TRADEMARK LAW WRITING ASSIGNMENTS – FALL 2017

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Basic requirements and mechanicsThe graded work for this course consists of three short (3-4 pp.) writing assignments. These may consist of legal memoranda (to colleagues, clients, or others); explanatory email messages (again, to one or more audiences); or PowerPoint [or equivalent] slide decks (in which the lawyer communicates by the content of the slide deck, not by delivering a presentation orally). Each assignment will be posted here approximately two weeks before the assignment is due. Also before the assignment is due, time in class will be set aside to discuss questions relating to each assignment.
Format expectationsPrior versions of this course have required that writing assignments be produced in solely in the format of traditional legal memos. That expectation has changed, because lawyers today increasingly communicate in other formats and other media. This course may require different formats.
How to succeedAlthough the formats may change, professional expectations regarding effective communication have not changed. Legal writing in every setting should be clear, consistent, polished, expert, ethical, responsive, and trustworthy. Those expectations apply to this course. For guidance regarding those expectations and how they apply to the graded work for this course, students are strongly encouraged to read and re-read this "Modern Legal Writing" document, which summarizes advice for producing a great work product in Professor Madison's Trademark Law and Copyright Law courses.
Sample questionsFor students who want to know more about the assignments for this course, here are links to some prior assignments:
RubricThe rubric used to mark the assignments is available here.

Assignment Three

From: AM General Chief Legal Officer
To: Dewey, Cheatem & Howe, Attorneys at Law
Date: November 29, 2017
Re: Humvee trademark matter

As you know, at the direction of one of my direct reports (AM General’s chief intellectual property counsel), AM General recently filed a federal trademark infringement lawsuit against Activision, which is responsible for the ‘Call of Duty’ videogame franchise. The complaint alleges that Activision’s use of the design of AM General’s Humvee vehicle infringes AM General’s intellectual property rights.

When news of the filing appeared online, many trademark law commentators were widely, loudly, and publicly critical of AM General. They suggested that the case against Activision is so weak, given the widely-known precedent called Rogers v. Grimaldi and recent applications of that case, that the plaintiff (AM General) and the counsel who filed the complaint should be sanctioned for unethical behavior under Rule 11 of Federal Rules of Civil Procedure.

No Rule 11 motion has been filed or is contemplated, to the best of my knowledge. But the critical commentary is concerning both to me and, more importantly, to AM General’s Board of Directors. I have been asked to make a presentation to the Board to explain several things: AM General’s thinking in connection with filing the Activision lawsuit (the question here is the objective plausibility of AM General’s position, not its subjective thought processes), AM General’s strategy for saving face and avoiding sanctions in the context of what now appears to be a loser of a case, and AM General’s strategy for simultaneously protecting its trademark assets and respecting the legitimate rights and interests of consumers and fans of our brands.

I would like you to research and prepare a set of talking points and related analysis that I can use in my presentation to the board.

Notes for your use:

AM General’s Chief Intellectual Property counsel is an employee of AM General.  She works for me.

An outside law firm other than Dewey, Cheatem & Howe prepared and filed the complaint against Activision.

The AM General v. Activision complaint is available here.

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 work product. Write the names of any of these “consultants” at the top of the first page of the work product.

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

Format

Your work product in response to this assignment should be formatted in one of two ways: (i) as an email rather than as a default or standard “legal research memo.” Your email should consist of not more than 1,200 words, excluding the header (To, From, Subject line, Date). In printed form, it should have 1″ minimum margins on all sides. OR (ii) as a set of PowerPoint slides, prepared for delivery as a printed work product, rather than as a guide or accompaniment to an oral presentation. Including a title slide, the total PowerPoint “slide deck” should consist of no more than 25 slides.

[For guidance and suggestions regarding how to prepare professional PowerPoint slides, review these examples.]

So that your work product can be uploaded to the TWEN system in Westlaw (see below) and graded electronically, you must use Microsoft WORD (in the case of option (i)) or Microsoft PowerPoint (in the case of option (ii)).

Grading

Work product 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 work product 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 21, 2017, at 12 noon p.m.

Your work product must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment Two for this course. Although the work product should be formatted as an email, electronic (e-mailed) copies are not acceptable. Work product slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to this deadline. Work product that does not conform to the format instructions above, or that is turned in late, is subject to grade reduction.

Assignment Two

[As background to this problem, assume that the following facts are true: Consider the Swedish outdoor clothing and equipment company Fjallraven, a name whose English meaning is “arctic fox.” Fjallraven is a long-standing and highly successful company throughout Europe. Fjallraven has no US trademark registrations and only began offering its goods to US consumers, exclusively through its website, in 2016. Further assume that in early 2017, Fjallraven created a US subsidiary, hired US staff (including a general counsel and a trademark counsel, and started working on plans to offer its products to US customers by distributing it in US retail stores. Fjallraven products today, however, are still available in the US only via fjallraven.com.]

To: Fjallraven US Trademark Counsel
From: Fjallraven US General Counsel
Date: November 3, 2017
Re: “Fox” marks in US

One of our US marketing partners just alerted me to a situation that we need to investigate right away. It appears that a US firm has been marketing winter coats, wool sweaters, hiking pants, and lightweight bags and packs for hiking since 2005 using the brand name “Arctic Fox” and sometimes also using a logo identical to ours, in the shape of a fox’s head and tail.

What are our options, and what do you recommend? Please investigate and advise.

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 work product. Write the names of any of these “consultants” at the top of the first page of the work product.

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

Format

Your work product in response to this assignment should be formatted as an email rather than as a default or standard “legal research memo.” Your email should consist of not more than 1,200 words, excluding the header (To, From, Subject line, Date). In printed form, it should have 1″ minimum margins on all sides.

So that your work product can be uploaded to the TWEN system in Westlaw (see below) and graded electronically, you must use Microsoft WORD.

Grading

Work product 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 work product 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 17, 2017, at 3 p.m.

Your work product must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment Two for this course. Although the work product should be formatted as an email, electronic (e-mailed) copies are not acceptable. Work product slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to this deadline. Work product that does not conform to the format instructions above, or that is turned in late, is subject to grade reduction.

Assignment One

To: Outside Trademark Counsel
From: General Counsel, NG Accessories, Inc.
Re: Game Controller Branding Question
Date: September 29, 2017

I need some trademark law advice regarding the name of a product that we started selling a little over a year ago and would like to protect eventually with a trademark registration. The product is a video game controller for use with a first-person shooter video game, such as Overwatch or Halo. The name of the product is the “Nerf Blaster Controller,” or NBC. It’s a high-end, premium device, which retails at a suggested price of $99. That means that our customers are usually expert players, rather than casual video gamers. A majority of them are adult men. We only distribute our products in the United States.

We produce the device essentially by hand: We buy actual Nerf toy guns (usually toys in the Zombie Strike product line), made by Hasbro. Our technicians carefully disassemble each one, insert some electronic components (proprietary chips and software), and add a cable that the player uses to connect the controller to the player’s PC. Then the technicians reassemble the toy so that from the outside, for all practical purposes it still looks exactly like a toy. (We disengage the mechanism that the toy uses to “fire” soft foam bullets, but the bullets in their cartridge are still part of the toy.)

The packaging for our product looks nothing like the packaging of the original toys, but it’s pretty important to our team, and important to the marketing, that we sell our devices using the “Nerf” name, because our customers like the humor in using a Nerf toy as a video game “gun” or blaster.

Of course, we’re aware that Nerf is a well-known and long-standing brand associated with children’s toys that feature a soft, foam material. I did a brief search and learned that many years ago, video game controllers were on the market that actually used that foam and the Nerf name. So far as I can tell, that product line has long been discontinued. Our products are completely different; the foam part is irrelevant.

Can you look into trademark law and tell me whether we’re likely to have any problems getting our mark registered? Is there anything that we have to do at this point to protect our rights? Is there anything else that we should know?

Thanks.

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

You should use the default or standard “legal research memo” format for this assignment. 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 13, 2017, 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.