This is part of the course website for LAW 5694 – Trademark Law for the Fall 2023 edition of the course.
The course will meet on Mondays and Wednesdays from 10:30 am to 11:50 am. The class will meet on Zoom rather than face to face. Class meetings will be recorded, and the class recordings will be posted afterward to YouTube.
- Syllabus and readings (home page)
- Important course information: materials, mechanics, policies, and grading
- Writing assignments and related instructions
- Open Educational Resources (OER) copyright and permissions information
Writing assignments: 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.
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. This course may require different formats.
How to succeed
Although the formats may change, professional expectations regarding effective communication have not changed. Legal writing 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 a great work product in Professor Madison’s courses.
For help with basic writing questions (grammar, syntax, word choice, active vs. passive voice, and so on), consider trying editing / writing correction / grammar checking software. A good choice – with a free option – is Grammarly. An alternative choice that may be better suited to professional writing but one that costs real money, is WordRake. WordRake may be a useful investment now that pays off over a full professional career; the founder and creator of WordRake, Gary Kinder, is a tremendous writer in his own right. I took a writing seminar from him when I was a junior lawyer, and I still remember and use his lessons even today.
Writing assignment due dates
- Assignment 1: Friday, October 6, 2023, at 3 pm.
- Assignment 2: Friday, November 10, 2023, at 3 pm.
- Assignment 3: Last day of exams (Friday, December 8, 2023), at 12 noon.
To: Junior Trademark Associate, Dewey, Cheatem & Howe
From: Senior IP Partner, Dewey, Cheatem & Howe
Re: New Functionality Case
Date: September 21, 2023
We have a candy-making client that’s up in arms over a new development in trademark law, and I need your help in figuring out how to advise them.
Here’s the background.
Because I know that you keep up with the advance sheets, you must have seen the Third Circuit’s recent opinion in PIM Brands v. Haribo of America, ordering the cancellation of a design mark on the ground that the design at issue is functional. Here’s a copy of the opinion for your reference; fortunately, it’s pretty short. You undoubtedly noticed that the crux of the case involved a registered mark for a wedge-shaped candy that looked and tasted somewhat like a slice of watermelon. Both the plaintiff’s candy and the defendant’s candy are chewy.
Our client is HotRocks, Inc., a relatively new designer and producer of hard candies. Because of the chemistry of hard candy, and because HotRocks employs some hot shot designers, HotRocks has been able to produce a line of hard candies that precisely mimic the shape, color, and taste of a wide range of fruits: hard candy orange slices that are indistinguishable from actual (very small) oranges; hard candy green and purple grapes that look exactly like actual grapes; a range of different apple slice candies whose “skin” mimics the color of several different apple varieties, and so on. There are 25 fruits in this line of candies in total. The company doesn’t produce anything else.
The design and engineering precision associated with these candy “replicas” (the client’s term) is extraordinary, as is the investment that went into producing them and that the company very much is trying to recoup. HotRocks tells me that the company spent $5 million on producing the first round of candidates and has spent another $1 million in advertising and marketing over the 10 years of the company’s existence. The point is that these candies are worth a premium price. Sales have been growing but haven’t met expectations; in 2022, the company had $2 million in revenues – and lost money, overall. HotRocks sells its products exclusively through distribution deals with Williams Sonoma and similarly upscale markets and food equipment stores.
The PIM Brands case was closely followed in the confectionary business, and when the opinion was released the other day, the president of the company called me in a panic. They’re worried, of course, that low cost competitors will rush into the market and undercut HotRocks’ product on price and on quality. Unfortunately, the company was never willing to pay us to register trademarks for them. What do I tell the client? Can their current designs be protected by trademarks – registered or otherwise – despite the PIM Brands case? If so, how? If not, what should the client do? Maybe we need more information than I’ve given you. If so, what do we need to know?
I need your memo, summarizing the matter and your views, by Friday, October 6, 2023, at 3 pm. Four pages only, please, and not anything more.
Rules and Guidelines for Assignment One
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.
Added for Fall 2023: If you use ChatGPT or any equivalent AI-based writing service in preparing your response to this assignment, you must disclose the identity of the service and how, precisely, you used it.
Use your own name in the “From” field. Your work product is not anonymous.
You should use the default or standard “legal research memo” form and format for this assignment. For the content, be guided by the advice in the “Modern Legal Writing” document cited above.
Memos must be typed or printed using a computer. Each memo, including any attachments, must be not longer than four  typewritten or printed pages, double-spaced, with 1″ minimum margins on all sides. “To,” “From,” “Re,” and “Date” headings may be single spaced, and the “consultants” list and description of any AI consultation may appear inside the 1″ margin at the top of the first page.
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  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.
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.
One copy of the work product prepared for this assignment must be turned in not later than Friday, October 6, 2023, at 3 pm.
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 One for this course. 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.