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Exam Number: __________________GEORGETOWN UNIVERSITY LAW CENTEREXAMINATION IN TrademarkTAKE HOME EXAMProfessor Rebecca TushnetINSTRUCTIONS:This is an OPEN book exam. You may consult any inanimate object; however, no credit will be given for citations to any materials that were not assigned for this course. You may not discuss the content of this exam with any other person, whether or not that person is enrolled in this class. Although the questions are based on real situations, I have changed the facts in ways subtle and not-so-subtle, so you could really do yourself more harm than good by looking for outside information on the fact patterns.2. This 8 hour exam must be downloaded and submitted using the Online Exam/Paper Management System. This exam will be available throughout the exam period. You may only work on the exam for 8 hours.3.Structure: There are 7 questions. Each is worth a stated percentage of the total exam grade. You should allocate your effort accordingly.4.There is no specific word limit. Thus, please think, organize, and prioritize carefully before you write. Cogent, well-structured answers that devote the most analysis to the most important issues will be graded more highly; poorly-organized, ungrammatical, or chronically misspelled answers will receive lower grades. Please do not waste space by restating the question or the facts of cited cases. If you need additional facts to answer a question, please state the specific facts needed and how they would affect your analysis. Also, please don’t call a person “he” if she’s clearly identified in the facts as female. I reserve the right to deduct points if you do.5. This exam is final. There will be no clarifications or any changes. If you believe there is an error, inconsistency, or omission in the exam, please state your assumptions about the issue within your discussion of that issue.6.Citation to relevant materials is required in order to receive full credit. Please indicate why the cited materials are relevant. You do not need to use Bluebook form. For example, simply state: (Wal-Mart) or (§43(a)) or (§1127(a)) – either form for the statutory citation is fine. You can use italics, bold, or whatever you’re most comfortable with to indicate case names. 7. In answering these questions, assume that jurisdiction is proper and that there are no statute of limitations or other general procedural bars.8. You may not identify yourself in any way to the professor as the author of an exam until the grades are published. Therefore, you must remove personal identifying information from your exam document. Failure to remove any personal identifying information is an exam violation which will be referred to the Ethics Counsel. Instructions on how to remove personal identifying information from your take-home exam are available online at . This exam consists of 12 pages, including this cover page. Please be sure your exam is complete. Please be sure that you use your exam number (not your student ID number or social security number). BY SUBMITTING THIS EXAM THROUGH THE ONLINE SYSTEM, I AFFIRM ON MY HONOR THAT I AM AWARE OF THE STUDENT DISCIPLINARY CODE, AND I HAVE NOT WORKED MORE THAN 8 HOURS ON THIS EXAM. Question 1 (5%):Twitter’s logo, pictured above in earlier and later versions, is named Larry. Larry Bird is a well-known Hall of Fame basketball player for the Boston Celtics. The name was chosen because one of Twitter’s co-founders was a serious Boston Celtics fan. As Yahoo! Sports commented, “It's a natural connection given [Larry] Bird's level of fame.”The logo is used extensively in marketing for Twitter, including in television ads. The company’s creative director explained the significance of the icon for the company by saying “Twitter is the bird, the bird is Twitter.” The name “Larry the Bird,” however, does not appear in those ads. Instead, the name is explained in a FAQ on Twitter’s website, and various official Twitter accounts have tweeted about the existence and genesis of the name. When Twitter redesigned the logo, it sent out press releases about the changes to its “iconic Larry the Bird.” News outlets ran stories with statements such as “Larry the bird has become synonymous with the social media giant over the past six years.”Larry Bird sues Twitter in federal court in California for false endorsement and violation of his right of publicity. (Assume that he is domiciled in California at all relevant times.) Evaluate his claims and indicate who should win.Question 2 (10%): Pepsi, attempting to revitalize its brand, has adopted a new bottle:“Pepsi” is an incontestably registered mark, as is the globe logo. The new design features a swirled grip on the bottom portion of the bottle, a shorter label edged in a "cola-colored" border and an enlarged version of the current globe logo. According to PepsiCo's press release, "The new bottle's bold swirl and elevated profile reflect the brand's attributes and youthful spirit, capturing the excitement of now for Pepsi consumers. The etched, grip-able bottom allows consumers to have a more stimulating, tactile interaction with the bottle itself." The new bottle bottom makes it easier to hold and the label covers less of the contents, showing more of the actual beverage. “These don't sound like significant changes, but the company thinks the tweaks will make an impact,” notes one source. "We didn't want to create a shape that came out of nowhere," Pepsi’s VP of brand management told Ad Age. "It's not uniform, it's a little asymmetrical, there's a little edginess and playfulness, which is consistent with Pepsi's youthful spirit." Identify (1) the protectable elements of the pictured design, (2) the key challenges Pepsi will face in securing trademark protection for the design and/or its elements, and (3) your best assessment of how those challenges should be resolved.Question 3 (10%):The Beer Institute, the trade association for the malt beverage industry, has encouraged its members to use the statement “Drink Responsibly” in their ads for over 15 years. Though there is no legal requirement to do so, many different members, and a number of beermakers and liquor manufacturers who aren’t members, have followed this encouragement, so the statement has appeared in thousands of ads for different alcoholic beverages over the years, along with variants such as “enjoy responsibly.” E.g.,A new brewery adopts the name “Responsibly” for its beer:Responsibly, which has begun to sell its beer to the general public, seeks a use-based registration of RESPONSIBLY for beer. How should the examiner rule and why?Regardless of your answer to the first question, assume that the registration issues, and Responsibly sues Stella Artois and Heineken for infringement for continuing to use “drink responsibly” and “enjoy responsibly” in their ads. What is the best way to analyze this lawsuit?Question 4 (15%): Kathy Whitman sells $15 earrings made from recycled Coca-Cola cans, clearly labeled on her website and on the package as being made from recycled Coca-Cola cans:Coca-Cola itself sells recycled Coke bottle jewelry at its official store, for $20:In a survey of women 25-50 who were likely “novelty” jewelry buyers, 36% identified Whitman’s earrings as coming from a Coca-Cola can, and 65% identified the Olympic rings on the earrings. When asked “who do you think makes these earrings?” 33% of the respondents who identified the earrings as coming from a Coca-Cola can responded “Coca-Cola.” When asked “whose permission, if anyone’s, is required to make these earrings?” 50% of that same subgroup of respondents answered “Coca-Cola.” In response to the same “who do you think makes these earrings?” question, 20% of those who identified the Olympic rings responded “the Olympics” (or an equivalent response), and in response to the “whose permission” question, 60% of that same subgroup answered “the Olympics” (or an equivalent response). There was a control of similar earrings made from a store-brand generic cola can; no one in the control group gave an Olympics-related answer, and 2% said that the earrings came from a Coca-Cola can.Coca-Cola and the U.S. Olympic Committee (USOC) both sue Whitman in federal court in her home state of Concordia. Coca-Cola brings claims for trademark infringement and the USOC brings claims for trademark infringement and for violation of the Amateur Sports Act, 36 USC § 220506. Evaluate the parties’ claims and defenses and state who should win.?Question 5 (15%): In 1985, the singer Madonna released the song “Material Girl,” which became a massive hit. After that time, Madonna was regularly referred to as “the Material Girl” in media coverage, and her image was largely based on the Marilyn Monroe-style persona she adopted in the music video for “Material Girl.” She continued to perform the song over the course of her career, and still performs it in concert. The song continues to be widely played and still brings in almost a million dollars of revenue in performance royalties each year. While references to Madonna as “the Material Girl” have declined somewhat, roughly 5% of her contemporary mainstream media coverage references the term or the song.From 1985 to 1998, attendees at Madonna concerts could buy T-shirts, sweatshirts, hats, and other concert paraphernalia bearing the term “Material Girl” and a picture of Madonna. (These items may still be purchased on eBay and similar sites as “vintage” clothing.) Madonna received a share of the revenues from the sales of this merchandise, but Madonna’s contract with her concert promoter specifically stated that the promoter did not have the right to market clothing other than concert style shirts and tops. The promoter sold over $85 million of concert merchandise with “Material Girl” on it, at prices ranging from $10-30.In 2010, Madonna decided to work with Macy’s on a clothing line. After considering various options, including “Truth or Dare,” they settled on “Material Girl” as the mark for the line. They filed an ITU application for “Material Girl” for women’s and junior women’s clothing with the PTO. The clothing line will retail at $45-100 per piece.Meanwhile, LA Triumph, a company based in Los Angeles, in 1997 began selling junior women’s clothing under the “Material Girl” brand. “Material Girl” appeared on the clothing label, and the clothing was sold in various stores such as Walgreen’s and discount clothing retailers for $7-10 per piece. LA Triumph made sales in 35 states, totaling roughly $850,000 per year.Madonna’s ITU was published, and LA Triumph has filed an opposition. How should the TTAB rule and why?Question 6 (20%):3-D printing is an emerging technology that allows people to create 3-dimensional objects at home. Objects can be created by designing them on a computer, by scanning an existing object and replicating its dimensions, or by downloading plans from someone else who has already done one of those things. MartReps, a 3-D design company, sells a plan based on the Coca-Cola bottle:Purchasers may, if they wish, further customize the design, as in the following:MartReps states on its website that it will “transmit to your 3D printer a design file it created by scanning in a bottle originally designed many years ago. MartReps is the source of the file. We are not affiliated or endorsed by any other person or entity. These products should only be used for personal, noncommercial use.”The shape of the Coca-Cola bottle is incontestably registered for beverages, and has near-universal recognition among consumers even without the Coca-Cola word mark. Coca-Cola sues MartReps for direct and contributory trademark infringement and dilution under the Lanham Act. Evaluate Coca-Cola’s claims and explain who should win.Question 7 (25%): Victoria’s Secret has made millions of dollars of sales for its “Pink” brand of intimate apparel and related clothing, including, for example, sweatpants with “PINK” across the rear. One slogan Victoria’s Secret often uses with the Pink brand is “Love Pink.” The VICTORIA’S SECRET trademark has been found to be famous in several court cases, due in large part to its extensive sales and popular Victoria’s Secret catalog and fashion show. Though Pink is a successful brand, with nearly universal recognition among women 18-30, it has also been criticized for its sexualized connotations and for targeting young girls. A group calling itself Love Consent, from the state of Concordia, launches the following website:The website featured pictures of authentic Victoria’s Secret underwear on the left. On the right were pictures of underwear not made by Victoria’s Secret, with phrases Victoria’s Secret had never used:A number of consumers believed that Victoria’s Secret sponsored the new site. Reactions on Victoria’s Secret’s official Facebook page included the following:As the Love Consent organizers reported, the Victoria’s Secret Facebook pages were flooded with “I heart consent” posts, excited campus reps [college students employed by Victoria’s Secret to promote the brand] were retweeting?, and the “pink hearts” at [a Victoria’s Secret fan site] were declaring their love for “open sex talk.” One employee tweeted, “I am so happy to currently have a job for a company that stands for something so beautiful!! @LoveConsent #victoriassecret #loveconsent.”? High school students were tweeting, “I’m loving the new @LoveConsent! Victoria’s Secret goes feminist!”One high school student eloquently blogged: “i’m still freaking out over this pink loves consent thing. And people say nothing’s gonna change, that talking and educating doesn’t help. Watch how many people will second-guess their actions when a widely popular company is pushing the issue. This is so cool.”After a short period, the creators revealed that Love Consent was not a real Victoria’s Secret site. Some sample social media reactions:The creators of Love Consent said: “We strategically planned for the campaign to go viral on social media, and knew that there would be conversations both among girls who were consumers of PINK and related products, and feminists/activists who wanted to support this conversation about consent. We knew that the customer base of the PINK line would be excited to see such fierce and real conversation about sex. We were certain that many women would be excited to see a different, and empowered brand of sexuality being promoted. And they were!”In fact, the response was so positive that the organizers decided to produce underwear with the “ASK FIRST” and “NO MEANS NO” slogans and sell it at , to which now links when a visitor clicks on the pictures of the “ASK FIRST” and “NO MEANS NO” underwear. The underwear retails for $15 a pair; many Victoria’s Secret Pink products are similarly priced. Victoria’s Secret (VS) sues Love Consent under the Lanham Act and Concordia state law. Concordia law includes a provision stating: “Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunctive relief, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.” Evaluate VS’s claims and explain who should win. (Assume that there are no claims relating to the design and colors of the underwear.) ................
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