UNIVERSITY OF UTAH S.J.QUINNEY COLLEGE OF LAW 1 ir EXAMINATION COVER SHEET Student Examination Number: TRADEMARKS AND UNFAIR COMPETITITION LAW Professor Rita Reusch April 26, 2005 Spring Semester 0 Time Allowed: Two and one-half hours Print your Examination Number, the title of the course and the instructor's name on the front of every bluebook or every page (if using a computer). Number each bluebook (1 of 3, 2 of 3, 3 of 3, etc.) and place all bluebooks and examination questions inside the first numbered bluebook. Student must submit a completed honor code and the examination questions with the answers. Students will be provided with scratch paper that must be submitted with the examination questions and answers at the end of the exam. Students may NOT take any bluebooks or scratch paper from the examination room, whether blank or used. If the examination utilizes a computer answer sheet, print your examination number on the computer answer sheet in the space provided; zero-fill the remaining spaces. For example, if your examination number is 4281, you would complete the following: IDENTIFICATION NUMBER 4 2 8 1 lo lo lo 0 lo Read each question carefully and budget your time accordingly. This is an open book exam, defined as follows: you may consult your casebook, supplement (new and statutory material), materials printed from the course Twen page, class notes and personal outline. You may not, however, receive assistance from other people. For each of the questions in this exam, if any of your answers depend on facts not stated in the problem, please identify what assumptions you are making and how they would affect the resolution of the issues. Have a great summer and, for those of you taking the bar exam, good luck! Question 1 (50%) (Some of this is based on real facts. A whole bunch of it is made up.) Bally Total Fitness is the "largest, most experienced health club chain in North America." (Quote from its web site.) It offers fitness facilities, personal training, weight-loss and nutrition programs and Bally merchandise through its fitness clubs. Its web site proclaims its prominence and extols its products and services. The Bally Total Fitness name is a registered trademark that has become incontestable. The phrase "Total Fitness" (with capitals) frequently appears without "Bally" in its facilities, advertising, on its products, its web site and in other publications. Google has offered the phrase "total fitness" to advertisers in its AdWords program for sponsored sites. MegaFitness, a home gym equipment and accessories supplier, has purchased the keywords "total fitness" from Google with the result that a Google search for "total fitness" produces the following result: Google Search: total fitness Page 1 of 2 GOOgk total fitness Web Images Groups News Froogla Locarfewl morn Search- eslistuesLamme ftbionam -J Results 1 - 10 of about 9,890,000 for total Men. (0.13 seconds) Sponsored Links Free Shipping & Low-price Guarantee 2,000+ Exercise & Fitness Products. www.MegaFitness.com lAinget.com: Official Site Total Fitness Web Nationwide commercial operator of health dubs offering full service fitness facilities. www.ballyfltness.com/ - 64k - Apr 18, 2005 - CacjW - Similar pages t Bally Total Fitness - Your Total Fitness Resource Bally Total Fitness - Your Total Fitness Resource Bally provides exercise, nutrition and weight-loss programs customized to meet your personal needs. Check out how our clubs can help you reach your goals! wvAv.ballyntness.com/index.asp - 64k - Cached - Similar I)- gas Burst Resistance Exercise Ball with Shop Online and Save at Target.com www.Tatuet.com A click to the MegaFitness site from the sponsored sites link provides information about MegaFitness products and services and a proclamation: "Why pay for a Bally Total Fitness membership when you can achieve total fitness at home?" Bally has advised Google that it claims rights to "Total Fitness" and that the use of it as a keyword for the MegaFitness sponsored link infringes its trademarks. Google has refused to block the use of "total fitness" as a sponsored link keyword. Discuss possible claims Bally Total Fitness might bring against Google and against MegaFitness and defenses or counter arguments that these defendants might raise. Question 2 (25%) Syndicate Sales produces glass vases used by florists for flower arrangements. They number their product line to assist florists in identifying and ordering. The #92 vase is a popular model and well known to florists. Another firm, Hampshire Glass Products, has just entered the market and begun to offer competing glass vases to the florist industry. Its #9200 model vase is very similar to the Syndicate Sales #92 vase. Both parties are marketing to the florist industry, who then offer the vases for sale to consumers in flower arrangements. Syndicate Sales sues under the Lanham Act alleging trademark infringement and dilution. Analyze the strengths and weaknesses of its claims as to the #92 mark and the vase trade dress. The #92 vase The #9200 vase Question 3 (25%) (Ignore any unrealistic time frames for this to move in the PTO) "Web Presence" filed an intent-to-use trademark application for internet web site development and support services, specializing in consumer services e-commerce sites, in February 2004. It immediately registered the domain name "webpresence.com " and began developing its web site from which it would market its services, but due to some internal development issues, has not yet gone live. A notice of allowance has issued.. "WebPresents", a firm that offers gift registry services over the internet (e.g., for weddings, new baby), was established in May 2004 with the launch of its web site "webpresents.com ". Business has been brisk. It filed a use-based trademark application in July 2004 and upon examination the mark was published for opposition in the Official Gazette. Web Presence files an opposition to the WebPresents registration. Analyze the arguments to be raised by both sides in the opposition proceeding.