Moderator: Brian G. Bodine — Merchant & Gould
A design patent is a patent granted on the ornamental design of a functional item. Normally these products can not be protected by copyright because they copyrighted elements are inseparable from the functional item. Examples of Design patents include; Ornamental designs of jewelry, beverage containers and computer icons.
Trade dress is the look and feel of a business. This can include almost all nonfunctional characteristics of a business from the festive colors to the Neon sighs to the use of metal blue doors for entrance. Pinning down exactly what a trade dress is at any company is somewhat difficult to say the least.
The most troubling part of the panel was the the intersection of design patents and trade dress. Two of the panel members basically stated that you could get a design patent for an item, exclude others from using the design for 20 years. During this exclusive period you can use the item as trade dress to build up secondary meaning. Once the patent expires you can then use trade dress to exclude competitors forever.
Second Life and Online Liability
Moderator: Signe H. Brunstad — UW School of Law
William C. Rava — Perkins Coie LLP
This was a very tech literate panel I was impressed by Don McGowan. The panel focused on issues ranging from users rights to ingame IP to EULA’s and baning users who own items in game.
“Hard Core gamers are not nesecerialy rational actors when it comes to defending their perceived rights online.”
There is a strong tension between game designers and marketers who want to give users the world to get them involved in the game and the legal staff that wants to limit liability. A key to success in online virtual worlds is giving users as many rights as you can.
Final Note on Ethics: The ethics section was not related to ethics and IP. The session was about how to run a lawsuit without malpractice. I was hoping to see a discussion of contracts of adhesion, orphaned works and pharmaceuticals patents access for the poor. Ethics should be more than crossing your “t”s and dotting your “i”s in litigation.