Originally from:
Texas Intellectual Property Law Handbook - 2nd Edition - Hardcover
Texas Intellectual Property Law Handbook - 2nd Edition - Electronic
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CHAPTER 4
MISAPPROPRIATION AND RELATED TORTS
§ 4.01 Introduction
Like “unfair competition” and “passing off,” the term
“misappropriation” has various meanings, depending on the cause of
action asserted, including:
• Misappropriation of trade secrets
• Common-law misappropriation—a species of unfair competition
—that involves the exploitation of the work product of
another’s time, labor, and financial expenditure
• Misappropriation of ideas
• Misappropriation of name and likeness
Chapter 1 of this text addresses trade-secret misappropriation.
Section 4.02 in this chapter addresses unfair competition by
misappropriation (also known as common-law misappropriation);
section 4.03 discusses misappropriation of ideas; and section 4.04
addresses misappropriation of name and likeness. Finally, section 4.05
examines conversion of intellectual property.
§ 4.02 Common-Law Misappropriation
[1] — Historical Background
Unfair competition by misappropriation, also known as “commonlaw
misappropriation” or “misappropriation of product,” is the
unfortunate legacy of the United States Supreme Court’s decision in
International News Service v. Associated Press.1 In this 1918 case, the
defendant, International News Service, copied the Associated Press’
uncopyrighted eastern U.S. news reports, and republished them in the
western U.S. as its own news. The Supreme Court held uncopyrighted
news reports had “all the attributes of property”:2
[Transmitting] news for commercial use, in competition with
complainant—which is what defendant has done and seeks to
justify—is a very different matter. In doing this defendant, by
CHAPTER 4
MISAPPROPRIATION AND RELATED TORTS
Synopsis
§ 4.01 Introduction
§ 4.02 Common-Law Misappropriation
[1] -- Historical Background
[2] -- Recognition of the Tort in Texas
[3] -- Elements of Common-Law Misappropriation
[4] -- Remedies for Common-Law Misappropriation
[a] -- Injunctive Relief
[b] -- Damages
[5] -- Defenses
[a] -- Limitations
[b] -- Federal Preemption
§ 4.03 Misappropriation of Ideas or Intellectual Property
§ 4.04 Misappropriation of Name and Likeness -- Right of Publicity
§ 4.05 Conversion of Intellectual-Property Rights
§ 4.06 Sources
[1] -- Statutes
[2] -- Law Review Articles
[3] -- Treatises and Texts
Herbert J. Hammond is a partner with Thompson & Knight, L. L. P. in Dallas, Texas, where he specializes in patent, trademark, copyright, trade-secret, and computer - law litigation and acts as an arbitrator, mediator, and expert witness in intellectual-property disputes.
Mr. Hammond graduated from New York University School of Law in 1976 and is licensed to practice in Texas and in the United States Patent and Trademark Office. He has been recognized by Chambers USA's Leading Lawyers for Business for his deep knowledge of IP law and as an outstanding lawyer, by Woodward/White as among the Best Lawyers in America in intellectual property, by Texas Monthly's listing of Texas Super Lawyers in Intellectual Property Litigation, and by D Magazine's Best Lawyers in Dallas. He is a frequent speaker at CLE programs and has written many chapters and articles on intellectual-property topics.
