Explore BrainMass
Share

Analyzing Trademark and Copyright Infringement Scenarios

This content was STOLEN from BrainMass.com - View the original, and get the already-completed solution here!

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?

© BrainMass Inc. brainmass.com October 25, 2018, 7:34 am ad1c9bdddf
https://brainmass.com/law/intellectual-property-and-cyberlaw/analyzing-trademark-copyright-infringement-scenarios-507640

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.

$2.19
See Also This Related BrainMass Solution

Global Economics in Mexico after NAFTA

Scenario: Acme Automotive is one of the major US producers of automobiles in Mexico. You have been sent to the Acme automotive plant in Nuevo Laredo, Tamaulipas, Mexico as the new Operations Manager to respond to recent declines in employee morale, productivity, and cost effectiveness at the Nuevo Laredo plant in the past 12 months. Talk of union organizing is of utmost concern to your supervisor in terms of short run and long run costs of production. Your job is to investigate the productivity/cost effectiveness problem and make recommendations to top management for goals and strategies in line with the Acme Vision.

Your first day at the job, you receive the following letter from a disgruntled employee:

(Note- the 'Maquiladoras' to which the writer refers, is the word for companies that process Mexico-imported components, then export them.)

Dear Sir:

I've been working in Maquiladoras since I was 20 years old, and now I'm 27. I've gotten more and more worried, because my job is ruining my health and I have no way out.

Now I work at Acme, where I've been for about a month and a half. "You could say it's forced labor, considering how the foremen talk to the workers and how much psychological pressure they put on people. We work an average of 14-15 hours a day. There's no transport service to and from work, and we get off the shift at 4 o'clock in the morning. Usually we have to wait until 7 AM before we can catch a public bus. And when a bus does come, getting home costs 20 pesos. That makes a very big dent in your take-home pay - 380 to 400 pesos a week ($40-43).

My job is bending steel cables...which are about a centimeter thick, and I have to bend about 3500 a day. Because of what's passing through my hands every day, I can hardly sleep at night - the pain is so bad. Then I have to get up in the morning to do it again. In the future, I know that I can get carpal tunnel problems, which is a very scary idea. I've asked to change to another position, but no one wants to change because whoever works in this job gets a lot of pain in his wrists.

I feel that in three or four years my hands are going to be useless. I've been thinking that I'll have to get another job. What else can I do? They say work in the Maquiladoras is the best paid work here in the city. But there's not much difference from one factory to another.

This is all just normal - the standard. Really, I'm living my whole life in the factory. Because of the time and money pressure, I have no ability to develop myself even as a worker, much less as a human being."

After I had been working in Acme for a month, I went to my supervisor with my concerns about health and safety problems at the plant. He told me that I was putting the Maquiladora workers in danger by making waves. I know that the company's goal is to cut production costs and increase the profits from the engines we produce, but I am hoping you will consider the plight of the poor Mexican workers. I am hoping you will see through our eyes as well as from the eyes of the company officials.

Yours truly,

Enrique Santiago

-------------------------------------------------------------------------

***Deliverable Length: 4-5 pages, proper APA formatting, list all reference cited sources.

Details: You are laying the groundwork for Acme's deployment of key lead operations managers and top level personnel to international manufacturing plants. As such, one expectation the company has for you is that you will research and write relevant economic white papers for the pre-orientation of future deployed employees.

Write a 4-5 page white paper which will help employees understand the economic experience of Mexico since NAFTA. Issues you may want to cover include, but are not limited to, trade liberalization, national sovereignty, worker rights, World Trade Organization and committees, relationship with World Bank and IMF, types of economic development.

References:

World Bank Group. Global development finance 2001. Retrieved January 7, 2004, from http://www.worldbank.org/prospects/gdf2001/vol1.htm

World Bank Group. (2001). Mexico - A comprehensive development agenda for the new era. Retrieved January 7, 2004, from http://wbln0018.worldbank.org/External/lac/lac.nsf/Publications/9364AB8A25BABD6085256A4C004B3963?OpenDocument

View Full Posting Details