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Intellectual Property The Law of Trademarks Copyrights Patents and Trade Secrets 5th Edition Ebook PDF Version
Intellectual Property The Law of Trademarks Copyrights Patents and Trade Secrets 5th Edition Ebook PDF Version
Intellectual Property The Law of Trademarks Copyrights Patents and Trade Secrets 5th Edition Ebook PDF Version
Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203
CONTENTS
Preface xvii
Acknowledgments xxii
Selected Exhibits xxiii
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viii Contents
T
Types of Marks: T
Trademarks, Service Marks, Certification Marks, and Collective Marks 21
Acquisition of Trademark Rights 23
Common Law Rights, Federal Registration Under the Lanham Act, Laws and Treaties
Governing Trademarks, and State Trademark Rights 25
Categories of Marks 27
Trade Names and Business Names 29
Protectable Matter 30
Exclusions From Trademark Protection 35
U.S. Patent and Trademark Office 39
Trivia 40
Chapter Summary 40
Case Illustration—Refusal to Register Misdescriptive Mark 41
Case Study and Activities 41
Role of Paralegal 41
Internet Resources 42
Using Internet Resources 42
Discussion Questions 42
Putting It Into Words 43
Renewal of Registrations 95
Docketing Requirements 96
Loss of Trademark Rights 97
Trademark Use and Compliance Policies 99
Trademark Policing and Maintenance 101
Use of Marks Owned by Third Parties 102
Transfer of Ownership or Rights in Trademarks 103
Trivia 112
Chapter Summary 112
Case Illustration—“Google” Is Not a Generic Term
T 113
Case Study and Activities 113
Role of Paralegal 114
Internet Resources 114
Using Internet Resources 115
Discussion Questions 115
Putting It Into Words 115
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Contents xi
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xii Contents
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Contents xiii
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xiv Contents
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Contents xv
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xvi Contents
Glossary 513
Index 529
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PREFACE
The Congress shall have power to 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.
U.S. Const. art. 1, § 8, cl. 8
The field of intellectual property (typically referred to as IP) is one that continues its rapid
growth. Until relatively recently, individuals who identified themselves as practitioners in
the field of intellectual property were met with blank stares. Now IP professionals are in
constant demand, and it is a rare issue of any legal newspaper that does not include adver-
tisements for IP practitioners. Many experts believe this rapid growth can be attributed to
the spread of computer and communications technologies throughout the world. Reflecting
this, technology-related legislation is continually introduced in Congress. The number of
trademark and patent applications filed at the U.S. Patent and Trademark Office continues
to grow. Similarly, there is increased emphasis on the need to enhance protection of written
materials, including computer software, through copyright or patent registration.
Today’s competitive businesses recognize that more than 80 percent of their value can
lie in their intellectual property. With increased technology and global communication
come greater challenges to protect intellectual property. Misappropriation or infringement
of valuable proprietary information is a keystroke away. Thus, companies and law firms
value the expertise of IP professionals who can assist in adopting strategies to ensure IP
assets are fully protected.
IP practice groups make extensive use of paralegals. Paralegals are involved in nearly
every stage of trademark and patent prosecution and maintenance practice and in the area
of copyright registrations and IP audits. The field offers significant opportunities for client
contact, challenging issues, and personal and intellectual growth. The specialized nature of
IP practice produces highly capable and efficient paralegals whose contributions are valued
by both other legal professionals and clients. Expertise in the field is recognized by salaries
that are typically higher than those for paralegals in other fields. In addition to law firm IP
practice, many paralegals are employed in-house at companies with significant IP assets.
These paralegals work closely with in-house counsel to meet the company’s needs. In brief,
the field provides significant and rewarding opportunities for career satisfaction.
xvii
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xviii Preface
The recent increased interest in intellectual property, coupled with nearly daily changes
in IP law, has caused a relative scarcity in texts that provide both sound, foundational con-
cepts together with the practical advice needed to ensure success for IP paralegals.
This text provides a comprehensive guide to each field within the umbrella of intellec-
tual property, namely, trademarks, copyrights, patents, trade secrets, and unfair competi-
tion. The methods by which each is created, procedures to register or protect each, duration
of rights, protection from infringement, and new and international developments will be
addressed for each of these fields of intellectual property.
Each chapter begins with an introduction to the topics covered therein and concludes
with a brief overview of the material presented. Information is arranged in a building-block
approach so the reader is presented with comprehensive coverage of each topic. Discussions
of each field of intellectual property conclude with a section on the new and emerging
issues in that field and then an overview of international implications, such as the methods
by which intellectual property can be protected in other countries.
The substantive overview of each topic is complemented by the use of forms, sample
agreements, checklists, and other practical guides. References to useful resources and web-
sites are provided in each chapter and online in Appendix C so readers can gather additional
information. The specific tasks in which IP professionals are involved are fully addressed.
Discussion questions are provided to ensure thorough understanding of each topic. Each
chapter presents questions requiring readers to access Internet websites that are of particular
interest to IP professionals and requires readers to draft written explanations or descriptions
of concepts from the chapter. Key terms are shown in boldface in the text and defined in
the margins as well as included in a glossary at the end of the text. Selected trademark,
copyright, and patent statutes are provided in Appendix E which is posted on this book’s
companion website.
The field of intellectual property is one of the most dynamic and challenging of all
legal specialties. Many of the issues are cutting edge: How can a domain name be protected?
How can a company ensure its trade secrets are not misappropriated by an employee? What
is the best way to protect a computer program that may be obsolete in three years? How can
a business be sure its website does not infringe that of a third party? How can intellectual
property be protected on social media? How can movies and songs be protected against
piracy?
Providing assistance to IP owners thus provides unique opportunities for learning and
growth. Moreover, the field of intellectual property is inherently interesting. All of us see
and recognize trademarks each day. All of us read books, watch movies, and use inventions.
Thus, readers bring a wealth of practical and firsthand knowledge to the study of IP law.
This text allows readers to link their experience as consumers with the substantive informa-
tion presented to ensure IP owners are provided a full range of strategies and methods to
protect their valuable assets.
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Preface xix
• Internet Resources. A short section given at the end of each chapter with websites
specific to the information previously discussed in that chapter
• Ethics Edge. A short ethics tip or pointer relevant to one of the topics discussed in
that chapter
• Using Internet Resources. A section requiring readers to access numerous websites
and answer questions that are typical of those that occur in real-life IP practice
• Putting It Into Words. A new section requiring students to write letters or draft
explanations of concepts discussed in that chapter
This edition also includes several new features and discussion of the following new
topics:
• Numerous calendaring, docketing, and fee calculation questions
• Discussion of new trademark issues such as trademark bullying and the registrability
of hashtags
• Discussion of the liability of service providers such as eBay for selling counterfeit or
infringing goods
• Implementation of hundreds of new domain names by ICANN and the Uniform Rap-
id Suspension System, which is the new ICANN resolution process to protect gTLDs
• Expanded discussion of the fair use defense in copyright infringement cases
• Enhanced discussion of the Digital Millennium Copyright Act and recent cases
interpreting when Internet service providers such as YouTube are entitled to its safe
harbor protections
• Discussion of copyrightability of new forms of writings such as tattoos and social
media postings
• List of common copyright infringements committed by students
• Change from the U.S. Patent Classification System to the Cooperative Patent
Classification System and implementation of reduced fees for micro entities
• Review of the USPTO’s Seven Step Patent Search Strategy
• New term for design patents
• Updated coverage of patentability of software and proposals for patent reform to curb
infringement actions brought by “trolls”
• Enhanced discussion of challenges to patents brought at the Patent Trial and Appeal
Board, such as inter partes review and post-grant review
• Discussion of the new Defend Trade Secrets Act of 2016, signed into law in May 2016
• Discussion of the effect of Brexit on European and United Kingdom IP rights
Readers will also find new information on enhanced systems at the U.S. Patent and
Trademark Office and Copyright Office for streamlining trademark, patent, and copyright
applications, and discussion of new and pending IP-related legislation.
Finally, this fifth edition contains discussions of cutting-edge IP issues such as trademark
and copyright protection for hashtags and social media postings, whether 3-D printing
infringes copyright and patent rights, jailbreaking of iPhones, the Copyright Office’s Fair
Use Index, defensive patenting, and ground-breaking new cases such as In re Tam (holding
that the Trademark Act’s prohibition against disparaging marks violates the First Amend-
ment’s guarantee of free speech); Authors Guild v. Google (allowing Google’s book scanning
project as a fair use of copyrighted works); Petrella v. Metro-Goldwyn-Mayer, Inc. (holding
that the laches defense cannot be used in copyright infringement cases); Myriad Genetics
(holding that naturally occurring DNA segments are not patentable); and Alice Corp. v.
CLS Bank International (tightening the ability of inventors to obtain software patents).
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xx Preface
of the U.S. Patent and Trademark Office (USPTO), www.uspto.gov, provides current fee
and address information. Similarly, the website of the Copyright Office, www.copyright.
gov, provides up-to-date information for frequently changing topics and fees. Note that
figures and statistics given in the text for USPTO and Copyright Office workloads are for
fiscal years (rather than calendar years), which end on September 30.
Note to readers regarding the use of terms for natural persons, corporate
entities, and the like
Pursuant to 1 U.S.C. § 1, as well as other federal statutes, including the Trademark Act,
15 U.S.C. § 1127, the word “person” in any applicable usage and context in this book
includes not only natural persons but also “juristic persons,” such as corporations and other
entities. Thus, throughout this text, when references are made to “persons” and “individuals”
filing various documents, such as trademark, copyright, and patent applications, those refref-
erences include entities as well (and vice versa).
PowerPoint Presentations
Customizable Microsoft PowerPoint® Presentations focus on key points for each chapter.
(Microsoft PowerPoint® is a registered trademark of the Microsoft Corporation.)
Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203
Preface xxi
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ACKNOWLEDGMENTS
No text is the product solely of its author. Many individuals contributed significantly to
the development of this text. As always, my first thoughts go to Susan M. Sullivan, former
Program Director of the Paralegal Program at the University of San Diego. Sue gave me my
first opportunity to teach and has always provided support and encouragement. She is a
respected colleague and valued friend.
My current Program Director, Corey Brooks of the Paralegal Studies Program at
Georgetown University in Washington, D.C., continually displays enthusiasm and passion
for education and the paralegal profession. He has been of invaluable assistance and a
tremendous source of encouragement.
Special thanks to the reviewers who evaluated the manuscript on behalf of the publisher
and provided clear and concise analysis. Their comments and suggestions were of great
assistance.
W. Bruce Davis Michelle Miller
University of Cincinnati, Clermont College Quinnipiac University
Cincinnati, OH Hamden, CT
Marion Tuttle
New Jersey Institute of Technology
Newark, NJ
Finally, my most sincere appreciation goes to the following individuals at Cengage
Learning, who provided guidance and support throughout the development of this text:
Matt Seeley, Erin Brennan, Katie McGuire, Melissa Riveglia, Anne Orgren, and Betty
Dickson. Thank you also to Aravinda Kulasekar Doss and her team at Lumina Datamatics
Ltd. for its publishing services. Last, but of course, not least, deepest thanks and love go
to my husband, Don, and our children, Meaghan, Elizabeth, Patrick, and Robert, for their
amazing patience and understanding while I worked on this text.
Much of the basic information in this text relating to trademarks, copyrights, and pat-
ents is from the websites of the U.S. Patent and Trademark Office and the U.S. Copyright
Office, and the author wishes to acknowledge these agencies. No copyright is claimed in
any of the materials or forms of these agencies, including but not limited to Exhibits 2–3,
3–4, 4–1, 4–2, 4–3, 4–4, 4–5, 4–6, 4–8, 4–9, 5–4, 6–1, 8–1, 13–3, 18–1, 18–2, 18–3,
18–4, 18–6, 18–7, 19–2, Appendix D: Forms1 through 7, 9 and 13, and Exhibit E.
xxii
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SELECTED EXHIBITS
EXHIBIT 2–3 History of Trademarks 20
EXHIBIT 2–6 Types of Marks 23
T
EXHIBIT 2–7 Timeline for Intent-to-Use Applications 24
EXHIBIT 2–9 Categories of Marks 30
EXHIBIT 2–10 Protectable Matter 34
EXHIBIT 2–13 Matter Excluded from Protection 39
EXHIBIT 2–14 Helpful USPTO T Telephone Numbers 39
EXHIBIT
EXHIBIT 3–2 Trademark
Trademark Data Sheet (U.S. Applicant) 46
EXHIBIT 3–4 USPTO Trademark Search Strategy 51
EXHIBIT 4–1 List of International Classes 63
EXHIBIT 4–2 Samples of Identifications of Goods and Services 66
EXHIBIT 4–3 Declaration for Trademark Application 69
EXHIBIT 4–4 Schedule of USPTO Filing Fees (trademark matters)
as of October 1, 2015 72
EXHIBIT 4–5 Comparison of Marks Alleged to be Confusingly Similar and
Action T Taken by USPTO and Courts 77
EXHIBIT 4–6 Trademark Official Gazette 80
EXHIBIT 4–7 Timeline for ITU Application 82
EXHIBIT 4–8 Trademark Application Checklist 83
EXHIBIT 4–9 Trademark Registration Certificate 85
EXHIBIT 4–10 Trademark Prosecution Flowchart 86
EXHIBIT 5–1 Dates for Maintenance of Trademarks 96
EXHIBIT 5–2 Trademark Usage Guide 101
EXHIBIT 5–3 Assignment of Trademark 104
EXHIBIT 5–4 USPTO Recordation Cover Sheet (Trademarks) 106
EXHIBIT 5–5 Trademark License Agreement 108
EXHIBIT 6–1 USPTO Form for Petition to Cancel Trademark Registration 121
EXHIBIT 6–2 Anatomy of an Infringement Case 129
EXHIBIT 6–3 Case Study: Food Fights 131
EXHIBIT 6–4 Cease and Desist Letter 134
EXHIBIT 7–1 Remedies for Cybersquatting and Misuse of Domain Names 155
EXHIBIT 8–1 Designation of Domestic Representative 169
EXHIBIT 8–2 Letter to Client Advising of Foreign Priority Date 173
xxiii
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xxiv Selected Exhibits
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PART I
Introduction to Intellectual
Property
Chapter 1 Introduction to Intellectual Property Law 3
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1 Introduction to Intellectual
Property Law
Chapter Objectives
After reading this chapter, you should be able to:
Chapter Overview
Intellectual property law protects the results of human creative endeavor.
Intellectual property is generally thought to comprise four separate fields
of law: trademarks, copyrights, patents, and trade secrets. A trademark is a
word, name, symbol, or device used to identify and distinguish one’s goods
or services and to indicate their source. Rights in trademarks are created by
use of a mark; registration with the U.S. Patent and Trademark Office (USPTO)
is not required, although it offers certain advantages. Copyright protects
original works of authorship, including literary, musical, dramatic, artistic, and
other works. Just as trademarks are protected from the moment of their
first public use, copyright exists from the moment of creation of a work in
fixed form; registration of a copyright with the U.S. Copyright Office, while
affording certain benefits, is not required. A patent is a grant from the U.S.
government that permits its owner to exclude others from making, selling,
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4 PART I Introduction to Intellectual Property
using, or importing an invention. Patents exist only upon issuance by the USPTO.
A trade secret is any information that derives economic value from not being
known to others and is the subject of reasonable efforts to maintain its secrecy.
No registration or other formalities are required to create a trade secret, and trade
secrets endure as long as reasonable efforts are made to protect their secrecy.
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CHAPTER 1 Introduction to Intellectual Property Law 5
each discipline is helpful. (See chart on inside front and back covers of text comparing and
contrasting the various types of intellectual property.)
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6 PART I Introduction to Intellectual Property
A trademark registration is valid for 10 years and may be renewed for additional
10-year periods thereafter as long as the mark is in use in interstate commerce. Additionally,
registrants are required to file an affidavit with the USPTO between the fifth and sixth years
after registration and every 10 years to verify the mark is in continued use. Marks not in use
are then available to others.
Trademarks are among the most visible items of intellectual property, and it has been esti-
mated that the average person in the United States encounters approximately 1,500 different
trademarks each day and 30,000 if one visits a supermarket. A properly selected, registered,
and protected mark can be of great value to a company or individual desiring to establish and
expand market share. There is perhaps no better way to maintain a strong position in the mar-
ketplace than to build goodwill and consumer recognition in the identity selected for products
and services and then to protect that identity under federal trademark law.
Copyrights
Copyright What Is Protectable. Copyright is a form of protection governed exclusively by fed-
eral law (17 U.S.C. §§ 101 et seq.) granted to the authors of original works of authorship,
Right protecting original
works of authorship, including
including literary, dramatic, musical, artistic, and certain other works. (See Appendix E.)
literary, musical, dramatic, Thus, books, songs, plays, jewelry, movies, sculptures, paintings, and choreographic works
artistic, and other works, from are all protectable. Computer software is also protectable by copyright.
unauthorized reproduction, Copyright protection is available for more than merely serious works of fiction or art.
sale, performance, distribution,
or display
Marketing materials, advertising copy, and cartoons are also protectable. Copyright is avail-
able for original works; no judgment is made about their literary or artistic quality. Never-
theless, certain works are not protectable by copyright, such as titles, names, short phrases,
or lists of ingredients. Similarly, ideas, methods, and processes are not protectable by copy-
right, although the expression of those ideas is.
Copyright protection exists automatically from the time a work is created in fixed form.
Thus, similar to trademark law, securing a registration for a work (with the U.S. Copyright
Office) is not required for a work to be protected, although registration does provide signif
signif-
icant advantages, such as establishing a public record of the copyright claim and providing a
basis upon which an infringement suit may be brought in federal court and in which statu-
tory damages and attorneys’ fees may be recovered.
The owner of a copyright has the right to reproduce the work, prepare derivative works
based on the original work (such as a sequel to the original), distribute copies of the work,
and to perform and display the work. Generally, violations of such rights are protectable
by infringement actions. Nevertheless, some uses of copyrighted works are considered “fair
use” and do not constitute infringement, such as use of an insignificant portion of a work
for noncommercial purposes or parody of a copyrighted work.
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CHAPTER 1 Introduction to Intellectual Property Law 7
Patents
Patent What Is Protectable. A patent is a grant from the U.S. government that permits its
owner to prevent others from making, using, importing, or selling an invention. There are
A grant from the U.S. three types of patents: utility patents, which are the most common patents and which cover
government permitting its
owner to exclude others from
useful inventions and discoveries (such as the typewriter, the automobile, and genetically
making, selling, using, or altered mice); design patents, which cover new, original, and ornamental designs for articles
importing an invention for a (such as furniture); and plant patents, which cover new and distinct asexually reproduced
limited period of time plant varieties (such as hybrid flowers or trees).
Patent protection is available only for useful, novel, and nonobvious inventions.
Generally, patent law prohibits the patenting of an invention that is merely an insignificant
addition to or minor alteration of something already known. Moreover, some items cannot
be protected by patent, such as pure scientific principles.
Trade Secrets
Trade secret What Is Protectable. A trade secret consists of any information that derives economic
value from not being known to the public and that is subject to reasonable efforts to main-
Any valuable business
information that is not known tain its secrecy. There is no limit to the type of information that can be protected as trade
to others and is subject to secrets; recipes, marketing plans, financial projections, and methods of conducting business
reasonable efforts to maintain can all constitute trade secrets. There is no requirement that a trade secret be unique or
its secrecy complex; thus, even something as simple and nontechnical as a list of customers can qualify
as a trade secret as long as it affords its owner a competitive advantage and is not common
knowledge.
If trade secrets were not protectable, companies would have no incentive to invest time,
money, and effort in research and development that ultimately benefits the public. Trade
secret law thus promotes the development of new methods and processes of doing business
in the marketplace.
Protection of Trade Secrets. Although trademarks, copyrights, and patents are all
subject to extensive statutory schemes for their registration, there is no equivalent federal
law registration system for trade secrets, and no formalities are required to obtain rights to
trade secrets. Trade secrets are generally protectable under various state statutes and cases,
by the new federal Defend Trade Secrets Act of 2016 (passed to allow victims of trade
secret misappropriation to bring an action for such in federal court), and by contractual
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8 PART I Introduction to Intellectual Property
agreements between parties. For example, employers often require employees to sign con-
fidentiality agreements in which employees agree not to disclose proprietary information
owned by the employer.
If properly protected, trade secrets may last forever. On the other hand, if companies
fail to take reasonable measures to maintain the secrecy of their information, trade secret
protection may be lost. Thus, disclosure of the information should be limited to those with
a “need to know” it so as to perform their duties; confidential information should be kept
in secure or restricted areas; and employees with access to proprietary information should
Nondisclosure agreement sign nondisclosure agreements. If such measures are taken, a trade secret can be protected
in perpetuity.
An agreement requiring a
party to maintain information
Another method by which companies protect valuable information is by requiring
in confidence; also called employees to sign agreements promising not to compete with the employer after leaving the
confidentiality agreement job. Such covenants are strictly scrutinized by courts, but in most states, if they are reason-
able in regard to time, scope, and subject matter, they are enforceable.
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CHAPTER 1 Introduction to Intellectual Property Law 9
wealth of information, including helpful information about trademarks and patents, fee
schedules, informational videos, forms, and the ability to search and apply for trademarks
and patents. Since 1991, under the Omnibus Budget Reconciliation Act, the USPTO
has operated in much the same way as a private business, providing valued products and
services to customers in exchange for fees that are used to fully fund USPTO operations.
It uses no taxpayer funds.
The USPTO is one of the busiest of all government agencies, and as individuals and
companies continue to value the importance of intellectual property assets, greater demands
are being made on the USPTO. For example, from 2010 to 2015, the number of trademark
applications received by the USPTO increased by 37 percent, and the number of patent
applications received increased 21 percent. In 2015, the USPTO issued 322,448 patents
and registered 208,660 trademarks.
Legislation passed in 1997 established the USPTO as a performance-based organiza-
tion that is managed by professionals, resulting in the creation of a new political position,
Under Secretary of Commerce for Intellectual Property and Director of the USPTO.
Changing the USPTO from a mere governmental agency to a governmental corpora-
tion made the USPTO equivalent to other similar organizations, such as the Tennes-
see Valley Authority and the Federal Deposit Insurance Corporation. Performance-based
organizations have considerable flexibility in personnel matters and set specific goals and
objectives to achieve. In brief, the USPTO operates more like a business with greater
autonomy over its budget, hiring, and procurement. Additionally, the USPTO website’s
searchable database includes information about all U.S. patents from the first patent
issued in 1790 to the most recent, with full information for all patents since 1976 and
the text and images of more than four million pending and registered federal trademarks.
Users can view, download, and print the images of these patents and trademarks. The
USPTO has successfully completed its transition from paper to electronic filing for both
trademarks and patents. Nearly 100 percent of all trademark and patent applications were
filed electronically in 2015.
The USPTO is led by the Under Secretary of Commerce for Intellectual Property and
Director of the U.S. Patent and Trademark Office (the “Director”), who is appointed by the
president of the United States. The Secretary of Commerce appoints a Commissioner for
patents and a Commissioner for trademarks.
Cases relating to IP law are published in a variety of sources. One excellent reporter
is United States Patent Quarterly (U.S.P.Q.), covering IP cases (relating to patents, trade-
marks, copyrights, and trade secrets) from 1929 to 1986, and U.S.P.Q.2d and U.S.P.Q.3d,
covering IP cases since 1987. In addition to publishing various federal cases relating to
patents and trademarks, this set, published by Bloomberg BNA, also publishes admin-
istrative decisions of the Commissioner of Patents and Trademarks. Subscribers to the
set receive weekly advance sheets with the most current cases; bound volumes are issued
quarterly. Most law firms that specialize in IP work subscribe to this set. The set is also
available through LexisNexis and Bloomberg Law, the computer-assisted legal research
systems.
Additionally, numerous cases are available through the USPTO website.
Library of Congress
Library of Congress The Library of Congress, sometimes referred to as “Jefferson’s Legacy,” was established in
1800 as a legislative library. It is America’s oldest, national cultural institution and is the
The agency charged with largest library in the world. Thomas Jefferson is considered the founder of the Library of
examining copyright
applications, issuing
Congress, and his personal library is at the heart of the library, inasmuch as in 1814 the
registrations, and maintaining library’s original holdings of 3,000 volumes were burned by the British, and the next year
copyright deposits Jefferson sold his personal library collection of 6,487 volumes to the Library of Congress
for $23,950.
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DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI
I see increasing reason to believe that the view formed some time
back as to the origin of the Makonde bush is the correct one. I have
no doubt that it is not a natural product, but the result of human
occupation. Those parts of the high country where man—as a very
slight amount of practice enables the eye to perceive at once—has not
yet penetrated with axe and hoe, are still occupied by a splendid
timber forest quite able to sustain a comparison with our mixed
forests in Germany. But wherever man has once built his hut or tilled
his field, this horrible bush springs up. Every phase of this process
may be seen in the course of a couple of hours’ walk along the main
road. From the bush to right or left, one hears the sound of the axe—
not from one spot only, but from several directions at once. A few
steps further on, we can see what is taking place. The brush has been
cut down and piled up in heaps to the height of a yard or more,
between which the trunks of the large trees stand up like the last
pillars of a magnificent ruined building. These, too, present a
melancholy spectacle: the destructive Makonde have ringed them—
cut a broad strip of bark all round to ensure their dying off—and also
piled up pyramids of brush round them. Father and son, mother and
son-in-law, are chopping away perseveringly in the background—too
busy, almost, to look round at the white stranger, who usually excites
so much interest. If you pass by the same place a week later, the piles
of brushwood have disappeared and a thick layer of ashes has taken
the place of the green forest. The large trees stretch their
smouldering trunks and branches in dumb accusation to heaven—if
they have not already fallen and been more or less reduced to ashes,
perhaps only showing as a white stripe on the dark ground.
This work of destruction is carried out by the Makonde alike on the
virgin forest and on the bush which has sprung up on sites already
cultivated and deserted. In the second case they are saved the trouble
of burning the large trees, these being entirely absent in the
secondary bush.
After burning this piece of forest ground and loosening it with the
hoe, the native sows his corn and plants his vegetables. All over the
country, he goes in for bed-culture, which requires, and, in fact,
receives, the most careful attention. Weeds are nowhere tolerated in
the south of German East Africa. The crops may fail on the plains,
where droughts are frequent, but never on the plateau with its
abundant rains and heavy dews. Its fortunate inhabitants even have
the satisfaction of seeing the proud Wayao and Wamakua working
for them as labourers, driven by hunger to serve where they were
accustomed to rule.
But the light, sandy soil is soon exhausted, and would yield no
harvest the second year if cultivated twice running. This fact has
been familiar to the native for ages; consequently he provides in
time, and, while his crop is growing, prepares the next plot with axe
and firebrand. Next year he plants this with his various crops and
lets the first piece lie fallow. For a short time it remains waste and
desolate; then nature steps in to repair the destruction wrought by
man; a thousand new growths spring out of the exhausted soil, and
even the old stumps put forth fresh shoots. Next year the new growth
is up to one’s knees, and in a few years more it is that terrible,
impenetrable bush, which maintains its position till the black
occupier of the land has made the round of all the available sites and
come back to his starting point.
The Makonde are, body and soul, so to speak, one with this bush.
According to my Yao informants, indeed, their name means nothing
else but “bush people.” Their own tradition says that they have been
settled up here for a very long time, but to my surprise they laid great
stress on an original immigration. Their old homes were in the
south-east, near Mikindani and the mouth of the Rovuma, whence
their peaceful forefathers were driven by the continual raids of the
Sakalavas from Madagascar and the warlike Shirazis[47] of the coast,
to take refuge on the almost inaccessible plateau. I have studied
African ethnology for twenty years, but the fact that changes of
population in this apparently quiet and peaceable corner of the earth
could have been occasioned by outside enterprises taking place on
the high seas, was completely new to me. It is, no doubt, however,
correct.
The charming tribal legend of the Makonde—besides informing us
of other interesting matters—explains why they have to live in the
thickest of the bush and a long way from the edge of the plateau,
instead of making their permanent homes beside the purling brooks
and springs of the low country.
“The place where the tribe originated is Mahuta, on the southern
side of the plateau towards the Rovuma, where of old time there was
nothing but thick bush. Out of this bush came a man who never
washed himself or shaved his head, and who ate and drank but little.
He went out and made a human figure from the wood of a tree
growing in the open country, which he took home to his abode in the
bush and there set it upright. In the night this image came to life and
was a woman. The man and woman went down together to the
Rovuma to wash themselves. Here the woman gave birth to a still-
born child. They left that place and passed over the high land into the
valley of the Mbemkuru, where the woman had another child, which
was also born dead. Then they returned to the high bush country of
Mahuta, where the third child was born, which lived and grew up. In
course of time, the couple had many more children, and called
themselves Wamatanda. These were the ancestral stock of the
Makonde, also called Wamakonde,[48] i.e., aborigines. Their
forefather, the man from the bush, gave his children the command to
bury their dead upright, in memory of the mother of their race who
was cut out of wood and awoke to life when standing upright. He also
warned them against settling in the valleys and near large streams,
for sickness and death dwelt there. They were to make it a rule to
have their huts at least an hour’s walk from the nearest watering-
place; then their children would thrive and escape illness.”
The explanation of the name Makonde given by my informants is
somewhat different from that contained in the above legend, which I
extract from a little book (small, but packed with information), by
Pater Adams, entitled Lindi und sein Hinterland. Otherwise, my
results agree exactly with the statements of the legend. Washing?
Hapana—there is no such thing. Why should they do so? As it is, the
supply of water scarcely suffices for cooking and drinking; other
people do not wash, so why should the Makonde distinguish himself
by such needless eccentricity? As for shaving the head, the short,
woolly crop scarcely needs it,[49] so the second ancestral precept is
likewise easy enough to follow. Beyond this, however, there is
nothing ridiculous in the ancestor’s advice. I have obtained from
various local artists a fairly large number of figures carved in wood,
ranging from fifteen to twenty-three inches in height, and
representing women belonging to the great group of the Mavia,
Makonde, and Matambwe tribes. The carving is remarkably well
done and renders the female type with great accuracy, especially the
keloid ornamentation, to be described later on. As to the object and
meaning of their works the sculptors either could or (more probably)
would tell me nothing, and I was forced to content myself with the
scanty information vouchsafed by one man, who said that the figures
were merely intended to represent the nembo—the artificial
deformations of pelele, ear-discs, and keloids. The legend recorded
by Pater Adams places these figures in a new light. They must surely
be more than mere dolls; and we may even venture to assume that
they are—though the majority of present-day Makonde are probably
unaware of the fact—representations of the tribal ancestress.
The references in the legend to the descent from Mahuta to the
Rovuma, and to a journey across the highlands into the Mbekuru
valley, undoubtedly indicate the previous history of the tribe, the
travels of the ancestral pair typifying the migrations of their
descendants. The descent to the neighbouring Rovuma valley, with
its extraordinary fertility and great abundance of game, is intelligible
at a glance—but the crossing of the Lukuledi depression, the ascent
to the Rondo Plateau and the descent to the Mbemkuru, also lie
within the bounds of probability, for all these districts have exactly
the same character as the extreme south. Now, however, comes a
point of especial interest for our bacteriological age. The primitive
Makonde did not enjoy their lives in the marshy river-valleys.
Disease raged among them, and many died. It was only after they
had returned to their original home near Mahuta, that the health
conditions of these people improved. We are very apt to think of the
African as a stupid person whose ignorance of nature is only equalled
by his fear of it, and who looks on all mishaps as caused by evil
spirits and malignant natural powers. It is much more correct to
assume in this case that the people very early learnt to distinguish
districts infested with malaria from those where it is absent.
This knowledge is crystallized in the
ancestral warning against settling in the
valleys and near the great waters, the
dwelling-places of disease and death. At the
same time, for security against the hostile
Mavia south of the Rovuma, it was enacted
that every settlement must be not less than a
certain distance from the southern edge of the
plateau. Such in fact is their mode of life at the
present day. It is not such a bad one, and
certainly they are both safer and more
comfortable than the Makua, the recent
intruders from the south, who have made USUAL METHOD OF
good their footing on the western edge of the CLOSING HUT-DOOR
plateau, extending over a fairly wide belt of
country. Neither Makua nor Makonde show in their dwellings
anything of the size and comeliness of the Yao houses in the plain,
especially at Masasi, Chingulungulu and Zuza’s. Jumbe Chauro, a
Makonde hamlet not far from Newala, on the road to Mahuta, is the
most important settlement of the tribe I have yet seen, and has fairly
spacious huts. But how slovenly is their construction compared with
the palatial residences of the elephant-hunters living in the plain.
The roofs are still more untidy than in the general run of huts during
the dry season, the walls show here and there the scanty beginnings
or the lamentable remains of the mud plastering, and the interior is a
veritable dog-kennel; dirt, dust and disorder everywhere. A few huts
only show any attempt at division into rooms, and this consists
merely of very roughly-made bamboo partitions. In one point alone
have I noticed any indication of progress—in the method of fastening
the door. Houses all over the south are secured in a simple but
ingenious manner. The door consists of a set of stout pieces of wood
or bamboo, tied with bark-string to two cross-pieces, and moving in
two grooves round one of the door-posts, so as to open inwards. If
the owner wishes to leave home, he takes two logs as thick as a man’s
upper arm and about a yard long. One of these is placed obliquely
against the middle of the door from the inside, so as to form an angle
of from 60° to 75° with the ground. He then places the second piece
horizontally across the first, pressing it downward with all his might.
It is kept in place by two strong posts planted in the ground a few
inches inside the door. This fastening is absolutely safe, but of course
cannot be applied to both doors at once, otherwise how could the
owner leave or enter his house? I have not yet succeeded in finding
out how the back door is fastened.