Patents, trademarks, service marks, and copyrights

Q1. Explore the meaning of patents, trademarks, service marks, and copyrights by viewing the U.S. Patent Office web site: http://www.uspto.gov/web/offices/pac/doc/general/whatis.htm (Links to an external site.) (Links to an external site.).

a. What rights does a registered patent holder have? For how long? Distinguish between a copyright and a patent. What is the difference between a trademark and a service mark? What are trade secrets?

b. Briefly explain the status of a current case of your choice involving an IP dispute (patent, TM or copyright).

Q2. Read Bagley, Chapter 8, A Manager’s Dilemma: Putting It into Practice: Are Nondisparagement Clauses Good for Business?

What are the potential causes of action the Palmers could allege against KlearGear.com?
Is KlearGear’s policy ethical?
Should all companies have nondisparagement clauses? Why or why not?

Q3. There are many emerging legal issues in e-commerce. Other than cryptocurrencies, identify and discuss (in one paragraph) 2 other trends.

In 2008, John Palmer ordered a $20 gift for his wife from KlearGear.com, but it never arrived. After John canceled the order, his wife, Jen Palmer, wrote a negative review on
RipoffReport.com. Five years later, KlearGear.com sent John an email “demanding $3,500 pursuant to a non-disparagement clause” that KlearGear claimed was in the “Terms of Use”
section of its website. (Note that the clause was reportedly not added to the website until 2012.) The clause stated: “In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, man- agement or employees. Should you violate this clause,
as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour oppor- tunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs
until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice willbe forwarded to our third-party collection firm and will be reported to consumer credit-reporting agencies
until paid.”
The Palmers asked RipoffReport to remove the review, but their policy prevented removal unless KlearGear was involved. The Palmers informed KlearGear of this policy, but no resolution ensued. KlearGear reported the Palmers to collection agencies, and their credit rating was negatively impacted. In November 2013, a public service lawyer representing the Palmers sent a letter to KlearGear indicating that a lawsuit would be filed unless the situation was resolved by mid-December 2013. The letter asked KlearGear to notify the credit agencies that the Palmers’ “debt” was an error; to pay the Palmers $75,000 in compensation; and to remove the nondisparagement clause from the website. 44
What legal theory should the Palmers assert in litigation? Does a clause that is added to a website after a customer has transacted its business bind that customer? Did KlearGear
act ethically? If you were the new head of marketing for KlearGear, would you support retaining or deleting the nondisparagement clause? Why?