Expert answer:Resolving Intellectual Property Rights
Answer & Explanation:Note: The companies mentioned herein
are merely hypothetical organizations with characteristics developed to enable
students to respond to the assignment. You may create and / or make all
necessary assumptions needed for the completion of this assignment if those
assumptions are consistent with the facts presented. Do not make
assumptions which obviate the need to conduct a legal analysis of the
issues.
In this assignment,
you will act as the fictional character of Betty Fuller, Head of Marketing at
Simply Green Products, while you draft a memorandum to the company President. In
this memorandum, you must explain how you would resolve the legal issues
discussed in the scenario.
Scenario
Simply Green Products
(SGP) is a $10 million company that produces biodegradable packing materials
that orchards use in the Shenandoah Valley to transport their apples, peaches,
and pears nationwide. Biodegradable materials are more eco-friendly because they
break down into the environment. Such packing materials are marketed under the
name “SafePac,” which is heavily advertised in trade journals. Simply Green
Products have had the name “SafePac” imprinted on all of their packing material
since 2008. Although SGP never filed for either state or federal trademark
protection, following the advice of one of their summer interns, they did
register the domain name “SafePac.com.” With the movement toward more
eco-friendly agricultural production, the fact that such packing materials are
biodegradable provides a primary marketing advantage over non-biodegradable
competitors.
Despite the fact that
SGP is highly eco-friendly, it is not particularly technologically advanced. SGP
mostly advertises in trade journals and magazines, with most orders coming via
the mail or phone orders. Shep Howard, President of SGP realizes his company
needs to increase its marketing presence and recently hired Betty Fuller, a
recent Strayer graduate with an MBA, to be the new Director of Marketing for the
company. Ms. Fuller has been charged with bringing SGP’s marketing plan into the
21st century.
In preparing the new
Marketing plan, Ms. Fuller, quickly noticed that although SGP owned Safepac.com,
the name SafePac, itself had never been registered with the Trademark and Patent
Office. Accordingly, one of the first things Ms. Fuller did was start the
registration process. When searching the USPTO office database to see if a mark
has already been filed she found the following entries shown below:
She immediately
realized SGP had a problem. Ms. Fuller did some additional research and found
that a company called Safe Choices, Inc. uses the SafePack name to market an
emergency weather kit in the form of a backpack; and had received a federal
registration for the mark from the Patent and Trademark Office in 2002. This
backpack is sold both online at SafePack.com and in sporting goods stores
nationwide.
Note: “A complete search is one that
will uncover all similar marks, not just those that are identical. In this
regard, searching for trademark availability is not the same as searching to
register a domain name. A domain name search may focus on exact or “dead on”
hits, with no consideration given to similar names or use with related products
and services. Basically, a domain address is either available or it is not. The
trademark process, on the other hand, is more complex. As part of the overall
examination process, the USPTO will search its database to determine whether
registration must be refused because a similar mark is already registered for
related products or services (i.e., even identical marks may co-exist if used on
goods or services not considered to be related in any way). Please note that the
USPTO does not offer advisory opinions on the availability of a
mark prior to filing of an actual application.”
http://www.uspto.gov/trademarks-application-process/search-trademark-database
Legal
Issues
Ms. Fuller contacted
Shep Howard to discuss SGP intellectual property problems and to devise a plan
on how to proceed. In her meeting with Howard Ms. Fuller explained the legal
issues to Howard as follows:
SGP has been using the product name SafePac
since 2008 but never trademarked or otherwise registered that named. A company
called Safe Choice had registered the names SafePack and SafePacs back in 2002
and those names were listed live marks by the USPTO. Arguably, SafePac may be
confusingly similar to Safe Choices marks to preclude registration of the marks.
Moreover, use of the name may “constitutes a false designation of origin which
is likely to confuse customers as to the source of the goods”. However, safe
Choice and SGP are in different product lines and, therefore, arguably are not
competitors, a requirement for infringement. The intellectual property issue at
hand involves the Lanham Act.
Even if the USPTO finds that SGP’s proposed
mark and Safe Choices marks are not similar or that SGP and Safe Choice are not
competitors, registrations may nonetheless be denied under the provisions of the
Trademark Dilution Revision Act of 2006, 15 U.S.C. § 1125(c). For additional
information, see Duvall, S.A. (2007). The Trademark Dilution Revision Act of
2006: balanced protection for famous brands. The Trademark Reporter, 97(6),
1252-1285.
Since we purchased the domain name
SafePac.com, Safe Choice may attempt to accuse SGP of cybersquatting and try to
have that domain name transferred to their control. Any such action would
proceed under the Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. §
1125(d).
Finally, she outlined
her plan on how to proceed with the marketing plan based on how she though the
legal issues would be resolved. Mr. Howard then asked Ms. Fuller to put the
information she had just given him in memo form.
Assignment
Requirements
In the role of Betty
Fuller, prepare the memorandum requested by Shep Howard. The memo should be
three to four (3-4) pages in which you:
Decide whether or not SGP can register
SafePac as a trademark given the issues discussed in “legal issue:
a”.
Decide whether or not the Trademark Dilution
Revision Act of 2006 would be violated if the USTPO granted SGP a trademark on
SafePac.
Decide whether or not the Anticybersquatting
Consumer Protection Act would be violated by SGP’s use of
safepac.com.
Describe how your resolution would affect the
marketing options available to the company.
Use at least three (3) quality academic or
legal resources in this assignment, such as a government Website, Law school
Websites, Restatements of laws, and other treatises of Law. Your paper must
include internal citations indicating the sources of your legal
statements. Note: Wikipedia and other Websites do
not qualify as academic or legal resources.
Format your assignment according to the
following formatting requirements:
Typed, double spaced, using Times New Roman
font (size 12), with one-inch margins on all sides.
Include a cover page containing the title of
the assignment, the student’s name, the professor’s name, the course title, and
the date. The cover page is not included in the required page
length.
Include a reference page. Citations and
references must follow APA format. The reference page is not included in the
required page length.
The specific course
learning outcomes associated with this assignment are:
Describe the legal environment of business,
the sources of American law, and the basis of authority for government to
regulate business.
Use technology and information resources to
research issues in business law.
Write clearly and concisely about business
law using proper writing mechanics.
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