U.S. TRADEMARK LAW
FINAL EXAMINATION
PROFESSOR FLOUM
FALL 2002

1. This is an open book, open materials exam. You may use any notes, books or other written materials to assist you in responding to the questions.

2. You have three (3) hours to complete this exam

3. There are three (3) essay questions on this exam. Tae first question is worth thirty-four (34) points and the remaining two questions are worth thirty-three (33) points each.

4. You are not required to spend the entire time working on the exam - the average time for completion is between two and three hours. You should outline your response to each question, before writing the response. I recommend that you spend one third of the time on each question creating your outline, and the remainder of your time writing your answer. For example, if you spend 1 hour per question, devote 20 minutes to the outline, and 40 minutes writing the answer.

5. Within each question, important issues will be given greater weight for grading purposes than minor issues. Answer each question as fully as you can, keeping in mind that issuespotting is the primary purpose of this test. You may also cite any appropriate cases, industry standards, and statutes that are relevant. Write your answer in a blue book, or type it on plain, unmarked typing paper. PLACE YOUR EXAM NUMBER ON EACH BLUE BOOK OR TYPED PAGE. At the end of the exam, please turn in your exam books, scratch sheets, and exam questions.

6. Do not write on both sides of the page. Write legibly or print if your handwriting is difficult to read. Write on every other line. If I cannot read your response to a question, your grade will be adversely affected. If you are typing your exam, the exam administrators will double-space your exam for you.

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

8. At the conclusion of the exam, return all test materials, including blue books, scratch paper, and this exam question packet to the envelope and submit it to the proctor.


QUESTION 1

Charlie makes toy cars for children, and sells them under the mark "Charlie's Chariots" ("chariots" is an old-fashioned way of saying cars or other wheeled vehicles). Charlie's business is successful, but he becomes bored of the business, and desires to move to Tahiti.

Loser is Charlie's good-for-nothing brother in law, who just got out of prison. Loser asks Charlie if he can give him a job. Charlie replies that he's moving to Tahiti, but Loser can use the name "Charlie's Chariots", and assures Loser he will make a lot of money since its such a great name. Loser uses the name for a used car repair business, which he happily operates for 3 years. However, on the third year, Loser commits a felony, and gets thrown back into jail for life.

Charlie, sitting in his mansion in Tahiti, learns of Loser's fate. After speaking with his friend Alan, Charlie decides to sell the business to Alan_ Alan uses the mark for his baby stroller business. Alan's business becomes very successful.

Alan, a former trial lawyer who misses the excitement, decides to undertake an aggressive intellectual property protection program. He sues the following companies for trademark infringement: (1) Bob's Buggies, another manufacturer of baby strollers ("buggies" is another old-fashioned word for wheeled vehicles); (2) Charlie Chariotte, a Frenchman who sells race cars under his own name; and (3) Tsingtao, Limited, a Hong Kong corporation which sells toy trucks world-wide under a Cantonese language trademark which roughly translates to "Chang's Chariots". All three defendants used their marks in commerce in the United States after Charlie and Loser, but before Alan.

The three defendants hire you to defend them against Alan's trademark infringement lawsuits. What defenses are available to each of your clients? Who is likely to prevail in the lawsuits, and why?


QUESTION 2

The United States government recently created the Department of Homeland Security to protect Americans from terrorist attacks.

For a number of years, Hummer has manufactured military vehicles for the U.S. government. More recently, Hummer began selling civilian versions of these vehicles for sale to the public. The vehicles are 4-wheel drive vehicles similar to the jeep brand vehicle.

Hummer hires Adco to create an advertising campaign for the new Hummer vehicle, the H3. Adco decides to go with a national security theme, since Americans are currently very concerned with terrorism and security. Adco creates a television commercial showing an H3 driving in the desert and encountering men of Middle Eastern descent with beards and turbans. The H3 turns sharply to avoid the men, throwing sand into the face of the men. A message then scrawls across the television screen: "Your personal Department of Homeland Security, with air conditioning and a CD player" (the "Slogan"). Hummer files a trademark application for the Slogan and runs the ad on television.

The U.S. Government, the Arab Anti-Defamation Society, and the jeep car company all file lawsuits in United States District Court seeking to enjoin Hummer from using the ad and from registering the Slogan.

Under what legal theories will the plaintiffs bring their lawsuits? What defenses are available to Hummer in response to plaintiffs' efforts to obtain an injunction? Who is likely to win in the injunction hearings, and why?


QUESTION 3

Nudists is a not-for-profit organization which promotes outdoor nudity (i.e. wearing no clothes) as a way to get "back to nature".

Nudists has some attempted humor on its website. For example, Nudists posts a web page showing a number of photographs of smiling, naked people. Beneath a picture of a shy nude couple smiling and holding cans of Coke is the statement "All you need is a Coke and a smile." Underneath a photo of a smiling man holding a can of Coke surrounded by a group of women is the statement "Things go better with Coke." The Coca-Cola Company previously registered "A Coke and smile" and "Things go better with Coke" as federal trademarks for Coke's previous advertising campaigns.

Nudists sells t-shirts and bumper stickers with the "All you need is a Coke and a smile" and "Things go better with Coke" slogans (the "Slogans"), to raise money for its educational activities. Nudists' website is at www.nudists.com, and the web page containing the Slogans is posted at www.nudists.com/Coca-Cola.

Nudists pays several of the most popular internet search engines to put Nudists' web page at the top of the search results when someone types in "Coca-Cola". Nudists has also taken out ads in several magazines showing the above-described photos and Slogans. Additionally, like some perfume ads in fashion magazines which are dipped in the perfume and so emit a sample odor, Nudists' ads emit the smells of Coca-Cola and pine trees. Nudists intended the pine scent to connote the outdoors, and thought that people would find the combination of smells humorous.

The president of Coca-Cola asks you to review Nudists' website, search engine arrangements, and magazine ads (collectively the "Communications" ) and advise him on the following issues: 1) Do the Communications violate any laws, and if so, what laws are violated?; 2) If Coca-Cola decides to file a lawsuit, which defendants should Coca-Cola name?; and 3) what defenses might the defendant(s) assert?