| (4pts.) | 1.l A chain of bicycle rental stores known as "Spin" recently opened in Northern
New England, advertising its low cost transportation under the slogan, "Budget
Wheels," If Budget Rent-A-Car charges infringement of its incontestably
registered mark through Spin's use of its advertising slogan, which of the
following subsections sets forth Spin's best argument for overcoming the
conclusive evidentiary effect of in ontestability? (a) §33(b)(2), (b) §33(b)(3). (c) §33(b)(4). (d) §33(b)(5). (e) §33(b)(8). |
| (4 pts.) | 1.2 Assume that, instead of renting bicycles, Spin only sells bicycles. Prior to proving a §33(b) defense, which of the following assertions constitutes Spin's best argument that Budget Rent-A-Car's incontestable registration is merely prima facie evidence of validity of the word mark "Budget" for purposes of infringement litigation. (a) Budget Rent-A-Car's § 15 affidavit for the word mark "Budget" specified vehicle rental services. (b) The word mark 'Budget'' is famous only for vehicle rental services. (c) Spin did not intend to cause confusion among the consuming public as evidenced by the fact that it only sells bicycles and does not rent them. (d) Individuals who purchase vehicles tend to be more sophisticated consumers than those who rent them. (e) "Budget" is not a strong mark for purposes of the Polaroid factors analysis because it is descriptive of low cost rental transportation. |
| (4pts.) | 2.1 On a motion for a preliminary injunction, McDonald's Corp. will not be able to establish a probability of success on the merits because:
(a) The "McDonald's" mark is not a famous mark. (b) Reasonably prudent consumers are not likely to be confused as to the origin or sponsorship of services rendered under the "McDonald's Farm" mark. (c) McDonald's Corp. markets its services to a different consumer base than does Jim McDonald, hence, the parties do not utilize the same channels of trade. (d) Jim McDonald began using the "McDonald's Farm" mark in 1956. (e) None of the above. |
| (4pts.) | 2.2 Assume that, in addition to the cause of action under §43(c), McDonald's Corp. charged Jim McDonald with dilution under California state law. Assume also that, prior to the lawsuit, Jim McDonald obtained a federal registration for "McDonald's Farm." Which of the following constitutes an accurate statement?
(a) McDonald's Corp.'s federal registration preempts a state cause of action for dilution. (b) Jim McDonald's federal registration constitutes a complete bar to the state cause of action for dilution. (c) A federal cause of action under §43(c) preempts a state cause of action for dilution. (d) Jim McDonald's federal registration does not constitute a complete bar to the state cause of action. (e) None of the above. |
| (4pts.) | 3.1 If a court finds Copycat liable under §43(a) for deceptive advertising, included in its probable reasoning will be:
(a) That the claim is literally false because its necessary implication is that identical ingredients result in identical cleaning power. (b) That the claim falls outside the realm of acceptable comparative advertising. (c) That the claim is material because consumers are likely to rely on it in deciding to whether to purchase Dow's popular product or a less expensive alternative. (d) That the claim is made in "commercial advertising and promotion" even though it only appears on the product label. (e) All of the above. |
| (4 pts.) | 3.2 Assume that Dow introduced testimony at trial from Copycat's CEO stating that, at the time the company made the claim, it was in possession of test data showing the inferiority of Wipeout solvent as compared to Banish solvent. Having established Copycat's liability under §43(a), will Dow prevail on a motion for attorneys' fees and why or why not?
(a) Yes, an award of attorneys' fees is mandatory. (b) Yes, exceptional circumstances can be shown. (c) No, exceptional circumstances cannot be shown. (d) No, attorneys' fees are not available for a cause of action for deceptive advertising. (e) None of the above. |
| (4 pts.) | 3.3 The claim "SUPER CLEANING POWER," viewed by itself, i.e., without any reference to ingredients, is: (a) Actionable under §43(a)(1)(A) because the claim might confuse consumers as to the source of the products at issue. (b) Actionable under §43(c) because the phrase is famous or at least commonly used by most manufacturers of cleaning products. (c) Actionable under §43(a)(1)(B) because the claim is likely to be material to consumers' purchasing decisions. (d) Actionable under §43(c) because the phrase is so commonly used that it dilutes any trademark significance in the phrase. (e) None of the above. |
| (4pts.) | 4.1 The failure to seek and obtain Ms. Curtis' consent to the use of her signature scream in the remake is actionable under §43(a) because:
(a) Appropriation of Ms. Curtis' scream without her consent constitutes misappropriation of her persona as a celebrity. (b) Ms. Curtis' First Amendment rights outweigh the First Amendment rights of the director of the remake. (c) Misappropriation of Ms. Curtis' voice constitutes an invasion of her privacy and §43(c) is an extension of the state-created right. (d) The facts are analogous to the facts in Midler v. Ford Motor Co. (e) All of the above. | (4pts.) | 4.2 The failure to properly credit Ms. Curtis for the use of her signature scream in the remake is actionable under §43(a) because:
(a) It is likely to result in embarrassment and humiliation to Ms. Curtis. (b) It is passing off, (c) It is express reverse passing off. (d) It is a violation of Ms. Curtis' right to privacy. (e) None of the above. |