Memorandum Assignment Number Three

Memo Assignment Number Three, in MS Word format

The Rules and Guidelines for Assignment Three are the same as the Rules and Guidelines for Assignments One and Two (see below), except that Assignment Three is due not later than 12 noon on Friday, December 21.

Memorandum

From:   Senior Partner
To:       Junior Associate
Date:    November 27, 2007
Re:       What I Like About You

Our firm has been hired to represent the defendants in a recently filed case, The Romantics v. Activision, Inc. (filed November 20, 2007).  A copy of the Complaint is online here.  The Complaint alleges wrongdoing in connection with Guitar Hero, a videogame distributed by Activision.  Guitar Hero is a kind of 21st century high tech "air guitar":  players use a game controller that's shaped like a small, mutant guitar to mimic notes of popular songs as audiovisual versions of those songs scroll by on a computer screen.  Guitar Hero includes a cover recording of "What I Like About You," a pop song released by the plaintiffs in 1980.  The defendants properly obtained a copyright license to use the song, so the Complaint (logically) includes no claims of copyright infringement.  Instead, the cover recording in Guitar Hero allegedly sounds too much like the original Romantics' version.  (If you want to do a comparison for yourself, here's a link to the original Romantics recording, and here's a link to the Guitar Hero version.) 

For this project, though, I'm not interested in your musicological analysis.  There's a legal question to consider.  Look at Count II of the Complaint, "False Endorsement Under the Lanham Act."  That claim refers to 15 U.S.C. § 1125, which is Section 43 of the Lanham Act, but it doesn't specify whether the claim is made under Section 43(a)(1)(A) or Section 43(a)(1)(B) or Section 43(c).  Just about any competent lawyer would recognize that the claim is crudely drafted.  Crude drafting doesn't make it legally insufficient, however.  I want to know whether it is legally sufficient, or whether we might knock it out on a motion to dismiss under the Dastar case as a matter of law.  In other words, assume that the factual allegations of the Complaint are true.  Are the legal allegations of Count II sufficient to state a claim?  Or is the claim barred by the holding and/or the policy analysis of Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003)?  Of course, if your answer is "maybe," as junior associates' answers so often are, you should explain what factors or legal issues influence the analysis in one way or another.

I know that some know-it-all law professors have been spouting off about the case in their weblogs.  Ignore what they have said.  I want hard-nosed, careful legal analysis of Dastar and its implications here.

Have your memo back to me by 12 noon on Friday, December 21.

Memorandum Assignment Number Two

Memo Assignment Number Two, in MS Word format

The Rules and Guidelines for Assignment Two are the same as the Rules and Guidelines for Assignment One (see below), except that Assignment Two is due on Monday, November 12.

Memorandum

From:   Senior Partner
To:       Junior Associate
Date:    October 29, 2007
Re:       Quick Eats

Here’s a tasty case for you.  Our client is Quick Eats (QE). QE owns restaurants operating under various names around the Eastern seaboard of the United States, including a small chain of restaurants called “In and Out Eats.”  “In and Out Eats” is the name of QE restaurants that have been operating in various communities in New Jersey, Maryland, Virginia, and North and South Carolina since 1946, when the first In and Out Eats restaurant opened in Virginia Beach, Virginia, to serve returning U.S. military personnel and their families.  A second restaurant opened in Wildwood, New Jersey in 1952, and there are a total of 20 restaurants now operating in the chain, each of which is located in a coastal community on the East Coast.  The company is a real mom-and-pop outfit, which does almost no advertising outside of the community where each restaurant is located.  However, QE has shared with me that it has been exploring possible restaurant locations in other vacation areas and along major interstate highways on the East Coast, not necessarily restricted to the coastline.

Each In and Out Eats restaurant is a sit-down, family-style restaurant that serves grilled sandwiches, pasta, and drinks that include sodas, milkshakes, and fruit juices.  The restaurants serve lunch and dinner, and they offer hamburgers and French Fries on a limited children’s menu.  They do not currently offer a take-out or To-Go menu, but apparently the first few restaurants were early, primitive drive-ins.

Quick Eats just received a cease-and-desist letter from In-N-Out Burger, a fast-food hamburger chain that operates well over 150 restaurants under that name in California, Arizona, and Nevada.  In-N-Out sells burgers, fries, sodas, lemonade, and milkshakes in restaurants that apparently look stereotypically “Californian”:  lots of white tile and red trim, palm trees, and a drive-through line.  In-N-Out claims that it owns a federal registration in the word mark “In-N-Out Burger” that dates to 1976 – and which is now incontestable -- and that its common law rights date to the late 1940s.  Over the last decade, apparently it has been on an impressive expansion push, moving out of its historic base in Southern California.  In-N-Out claims that it just learned recently about QE’s restaurants, via word of mouth in the restaurant industry about QE’s plans to expand.

Quick Eats wants to know what its options are in responding to the letter.  Based on my experience with these folks, they’re pragmatists.  They’ve got enough money to stand and fight if that’s the prudent thing to do, but they’re wise enough to know not to throw money away.  I want you to figure out what the relevant law on this question says, and then I want you to work up a set of issues (both facts and law) that I need to go over with the client.  What do I need to know before I can give advice here, and why do I need to know it?

Have your memo back to me by 4:30 p.m. on Monday, November 12.

Memorandum Assignment Number One

Memo Assignment Number One, in MS Word format

Memo Assignment Number One Instructions, in MS Word format

Memorandum

From:    Senior Partner
To:        Junior Associate
Date:     September 24, 2007
Re:        Toyco Trademark Issue

Our client, Toyco, has a trademark issue and has called us for advice.  The facts, as I understand them, are these.  Toyco is in the process of introducing a line of child-sized plastic facsimiles of electronic gear.  In other words, they make "toy" versions of iPods, cellphones, and Blackberries, as well as child-sized plastic toy versions of "generic" cell phones, portable media players, videogame consoles and game controllers.  They also make plastic toy versions of "professional" style handbags and cases -- which as you know "real" lawyers use to hold their electronic toys.  (Don't worry; I know that you associates play Halo, Oblivion, and Guitar Hero in the office late at night; your secret is safe with me.)  The kiddie versions are sold on their own, but they are designed so that they can handle the kiddie "electronics."  The kids can put their toy XBOX 360 controllers in their toy briefcases.  All of the toy carrying cases have slightly odd shapes.  They're not randomly shaped, but they aren't professional-standard shapes.  The professional "handbag" is somewhere between a rectangle and an oval and is just big enough for a Blackberry.  The briefcase is a trapezoid, which sort of fits the shape of the toy game controller.  All of the cases, like all of the toys, are made of hard, child-safe plastic.

To avoid problematic confusion between Toyco's products and the real things, all of the toys have a kind of lightly pebbled surface.  They're just a little bit bumpy to the touch; the bumps are small but not tiny, and they're flat, not pointed.  It's a kind of alligatoring effect.  That's the source of the trademark question.  Toyco would like to register a trademark in the pebbled surface for their lines of plastic toy electronics and cases.  They're especially interested in the pebbled surface as a mark for the cases, since they're betting that the kids will get the cases and stuff them full of the little iPods and the like.

The question that I'd you to look into is whether Toyco can get a mark in this pebbled texture.  If so, what legal  obstacles are in their way, and what do propose we do with Toyco's help to get around those obstacles.  If the path to obtaining a mark is difficult, of course I want to know that as well.  Don't worry, by the way, about the procedural niceties of registering a mark with the Trademark Office.  When it gets to that stage, we'll bring in our crack team of trademark paralegals to help you.  I want your best legal analysis.

As it happens, I have a couple of possible leads for you.  There's a recent Trademark Office ruling on the registrability of a box.  Here's a link to the opinion.  I don't know whether it will help you, but it might be worth a look.  Also, it turns out that a texture was registered as a mark in Ecuador a couple of years ago.  Here's a link to an image of the product, which is whiskey.  I don't know anything about that case or about Ecuadorian law, and I don't want you to spend any of the client's money looking into that.  But it's an example that you might use to think about Toyco's issue.