Trademark and Branding Management: Assignments (Fall 2023)

TRADEMARK AND BRANDING MANAGEMENT: ASSIGNMENTS (Fall 2023)

WEEK 1 – AUG. 22 & 24

TUESDAY, AUG. 22 (class 1): Introduction to branding and trademarks

  • Read the syllabus. In particular, see the classroom policies and make a careful choice regarding your choice of casebook format.
  • Read pages 1-20 of the casebook.
  • TPQs (thought-provoking questions):
    • What kind of questions might you ask if you were the professor? Today we’ll talk about creating good “thought-provoking questions,” or “TPQs.”
    • Here’s a TPQ from me. Think about it and be prepared to discuss: what are good things about brands? Are there any dangers or problems that arise from branding and brand protection?

THURSDAY, AUGUST 24 (class 2): Distinctiveness (inherent)

  • Note: Due to a conflict with Professor Kravitz’s memorial service, today’s regularly scheduled online office hours of 7-9PM will instead be on campus 330-530PM.
  • Read pages 21-40 of the casebook.
  • Each of you should be prepared to discuss the following TPQs:
  • Why do you think trademark law automatically protects brand names that are “inherently distinctive” (such as fanciful, arbitrary, and suggestive terms), but requires an additional showing of “acquired distinctiveness” for some types of marks, such as merely descriptive terms?
    • From a broader perspective than just law, what is “branding”? Are you a brand?
  • Finally, everybody should create a TPQ based on the readings. Upload your TPQ to the class Canvas site prior to the start of class. (Go to the Canvas course homepage for the upload link.) Note that if you submit at least 24 hours prior to the start of class I will provide you with feedback via Canvas. Further note that going forward, TPQ leaders will be required as part of their score to submit their TPQs at least 24 hours prior to class.

Rules going forward for TPQ leaders and Class Discussants

These are standing instructions and are subject to revision. They apply to all TPQ Leaders and all Discussants (the latter is everybody else) all semester and will not be repeated below.

“TPQ” means “thought-provoking question.” It is a major part of your experience in this course.

Know you’re going to miss a class? If a class member knows in advance that they will be missing a day of class, they must let me know in advance so that I do not make them a TPQ leader for that day. If they later realize they cannot be in class for your TPQ day, they must find somebody willing to take their place. If you want to substitute somebody after being assigned a TPQ leader date, then it is your responsibility to find somebody to swap with, and to get me email confirmation. 

TPQ leaders must upload their TPQs (2-3 minimum, based on, incorporated, or related to the readings) to the class Canvas site at least 24 hours prior to the beginning of class. If your TPQ includes any links or AV, include them in the upload to Canvas. Late submissions will affect your Leader score, which is part of your overall Participation score.

Discussants (everyone else) should always be prepared to discuss all materials fully. They too may upload TPQs to the Canvas site if they wish.

WEEK 2 – AUG. 29 & 31

TUESDAY, AUGUST 29 (class 3): Distinctiveness (acquired distinctiveness; generic terms)

  • TPQ Leader: Blake
  • Notice re TPQ Leaders and Discussants: see standing instructions for TPQ Leaders in notifications box above. These instructions are in effect all semester.
  • Readings/handouts:
  • Projects: As we prepare to do skills simulation projects, I’ll discuss an assignment due this Thursday, which will be uploading four trademarks you will create as a “client” of the firm.

THURSDAY, AUGUST 31 (class 4): Distinctiveness (generic terms; failure to function as a mark)

  • TPQ Leader: Georgia
  • Casebook: pp. 79-99
  • Your preliminary work for Project 1 starts today.
    • For us to do Project 1, we need trademarks. Therefore, do this prior to the beginning of class. Next, you need to upload your proposed marks using the text box at this Canvas link (course-registered students only). Your submission is due by the beginning of today’s class even if you are not going to class today. This work constitutes 5% of your score for Project 1, so follow the instructions carefully.
    • Read details on Project 1, your trademark registration project, which will be due Sunday, Oct. 8 at 11:59PM EST (Canvas upload link TBA)

WEEK 3 – SEPT. 5. & 7

TUESDAY, SEPTEMBER 5 (class 5): Distinctiveness (nonverbal marks such as color and trade dress)

  • TPQ Leader: Alessandra
  • Casebook: pp. 99, 109-128, 130-141

THURSDAY, SEPTEMBER 7 (class 6): Section 2 bars to protection (utilitarian functionality)

WEEK 4 – SEPT. 12 & 14

TUESDAY, SEPTEMBER 12 (class 7): Section 2 bars to protection (aesthetic functionality, deceptive marks, false connection)

  • TPQ Leader: Sara
  • Casebook: pp. 170-195
  • Project related: it’s time for attorney/client conferences, which you need to do prior to class, both as Acme’s CEO and as the “lawyer” to another Acme. Do this. Bring all your notes and working drafts to class. Keep in mind that here, you are acting as “lawyer” to one CEO, and acting as “CEO” to another lawyer.

THURSDAY, SEPTEMBER 14 (class 8): Section 2 bars to protection (disparaging and scandalous marks; Constitutional limits)

  • TPQ Leader: Patricia
  • Casebook: pp. 195-214

WEEK 5 – SEPT. 19 & 21

TUESDAY, SEPTEMBER 19 (class 9): The trademark registration process

  • TPQ Leader: Jesus
  • Casebook: pp. 232-261

THURSDAY, SEPTEMBER 21 (class 10): Training on basic knockout searching and online registration of federal trademarks

  • Class Leader: Professor
  • Today we will have training on basic knock-out searching and drafting a TEAS Standard ITU application using my template. Although there are no casebook readings, there are several lengthy videos and a number of USPTO resources you need to watch and read. You will also need to spend time drafting your application and searching. So be prepared, don’t come to class cold.
    • Do this regarding searching
    • Do this regarding registration. Note per my comments in class, it is no longer possible to “do” everything show in the videos, particularly to the extent they require creating a USPTO account. Other USPTO resources will remain available (such as TESS searching and more).

Adjustment to schedules due to my absence from COVID.

As you know, I was out sick on Thurs., Sept. 21 with COVID. Assuming I am sufficiently recovered, I will teach online on Tues., Sept. 26 and hope to be back in the classroom on Thurs., Sept. 28. I will email the link for the online class (it will be the same one I use for my personal room). The online class is a regularly scheduled class and attendance is mandatory; your cameras must also be on so that we have real interaction.

The missed assignment will be bumped forward one class and I will adjust the remaining schedule below once all the pieces are in place. That means we will do the registration and search training on Sept. 26, and so on. A makeup may be scheduled.

The due date for Project 1 remains the same as before. TPQ leaders should take note of changes to any dates in case I have introduced any conflicts that did not exist before.

See the listing of assignments below for further updates and announcements.

WEEK 6 – SEPT. 26 & 28

TUESDAY, SEPTEMBER 26 (class 10): Training on basic knockout searching and online registration of federal trademarks

  • This assignment will be online, it was bumped to today due to my absence due to illness for the prior class.
  • Class Leader: Professor
  • Today we will have training on basic knock-out searching and drafting a TEAS Standard ITU application using my template. Although there are no casebook readings, there are several lengthy videos and a number of USPTO resources you need to watch and read. You will also need to spend time drafting your application and searching. So be prepared, don’t come to class cold.
    • Do this regarding searching
    • Do this regarding registration. Note per my comments in class, it is no longer possible to “do” everything show in the videos, particularly to the extent they require creating a USPTO account. Other USPTO resources will remain available (such as TESS searching and more).

THURSDAY, SEPTEMBER 28 (class 11): Territorial extent of trademark rights

  • TPQ Leader: Broderick
  • Casebook: pp. 261-279

Revised schedule. Due to class being cancelled on Sept. 21 due to COVID, I have rearranged the remaining classes as follows below. In short, I combined two classes on false advertising (thus necessitating combining two TPQ leaders so that all T-3 associates have a chance to lead discussion). I’ve also added a session for meetings to discuss P1 performance and to engage in partner discussions for P2 after you have begun your C&D work.

Notice to TPQ leaders. I have maintained the order of TPQ leaders, but the dates for most of the group have been pushed forward by one class. Please check below carefully to see your revised TPQ leader date. If I have created a conflict for anybody please let me know and I will work with you to find an alternative date.

Project-related dates unaffected. Dates regarding projects (P1 and P2 due date, date for C&D letters, etc.) remain the same.

WEEK 7 – OCT. 3 & 5

TUESDAY, OCTOBER 3 (class 12): The likelihood of confusion test

  • TPQ Leader: Alicia
  • Casebook: pp. 319-321, 329-334, 337-356

THURSDAY, OCTOBER 5 (class 13): LOC cont’d; Modes of Consumer Confusion (sponsorship, initial interest)

  • TPQ Leader: Christopher
  • Casebook: pp. 371-396

WEEK 8 – OCT. 10 & 12

SUNDAY, OCTOBER 8: Project 1 due

TUESDAY, OCTOBER 10 (class 14): Modes of Consumer Confusion (post-sale, reverse)

  • TPQ Leader: Daihana
  • Casebook: pp. 397-420

THURSDAY, OCTOBER 12 (class 15): Modes of Consumer Confusion (reverse passing off)

WEEK 9 – OCT. 17 & 19

TUESDAY, OCTOBER 17 (class 16): Dilution

THURSDAY, OCTOBER 19 (class 17): Cybersquatting; UDRP and URS

  • TPQ Leader: Michael
  • Casebook: pp. 471-494

WEEK 10 – OCT. 24 & 26

TUESDAY, OCTOBER 24 (class 18): Secondary liability

  • TPQ Leader: Alejandra
  • Casebook: pp. 495-519

THURSDAY, OCTOBER 26 (class 19): Defenses—Fair Use

  • TPQ Leader: Mina
  • Casebook: pp. 519-523, 539-548, 551-556

WEEK 11 – OCT. 31 & NOV. 2

TUESDAY, OCTOBER 31 (class 20): Defenses—Expressive uses

THURSDAY, NOVEMBER 2 (class 21): Defenses — Abandonment and First Sale

  • TPQ Leader: Randy
  • Casebook: pp 602-608, 624-637

SUNDAY, NOVEMBER 5 (due date): Transmit your C&D letters

  • Re Project 2 enforcement. By this date you will have received your enforcement scenario and we will have discussed drafting of C&D letters.
  • By 12 midnight EST tonight, please transmit your C&D letter to the approved email address. (Note: deadline shifted from earlier date.)

WEEK 12 – NOV. 7 & 9

TUESDAY, NOVEMBER 7 (class 22): Trademark remedies

  • TPQ Leader: Melissa
  • Read the trademark-law remedies statutes, which at a minimum should include sections 1111, as well as 1114 through 1118
  • Casebook: pp. 756-770

THURSDAY, NOVEMBER 9 (class 23): False Advertising; Vidal v. Elster

DATE TBD (class 24): Meetings to discuss project 1 and to discuss P2 enforcement

  • We will meet in my office in small groups to discuss the progress of your project and enforcement; I will also give you each feedback on your project 1s
  • In preparation your assignment is to do your enforcement work, which will constitute more than the normal classroom and preparation hours.

WEEK 13 – NOV. 14 & 16

TUESDAY, NOVEMBER 14 (class 25): Endorsements and Social Media

  • TPQ Leader: Aki & Rebeca
  • Casebook: pp. 690-718 

THURSDAY, NOVEMBER 16 (class 26): Right of Publicity

PROJECT 2 DUE DATE

SATURDAY, DEC. 2, 2023: Project 2 (enforcement) due date

  • Project 2 is due today, Sat., Dec. 2, 2022, no later than 11:59PM EST.
  • Upload a single consolidated PDF to the Canvas upload link.
  • This date is intended to give you flexibility to shape your work and study schedule. If you complete the work prior to the due date, you may upload your submission earlier if you wish. If for some reason you want to revise your submission that is permitted, but you must do so by the due date noted above. Your upload must be a single consolidated PDF. See the project for instructions on the components of your casefile, and the order in which they should appear. You can use any document-consolidation tool you like, such as Adobe Acrobat. However, the cheapest and easiest solution may be to use Combine PDF, https://www.combinepdf.com.

 

Revised Jul. 31, 2023; Aug. 14, 2023 (clarifying OH); Aug. 28, 2023 (adding TPQ leaders); 8/29/23 (adding canvas link for marks); 9/20/23 (adding project submission links, noting changes to TEAS); Sept. 25, 2023 (re COVID and schedule); 9/25/23 (temporarily shifting future assignments to admin scratchpad for revision);9/2/23 (posting revised schedule, combining FA classes, adding meetings/makeup); 10/9 (TPQ swap); 10/25/23 (shifting C&D schedule); 10/31/23 (re C&D due date); Nov. 1, 2023 (FA/Elster assignment); Nov. 13, 2023 (fixing last week assignment typo and adding NIL link); Nov. 15, 2023 (fixing link).