You work as a legal assistant at the law firm Ramsey & Betts in Wilmington, North Carolina. Nikki and Nate have come to the office seeking help. These attorneys have asked you to create a legal memorandum outlining the law with respect to whether or not the U.S. Patent and Trademark Office (USPTO) can legally deny the logo? Respond to the above question including a thorough legal analysis of the subject matter.

 

As the dawn is barely breaking, Nate Dawson is up and moving. Almost every morning he engages in the same ritual. As he leaves the door of his Wrightsville Beach apartment, he grabs his board and bag, and begins the block-long trek to the beach access. It's barely light, and he sees a figure standing on the top of the wooden structure that carries people over the sand dunes. It's his childhood friend, Nikki Stroud, who, like Nate, engages in this same ritual almost daily. Today is particularly inviting as it's the first day in a long time that Nate doesn't have to wear his bulky wetsuit. "How's it look out there?' asks Nate, almost as if to emphasize that he majors in Business and not English. "Chest high, clean breaks." Responds Nikki. As the two make their way to the surf, Nate quips "I could really go for a coffee right now." "Oh man, you read my mind!" exclaims Nikki, "But nothing's open." "Remember those coffee beans we got in Costa Rica when we were down there?" asks Nate. "Oh man, they were the Best!" responds Nikki. That morning, an idea was born. An idea to bring what two surfers believed was the best coffee in the world to the shores of North Carolina. Fast forward one year and Nate and Nikki are open for business. "Fin's Up Imported Coffee Company" is open for business every morning. With beans imported from Costa Rica, Nate and Nikki have built a simple idea into a thriving coffee business. Not just your every morning commuters needing a pick-me-up in the early hours, but also the most sought-after cold coffee drinks in town. "We need to think bigger" says Nikki as they make their way across the sand again more than a year after the birth of their idea. "You think so... but how?" asks Nate. "We need some branding, a logo, that sort of thing" she responds. Several hours later on a napkin, Nikki creates Finley, the blue-faced mascot of the Fin's Up Imported Coffee Company. He represents everything they seek to be. He's tough, funny, creative and charming enough to be the standard bearer for the "Brew with 'tude." Nikki contacts her friend Ellen who agrees to assist in cleaning up the image of Finley and soon Finley is on every cup of coffee and every bottle of iced cappuccino they sell. FINS UP IMPORTED COFFEE Before too long, Nate is talking with Tony, who mentions that they were just discussing this kind of thing in his Business Law class. Tony related how it's a great idea, but one that could be stolen. "You should protect Finley" says Tony. "I like that damned shark." Tony shows Nate his business law textbook, which tells him how trademarks can be protected either by the State or the federal government. Nate decides to apply to the U.S. Patent and Trademark Office for a trademark for Finley. After submitting all the paperwork, he receives a letter back. Dear Mr. Dawson, Your application for trademark has been reviewed by the USPTO and subsequently denied. The trademark you submitted does not comport with our standards of decency, as the label could appear in grocery stores, with obvious exposure on the shelf to children of tender age. Thank you for your submission. Sincerely, 1.M. Prude, Examiner USPTO Question: Can the U.S. Patent and Trademark Office deny Fins Up their trademark? Why or why not?