The Jerky Boys in Big Bear run a jerky shop. They publish and widely disseminate an ad falsely claiming that they are selling BRIGHT BEAR Jerky ("BBJ"), a well-known specialty jerky that is highly sought after being featured on Gourmet network. However, those sneaky guys actually do not sell BBJ Jerky but their own beef jerky, which comes in a variety of flavors. The tourists who travel all the way to the shop do not find BBJ Jerky but are enticed to buy the Jerky Boy's Jerky, and are left happy and content after having a unique Big Bear experience. Does BBJ have a trademark infringement claim against the Jerky Boys even though the Jerky Boys do not actually sell any products bearing BBJ's trademark?

	A.	Yes, there is TM infringement because of initial interest confusion.
	B.	It depends on whether the Jerky Boys had bad faith when using the BBJ mark.
	C.	No, there is no trademark infringement because, although there was initial interest confusion, that interest is dispelled after the tourist arrive inside the store.
	D.	No, there is no trademark infringement because there needs to be actual use of the BBJ trademark on the goods and containers of the products that are sold; TM use on advertisement alone is insufficient.

BRIGHT BEAR sues the Jerky Boys for trademark infringement based on the activities set forth in Question 1. The Jerky Boys, however, argue that the BRIGHT BEAR is based in Maine, only distributes to businesses on the East Coast, and is not distributed or sold in Big Bear. As such, there is not a sufficient link to interstate commerce to support a federal infringement action.Is this a viable legal defense for the Jerky Boys?

	A.	Yes, this defense will prevail because BRIGHT BEAR has not established a nationwide use of its BBJ mark.
	B.	Yes, this defense will prevail because the BBJ product is not distributed or sold in Big Bear.
	C.	No, this defense fails because the allegedly infringed BBJ mark satisfies the interstate commerce requirement because the product is distributed in neighboring East Coast states.
	D.	Whether this defense will fail depends on whether the BBJ Mark is famous in Big Bear.

BRIGHT BEAR's BBJ Mark has been registered for a couple decades and is now incontestable. Which of the defenses below cannot be brought as a matter of law by the Jerky Boys in a trademark infringement lawsuit:

	A.	Abandonment of the BBJ mark.
	B.	The BBJ Mark is invalid because it is functional.
	C.	The BBJ Mark is invalid because it is merely descriptive.
	D.	The Jerky Boys have made a fair use of the BBJ Mark.
	E.	All of these defenses can be raised in a lawsuit involving an incontestable mark.

The Jerky Boys, annoyed at receiving a cease-and-desist letter from BRIGHT BEAR, decide to roast BBJ in their comedy routine. They claim that BBJ jerky tastes like bear pop, and make a mash-up artwork of the BBJ bear logo and the common poop emoji. Does BRIGHT BEAR have a strong trademark infringement claim against the Jerky Boys?

	A.	Yes, because the Jerky Boys is using the BBJ Mark without permission.
	B.	Yes, because the Jerky Boys is using the BBJ Mark in bad faith and so the fair use defense is not available.
	C.	No, because there is not sufficient likelihood of consumer confusion or deception.
	D.	No, because this use is a parody.
	E.	Both C and D.

QUESTION 5

A yoga studio in Big Bear uses the mark BRIGHT BEAR YOGA (BBY) for its yoga studio. BRIGHT BEAR JERKY (BBJ) brings a claim against BBY for trademark dilution by blurring. In analyzing this claim, a court will consider all of these factors EXCEPT which of the following?

	A.	The degree of recognition of BBJ's mark and whether it is a famous mark.
	B.	Whether BBY intended to create an association with BBJ.
	C.	Whether BBJ uses its BRIGHT BEAR JERKY mark only in the context of jerky products or in other contexts.
	D.	The degree of inherent or acquired distinctiveness of the BBJ mark.
	E.	A court will consider all of the factors stated above.

True or False - the key issue in a trademark infringement analysis is whether use of a symbol is likely to cause consumer confusion or deception with a valid trademark?

Which of the following sentences, if any, are true?

Trademark infringement requires a showing of "likelihood of confusion." Courts have held that a mere possibility of consumer confusion is sufficient to satisfy this requirement.

	A.	The first sentence is true but the second sentence is false.
	B.	The first sentence is false but the second sentence is true.
	C.	Both sentences are true.
	D.	Both sentences are false

Which of the following are elements of "nominative fair use"?

	A.	The user does nothing that suggests, in conjunction with the mark, any sponsorship or endorsement by the trademark holder.
	B.	Only so much of the mark is used as is reasonably necessary to identify the product or service.
	C.	The product or service in question is not readily identifiable without use of the trademark.
	D.	All of the above are elements for the "nominative fair use" defense.

Which of the following are elements of "nominative fair use"?

	A.	The user does nothing that suggests, in conjunction with the mark, any sponsorship or endorsement by the trademark holder.
	B.	Only so much of the mark is used as is reasonably necessary to identify the product or service.
	C.	The product or service in question is not readily identifiable without use of the trademark.
	D.	All of the above are elements for the "nominative fair use" defense.

What was the 2^nd Circuit's holding in Tiffany v. eBay (2d Cir. 2010)?

	A.	eBay was directly liable for users' sales of knockoff Tiffany products.
	B.	eBay was secondarily liable for trademark infringement based on the users' infringement.
	C.	eBay was not liable for users' sales of knockoff Tiffany products.
	D.	There was no evidence that users were using the eBay platform to sell knockoff Tiffany products.

True or False: Harry Potter's glasses are famous trademarked symbols of the Harry Potter franchise. Under the Supreme Court Dastar decision, an element from a copyrighted movie may be used as a mark and then will be protected by trademark law.