of expression, such as writings, sound recordings, motion pictures, sculptures, notated choreographic works are copyrightable. Copyrights protect the creators of literary, dramatic, musical, artistic, and other intellectual works. Copyright law covers reproduction by photocopying, video tape, and magnetic storage.

To obtain Copyright protection, the word copyright (or its abbreviation) or the symbol must be on copies along with the author’s name and the year of copyright.

The Copyright Office will issue a copyright to the creator or to whomever the creator has granted the right to reproduce the work. (A book, for example, may be copyrighted by the author or the publisher.) Copyrights issued after 1977 are valid for the lifetime of the creator plus 50 years. Copyrights issued prior to 1977 are good for 75 years.

Technically, copyright protection exists from the moment you create the material. When you distribute a work, place on the copies a notice that includes the term "copyright" or an abbreviation, the name of the author or creator, and the year of publication or production — for example, "Copyright 1986 Jane Doe."

Choosing a new name for a product is no easy task since there are about 1 million brand names in the US alone. Marketing impact is not the only consideration in the naming of a product. The scheme of laws surrounding product names and symbols must be consulted before selecting a new name.

A trademark is any word, name, symbol, or device used to distinguish the product of one manufacturer from those made by others. A service mark is the same thing for services. McDonald's golden arches are one of the most visible of modern trademarks. Brand names can also be registered as trademarks. Examples are Exxon, Polaroid, and Chevrolet. If properly registered and renewed every 20 years, a trademark generally belongs to its owner forever. Among the exceptions are popular brand names that have become generic terms, meaning that they describe a whole class of products. A brand-name trademark can become a generic term if the trademark has been allowed to expire, if it has been incorrectly used by its owner. Trademarks and service marks comprise most of the marks protected under state and federal law.

A collective markis a trademark or service mark used by members of a collective group, such as a union or trade association, to identify that its goods or services are produced by members of the group. Many realtors, for example, display a symbol reading "MLS" indicating that they are members of Multiple Listing Service, a real estate cooperative. A certification markis a mark that attests to a specified quality, material, or origin from a certain region. The symbol "UL," for example, certifies that a product is in compliance with the standards of Underwriters' Laboratories, Inc.

A patent protects the invention or discovery of a new and useful process, an article of manufacture, a machine, a chemical substance, or an improvement on any of these. Issued by the Patent Office, a patent grants the owner the right to exclude others from making, using, or selling the invention for 17 years. After that time, the patent becomes available for common use. On the one hand, patent law guarantees the originator the right to use the discovery exclusively for a relatively long period of time, thus encouraging people to devise new machines, gadgets, and processes. On the other hand, it also ensures that rights to the new item will be released eventually. Other enterprises may be able to make use of it more creatively than its originator. Not all inventions are patentable. The Patent Act empowers the federal government to grant three general types of patents: utility patents, design patents, and plant patents.

One of the best variant of protecting product ideas is the law of trade secrets.

As the term indicates, the subject of a trade secret must be secret—not generally known to the public or to other competitors in the trade or business. It may or may not be patentable. Novelty, as used in patent law, is not required. Unlike patents, which confer a right to exclude all others from using the invention, trade secrets are protected against unauthorized use only if the secret is obtained through a breach of a confidential relationship or other improper means. Thus, an employer who confides the secret to key employees under an express or implied restriction against disclosure or use would be protected if the employees subsequently used the secret for personal use or disclosed it to a competitor. In addition, the holder of a trade secret is protected against knowledge gained by improper means such as physical force, burglary, theft, wiretapping, or other forms of industrial espionage. The trade secret holder, accordingly, is not protected against discovery of the secret by honest means, independent invention, or reverse engineering (analyzing the product embodying the secret to determine how it was developed or manufactured). Thus, tort liability is imposed not for using a trade secret, but rather for employing improper means to procure it. A patent provides in some ways more, and in other ways less, protection than a trade secret. For example, trade secrets may last indefinitely and are not limited to patentable inventions. In contrast, patent law protects inventions that are not secret even against persons who independently and honestly discover the patented product or process.

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International Law

International law,often known as "public international law" or the "law of nations," is the system of law that governs relationships among states. A state exhibits three basic characteristics: it must have a territory, a population, and a sovereign government capable of controlling its territory and conducting international relations with other states.States possess sovereignty, which might be viewed as the supreme political authority from which the state derives other specific political powers. Sovereignty provides the international independence of a state and the right and power to regulate its internal affairs free of foreign interference.

International law should be distinguished from an individual state's internal law, also known as its "national," "municipal," or "local" law. A country's national law may affect various aspects of international relations, though the extraterritorial effect of one country's law is necessarily limited by the sovereignty of other countries. For example, almost every country has developed a system of private international law,a branch of conflicts of law that determines (1) when a domestic court should exercise jurisdiction over a case involving foreign persons or territories, (2) when foreign rather than domestic law should apply to a case, and (3) when judgments rendered by foreign courts should be recognized and enforced in a domestic court.

In the United States and other countries a legislature enacts law. The executive, among other functions, enforces it and the judiciary tries violations of criminal law and resolves civil disputes. Violations of law are backed by legal sanctions including money damages, injunctions, fines, and imprisonment. Among the sovereign states no centralized legislature exists, no court possesses mandatory jurisdiction, and no executive body imposes legally enforceable sanctions. This lack of sanctions—lack of an obligatory judicial forum whose judgments are enforceable by executive authority— has led some observers to conclude that the norms that govern human conduct in the world arena are not "law," in the traditional sense of the term, at all. Nevertheless, states normally obey principles of international law, which are derived from consensus or formal agreement, because it is in their individual self-interest to do so. States are few in number and cannot move; economic and other needs force most states to cooperate with their neighbors and to be reasonably reliable in international dealing. Violation of a rule may lead to retaliation by other states, an unacceptable result in light of increasing interdependence among states.

Modern international law began to develop in the sixteenth and seventeenth centuries, corresponding to the development of modern Western European states. Article 38(1) of the Statute of the International Court of Justice provides the most widely accepted list of the sources of international law. It states:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

(b) international custom, as evidence of a general practice accepted as law;

(d) . . . judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Treaties. The first source, "international conventions" refers to treaties. A treaty is an agreement or contract between two or more nations or sovereigns, formally signed by an authorized representative and ratified by the sovereign or supreme power of each state. Because modern technology, communication, and trade have made states increasingly interdependent and willing to cooperate on a variety of common problems, treaties occupy an ever-expanding role in the orderly conduct of international relations. Some address critical national interests of a political character, such as alliances, peace settlements, and bans on atomic testing. Others involve less politically charged relationships between governments and government agencies, such as agreements on foreign aid or cooperation in provision of government services such as weather forecasting. Still others, such as tariff treaties, tax conventions, and treaties of friendship, commerce, and navigation, regulate business relationships between nationals or residents of the participating countries.

Custom.Custom is the original source of international law. A practice is recognized as part of international custom if it involves a consistent course of conduct by a number of states over a considerable period, a recognition that the practice is consistent with or required by international law, and general acquiescence in the practice by other states. Many international customs have been codified in treaties in recent years, providing more precision and predictability in the law.

General Principles of Law. General principles of law provide the third source of international law. These principles, derived primarily from the national law of the developed countries, supplement and fill in the gaps in treaties and customary law, the primary sources of international law. Examples of general legal principles used by international tribunals include estoppel, laches, and res judicata.

Primarily since the end of World War II, treaties have been used to create international organizations using a permanent staff, buildings, and other assets to maintain continuous activity. These organizations play an important role in addressing international legal problems not easily resolved through customary international law, or noninstitutional bilateral or multilateral treaties. The organizations are formed for various purposes including peace-keeping and world order, and regulating, facilitating, and developing commercial or economic activities of member states. Some of the more important organizations are briefly introduced below.

United Nations. The United Nations was created at the end of the Second World War to promote resolution of international disputes and provide for collective action to stop aggression, the United Nations also is concerned with economic development, social welfare, and human rights. The United Nations Charter divides the organization into constituent parts. The Security Council is vested with primary responsibility for the maintenance of international peace and security. The Council's nonprocedural decisions are subject to by its permanent members: China, France, the Soviet Union, the United Kingdom, and the United States. The General Assembly is composed of representatives from all member states. Resolutions of the General Assembly have, in recent years, increasingly addressed trade, investment, and economic matters, rather than peace-keeping issues. General Assembly resolutions enjoy rather limited adherence in the international arena. The Secretariat, headed by the secretary general, administers the day-to-day affairs of the United Nations, and occasionally takes initiative in political matters.

International Court of Justice. Perhaps the most important United Nations body from a legal standpoint is its judicial branch, the International Court of Justice (ICJ). The ICJ issues advisory opinions and decides actual disputes. Its jurisdiction is limited by two basic principles. First, only states may be parties to litigation before the ICJ. Second, jurisdiction is not compulsory but is based upon the state's consent. The Court consists of fifteen judges, no more than two of whom may be from the same country. Judges are elected by the General Assembly and the Security Council to nine-year terms with one-third of the Court being re-elected or replaced every three years. The ICJ is not the only international tribunal. Other international courts have been created, for example, under regional treaties of economic or political cooperation. Most notable among these is the Court of Justice of the European Economic Community.

All organizational products have one thing in common: derived demand. Derived demandmeans the demand for every organizational product depends on the demand for some other product. The demand for tempera paints, water colors, and chalk sold to the art departments of public schools is derived from the demand of students or their parents for

a basic, well-rounded education. Ultimately the demand for all organizational products depends on consumer demand for finished goods and services.

APPENDIX

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