FINAL EXAMINATION
TRADEMARK LAW OF THE U.S. (LAW 891 §N)
Professor Anolik
FALL 2003

1. You have three (3) hours to complete this exam. There are three (3) questions in this exam. Recommended (but not required) time allotments for each question are indicated at the beginning of each question. It is recommend that you spend one third of the time on each question creating an outline, and the remainder of your time writing the answer. (For example, if you spend 30 minutes on a question, devote ten minutes to the outline, and twenty minutes to writing the answer.)

2. This exam is an open-book examination. You may use your book, the statutes, and any printed, typed, photocopied, or handwritten materials, but you may not connect to the Internet, email, Lexis, or any other database.

3. Please write your responses in the blue books provided to you. Write only on one side of the page and double-space your work, written or typed. Please write legibly. Number your blue books on the front cover of each blue book (for example, if you use three blue books, mark them as: 1 of 3; 2 of 3; 3 of 3).

4. Write your exam number on your exam envelope, at the top of this exam question packet and your used blue books. Do not use your name, student ID number or Social Security Number on any exam materials.

5. At the conclusion of the exam, return all exam materials to the exam envelope and submit it to the proctor. Do not seal the envelope. Students who do not return all exam materials at the end of the exam may not be graded.

GOOD LUCK!

Question 1 (Recommended time: 90 minutes)

Brittany Jones, an attractive, 23 year old woman with short black hair, has been selling her own inexpensive jewelry line, entitled “Brittany,” in local stores in her home state of California for approximately one year. Her jewelry is sold in small, light blue boxes with white ribbon, with “Brittany” written across the front of the box in a small, clear typestyle. Jones’ products are gaining in popularity, and she has signed her first national distribution contract with a major department store, and her first national television commercial just aired.

In that commercial, Jones appeared in a blonde wig and an outfit that is nearly identical to one worn by pop star Britney Spears (who is also blonde) on Spears’ most recent, best-selling album cover. The commercial featured Jones, Jones’ jewelry and the little blue box that all “Brittany” creations come packaged in. The soundtrack for the commercial was one of Spears’ most popular hit songs, as sung by Brittle Speargun (the stage name of Wanda Evans).

Evans has a show in Las Vegas entitled “Britney: Over the Hill.” The show is half original comedy by Evans (some of which is about Spears), and half singing covers of Spears’ songs. Evans’ voice is very similar to Spears, and Evans is dressed in her show to look like what Spears might look like 30 years from now, if Spears did not keep up her appearance or figure well.

Evans’ show has been running for the past three years, and although Spears had heard that it existed, it did not seem to upset her until now. Evans sells CD’s after each show that have on them her own comedy routines, as well as her renditions of Spears’ songs.
Tiffany’s, the exclusive fine jewelry store, owns a federally registered trademark to a certain shade of light blue that it uses in its branding. All jewelry sold by Tiffany’s come in their signature light blue box, wrapped with a white ribbon and the store name written in small print letters across the top, and Tiffany’s engages in extensive advertising featuring that light blue box.

A Senior Partner has asked you to write a comprehensive memo evaluating all claims Spears and Tiffany’s might have against Jones and Evans, and the possible defenses Jones and Evans might have to those claims. Note: Another associate has been asked to write a memo about right of publicity issues, as well as copyright issues and licensing from ASCAP (the American Society of Composers, Authors and Publishers), so do not address those issues.

Question 2 (Recommended time: 60 minutes)

In 2002, a new chain of gyms by the name of Curves, Inc. emerged. The chain (with each individual, franchised gym being referred to as ‘Curves’) grew very quickly through word of mouth and extensive advertising, and they now have over 1000 Curves franchises, with at least one in each state. They have an application pending with the USPTO for the trademark “Curves”.

Bronze Gym, a competitor to Curves that operates gyms around the United States, just registered the domain name www.iwantcurves.com. When a person types in that URL, they see an initial webpage with a slogan that says, “Want a curvy figure? Sign up now!”, and then they are redirected to Bronze Gym’s main website (www.bronzegym.com) where they can sign up with Bronze Gym. The slogan on Bronze Gym’s initial webpage (“Want a curvy figure? Sign up now!”) is identical to the slogan used by Bronze Gym in a magazine ad that Bronze Gym ran once, four years ago, but hasn’t been run since.
Curves, Inc. discovered Bronze Gym’s registration of www.iwantcurves.com when they tried to register it themselves, and are upset. As counsel to Curves, you must advise them of their options for addressing this situation, and make a recommendation. Please explain your analysis supporting your recommendation.

Question 3 (Recommended time: 30 minutes)

You are in-house counsel at Ask Jeeves, the Internet search engine that owns and operates search services on its website, www.ask.com. You receive a cease and desist letter from Ford Motor Company alleging trademark infringement by Ask Jeeves, based on search results Ford found on www.ask.com. Specifically, Ford alleges in its letter that when it conducted a search for the word “jaguar” on www.ask.com, a section appears at the top of the list of search results entitled “Paid Links” that shows the following 2 Paid Links:

www.porsche.com – Porsche’s official website
www.buyajaguar.com – a website owned and operated by breeders of jaguars, who are looking for people to buy a jaguar as a unique pet

Ford Motor Company owns and operates the Jaguar line of fine automobiles, and owns a federally registered mark for “Jaguar”, which it claims Ask Jeeves is infringing upon. Write a memo to your boss (the General Counsel) on the infringement claim raised by Ford’s letter, and what your recommendation is for how Ask Jeeves should respond to Ford.

END OF EXAM