TRADEMARK LAW MEMO ASSIGNMENTS – FALL 2016

Each memo assignment for Trademark Law – Fall 2016 will be posted here approximately two weeks before the memo is due. Time in class will be set aside to discuss questions relating to each assignment.

Sample questions and model answers:  For students who want to know more about the writing assignments for this course, this is a link to the memo assignments from the Fall 2009 version of the course. This is a link to the best memos written in response to the first assignment from the Fall 2008 version of the course.

You are strongly encouraged to read and re-read this “How to Memo” document, which summarizes my advice for writing a great memo in my Trademark Law and Copyright Law courses.

The rubric used to mark the memos is available here.

Assignment Three

To: Junior Lawyer
From: Senior Lawyer
Date: December 2, 2016
Re: GoGo Lunch Box matter

Our client is a start-up novelty products company called “GoGo” that has come to us for some legal advice regarding a new product.

The product is a rectangular, brick-shaped and sized lunch box made of a hard, durable plastic. In most respects, it resembles the large, rectangular lunch box sold by Lego that you can see at this Amazon.com site: https://www.amazon.com/LEGO-40230631-Lunch-Box-Blue/dp/B008KQ1C1M/ There are three key differences. First, our client’s design has six round knobs across the top, rather than eight or four (Lego also sells a square version of its lunch box). Second, the round knobs across the top of our client’s design are not printed with the “Lego” name or logo; instead, they are printed with the “GoGo” name, in a distinctive font and rainbow color pattern that evokes the “Pop” era and designs of the 1970s. And third, all of the packaging and promotion that GoGo has prepared is targeted at millennial adults rather than at children. The idea is that this will be a “retro” product that appeals to the hip nostalgia for which millennials are well known. GoGo is planning to call the product the “BrickBox” or the “LunchBrick,” because the iconic, famous Lego plastic toy is known generally as a “brick.”

The client has asked us for a brief review of possible trademark law concerns associated with this product, so I am asking you to put that together. To help you get started, I can share the fact that I know, off the top of my head, that all patents that Lego once had for its interlocking brick designs have expired, and that Lego has lost virtually all trademark lawsuits that it has brought against competitors who offered toys that relied on the style of interlocking brick and knob configurations for which Lego is famous.  I also did a quick search of Amazon.com and found not only Lego’s lunchbox design (which GoGo is also aware of) but also a Lego “Brick Box” product designed to hold a bunch of Lego’s toy bricks.

Can you please look into this from a trademark law standpoint and get back to me with a four-page memo that outlines possible trademark law problems here, assesses their significance, and suggests solutions for any problems that need to be addressed?

Thanks.

Rules and Guidelines for Assignment Three

To the extent that these rules may appear to conflict with general advice regarding memos that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your memo. Write the names of any of these “consultants” at the top of the first page of the memo.

Use your own name in the “From” field. The memos are not anonymous.

Format

Memos must be typed or printed using a computer. Each memo, including any attachments, must be not longer than four [4] typewritten or printed pages, double-spaced, with 1″ minimum margins on all sides. (“To,” “From,” “Re,” and “Date” headings may be single spaced.) You do not need to include a comprehensive statement of the facts; instead, you may refer to the factual background in my memo to you. A factual summary may be helpful, however, in framing and presenting the analysis of the memo. No footnotes are permitted. The following font must be used: Twelve [12] point Times New Roman.

So that the memos can be uploaded to the TWEN system in Westlaw (see below), and graded electronically, you must use Microsoft WORD for the final version of the memo.

Grading

Memoranda will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues that the memorandum should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Thursday, December 22, 2016, at 12 noon.

Memos must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment One for this course. Electronic (e-mailed) copies are not acceptable. Memos slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to this deadline. Memoranda that do not conform to the format instructions above, or that are turned in late, are subject to grade reductions.

Assignment Two

To: Junior Lawyer
From: Senior Lawyer
Date: November 4, 2016
Re: Arsenal matter

Our firm has been retained by Arsenal Cider House in Pittsburgh to prepare a response to the Opposition to our client’s application to register its “Arsenal” name as a trademark. The Opposition document can be found at the link below.

I don’t need you to draft a response itself. Rather, I need you to take a close look at the Opposition and, in a short memo, outline and summarize our client’s best litigation strategy for prevailing here. What arguments are strong? What arguments are weak? What should the client prioritize, tactically, in terms of legal and factual argument? If there are facts missing from the record so far, what facts do you recommend that we collect, either regarding our own client or regarding Arsenal Football Club, and what is the potential significance of those facts? Is this a case that our client should litigate aggressively, or should we look for an opportunity to settle case early, and if so, why and on what terms?

In short, I need you to write up a memo (four pages, max) that describes how I should advise the client, and I need it by Friday, November 18.  Our client’s application itself is being handled by a different firm, so please do not address questions concerning the registrability of our client’s mark.

Thanks.

Link:  Arsenal Football Club v. Arsenal Cider House

Rules and Guidelines for Assignment Two

To the extent that these rules may appear to conflict with general advice regarding memos that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your memo. Write the names of any of these “consultants” at the top of the first page of the memo.

Use your own name in the “From” field. The memos are not anonymous.

Format

Memos must be typed or printed using a computer. Each memo, including any attachments, must be not longer than four [4] typewritten or printed pages, double-spaced, with 1″ minimum margins on all sides. (“To,” “From,” “Re,” and “Date” headings may be single spaced.) You do not need to include a comprehensive statement of the facts; instead, you may refer to the factual background in my memo to you. A factual summary may be helpful, however, in framing and presenting the analysis of the memo. No footnotes are permitted. The following font must be used: Twelve [12] point Times New Roman.

So that the memos can be uploaded to the TWEN system in Westlaw (see below), and graded electronically, you must use Microsoft WORD for the final version of the memo.

Grading

Memoranda will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues that the memorandum should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Friday, November 18, 2016, at 3 p.m.

Memos must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment One for this course. Electronic (e-mailed) copies are not acceptable. Memos slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to this deadline. Memoranda that do not conform to the format instructions above, or that are turned in late, are subject to grade reductions.

Assignment One

To: Outside Counsel
From: General Counsel, Car-Freshner
Date: September 30, 2016
Re: Validity of the Tree Marks

As you know, Car-Freshner makes the well-known line of scented, tree-shaped air freshener products for automobiles. The brand name today is “Little Trees.” The company’s portfolio of registered trademarks covers the design of the product and includes, for example, the following:

tree-marks

Recently, in a trademark infringement lawsuit filed in the federal District Court for the Northern District of New York, Car-Freshner alleged infringement of the Tree Marks by a company located in Kansas called Sun Cedar. Sun Cedar was producing air fresheners cut in a tree shape from pieces of cedar, which is naturally scented. After some pre-trial proceedings were concluded in favor of Car-Freshner, but before the case was decided on the merits, Sun Cedar discontinued producing the infringing products.

As part of Sun Cedar’s pleadings in response to Car-Freshner’s complaint, an argument was raised that concerns me, and I’d like you to look into it further and advise me both regarding its possible strengths and weaknesses and regarding what, if anything, Car-Freshner should do going forward to reduce the risk that this argument might be accepted by a future court.

The argument is that the Tree Marks are invalid because they consist of functional subject matter, and the functionality is demonstrated by the existence of an expired patent on the tree-shaped air freshener.

For your information and background, I’ve included (at the links, below) the ruling of the district court in our case against Sun Cedar (the judge does a nice job of summarizing Car-Freshner’s trademark position and the importance of the Tree Marks to our business) and the Answer and Counterclaims filed by Sun Cedar before that company filed for bankruptcy protection (that document summarizes the argument that I noticed regarding the patent). You can find the patent in question in that Answer and also at https://www.google.com/patents/US3065915

Links:

I need your advice, four pages maximum, by Friday, October 14 at 3 p.m.

Rules and Guidelines for Assignment One

To the extent that these rules may appear to conflict with general advice regarding memos that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your memo. Write the names of any of these “consultants” at the top of the first page of the memo.

Use your own name in the “From” field. The memos are not anonymous.

Format

Memos must be typed or printed using a computer. Each memo, including any attachments, must be not longer than four [4] typewritten or printed pages, double-spaced, with 1″ minimum margins on all sides. (“To,” “From,” “Re,” and “Date” headings may be single spaced.) You do not need to include a comprehensive statement of the facts; instead, you may refer to the factual background in my memo to you. A factual summary may be helpful, however, in framing and presenting the analysis of the memo. No footnotes are permitted. The following font must be used: Twelve [12] point Times New Roman.

So that the memos can be uploaded to the TWEN system in Westlaw (see below), and graded electronically, you must use Microsoft WORD for the final version of the memo.

Grading

Memoranda will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues that the memorandum should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Friday, October 14, 2016, at 3 p.m.

Memos must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment One for this course. Electronic (e-mailed) copies are not acceptable. Memos slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to this deadline. Memoranda that do not conform to the format instructions above, or that are turned in late, are subject to grade reductions.