Anolik_TrademarkLaw_Sp07_Answer_Q2 - ID Trdkaaw_n:J'malik...

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Unformatted text preview: ID: Trdkaaw_n:J-'malik} Anciik ID: [Exam Number} Exam Name: TrdkaanAnolik} Instructor: Annlik ‘araa‘f Pm EWE'E Fm: Qufifip N 2.. | Page 1 of? Bram taken wjih SUITEST v3.1 rfluasiion 1 continued} ID: TrdrnkLaw_ [Anslihl Janelil-t Conclusion: 'nce non commercial use is an exception to Dilution. Fo ' n will likely prevail. However. lntel can a o cooperate with Found and work out a deai. it is possible that lntef give hack to the community a 6571:0911 t.lchal‘lging its name a Mr Essa}.I 2 reeing not to infringe. Words and pictures may serve as Trademarks. Here. Mark has some possible causes of actions relating to the advertisement that induoed him to huv the chemical avocados. False Advertising lvtark mav sue the manufacturer of Avojellv and John's Jelly Store for false advertisement. Lanham Act section 43ta}. prohibits the use of a "false designation of origin, false or misleading description of fact, or false or misleading representation of fact in commercial advertising or promotion. which misrepresents the nature, characteristic, qualities or geographical origin of his or her or another person's goods. The policy.' behind this law is to insure truthfulness in advertising and to delarninate misrepresentations with reference to the inherent quality.r or characteristic of another’s product. Under the actr a Mark. must prove the following: 1} defendant has made a false or misleading statement — Since words in the ad said. “Fresh" and “Green" these suggest that the jellv is made from fresh avocado. To the contrary. the mixture was a green chemical with no real avocado in it at all. Defendant will argue that the Page T of El rofits or computers in exchange for Foundation W {Griesliorr i conrl'nuedi g: Trdm'sLet»: 1.3LI‘lDlifvii ilcclik green refers to the color and the fresh refers to being freshly sealed. However. the picture of the fresh avocados show suggests that the jelly is made from fresh avocados especially when linking the picture of the jelly jars with the avocado pictures. 2} the false or misleading statement has actually deceived or has the capacity to deceive a substantial portion of the intended audience - A consumer survey would be helpful of \/’ people who actually bought the avocado. asking them if they thought it was fresh avocado they were buying. And a survey of drivers on the highway who pass the advertisement. since the ad is intended for high way drivers, whether they believe the avocado is fresh. Furthermore. it seems likely that drivers would be deceived by the statement. 3} the deception is material in that it is likely to influence purchasing decisions — Fresh versus chemical is a huge difference especiarfin Ealifomia (here. f'm assuming Mark is in Sacramento. CA}. If this is California, healthy and fresh foods is highly desired and can be a / material fact to influence a purchasing decision. Here. Mark who is a "health food not" only eating organic foods was influenced to purchase the jelly due to the material deception that it was fresh avocados. 4] there is reasonable belief of likelihood of injury to plaintiff. Different standards apply depending on the relief sought Johnson 3. Johnson- Here. I‘viaric shouid ask for a prayer of relief #9. of monetary damages where he must prove that git-Walg- 5} the goods traveled in interstate commerce - assuming that the avocado traveled on % the highway to get to John's Jelly Store. the goods traveled in interstate commerce and met this 3 95:5 ., l requirement. M Misdescriptive l'v'larlrs Lanharn 2(a) bars registration of marl-rs consisting of or comprises of deceptive matter. Separate labelsfads about the true duality of the product is not enough to negate the deceptive Page E!- of ElI ['Ciueahon I conrrn Lien”) I—l LJ 'l'rdrnl-tla'i-i_ (Emil-1i kl Eng-1i}; mark, especially since buyers may or may not read the labels In Re-Budge. The concern is whether the consuming public is likely harmed. Here. the small ingredient label would not be enough to negate the deceptive picture of which induced health nut marl-t to purchase the chemical avocados. A 3 prong tests determines whether a mark is misdescriptive: ‘l]I misdescriptive of characterfoualityffunction. Is it what it says“? in Re Budge. the mark "Lamb" was found to be deceptive as applied to synthetic fibers for car seat covers. Here. the word "Fresh" and pictures of fresh avocados is deceptive of the chemical jelly. 2) Are purchasers liltely to believe misdescription? Looking at the sophistication of the consumers and the price. herer jelly is generally inexpensive and its purchase does not require / much sophistication and investigation. 3} is the misdescription likely to affect the decision to buy the good? Here, the "Fresh“ and pictures induced "health nut" Mari: 1was induced tobuy the chemical avocado. Therefore. this is likely a deceptive mark. and would not be allowed registration if one were sought. The best that Marl: could get out of this law is to oppose Avojelly‘s manufacturer if it / were to register the marl-t. Defense: Avojelly will claim that Mark has no standing to bring a cause of action under unfair / competition. In W, the court held that the Lanham Act was to heip those who engaged in commerce and only commercial parties have standing to sue since the intent of congress is against unfair competition. Alternatively. Mark can write ietters to the company itself andror lobby consumer protection groups lo take action against such false tiff/g representationiadvertisements, or at the very least get a refund. _..5_W Page El of El "f M ...
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