Short Answer. Please explain your answer clearly and concisely . (1 point / question) 1. Describe how trademarks protect consumers. 2. Describe how trademarks protect sellers. 3. What can you do if an...

Short Answer.

Please explain your answer clearly and concisely.
(1 point / question)

1. Describe how trademarks protect consumers.

2. Describe how trademarks protect sellers.

3. What can you do if an Examining Attorney refuses your federal trademark application, but you disagree with the refusal and want to get a registration?

4. Is there any process at the USPTO for a third party to prevent a federal trademark application from being registered? Describe.

5. Describe one way that common law trademark uses might be relevant when conducting a trademark clearance search.

6. Name at least one type of trademark enforcement legal theory that requires the plaintiff’s trademark to be famous.

7. What happens to a trademark if it becomes generic?

Multiple Choice. (1 point / question)

8. What are the benefits of obtaining a federal trademark registration on the Supplemental Register?
(Select all that apply).

A. Presumption of ownership

B. Ability to use the Ⓡ symbol with the mark

C. Claims to statutory damages in infringement lawsuits

D. Presumption of validity

9. What is the best way for two identical word marks to peacefully coexist under common law rules?
(Choose the best answer).

A. Limit use of public advertisements

B. Cover completely different goods/services

C. Use different fonts and text styles

D. Sell goods/services through different trade channels

10. As of 2022, which of these types of trademarks are you permitted to receive federal trademark registrations for?
(Select all that are true).

A. Functional

B. Disparaging

C. Scandalous

D. Immoral

Fact Pattern Analysis #1 - Short Response (6 points)

Suppose that an individual named Willy Wonka is in the candy business. He operates a factory that manufactures various kinds of candy that are sold throughout the United States and around the world. His research team has been hard at work creating new types of candy, and Willy Wonka is poised to release a new product to market. The new candy has a spherical outer shell made of hardened sugar that is dusted in sour flavoring agent (citric acid). The new candy also has a sweet inner core made of a kind of thickened fruit juice. When the consumer bites through the outer candy shell, or waits long enough for the exterior to melt, the inner core will ooze out.

Willy Wonka has come up with a list of five prospective names for this new candy. For each of the five prospective names, identify where it falls on the spectrum of distinctiveness (i.e., between generic and fanciful) and explain your reasoning for how strong you think the name would be as a trademark.

Finally, rank the five names in order of strength, where 1 is strongest, and 5 is weakest. No two names can share the same rank.

Name: YUMMY ORBS

Rank: _______.
Category in spectrum of distinctiveness: __________________________.

Your Reasoning:

Name: DRIBBLE NIBBLES

Rank: _______.
Category in spectrum of distinctiveness: __________________________.

Your Reasoning:

Name: SWEET AND SOUR CANDY

Rank: _______.
Category in spectrum of distinctiveness: __________________________.

Your Reasoning:

Name: ZUBERGRUMS

Rank: _______.
Category in spectrum of distinctiveness: __________________________.

Your Reasoning:

Name: CALAMITY

Rank: _______.
Category in spectrum of distinctiveness: __________________________.

Your Reasoning:

Fact Pattern Analysis #2 - Short Response (9 points)

Suppose that you are legal counsel for a small fast food franchise that operates in western Pennsylvania, eastern Ohio, and a few locations in West Virginia and Maryland. Your client’s fast food restaurants only sell hot dogs, french fries, tater tots, onion rings, fountain drinks, and milkshakes. Your client named the business SKIPJACK’S and first started making sales in 2015 at its first location in Pittsburgh. The name SKIPJACK’S is used all over the business–on signs, menus, takeaway bags, napkins, cups, boxes, etc.

After your client opened a new location in Ohio, your client decided to file for a U.S. federal trademark application, in 2017. The trademark application was based on actual use in commerce, and the application was for the word mark SKIPJACK’S (in any font or style) and covered “Fast-food restaurant services” in Class 43. The trademark application did not encounter any issues in examination or in publication and eventually registered in 2019.

Recently, your client asked you to run a trademark search to see if anyone is infringing their SKIPJACK’SⓇ trademark registration. You ran a search and found three potential third-party marks that might be of interest to your client (they are listed below). Each mark is listed with how it is being used, where it is being used, its application/registration status, and the earliest date of use you could find.
For each mark, assign a likelihood of confusion
(low, medium, high), and explain whether your client has a reasonable basis to request that third party to cease using their mark, and if not, whether your client should be worried about infringing that third party’s rights.

Trade Secret Law Portion - 5 Points

Short Answer (1 points)

1. Name three examples of intellectual property that can be protected by state or federal trade secret law.

Fact Pattern Analysis - Short Response (1 point / question)

Suppose that Amazon has designed a shipping algorithm that allows its delivery trucks to arrive 20% faster while using 10% less fuel, as compared to its industry competitors. The shipping algorithm was designed by a small team of Amazon employees who have agreed, under a strict Non-Disclosure Agreement, to keep the algorithm confidential. The algorithm itself is stored on an encrypted cloud network, and the base code can only be accessed by the small team of Amazon employees.

(a) Using trade secret law under the Uniform Trade Secrets Act (UTSA), explain why the shipping algorithm is or is not entitled to trade secret protection.

Suppose that an engineering team employed by Wal-Mart conducted a study of Amazon’s delivery routes by observing the driving patterns of Amazon trucks on public streets. From these public observations, the engineering team at Wal-Mart was able to successfully reverse engineer Amazon’s shipping algorithm. Wal-Mart similarly stores the data of this algorithm on encrypted servers and restricts access to the base code to employees who are under strict Non-Disclosure Agreements.

(b) Did Wal-Mart employees misappropriate Amazon’s shipping algorithm? Explain your answer.

(c) Assuming Wal-Mart does not publicly disclose the algorithm they reverse engineered, can Wal-Mart maintain the shipping algorithm as their own trade secret? Explain your answer.

Suppose that a hacker breaks into Wal-Mart’s encrypted servers and steals the code for the shipping algorithm that Wal-Mart successfully reverse engineered. The hacker is an idealist who believes that all information should be free, and so she wants to make the shipping algorithm known to the world. The hacker posts the shipping algorithm to every major social media and entertainment platform on the internet, effectively creating a permanent record of the algorithm that is accessible to anyone with a computer.

(d) How do the hacker’s actions affect Amazon’s claim that the algorithm is a trade secret? Explain your answer.