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Chapter 9: Intellectual Property
Answers to Select Case Questions
3. The district court dismissed the case but the appeals court reversed and remanded. Factors to
be considered in determining whether a likelihood of confusion exists between trademarks
include: 1) similarity of marks; 2) similarity of goods or services; 3) relationship between parties’
channels of trade; 4) relationship between parties’ advertising; 5) classes of prospective
purchasers; 6) evidence of actual confusion; 7) defendant’s intent in adopting the mark; and 8)
strength of plaintiff’s mark. There is an issue of material fact as to whether consumers were likely
to be confused by the similarity between the marks here; that precludes summary judgment in the
case. Even if Beacon could not show that it lost sales, if it could show that there was confusion
among selling agents and likely buyers, it has raised the possibility of damage to its goodwill and
business reputation. Those factors are protected by the Lanham Act.
5. The injunction was denied. Origins is a relatively strong mark that is suggestive. However,
consumers are unlikely to be confused between Origins and Natural Origins. The product lines,
cosmetics and women's clothing, are distinct, and the marks are different. The script used on the
marks are quite different, further distinguishing them from each other. Origins is a common word
in English, so Origins cannot have complete control of the word.
7. No. "...the executives at Hormel as not amused. They worry that sales of SPAM will drop off it
is linked with 'evil in porcine form.' Spa'am, however, is not the boarish Beelzebub that Hormel
seems to fear. ... Spa'am is a comic character who 'seems childish rather than evil.' ... By film's
end, 'Spa'am is shown sailing away with other Muppets as good humor and camaraderie reign.'
Hormel also expresses concern that even comic association with an unclean 'grotesque' boar will
call into question the purity and high quality of its meat product. But the district court found no
evidence that Spa'am was unhygienic. At worst, he might be described as 'untidy.' Moreover, by
now Hormel should be inured to any such ridicule. Although SPAM is in fact made from pork
shoulder and ham meat, and the name itself supposedly is a portmanteau word for spiced ham,
countless jokes have played off the public's unfounded suspicion that SPAM is a product of less
than savory ingredients." The use of the character Spa'am is unlikely to create any confusion with
the product SPAM, nor will the value of SPAM be injured by blurring of distinction or by
tarnishment of reputation. There is no deception involved. Further, the merchandising of Muppet
Treasure Island merchandise that will carry the likeness of Spa'am will not be confused in the
marketing of SPAM itself.
9. The Supreme Court held that color alone may serve as a trademark. Qualitex could register its
green-gold color of press pads as a trademark that could then be protected from infringement.
The color has attained "secondary meaning" which means it alone identified and distinguishes the
brand of the press pads, and hence, indicates the source of the product. Color is not a functional
feature. Trademark law is not to be used to inhibit legitimate competition by allowing firms to
control useful features by trademark; rather, trademarks are to promote competition by protecting
a firms reputation by protecting non-functional aspects of the good or service that have gained
recognition in the marketplace.