Trademark Law Writing Assignments – Fall 2020

TRADEMARK LAW WRITING ASSIGNMENTS – FALL 2020


BASIC REQUIREMENTS AND MECHANICS

The graded work for this course consists of three short (3-4 pp.) writing assignments. These may consist of legal memoranda (to colleagues, clients, or others); explanatory email messages (again, to one or more audiences); or PowerPoint [or equivalent] slide decks (in which the lawyer communicates by the content of the slide deck, not by delivering a presentation orally).

Each assignment will be posted here approximately two weeks before the assignment is due. Also before the assignment is due, time in class will be set aside to discuss questions relating to each assignment.

FORMAT EXPECTATIONS

Most prior versions of this course have required that writing assignments be produced in solely in the format of traditional legal memos. That expectation has changed, because lawyers today increasingly communicate in other formats and other media. The Fall 2020 version of the course may require different formats.

HOW TO SUCCEED

Although the formats may change, professional expectations regarding effective communication have not changed. Legal writing and communication in every setting should be clear, consistent, polished, expert, ethical, responsive, and trustworthy. Those expectations apply to this course.

For guidance regarding those expectations and how they apply to the graded work for this course, students are strongly encouraged to read and re-read this “Modern Legal Writing” document, which summarizes advice for producing great work product in Professor Madison’s courses.

That document also explains in great detail how the work is graded.

RUBRIC

The rubric used to mark the assignments is available here. That document explains in broad outline how the work is graded.

WRITING ASSIGNMENT DUE DATES

The due dates for the required writing assignments are listed at the Course Homepage / Reading and Class Assignments as part of the list of assignments and readings.

For clarity, the dates are:

  • Assignment 1:  Friday, October 9, 2020, at 3 pm.
  • Assignment 2:  Friday, November 13, 2020, at 3 pm.
  • Assignment 3:  Last day of exams (December 9, 2020), at 12 noon.

SAMPLE QUESTIONS

For students who want to know more about the assignments for this course, here are links to some prior assignments:

ASSIGNMENTS

Assignment Three

(The facts, characters, and actors in the following problem are entirely hypothetical. Do not assume or infer any relationship between the problem described here and anything that may have happened, or that is happening, in the real world.)

To: Junior Lawyer, GA Law, LLP
From: Senior Lawyer, GA Law, LLP
Date: November 13, 2020
Re: Unknown America matter

Our client, Eon Productions, has retained the firm to advise it in the following trademark matter.  I’d like you to review the facts as we know them, look into the relevant law, and outline a strategy for proceeding, noting relevant strengths and weaknesses that I can discuss with the client.

Here’s what I understand to be the facts, so far:

Eon produced a highly successful television series titled “Unknown America,” which appeared for 10 years on US public television stations, between 1992 and 2002.  The format of the show featured a host, Devin McCloud, touring the US and visiting out of the way locations, attractions, and areas of modest but telegenic historic interest. In 1995, Eon obtained a federal trademark registration for the title “Unknown America.” That registration is still in effect today.  “Unknown America” episodes are still available for streaming on various platforms.

In 2006, the Columbus Network, a cable television producer and distributor, approached Eon and asked for permission to title an upcoming TV series “Unknown Americas” or “Unknown Americana.”  Eon declined.  Columbus ended up making a series, which featured a host visiting unusual attractions and sites around the US, and distributed it in 2010 in the US under the title “Hidden America” and outside the US under the title “Unknown America.” Eon says that it was not aware of what Columbus had done, and instead continued with occasional negotiations with Columbus regarding Columbus possibly acquiring rights to and distributing the pre-existing episodes of the Eon “Unknown America” library, or using Unknown America footage as part of a new series.  Those negotiations never led to a deal.

Between 2014 and 2019, Columbus produced additional TV series and documentaries, all with related content, that used different but related titles: “Exploring America’s Unknowns,” “Surviving America’s Unknowns,” and “Inside Unknown America.” Those series are available on various streaming services and can be purchased as DVD collections from the Columbus website.

I know enough about trademark and copyright law to know that our strongest case here will focus on trademark law and will focus on the obvious similarities between Eon’s registered mark and the titles of Columbus’s shows. So you should focus on those as well.

I also know that in recent years, courts have gotten sensitive to free speech arguments by defendants in cases involving movies and songs and the like, using the Rogers case.  We’ll need to strategize our client’s case in a way that minimizes the effect of Rogers, to the extent that’s possible. 

I’ve already told the client that if we file a suit, we’ll look to file it in the federal district for New Ken, which is part of the Fourteenth Circuit.  The Fourteenth Circuit has never decided a case involving a Rogers defense, so we’ll have the opportunity, I hope, to argue that Rogers isn’t the law. But my guess is that we’ll lose that argument, so we’ll need to be in a good position to argue that Rogers should be applied narrowly.

Here’s my question for you:

Take a look at the most recent cases applying Rogers, especially the Honey Badger case.  Given where the law stands today, what’s Eon’s best strategy for getting the court to adopt a narrow reading of Rogers and so getting our client’s case past Rogers?  We need to plead the case effectively, to get past a motion to dismiss based on Rogers, and we need to figure out what facts are most likely to matter in our favor, to get past a later motion for summary judgment, also based on Rogers. If that’s not likely to be successful (if we’re likely to lose either motion based on Rogers), I’d like to know why.  If there are aspects of the factual record that we need to develop beyond what I’ve summarized above, it would be helpful to know what those are.

I need your work by December 9.

Rules and Guidelines for Assignment Three

To the extent that these rules may appear to conflict with general advice regarding work product that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your work product. Write the names of any of these “consultants” at the top of the first page of the document.

Use your own name in the “From” field. Your work product is not anonymous.

Format

Your work product in response to this assignment should be formatted in one of two ways: (i) as an email rather than as a default or standard “legal research memo.” Your email should consist of not more than 1,200 words, excluding the header (To, From, Subject line, Date). In printed form, it should have 1″ minimum margins on all sides. OR (ii) as a set of PowerPoint slides, prepared for delivery as a printed work product, rather than as a guide or accompaniment to an oral presentation. Including a title slide, the total PowerPoint “slide deck” should consist of no more than 25 slides. [For guidance and suggestions regarding how to prepare professional PowerPoint slides, review these examples.]

You do not need to include a comprehensive statement of the facts; instead, you may refer to the factual background in my memo to you. A factual summary may be helpful, however, in framing and presenting your analysis. No footnotes are permitted.

You may use any font that you wish, but of course take care that all aspects of your work product should look, as well as be, professional.

So that your work product can be uploaded to the TWEN system in Westlaw (see below) and graded electronically, you must use Microsoft WORD (in the case of option (i)) or Microsoft PowerPoint (in the case of option (ii)).

Grading

Work product will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues that your work should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Wednesday, December 9, 2020, at 12 noon.

Your work product must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment Three for this course. Although the work product may be formatted as an email or as an electronic PowerPoint file, electronic (e-mailed) copies are not acceptable. Documents slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to the deadline. Work product that does not conform to the format instructions above, or that is turned in late, will be accepted, but is subject to grade reduction.

Assignment Two

To: Junior Lawyer, GA Law, LLP
From:  Senior Lawyer, GA Law, LLP
Date:  October 28, 2020
Re: The Beckham brand

Our clients are David Beckham, the internationally famous footballer and style icon, and Victoria Beckham, his wife, a successful fashion designer and icon in her own right and a musician once known as “Posh” Spice. 

As you probably know, the BECKHAM trademark is widely known worldwide in connection with a variety of elite branded products and services, most of which are in athletics and in the fashion, beauty, skincare, and grooming industries.  Their commercial enterprises are documented at two websites: davidbeckham.com and victoriabeckham.com.

They have made me aware of some websites and product offerings that they have not authorized but that cause them concern.  Our firm has been asked to review them and recommend a strategy or strategies for classifying the character of relevant trademark/brand problems, if any, and remedying them as appropriate.  The Beckhams are shrewd businesspeople, and they do not want to waste their time or money on unnecessary matters.

The sources of concern are these:

A website at beckham.com.

A line of bedding (linens and pillows) being sold as BECKHAM Luxury Linens and the Beckham Hotel Collection (https://beckhamluxury.com/).  The products are being sold both via that website and via third parties, such as Amazon.

In our routine monitoring of the US Trademark Office Official Gazette, we noticed recently that a “Beckham Hotel Collection” mark had been published for opposition, and as a precaution and in order to reserve the client’s rights we filed a Notice of Opposition.  Of course we can always withdraw that filing or not pursue it.

I need an overview of the situation that I can share with the client, in no more than 1,200 words.  What are the key points to address?  What are the strengths and weaknesses of the clients’ positions?  If we need to do research, what research do we need to pursue, and why?  Be imaginative but focused in framing your inquiries and your results.

Rules and Guidelines for Assignment Two

To the extent that these rules may appear to conflict with general advice regarding work product that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your work product. Write the names of any of these “consultants” at the top of the first page of the document.

Use your own name in the “From” field. Your work product is not anonymous.

Format

Your work product in response to this assignment should be formatted as an email rather than as a default or standard “legal research memo.” It must be typed or printed using a computer. Your email should consist of not more than 1,200 words, excluding the header (To, From, Subject line, Date). In printed form, it should have 1″ minimum margins on all sides.

You do not need to include a comprehensive statement of the facts; instead, you may refer to the factual background in my memo to you. A factual summary may be helpful, however, in framing and presenting the analysis of the memo. No footnotes are permitted. The following font must be used: Twelve [12] point Times New Roman.

So that your email can be uploaded to the TWEN system in Westlaw (see below) and graded electronically, you must use Microsoft WORD.

Grading

Work product will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues that the memorandum should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Friday, November 13, 2020, at 3 p.m.

Memos must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment Two for this course. Electronic (e-mailed) copies are not acceptable. Memos slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to this deadline. Memos that do not conform to the format instructions above, or that are turned in late, will be accepted, but they are are subject to grade reductions.

Assignment One

To: Junior Lawyer, GA Law, LLP
From: Senior Lawyer, GA Law, LLP
Date: September 24, 2020
Re: Duke Caboom / Evel Knievel lawsuit

Our client The Walt Disney Co. has retained us to do some preliminary review of a new lawsuit filed in connection with the recent Pixar film, Toy Story 4

The complaint is available here.

Briefly, the plaintiff claims to own various IP rights associated with Evel Knievel, a motorcycle stuntman who achieved a certain level of celebrity during the 1970s by jumping his motorcycle over theatrically arranged things (rows of buses, for example), in front of paying audiences and television cameras.  According to the complaint, the “Duke Caboom” character in Toy Story 4 appropriates those IP rights.

One of the counts in the complaint is for trademark infringement (that’s the second count); another is for trademark dilution (that’s the fourth).*  For both, we’ll want to push back hard on the idea that the plaintiff owns any protectable trademark interests beyond the name “Evel Knievel” itself. 

[* edited for clarity 30 Sept. 2020]

Can you review the allegations of the complaint, figure out what the strongest trademark ownership claims refer to, and sketch out our most promising lines of attack?  Focus not only on the legal doctrine; focus on facts — both what’s alleged and not alleged — and where we could develop lines of research and evidence-gathering to put Disney in the strongest position possible.

I’ll need your memo – not more than 4 pages, as usual – no later than Friday, October 9.

Note for students:

Researching the life and career of Evel Knievel (born “Robert Craig Knievel”) will give you hours of amusement.

Here’s a start.

Rules and Guidelines for Assignment One

To the extent that these rules may appear to conflict with general advice regarding memos that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your memo. Write the names of any of these “consultants” at the top of the first page of the memo.

Use your own name in the “From” field. The memos are not anonymous.

Format

You should use the default or standard “legal research memo” format for this assignment. Memos must be typed or printed using a computer. Each memo, including any attachments, must be not longer than four [4] typewritten or printed pages, double-spaced, with 1″ minimum margins on all sides. (“To,” “From,” “Re,” and “Date” headings may be single spaced.)

You do not need to include a comprehensive statement of the facts; instead, you may refer to the factual background in my memo to you. Omitting a factual summary may be unwise, nevertheless. A factual summary may be helpful in framing and presenting the analysis of the memo.

No footnotes are permitted.

The following font must be used: Twelve [12] point Times New Roman.

So that the memos can be uploaded to the TWEN system in Westlaw (see below) and graded electronically, you must use Microsoft WORD for the final, submitted version of the memo.

Grading

Memos will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues that the memorandum should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Friday, October 9, 2020, at 3 p.m.

Memos must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment One for this course. Electronic (e-mailed) copies are not acceptable. Memos slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to this deadline. Memos that do not conform to the format instructions above, or that are turned in late, will be accepted, but they are are subject to grade reductions.