Question
George McCoy of Florida has been manufacturing and distributing a cheesecake for more than five years, labeling his product with a picture of a cheesecake,
George McCoy of Florida has been manufacturing and distributing a cheesecake for more than five years, labeling his product with a picture of a cheesecake, which serves as a background for a Florida bathing beauty and under which is written the slogan "McCoy All Spice Florida Cheese Cake." George McCoy has not registered his trademark. Subsequently, Leo McCoy of California begins manufacturing a similar product on the West Coast using a label similar in appearance to that of George McCoy, containing a picture of a Hollywood star and the words "McCoy's All Spice Cheese Cake." Leo McCoy begins marketing his products in the eastern United States, using labels with the word "Florida" added, as in George McCoy's label. Leo McCoy has registered his product under the Federal Trademark Act. To what relief, if any, is George McCoy entitled?
George McCoy of Florida has been manufacturing and distributing a cheesecake for more than five years, labeling his product with a picture of a cheesecake, which serves as a background for a Florida bathing beauty and under which is written the slogan "McCoy All Spice Florida Cheese Cake."
Q1: A label with a picture and slogan is entitled to what type of IP protection?
Patents
Copyright
Trademark
Trade secret
Why?
Q2: Not patent protection because patents protect?
inventions
phrases
secrets
Q3: Not a trade secret because a product label is not a?
inventions
phrases
secret
Q4: Not a copyright because copyrights don't protect short?
inventions
phrases
secrets
Q5: A product label is a potential trademark because it identifies a?
business
product
service
Q6: Trademarks, in order to be protected, must be distinctive?
Yes
No
Q7: Is George McCoy's label entitled to trademark protection?
Yes
No
Maybe
George McCoy has not registered his trademark.
Q8: Did George register his trademark?
Yes
No
Q9: Does that mean he loses trademark protection?
Yes
No
Q10: What does trademark registration do?
1.
gives notice of the trademark to others
protects trademarks for 70 years
keeps the trademark a secret
2.
protects trademarks for 70 years
provides a date of first use
keeps the trademark a secret
Q11: In this case, who first used the trademark?
George
Leo
Leo McCoy of California begins manufacturing a similar product on the West Coast using a label similar in appearance to that of George McCoy, containing a picture of a Hollywood star and the words "McCoy's All Spice Cheese Cake." Leo McCoy begins marketing his products in the eastern United States, using labels with the word "Florida" added, as in George McCoy's label. Leo McCoy has registered his product under the Federal Trademark Act.
Q12: Did Leo register the trademark?
Yes
No
Q13: Who has the presumption of first use?
George
Leo
Q14: Who is presumed to own the trademark?
George
Leo
Q15: If Leo had stayed out West with his cheesecake would George care?
Yes
No
Q16: What did Leo do to make this an issue? Leo started marketing in theselect with florida in the label
West
East
Q17: Who used the trademark first on the East coast?
George
Leo
Q18: To overcome Leo's presumption of first use since Leo registered the trademark, what does George need to prove? George must show Leo's use of the mark created confusion about theSelect of the product
inventor
origin
Q19: Is George likely to prevail?
Yes
No
If yes, in what market?
Q20: WhereSelect products were sold
Leo
George's
...labeling his product with a picture of a cheesecake, which serves as a background for a Florida bathing beauty and under which is written the slogan "McCoy All Spice Florida Cheese Cake."
Q21: What about the trademark- is everything in it distinctive?
Yes
No
Q22: The personal name, McCoy?
Yes
No
Q23:, unless it acquires?
secondary meaning
primary meaning
Q24: The word Cheesecake?
Yes
No
Q25: Why? It simply describes the?
product
service
Q26: The term All Spice?
Yes
No
Q27: Why? It simply describes the?
product
service
Q28: The word Florida?
Yes
No
Q29: Why?
1.
geographical
fancy
distinctive
2.
the cheesecake is produced there
fancy
distinctive
Q30: The picture of a bathing beauty?
Yes
No
Q31: Why? This would not be protected unless Leo used similar design and colors to create?
allure
confusion
Q32: All together is the label a distinctive mark worthy of trademark protection?
Yes
No
Q33: What is the overall purpose of providing legal protections for trademarks? To avoid consumer confusion as to the origin of?
goods
services
Q34: What if George had registered his trademark years earlier? George would have had the benefit of a?
presumption
award of first use in any lawsuit
Q35: Which of the following statements is not a benefit of a presumption?
Makes George's case easier to prove
George is automatically entitled to damages
Leo would have to overcome the presumption by proving he was the first user
Leo may not have distributed his cheesecake in the East
CH08_Blueprint_IPTrademark
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