Your exam is drafted.

There are 50 multiple choice questions, worth 1 point each.

There are 2 essay questions, worth 25 points each.

The exam will count for 60% of your grade, with the three written assignments worth 10% each, class participation worth 10%, and early-semester blog commentary sprinkled in for extra credit (if appropriate).

I had anticipated only having one essay, which would have made a closed-book exam appropriate. However, given that there are two essays, I thought that might be more stress than is warranted. I have decided to lessen your stress and make the exam “open book.” However, you may not bring any commercial outlines to the exam.

Please exercise professionalism and pass this along to any of your classmates, as I’m sure that there are a few who won’t check this site until it is too late.

Post your exam review questions here by Tuesday Nov. 18.

In this class, we are going to discuss some commercial speech issues, specifically focusing on where trademark law and the First Amendment come into contact with each other.

Reading:

1. First Amendment Limitations on Trademark Rights
2. Government Regulation Gets the Finger from a Feisty Frog
3. Vanna White v. Samsung Electronics
4. Dissent by Kozinski
5. Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998)
6. Smith v. Wal-Mart Stores, Inc., 537 F. Supp. 2d 1302 (N.D. Ga. 2008)
7. Freecycle Network, Inc. v. Oey , 505 F.3d 898 (9th Cir. 2007) (you have already read this for an earlier class).
8. BidZirk, LLC v. Smith, 35 Media L. Rep. 2478 (D.S.C. 2007).
9. Burnett v. Twentieth Century Fox Film Corp., 491 F. Supp. 2d 962 (C.D. Cal. 2007). (focus on the trademark discussion)

Class will NOT be canceled on November 4.

You will be responsible for the reading from page 585-611. Your guest lecturer will be Mr. Kevin Wimberly.

Kevin is one of my former students, and a very impressive trademark attorney in his own right. Please give him a warm welcome and be prepared.

Read this post.

Can you answer Ron’s question?

You probably already realize this, but we are still a half a class behind. I will try and rush through some of this stuff so that we can catch up.

Since we are a little off-schedule due to last week’s class cancellation, this is a bit of a mishmash…

Be sure you’ve done all the reading for Class 12.

Read 332-363 in your text.

Read TTAB Rules That “SHINNECOCK” Marks for Cigarettes Suggest a False Connection with the Shinnecock Indian Nation

Read In Re Cybernet TTAB appeal

Take a look at this article (courtesy of Mr. Fischer). What are your thoughts?

Your client runs a subscription website called “BBR – Bum Battle Royale” (website is www.bumbattleroyale.com). Both BBR and “Bum Battle Royale” are registered trademarks (collectively “the BBR marks”).

That website charges $20 per month for access to films of homeless people beating each other up for prizes. They are usually dressed up as Pirates and Ninjas.

The site is wildly popular.

About a year after launch, they inaugurate an online affiliate program. Any affiliate that refers a sign-up gets $10. The affiliate agreement calls for BBR to have the right to terminate any Affiliate who does not conform to their detailed standards of acceptable conduct. However, BBR rarely terminates an Affiliate — especially if that affiliate is referring traffic. The program has been running for 6 years.

Affiliates come up with all kinds of creative ways to refer traffic. Most use banner ads and blogs.
Some set up their own websites, using the BBR logo and BBR name.

Others simply use typographical errors of the www.bumbattleroyale.com in order to “typosquat” on the BBR marks. However, these typosquats refer traffic to the client’s website. They are operating exactly like the defendants in Land’s End Inc. v. Remy et al., 447 F. Supp. 2d 941 (W.D. Wis. 2006).

Three questions:

1. Is the failure to exercise the control granted by the agreement fatal to the BBR marks?
2. What about the typographical errors? Is a failure to control those fatal to the BBR marks?
3. What is your advice, moving forward, for the BBR affiliate program?

Due Thurs, Oct. 9. Same rules as the rest of the assignments.

Later in the semester, we will be looking at Cybersquatting. Here is a good resource for cybersquatting decisions.