Intellectual Property Law Final Exam

Questions 1. After “rocking” your final exams, you agree to teach a 3-credit intellectual property class at a highly regarded university. You are tasked with drafting questions for the final exam. The assigned text for the class, Stephen M. McJohn, Examples & Explanations: Intellectual Property (6th ed.), contains questions (i.e. “Examples”) that you believe would be perfect final exam questions. Plus, it is hard coming up with punny exam questions. So, you copy certain of the questions verbatim into your final exam. Other questions you change slightly before including them in your exam. And certain other questions you change substantially before including them in your exam. The students absolutely loved your exam, but Mr. McJohn is not so happy. He sues you for copyright infringement. Discuss whether and why you have engaged in copyright infringement with respect to each of three categories of questions described above, including any defenses to infringement that may apply. (5 points)

2. You are an avid reader of the Los Angeles Sun, a newspaper whose articles are only accessible to subscribers who pay $60 a year. You are a subscriber, and one day, you come across a super interesting article involving theft of trade secrets by an employee of a company at which your best friend works. You want to make the friend aware of the article. But you do not know if your friend has a subscription to the Los Angeles Sun. So, you make a .pdf copy of the article and email it to your friend. In doing so, you notice that the article does not contain a copyright notice, such as ©. Discuss whether you have engaged in copyright infringement and why, including whether you might have any opposition arguments if the Los Angeles Sun sues you for copyright infringement, including based on the lack of copyright notice. (5 points) Page 4 of 14

 3. A famous rapper, Omari East, has asked you to produce his next greatest hit. In the middle of the song, he would like to insert a short clip from “Intellectual Property,” a song performed by a group called TZB and produced by AndreOnBeat. Specifically, Mr. East would like you to include the following chorus from the song: Yeah, there ain’t no stopping me Nuh-uh, there ain’t no stopping me ’Cause when I work with intellectual property, I do it properly So Ima keep flexing with intellectual property The other portions of Mr. East’s song make fun of intellectual property law, commenting that it is antiquated, particularly since artificial intelligence can create songs without any human involvement. The thrust of Mr. East’s song is that people do not need to follow intellectual property laws and that others can no longer “flex” (i.e., seek to enforce) their intellectual property rights. After Mr. East’s song becomes a hit, TZB registers the copyright in its song for the first time and sues Mr. East for copyright infringement. The sample that Mr. East took from TZB’s song was the key part of the song that had caused the song to go viral years ago. As a result, no one now listens to TZB’s song anymore on music streaming services, such as Spotify, and TZB’s royalties from those streaming services have plummeted from $15,000 to $5 annually. Discuss whether Mr. East has engaged in copyright infringement and why, including any defense Mr. East may assert if TZB seeks statutory damages under the Copyright Act and the likelihood that defense may succeed. (5 points)

4. Zippy Pop, a canned soda company whose brand name is famous nationwide, undertakes a marketing campaign that it believes will increase sales. It runs a contest for high schoolers to create art for the can. The winning art will be imprinted on all soda cans sold in July 2020, along with the Zippy logo. Zippy’s campaign is modeled off one Coke did several years ago that resulted in soda cans like the following: Cosmo, a 12th grader, wins the contest and gives Zippy Pop a non-exclusive license to use his artwork on the cans. Erika buys a Zippy Pop soda featuring Cosmo’s artwork. Erika loves the artwork so much that she holds an exhibition to feature the artwork and charges $20 per person to the 15 persons who attend. During the exhibition, Erika displays the soda can she herself purchased. She also displays 10 photographs she took of the artwork-laden can. Erika also makes 14 copies of the artwork-laden can, and unbeknownst to the attendees, fills those 14 cans with a watered-down version of Zippy Pop. She then auctions off all 15 cans, including the Zippy Pop can she bought, with all proceeds going to charity. Each can fetches $10 at auction, which she donates to COVID-19 relief efforts. Discuss whether Erika has engaged in copyright infringement and would be liable under the Lanham Act, including whether she could assert any defense to auctioning off all or a portion of the 15 cans and displaying the can she purchased and the photographs she took of that can. In addition, state the monetary damages that Erika might be obligated to pay, if found liable for copyright infringement or a violation of the Lanham Act. (10 points)

5. Upon learning that a car manufacturer is selling a self-driving “Vanicorn,” the plaintiff in the “Vanicorn” copyright infringement action against Pixar Disney sues Page 6 of 14 that car manufacturer. Discovery obtained during the litigation (e.g., deposition testimony, interrogatory answers, documents produced in response to document requests, and answers to requests for admission) reveals that the car manufacturer never saw, knew of, or had access to plaintiff’s Vanicorn. Discovery also revealed that the car manufacturer had its visual arts artists in New York develop the design for its “Vanicorn,” based on a third-party’s Vanicorn they saw in Kenya. The car manufacturer admitted, however, that it learned about the “idea” of a Vanicorn from the publicity the Pixar Disney lawsuit received during an intellectual property law class at USC. The car manufacture’s CEO, who has a “real thing” for unicorns too, thought the “Vanicorn” was “tremendously cool” and appropriated billions to the company’s “Vanicorn” line of business. Plaintiff’s Vanicorn Defendant car manufacturer’s Vanicorn Discuss what arguments the car manufacturer could raise in opposition to plaintiff’s copyright infringement lawsuit, including those based on the above pictures, and whether they are likely to succeed. (10 points)

6. Kim Kardashian would like to increase her following with people who do not “Keep Up With the Kardashians,” including a certain professor who shall remain anonymous. On July 1, 2020, Kim assigns her trademark to Mark Trademan. Page 7 of 14 Approximately six months later, on January 1, 2021, Mark Trademan records the trademark assignment with the USPTO. On March 1, 2021, Kim assigns the same trademark for $10 to Judy Copyleft, who does not have actual notice of Kim’s prior assignment to Mark Trademan. Judy Copyleft records the assignment immediately with the USPTO. In a lawsuit between Mark Trademan and Judy Copyleft to determine who owns the trademark, who would win and why? Would your answer change if instead the assignment to Judy Copyleft occurred on August 1, 2020 and Mark Trademan recorded his assignment on September 1, 2020? Hint: See 15 U.S.C. § 1060(a)(4). (5 points)

The following fact pattern applies to questions 7-20.

A friend of yours, Janet, has an existing yard maintenance business that operates in Los Angeles. She would like to expand it by offering additional products and services. The business already sells lawn mowers, but Janet would like the business to begin selling shovels next year. The business already mows lawns, but Janet would also like the business to offer weed extraction. Janet’s business has developed a new method to extract weeds. She has a set of schematics detailing the method, which she keeps in a shed with the yard maintenance equipment. Thinking that hiding the schematics under her mattress would be foolish, she hides them underneath a lawnmower instead. Further, she booby-traps the lawnmower so it would turn on and cut off the hands of anyone reaching underneath to obtain the schematics. Unbeknownst to Janet, the lawnmower is out of gas and therefore her booby-trap does not work. The shed is surrounded by a dulled and half-dilapidated barbed-wire fence with one fake security camera affixed atop. A large hole exists in the fence for her dog to come and go. Other landscaping companies with similar revenues typically employ guards with machine guns to guard their sheds and have no fewer than 10 real security cameras surrounding the shed’s premises. Janet’s lawn mowing service is not run-of-the-mill. Instead, her service mows patterns, letters, logos, or whatever a customer wants into the lawn, much like what is done on athletic fields, such as at the Anaheim Angels baseball field: Exercising her creativity, Janet comes up with several “grass designs” and compiles them into a catalogue to show customers. Janet employs a single person, Larry the Lawn Guy. When Larry is on the job, he’ll often cut one of the designs Janet created into a customer’s lawn. But sometimes he exercises his own creative juices and comes up with designs of his own that are aesthetically pleasing with the surrounding foliage. One repeat customer, Doug—who owns a pug by the same name and lives in a shack surrounded by a 40-acre lawn—likes to come up with his own designs for Larry to cut into his lawn. On one occasion, Doug asks Larry to cut the Los Angeles Dodgers logo into his lawn just like they do at Dodger Stadium: To celebrate Doug the Pug’s 5th birthday, Larry—while still working for Janet’s company—cuts a likeness of “Doug the Pug” into Doug’s lawn at Doug’s request. Larry exclaims, “Who let the dogs out? Woof. Woof. I am sure proud of MY creative work here, emphasis on the “M” and the “Y.” Although Doug has a lawn services contract with Janet’s company, he made the request to Larry orally. Later that year, Doug is distraught over Kobe Bryant’s death and asks Larry to cut a one-of-a-kind likeness of Kobe into his lawn. The likeness goes viral and a company called Lawn Ball begins selling basketballs and lawnmowers with the Kobe likeness on them. Proud of his work, Larry takes a picture of every design he makes, always using a drone angled at 23 degrees to snap the picture during that magical hour around dusk when that “oh-so-perfect” lighting exists for Instagram-worthy photos. The pictures are therefore of the designs Janet created and the designs that Larry came up with his own. Larry’s friend, Eleanor, would like to include the pictures in a book called “Contemporary Lawnscapes for the Modern House,” which will include certain of Larry’s pictures but also the pictures of other beautiful lawns in Southern California. Believing that the “grass is always greener” on the other side, Larry ceases working for Janet’s business and goes to work for a competing lawn service company called Mowerworks. A trademark nerd, Larry wants to work for Mowerworks because the “Mowerworks” wordmark is registered on the Principal Register in connection with yard maintenance services and was in use years before Janet’s business began operating. Substantial evidence exists that consumers identify the “Mowerworks” mark with the company’s service. Mowerworks only operates in Northern California whereas Janet’s business only operates in Southern California, and nothing indicates that either company intends to expand outside their respective locales. Because Larry would soon be “lawn gone” from Janet’s business, he downloaded on his last day of work schematics of the new method to extract weeds. Larry’s confidentiality and nondisclosure agreement with the company stated that he could download the schematics “for business purposes only” and could disclose them only to people “within the company on a need to know basis.” Larry does not use the Page 10 of 14 method during his new job, because Mowerworks has a corporate policy of not “getting down into the weeds.” Nonetheless, Larry’s job inherently involves pulling weeds, particularly those pesky dandelions. During a happy hour after a long day of work where Larry felt like he just wasn’t “cutting it” anymore, Larry shows the schematics to his friends, who work in the entertainment industry. His friends study the schematics for hours, but none of them finds the schematics to be of any value to their work in the entertainment industry. One of his friends, however, is sick of the entertainment industry. That friend launches a weed extraction business and uses the weed extraction method he saw in the schematics. The business is only mildly successful because the weed extraction method leaves gaping holes in the lawn. Larry’s grass cutting prowess soon becomes legendary. He is asked to create a design for the White House lawn for President Trump, who says during a press conference, “Not a lot of people know this. But you know, I was elected because of a “grassroots” campaign. A campaign like no one had ever seen before; no other President did it better. And let’s be honest, that kid who cut the White House lawn, his work is, like, not so great. But Larry’s work is tremendous. This is going to be HUGE.” Larry creates a design called “Seismic Waves.” He practices it first on a baseball field (see below picture) and then he cuts it into the White House lawn. Larry is so proud of his work that he mows his signature into the lawn and “2/2.” But the National Park Service (who keeps the grounds for the White House) fails to maintain the design in the lawn. The grass grows so tall that the design becomes “lost in the weeds” after two weeks. 

7. Janet is considering the following marks for her yard maintenance service:

• Yard Maintenance • Mowerworkers • Triceratops • Rewomical • Grass Magic

In light of the facts above and before going through the time and expense of running a trademark clearance search, Janet would like your opinion on (1) whether each of these marks would likely be registerable as trademarks if used in connection with her yard maintenance business and why, including with reference to whether the marks are fanciful, arbitrary, suggestive, descriptive, or generic; (2) whether the marks would qualify for registration on the Principal or Supplemental Register, if at all, and why; and (3) whether Mowerworks would likely succeed in an opposition proceeding if Janet attempts to register the Mowerworkers mark, taking into account any applicable Sleekcraft factors. (15 points)

8. Janet is leaning toward using the wordmark “Grass Magic” for her yard maintenance business. She’s curious what a “clearance search” on the Trademark Electronic Search System (“TESS”) would reveal. She is also curious if the mark is registered in the State of California. Run clearance searches using the California and USPTO databases, and analyze each search result, if any, to determine whether Janet might have a problem with using “Grass Magic” as a trademark. Hint: Depending on how you structure your search terms, there should be no more than 5 hits on the TESS and less than that number in the California database. (10 points) Page 12 of 14

9. Janet found the below logo on the internet and is thinking of obtaining a license to use it for her business. She worries that someone may be using a similar logo since the logo is available on the internet. Conduct a clearance search on the logo using the USPTO’s website (not in any state trademark database); explain stepby-step the process you used, including the design codes you utilized in your search; pick two of your search results; and discuss whether a likelihood of consumer confusion would exist between the proposed logo and the two search results you chose. Include a screenshot or link to the two trademarks you chose and analyzed. (10 points)

10. Janet would like to use the wordmark “Grasshopper” as the brand for the shovels she plans to sell next year. But she is unsure whether it would be worthwhile to register the mark. Describe the benefits of federal trademark registration and what rights Janet might have even if she does not register the mark, including when she may use a ™ versus a ®. In addition, she would like an overview of the trademark application and registration process. Thus, describe generally the trademark application and registration process, including what type of application she should file in regard to the Grasshopper mark; whether she should seek registration of the mark on the Principal or Supplemental Register while also explaining the difference between the two registers; what generally happens once a trademark application is submitted to the USPTO, including the types of actions that the USPTO examining attorney and third-parties might take; and what she would have to do to perfect and maintain federal registration of the trademark. (10 points)

11. Janet understands that the new method to extract weeds may qualify for patent or trade secret protection. To help her decide, describe generally and briefly why one would seek trade secret protection instead of patent protection. In addition, describe what requirements must be met for the new method to qualify as a trade secret and whether the method would, in fact, qualify as a trade secret given the facts above. (10 points)

 12. The shovels Janet’s business intends to sell next year have a unique design and will come in unique packaging (i.e., brown paper wrap) featuring a repeating pattern of hardhats and shovels. The shovels are curved in such a way that the amount of dirt scooped each time is maximized while also reducing stress on the back and legs of the person shoveling. She believes that the design shape will come to identify her particular shovels, but admits that other designs in the marketplace are equally as good at scooping dirt and reducing back and leg stress. Discuss the requirements for trade dress protection; whether the shovel’s design, packaging, or both would likely meet those requirements; whether she should seek a “utility patent” instead of trademark protection, a thing she has heard about but does not really understand; and whether trademark law generally treats product design and product packaging as having the same level of distinctiveness and why. (5 points)

13. With the baseball season all but cancelled because of the COVID-19 pandemic, the Los Angeles Dodgers are looking for new revenue streams. Discuss whether and why the Los Angeles Dodgers potentially have a trademark infringement claim, copyright infringement claim, or both against Doug (the human, not the pug). In addition, discuss whether the Los Angeles Dodgers could assert a trademark or copyright infringement claim against Janet’s business, and if so, under what theory of liability. Assuming Janet’s business could be held liable, what could the company have done contractually to avoid liability. (10 points)

 14. Analyze whether Kobe Bryant’s estate could bring a claim against Lawn Ball under the Lanham Act and under a state law theory. (5 points)

 15. If Larry would like his photos included in Eleanor’s book, discuss whether he would need Janet’s business’ permission. Then, assuming Larry is the copyright owner of the photos, identify and discuss all the options Larry has available to him in structuring a deal to allow Eleanor to use the photos in the book. (5 points)

16. Discuss whether Larry’s “Seismic Waves” on the White House lawn meets the requirements of copyright, including how the work may be categorized for copyright purposes and whether it matters that the design disappears after two weeks once the grass grows. (5 points)

17. Discuss arguments for and against Larry having moral rights with respect to his “Seismic Waves” as cut on the White House lawn for President Trump, including whether the policy rationales underlying moral rights would be served if Larry were granted moral rights. Then, assuming he has moral rights, discuss whether Larry would likely succeed in a lawsuit against the National Park Service for mutilating, destroying, or modifying his work given the facts above. (10 points)

18. Describe what steps Janet would need to undertake to register the copyright in her “grass designs,” assuming she personally, not her company, is the author. Include in your discussion whether and when she may use ©. (5 points)

19. Who owns the copyright to the “Doug the Pug” likeness that Larry cut into Doug’s lawn and why? Your answer should analyze separately whether Doug, Larry the Lawn Guy, Janet’s business, or Doug the Pug owns the copyright. Assuming Doug does not hold the copyright, discuss what he could have done differently to obtain copyright ownership, including any specific requirements he would have needed to follow. (10 points)

20. The local law enforcement agency, “Lawn & Order,” prosecutes Larry the Lawn Guy under The Defend Trade Secrets Act of 2016. What arguments might Larry assert in his defense and what arguments might prosecutors assert in favor of guilt? In addition, if you were on the jury, state whether you would vote to convict Larry of trade secret misappropriation and explain the reason for your vote, taking into account the “beyond a reasonable doubt” standard required for a conviction and the statutory definition of “misappropriation.” (10 points)

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