scenario 3

Scenario # 3 on Trademarks Intellectual Property Arflin
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Name______________________________________
#3 Scenarios on Trademarks
1. A snowboard manufacturer sells snowboards bearing the trademark “Temporize.” The 
key selling point for boards is durability. The manufacturer certifies that every Temporize 
board will last for ten years under normal use, and the company offers full refunds for 
any boards that do not.
Question: Is Temporize a trademark or a certification mark?
2. Techi Inc. is a small respected testing laboratory. It tests electronics products to see if 
they conform to Techi Inc.’s criteria for safety and efficiency. Products that conform may 
use the certification mark, “Techi Inc. Certified.” Techi Inc is bought by Craven 
Conglomerate. Craven fires all the scientists at Techi, sells the lab and equipment, and 
only keeps the certification mark. Craven proceeds to sell the use of the mark to licensees 
without the licensee meeting any standards or even undergoing any testing. Many 
companies buy the license to use the mark. Gidgetal Cameras start using the mark 
without paying the licensing fee or getting permission. 
Question: Can Craven enforce its rights to the certification mark? 
3. The Chamber of Commerce for Manilla County seeks to promote the local grape 
industry. They register the certification mark “CCMC Certified” to certify the grapes are 
grown in Manilla County. After Manilla grapes receive good press, sales skyrocket. The 
CCMC Certified mark is widely recognized and grapes bearing the mark command a 
hefty premium. After a county-wide election, the Chamber of Commerce becomes 
controlled by cronies of the Snopes family, a local grape growing dynasty. The Chamber 
thereafter refuses to license use of the mark to anyone other than the Snopes family or 
their affiliates, who only use the mark on grapes frown in Manilla County. The Chamber 
even refuses permission to potential users who meet the qualifications for certification 
and offer to pay the fee. 
Question: Does the Chamber have a valid certification mark?
4. Snowboard Manufacturer finished its design and testing of a line of snowboards. It is 
now considering what to use as a trademark. Which of the following meet the 
requirements for a trademark?
ï‚· A. A word they coined: Zzzzzamplitude 
ï‚· B. An image copied from a painting by Vincent Van Gogh
ï‚· C. The Reapers: a phrase copied from the title of a painting by Van Gogh
ï‚· D. A phrase from the US Constitution: Promote the progress of science and the useful 
arts

 

 

Scenario # 3 on Trademarks Intellectual Property Arflin
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ï‚· E. A recording of a nightingale singing
ï‚· F. The smell from a spouting whale
 G. The melody from Beethoven’s Ninth Symphony, played on a tuba
5. The leading messenger service in Toledo, Ohio identifies its services with the term 
“Lightening Messengers.” The term appears on its envelopes, on clothing and bikes of its 
messengers, on advertising and stationery. People in Toledo are well-acquainted with the firm 
and regularly advise anyone needing quick service delivery to contact “Lightening.” 
Question: Is Lightening Messengers a distinctive service mark for the messenger firm?
6. Startup Company is planning to sell water in little cardboard boxes, similar to juice boxes 
already sold for children. They are choosing a potential trademark. The following marks are 
already in use: Poland Springs, somewhat well known for adult-sized plastic water bottles. 
Sesame Street for juice boxes (and a famous mark for children’s products). Which of the 
following would be protected if used as a mark by Startup?
ï‚· Tasty Water
ï‚· Poland Springs
ï‚· Sesame Avenue
ï‚· Doctor Dally (a trademark search reveals no use of similar symbol)
7. Better Batter Co’s advertising campaign for Baffin, a new brand of frozen waffles, appears in 
the media. The first ads seek to arose curiosity, stating simply,” Baffin: your mornings will never 
be the same.” Subsequent ads reveal Baffin to be a brand name for frozen waffles and depict the 
great pleasure consumers will take in toasting and eating the waffles. The campaign is very 
successful. Consumer surveys show broad public awareness of Baffin as a brand name for 
waffles, even though not a single Baffin waffle has even been sold or shipped yet. 
Question: Is Baffin an enforceable trademark for waffles?
8. Impetuous Irma has filed an intent-to-use application for the service mark “Chicken Coop”, 
which she intends to use to identify her investment advice services. Irma has not yet rendered 
services to clients, but she is rapidly arranging for the launch of her business in a few months. 
Question: Does Irma have a protectable service mark in “Chicken Coop” used for 
investment advice services? What if Irma had rendered services in commerce and used the 
mark in widespread advertising but had not been granted a registration?
9. Shod seeks to register the mark “Nuzzling Hiking Boots”, which he has been using on the 
hiking boots he sells. The USPTO examining attorney indicates that she will determine the mark 
is registrable provided that Shod disclaim the term ”hiking boots.” Shod is greatly affronted at 
the suggestion that his products do not qualify as hiking boots. He is ready to submit affidavits

 

 

Scenario # 3 on Trademarks Intellectual Property Arflin
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from any number of hikers who will attest that Shod’s shoes are not just hiking boots, but are 
some of the best hiking boots around. 
Question: Is it appropriate for Shod to disclaim the Hiking Boots component of the mark?
10. Artisan makes custom precision instruments for scientific laboratories using the trademark 
“Salt Flats.” One day, Artisan receives a cease-and-desist letter from Fertilizer Corp. Fertilizer 
has used the mark “Salt Flats” on bags of manure for decades, although it has remained an 
obscure mark. Fertilizer obtained a federal registration in 1991 (before Artisan began using the 
mark) and has kept the registration in place. Fertilizer claims it has nationwide priority in the 
mark and that Artisan must either license the use of the mark or stop using it. 
Question: Does Fertilizer have priority?
11. Feit, a sharp operator, seeks to make money from the demand for Westman sunglasses. Feit 
sets up a Web site that offers Westman glasses for an excellent price, along with a ten-year 
warranty and insurance against loss. Feit receives hundreds of orders but does not ship the buyers 
anything. He simply banks the money and goes on to his next venture. When Optig sues for 
infringement, Feit argues that he has not made the requisite use of the trademark because he did 
not ship any purported Westman sunglasses. 
Question: Has Feit made the requisite use of the mark for infringement?
12. Dylan purchases a set of Jake tires. Dylan gets several flat tires over the next year, which he 
blames on the lousy quality of the tires. Dylan unsuccessfully seeks a refund, along with 
expenses, from Goodday, the owner of the Jake trademark. Dylan, who lives on a busy road, puts 
a billboard in his front yard reading, “Jake tires STINK!” Goodday sues Dylan for infringement 
of the Jake mark. 
Question: Has Dylan infringed the Jake mark?
13. Blue Moon is a registered mark for general restaurant services. Coors Brewing subsequently 
uses Blue Moon as a mark for beer, using a somewhat different design but the same words. The 
Blue Moon restaurant chain claims infringement. Beer is often served in restaurant they argue, so 
of course consumers are likely to be confused.
Question: Likelihood of confusion?
14. Virgin Enterprises operates numerous businesses under the famous trade name Virgin, 
including an airline, large record stores, and an Internet information service. It uses the Virgin 
name on music recordings, computer games, books, luggage, and a variety of electronics 
products. It was on the verge of going into the cell phone business when it learned that a small 
operation had begun selling Virgin cell phones and cell phone services.
Question: Infringement or winning the race?

 

 

Scenario # 3 on Trademarks Intellectual Property Arflin
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15. Bug also uses the term Coca-Cola in the text of her Website, but only in portions that are 
not visible to humans. She hopes that the uses will be detected by software that searches and 
indexes Web pages. In fact, her page is listed in various indexes and databases. She has certainly 
deceived some computers, in the sense software designed to create links to pages associated with 
various trademarks has linked her page to Coca-Cola. 
Question: There is no showing yet that her use is likely to confuse a human. Trademark 
infringement?
16. Haute Diggity Dog sells Chewy Vuiton, a humorous chew toy imitating the famous Louis 
Vuitton line of handbags. 
Question: Is this trademark infringement?
17. Herbal Products sells an organic remedy for indigestion. In its advertising, Herbal Products 
states that the product “reduces stomach acids by 25%.” Herbal Products has never done any 
testing to determine whether the claim is true. A competitor sues for false advertising under 
Section 43(a). The competitor does not perform the lengthy and expensive human trials that are 
necessary to prove or disprove the claim. An expert testifies that the claim is not supported by 
any scientific evidence but is not impossible. 
Question: Is Herbal Products liable for false advertising?
18. Nails has operated several hardware stores in Camptown for many years using the federally 
registered service mark MugBug Hardware. A local farmer starts selling produce from a roadside 
stand under the sign “MugBug Veggies”. 
Question: Could Nails bring an action under the federal trademark statute for dilution of 
the MugBug Hardware mark?
19. National Fast Food Chain introduces a new sandwich under the trademark name Vivoom. The 
sandwich rapidly becomes famous nationwide. National Fast Food Chain learns that a chain of 
retail stores in North Dakota has been using the Vivoom mark for several years prior to their 
registration. National Fast Food Chain sends them a cease-and-desist letter, claiming that further 
use would dilute the famous Vivoom mark for sandwiches. 
Question: Could the North Dakota stores using Vivoom be subject to an injunction for 
dilution?

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