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Analyzing Trademark and Copyright Infringement Scenarios

1. You work for attorney Smith who works for Nike®. The slogan Nike uses is "Just Do It." Nike® representatives have approached Smith about a problem that has arisen. A small athletic shoe manufacturer has launched a campaign using the slogan, "Just do it NOW."

a) What would you need to do to show that Nike's slogan, "Just do it," was protectable?

b) What would Nike need to do to demonstrate that there was an infringement of their trademark?

c) Evaluate the two slogans to determine if an infringement occurred.

d) What possible defenses are available to the defendant in an infringement dispute?

e) Last, what values do you believe are being promoted by trademark infringement laws?

2. Claudette Nouvelle has created a completely new and original pantomime act. She just created it by performing it one day. She has never written anything down. She is looking to get an agent, but in the meantime has been performing this new work on the streets of New York to rave reviews from the passersby. Martine Marceau, granddaughter of the famous Marcel Marceau, witnessed the performance on two occasions and has decided to perform the pantomime in her new act. She is performing in an off-Broadway theater and has filmed her performance of this pantomime and has called it "The Streets of New York," by Martine Marceau.

a) Name and explain the three (3) basic requirements for copyrightability and determine if Claudette has a copyright in this pantomime?

b) Determine if Martine has a copyright in this pantomime?

c) Last, what values do you believe are being promoted by copyright protection laws?

Solution Preview

Below, I have listed question #1 with all subparts, followed by the response for each part; finally, I have provided a list of resources. Similarly, Question #2 is listed and then each subpart is responded to accordingly, followed by a list of resources. Thanks for the opportunity to assist - never stop learning!

1. You work for attorney Smith who works for Nike®. Nike® representatives have approached Smith about a problem that has arisen. A small athletic shoe manufacturer has launched a campaign using the slogan, "Just do it NOW."
a) What would you need to do to show that Nike's slogan, "Just do it," was protectable?
b) What would Nike need to do to demonstrate that there was an infringement of their trademark?
c) Evaluate the two slogans to determine if an infringement occurred.
d) What possible defenses are available to the defendant in an infringement dispute?
e) Last, what values do you believe are being promoted by trademark infringement laws?

RESPONSE: This question raises a trademark issue, because Nike produces products, the applicable law being the Trademark Act/Lanham Act, 15 U.S.C. 1051 et seq. A trademark distinguishes a company's product from another company's product, and can be words, slogans, designs, symbols, numbers, sounds, smells. Here, "Just do it" is a slogan purportedly distinguishing Nike products from others.

a) Use is essential to trademark protection. Nike would need to show use in commerce and use as a source identifier: do consumers identify the slogan with Nike? (regardless of Nike's intent of slogan use). For example, t-shirts are printed with the slogan and the Nike name and it is used in advertising. It is prominently shown as opposed to just part of fine print randomly placed in the ad. See In re Morganroth 208 USPQ 798, 799 (TTAB 1985); that the slogan is viewed as a trademark, again a source identifier. See In re Bronze Powder & Paint Co 188 USPQ 459, 463 (TTAB 1975); the slogan has developed secondary meaning via Nike's use, i.e. when consumers hear or read slogan, they identify it to Nike as ...

Solution Summary

This solution provides a step-by-step analysis of a scenario regarding trademark infringement and an analysis of a scenario regarding copyright infringement. Elements of trademarks and trademark infringement are applied to the facts of the scenario in responding to the specific questions posed. Additionally, the requirements for copyrightability and copyright infringement are applied to the facts of the second scenario in responding to each copyright specific question. The analyses address possible defenses to infringement claims as well as the values sought to be promoted by trademark laws and by copyright laws.

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