Fill This Form To Receive Instant Help

Help in Homework
trustpilot ratings
google ratings

Homework answers / question archive / Choose just ONE of the questions below and answer it in essay form

Choose just ONE of the questions below and answer it in essay form


Choose just ONE of the questions below and answer it in essay form. At the beginning of your essay, please include the question that you have chosen to answer for this. This essay should cover at least 1 single- spaced typewritten page with a 12 point, Times New Roman font. Essays that are just summaries of the course material will not do well. I want an organized, well-written, and clearly expressed essay led by your thesis position, made by your arguments, and supported by course content as evidence. (no other references except for course content).

ESSAY QUESTIONSRead the questions carefully to figure out exactly what I am asking you to answer.

  1. Considering all those who could be affected, is it an overall benefit or detriment for the rights of everyone in the country for a court to be able to use the “exclusionary rule” and the “Fruit of the Poisonous Tree doctrine” to exclude illegally obtained evidence?
  3. In Lochner v. New York, Justice Peckham disagreed with the viewpoint of the New York State Legislature that a law regulating sanitary conditions and working hours for a bakery legitimately related to the safety or health of a community. Do you think that our Constitutional rights and liberties are better protected if a Court can substitute its policy judgment in place of a competing one made by a Legislature or if a Court restricts itself to deciding whether a law is expressly consistent with the Constitution? (You can use the Lochner case as an example in your essay, but you may use other cases as well.)
  5. In Jacobson v. Massachusetts, the Supreme Court required that a state law claiming to regulate public health and safety must be necessary and reasonable for it to survive a valid citizen claim that the law affected their Constitutional rights. However, not every Court uses those two limitations. When a Court does not use them, does it allow the concept of State Police Power to extend the reach of the Tenth Amendment too far?
  7. Do you agree with the majority in Kelo v. City of New London that the “public use” requirement from the “Takings” clause of the 5th Amendment can be properly satisfied if the government had a legitimate “public purpose” in using eminent domain to take the private property from one private citizen and give it to a private company to own?
  9. Should Copyright be considered as a right with a similarly high level of importance and protection as the fundamental rights expressly recognized in our Amendments rather than as an incentivized privilege that the government only grants for a limited time?
  11. One purpose of Trademark law is to protect consumers from confusion as to which company a product or service comes from. Therefore, is it an overall benefit or detriment to consumers when a very well-known brand name for a company or its product/service loses its legal status as a valid Trademark due to a finding of “Genericide” by a court?
  13. There are five pairs of words below. The first word is a brand name, and the second word is a product type. The legal strength of each brand name fits into one of the five different categories of the “distinctiveness spectrum” of Trademark. For this question you need to do 2 things: A) Name the spectrum category that you think applies to each brand name, B) Explain why the category that you choose for each name is appropriate based on the legal description of the category and level of protection that category gets.
    1. a) “Blanket” hamburgers
    2. b) “Sodium Chloride” seasoning
    3. c) “Illuminating” lamps
    4. d) “Flryzx” watches
    5. e) “Atlas” mattresses


How to write an argumentative essay This advice will help you write better essays for the Midterm and Final Exams in my classes. I do not know if this advice will help you with other Professors. The first important thing for my essays is to realize that you have to answer the specific question and not just the overall topic. Focus on the actual question and answer every part of the question if there are multiple parts. Take the time to patiently figure out which parts of my question are asking you to write something. If you only answer part of my question, you aren’t going to get a high score no matter how good your essay is for that one part. Read the questions carefully before you start writing or preparing. You need to follow directions and know exactly what you are answering. Do not just write an essay from your prepared notes on the topic that you wanted to talk about. My questions, exactly how I have written them, have to be your focus for you to do well on my exams. The essay should not be a summary of the outside material we studied (or my notes) nor should a large summary be provided of the materials we studied. Do not treat this as a literature review or a review of the material. Any “outside” information (information that is not your own viewpoint) should be treated as evidence and only used to support your arguments after you actually introduce and fully make your arguments. Outside information is only helpful in essays for my class when it is used selectively and tied specifically to your argument. You should not have more quotes/summary of other sources than your own arguments. The essay should not be a summary of the outside material we studied (or my notes) nor should a large summary be provided of the materials we studied. Do not treat this as a literature review or a review of the material. Any “outside” information (information that is not your own viewpoint) should be treated as evidence and only used to support your arguments after you actually introduce and fully make your arguments. Outside information is only helpful in essays for my class when it is used selectively and tied specifically to your argument. You should not have more quotes/summary of other sources than your own arguments. Give me your viewpoint in the form of a thesis statement that directly answers the question that I am asking. Then give me 2-4 main reasons why you believe in your viewpoint in the form of 2-4 arguments with each argument being a paragraph. Then you can introduce evidence to support the already made arguments. If you have a question with multiple parts, you don’t need 2-4 reasons for each part. Some of the parts may not require more than 1-2 reasons for the way that you feel. You know how deep you have to go with argument based on the approximate page limit and how many parts of the question you have. If I ask a question that has 3 parts to it, you know that you don’t need to go more than 1 page for each part to if I am asking you to write a total of 2-3 pages for the entire essay. If there is only 1 part to a question, then you would want 2-4 reasons supporting your thesis. For the midterm and the final exam, you have to have a strong structure for your essay that acknowledges a central thesis position from the start of the essay and provides arguments and evidence to focus on and support that thesis position. That thesis position should be your answer to the question. Do not end your first paragraph without giving your thesis position as it should be the focal point of the essay. You can’t focus on something if you haven’t introduced it. It is also appropriate in the thesis paragraph to “forecast” your arguments after you give your thesis position. “Forecasting” means to give your thesis position first and then immediately provide very brief statements of your arguments afterward. EXAMPLE: This prompt is from an optional Writing Assignment from a previous course: “In a 2 to 3-page essay, answer this question: Does the power of the Judiciary to override decisions of popularly-elected representatives from other branches of government strengthen or weaken the Constitutional rights of the citizenry? Why?” Here is an example of a thesis statement that has forecasting. “The power of the Judiciary to override decisions of popularly-elected representatives from other branches of government definitely strengthens the Constitutional rights of the citizenry. The reasons I feel that way is because factions have taken control of our representative government, the Judiciary is able to best defend against tyranny of the majority, and Judicial Review was originally intended by the framers to be the key power of the Judiciary to protect our rights.” What I did there was briefly summarize the 3 arguments that I plan to use throughout the essay to support my thesis position. With those 2 sentences ending my thesis paragraph, I now have forecast/previewed to the reader what my main supporting reasons are for why I feel the way I do about my thesis position. It is my responsibility to follow-up on them all, but I have already done the first important thing in writing an academic essay: communicating my intentions to the reader. I have also done the first important thing as a writer: prepare my structure. With that task done, it is VERY easy to structure all of my essay paragraphs: Thesis Paragraph: Brief introduction, Thesis statement, Argument forecasting. Also, it is fine to have a 1-2 sentences to start your thesis paragraph that introduce the topic in general but do not spend too much time discussing the overall topic. Discussing the overall topic will not get you points on my exam. Get right into answering the actual question and you do that by giving your thesis position and then getting into your arguments. Forecasting is a way to get points but it’s more importantly a way to get you to focus on the way that you write your essay. Body Paragraph 1: Argument 1. The “factions have taken control of our representative government” phrase will now be turned into a full argument. I will give 2-3 sentences laying out my points with my own opinion and reasoning since this is my argument as to why I feel the way I do about my thesis position. Then I will give some outside evidence while specifically tying the evidence to my arguments. I do not leave it to the reader to make the connection. I make it for them. That is the job of a writer in an academic essay. I also do not include quotes in my paragraph without first introducing them and then connecting them to my points. I will also only choose outside evidence that supports my argument. And I will not use more outside evidence than I need. Just because a quoted sentence comes from a paragraph doesn’t mean I have to use that entire paragraph. Also, do not use the source to make your argument for you. The source just supports your argument by giving some outside credibility/approval/evidence of your points. Body Paragraph 2: Argument 2: “the Judiciary is able to best defend against tyranny of the majority” I do the same to create an argument as I did with the first. Body Paragraph 3: Argument 3: “Judicial Review was originally intended by the framers to be the key power of the Judiciary to protect our rights” ” I do the same to create a full argument as I did with the first and second arguments. Brief Conclusion: You don’t really need a conclusion in one of my timed exams, but you are welcome to provide one. Just don’t bring up a new argument in your conclusion paragraph that you didn’t already bring up and fully make before. Use the conclusion paragraph for any extra insight as to the overall situation. If you use the above structure and provide deep enough arguments with useful evidence and analysis, you’ll have enough of an essay to cover 2-3 page. Session 23 – Tuesday, May 4 Topic: Trademark law Trademark law is in between the fields of "Intellectual Property" and "Business" law. It's discussed along with Copyright and Patent but isn't established by the same laws and is not mentioned in the Constitution at all. It doesn’t have the same fundamental importance, but it has widespread usage and applicability to daily life. Protection for Copyrights and Patents are established directly and clearly by the Constitution. Trademark law is not directly mentioned in the Constitution. That's one more reason why some people don't consider Trademark law part of "intellectual property" law, for those who even use that term. Oddly enough, both Trademarks and Patents are protected by the same government office: The Patent and Trademark Office (U.S.P.T.O) in Washington, D.C. Copyrights are protected by the U.S. Copyright Office. You’d think that Copyrights and Patents would be protected by the same office set up by Congress but you can’t always expect to find a logical symmetry in government. Congress has the primary power to regulate Trademark law as part of the Commerce Clause and we’ll discuss later how that power is derived. The reason Trademark law is not mentioned in the "Copyright and Patent" section of the Constitution is because it is a different type of category of rights then copyright and patent law. While copyright and patent law protect different types of creative results of intellectual production, the two aren't all that different in theory. Authors and inventors are the targets for protection of copyright and patent law. They are both “creators.” Trademark law was created to protect two groups: Businesses and Consumers. The main legal function of a trademark is to tell the public where a product or service comes from. Trademark law protects the knowledge of the origin and ownership of products and services. The field seeks to protect the business creating products and also seeks to protect consumers from any confusion arising from a trademark infringement. The "protection" isn't for the idea or the product itself, like ideas in a book or data in a program. What is protected is the knowledge that the book came from a certain publisher or business. It's the concept of where the product originated that Trademark law protects. Trademarks can do other things. They can be used to help sell the idea of a product, or to be aesthetically pleasing, or send some other messages to consumers about the company. But those aren't the primary purposes. The word and symbol for Pepsi may fill you with pure joy every time you see it but as long as it clearly indicates that the cola you are about to buy came from the Pepsi corporation, it has done its legal job as a Trademark. Trademarks are the "legally recognized address" of a product or service more than anything. And in doing so, trademarks and Trademark law helps two groups of people: - It helps the company that registered it because it protects its products from being confused (intentionally or not) with products of its competitors. If Pepsi believes its cola is better than Coke's, then the trademark allows them to communicate their identity to the public for potential profit. When consumers know that every Pepsi they buy has come from the same company and will taste the same, Pepsi benefits from claiming its origin. - It helps protects the consumers by allowing them to use previous consumer behavior to purchase new products that function in a similar way or of a similar quality. If you once had a Pepsi and enjoyed it, you will easily be able to find it again amongst other colas. There is less confusion amongst what you will be buying due to trademarks. Brand names represent similar experiences that allow consumers to tailor spending habits and plans. The product that is trademarked may be the result of a copyright or patent. You may have bought a book, which has copyright protection, or a bicycle, which has patent protection. That label on the book or bicycle that tells you the company that made it is the trademark. The trademark lets consumers know who created and who sold that product so that they can expect a certain consistent degree of quality when they continue to buy products from that company. It also protects the company against having rival companies profit from their work as a result of confusing consumers as to where the product came from. That means only Coca-Cola gets to label their products with the Coca-Cola trademark. Someone making cola in their bathtub doesn’t have the right to use Coca-Cola trademarks in selling their cola. Not only would that misrepresentation harm Coca-Cola by having someone profit off of their reputation in place of their sales, it would also harm consumers. When they buy a product with the Coca-Cola trademark, they expect to have the same experience that they usually do with Coca-Cola, but they wouldn’t here. Trademark law recognizes the importance of consumers having reliable knowledge. Discussion Question: Out of the two groups of people that Trademark law is meant to protect, which group should a Court prioritize if there is a conflict between the two? Legal origins of Trademark Law Trademark law in the United States is a field has been protected by implication under the Commerce Clause of the Constitution. As we mentioned a few weeks ago, that clause states that Congress has the power to regulate interstate commerce in the US. Since Trademark law directly affects interstate commerce, Congress has power over it. Under the power of the Commerce Clause, Congress has created Trademark legislation called the Lanham Act. That is the controlling United States law pursuant to Article 1, Section 8, Clause 3. However, the Lanham Act is not the ONLY law on Trademark. The Judiciary interpretation of the Lanham Act has created influential common law. Most Trademark cases deal with the Lanham Act and related court precedent. We’ll talk about the ways that the common law actually influenced the Lanham Act later today. The Lanham Act lists rules of registration, the rights you get, and the requirements you have. Like creating a corporation or getting married, registering a trademark enters you into a legal relationship with the government. That brings new rights and responsibilities you didn't have beforehand. Unlike marriage, Lanham Act gives you Federal protection. You apply for a Federal Trademark through the Patent and Trademark Office. What if you can’t successfully Federally register a Trademark or don’t try to? - File officially with the State you are operating in. Use the Trademarked brand in commerce to gain some state common law rights. You still obtain some common law Trademark rights, if you use what you want to be the Trademark in commerce AND if no one else has registered it or has started using it. If you create a Trademark symbol for your company that you intend to use as a Trademark but you don't want to file or are unsuccessful in doing so, you will eventually get state common law protection by just using it in commerce before others do. However, without having Federal registration, you lose some of the rights that come with it. For example, without a registered trademark you can’t sue others on the grounds of trademark infringement for monetary gains. You can just stop them from using the mark. Also, by using a mark in commerce it protects you against trademark infringement suits. Trademark registration makes it easier to prove you have a proper trademark if you are sued. It's better and clearer evidence. This is like getting a Federal copyright as well. Trademark brand approval under the Lanham Act Now we come to the legal specifics of what it takes for Trademark names to be approved. Trademarks names are approved based on the type of “distinctiveness” that the attempted words (or symbols) convey as a brand name (or symbol). The question is whether the public would recognize the word as a trademark or as a regular word. A company wants to present a word that has meaning to consumers specifically as a trademark which then calls to mind the company of origin. Words will be eligible for Trademark protection under the Lanham Act if they either have “primary” or “secondary” meaning as a trademark name. “Primary meaning” signifies a word that has no meaning other than a trademark. It’s a word or term that was created to be a trademark. It will always have the highest Trademark protection by the Patent and Trademark Office and Courts. “Secondary meaning” signifies that a word which existed before a company tried to use it now has an extra meaning as a trademark beyond what the word originally meant. “Secondary meaning” gets into the heart of what makes the majority of Trademarks legally valid and philosophically relevant beyond the filing procedure. That is because the majority of Trademark names rely on possessing secondary meaning: Sometimes the name will already have it upon application to the P.T.O. but other times the company will have to acquire secondary meaning for their trademark through actual commerce. What exactly is secondary meaning? Take a word like apple. We know an apple is a food and always has been. But we also know that when we buy a computer and see "apple", it's not referring to a food anymore. The term "Apple" has taken on a secondary meaning as a brand since people realize it means a company in addition to a food. "Apple" doesn't mean JUST a food now, it can also refer to the name of one company. The context often helps us know but it’s not always clear. That shows the strength of the word Apple as a trademark and that it has taken on secondary meaning. Distinctiveness Spectrum We turn to something called the “Distinctiveness Spectrum” to determine whether or not a name qualifies for Trademark protection. This test is used by the P.T.O. to decide whether they are going to register a Trademark after someone sends an application. The test is also used by the Judiciary in a Trademark infringement suit to decide whether the brand name at issue can legally be considered a valid Trademark. The “Distinctiveness Spectrum” was created by the Judiciary, not the Lanham Act. I mentioned before how influential Judicial common law is in this field. The Lanham Act was later revised to reflect the “Distinctiveness Spectrum” analysis created by the Courts. The relationship between Legislative Trademark law and the Judicial Trademark law is similar to other fields: The appellate judges are the ones that actually defined the field through their interpretation of statutory law when it was either vague or non-existent. Trademark law does have guiding statutory principles, but it was evolved so much by the common law that it’s one of the strongest displays of Judicial power in U.S. law. Abercrombie & Fitch Co. v. Hunting World (1976) was the case that established the “Distinctiveness Spectrum”. The case made it as high as the Circuit Court, but not the Supreme Court. That is not unusual for a Trademark case. The Supreme Court does not take many Trademark law case but it happens. It’s actually unusual that Congress would modify their statutory law based on a decision from the Circuit Court but that just shows how influential this case became. The rule in the case established a test that is one of the most important rules and concepts to understand about how Trademark law functions. This “Distinctiveness Spectrum” also leads to a (relatively) enjoyable exercise. Once you understand this test, you’ll spend a few weeks applying it to every brand you see. This test has five categories that an attempted trademark name can fall into. A “Line of Inherent Distinctiveness” separates attempted brand names that fall into the top 3 categories from names that fall into the bottom 2 categories. Any brand name that falls into a category above that line is automatically granted Federal Trademark protection without needing to be in commerce. The distinctiveness, the quality of a name being legitimate for a trademark, is inherent in the name. If a plaintiff sues a defendant for trademark violation and has to first prove that they have a valid trademark, that trademark name will have to fall into one of the categories above the line in order for the court to proceed to the other parts of the infringement test. A brand name that falls into the fourth category will not be granted Federal Trademark protection or recognized by the court as a legitimate name but it has the chance to do so. If the company uses the brand name in commerce for five years, it can re-apply for it. A brand name that falls into the fifth category can never get Trademark protection. Here is the Distinctiveness Spectrum: 1. Fanciful or imaginative 2. Arbitrary 3. Suggestive --------------------------- “Line of Inherent Distinctiveness” 4. Descriptive 5. Generic Fanciful/Imaginative: The category that protects the strongest type of brand names. This is the category I was referring to when I said that it’s better for a trademark name to be created with a primary meaning then develop a secondary meaning. These are words that are created specifically by the company to serve as a Trademark. Secondary meaning here doesn't even exist or need to exist because people see only one meaning of the name: that of a trademark. These words did not actually formally exist before a company made them and they have no other original meaning. This is the strongest category because the public immediately recognizes these words as a Trademark. These words convey no information about the company or the product beyond the fact that it is a trademark noting the origin of that company or product. How could these words convey information if they were just created out of nowhere to sell the product? They can only be associated with the brand. An example would be Xerox. That is a made-up word that never existed before that company and originally had no connection to anything else besides the company. One exception here is if you have a made-up word like “Xtreme” that sounds very much like a real word. That can be seen as Descriptive which we will discuss below. It’s up to the court. Fanciful isn’t just creating a new word, it’s creating something that has no meaning other than as the brand name of a company or the brand name of a product. Arbitrary: The first category that protects brand names with secondary meaning. The Arbitrary category protects words that already exist. But when these words are used as brand names, they do not convey the original meaning of the word. In fact, an arbitrary brand name conveys no actual information about the product that is being sold. An example would be “Apple” Computers. There is no connection between the word and the product, so it is easy to establish secondary meaning within the intended computer market. We don’t think of an Apple computer as having any qualities of the apple fruit. The difficulty isn’t in figuring out what is an arbitrary mark but what is the difference between an arbitrary mark, a suggestive mark, and a descriptive mark as the lines can be blurred, especially in the eye of the beholder, as to which words fall into each category. I have suggested trademark names before that I have considered arbitrary but that someone else may see as suggestive since they see some connection between the words I don’t see. So it is possible for you to hear of a brand name that a court considers to be arbitrary that you consider to be suggestive or even descriptive. The law is still created by people and not logical robots that all think the same (and James Madison is likely very pleased by that). If you create robots that become judges, you can find a good brand name for them. Suggestiveness: The next category that protects brand names with secondary meaning. The Suggestiveness category protects words that already exist like in the Arbitrary category. Unlike the Arbitrary category, a brand name considered to be Suggestive does convey a hint of information about the product provided you have background knowledge or imagination to relate the hint to the product. That means that a brand name that falls under the Suggestive category has secondary meaning, but also has a connection between the original meaning of the word and the product that is being sold under the brand name. An example would be “Nike” sports gear as Nike was the Greek Goddess of Victory. The original “Nike” meaning isn’t that well known. However, if you know it, that original meaning can hint at certain qualities possessed by the products with that brand name. This is the lowest protected category. It’s right above the line of inherent distinctiveness. The difference between “arbitrary” and “suggestive” is legally irrelevant since both categories are above the line of inherent distinctiveness and grant trademark protection automatically and immediately without proof of secondary meaning to consumers. But the difference between “suggestive” and “descriptive” matters since “suggestive” marks give automatic trademark protection whereas “descriptive” brand names don’t. Descriptive: Brand names in this category do not get immediate protection. The Descriptive category applies to words that already exists that give straight forward information about the product to the consumer. Secondary meaning is not immediately established by the word itself. Therefore, the category is not distinctive enough. Examples would be: “Chapstick” which clearly conveys information about curing chapped lips. "Red Lobster" sells lobsters...and more generally seafood. These brand names use the original meaning to describe the product that they are attached to. These marks do not have inherent distinctiveness like Suggestive, Arbitrary, and Fanciful marks. If you apply to the P.T.O. with a brand name that they consider Descriptive, you won’t immediately get protection. If you are a party to a Trademark lawsuit and the Judge finds that your brand name is Descriptive, you will probably lose the case. Why do I use the words “won’t immediately get protection” or “you will probably lose?” Because a brand name that is considered to be Descriptive can still one day get trademark protection if it eventually gains secondary meaning with consumers by using the brand name in commerce. Secondary meaning would override a lack of inherent distinctiveness. That is why Red Lobster is now a valid trademark. It wasn’t originally. Now we know that a commercial advertising “Red Lobster” isn't just advertising lobsters that are red. Red Lobster, Chapstick, and other companies used their marks in commerce to the point where people began to associate those words as a trademark and not just a description. Words like “Xtreme” will often be seen as descriptive since it is just a slightly different misspelling and people know what the term means. The reasoning being that slightly misspelling an existing word shouldn’t get you a shortcut to the fanciful category. We’re not just talking about “words,” we’re talking about meaning. “Qwyjibo” doesn’t put any ideas in your head but ‘Xtreme” likely does even though it’s not a formal word. People understand the meaning of the word despite the misspelling. When you read the word “Xtreme” you think of the word “Extreme” and the idea is already in your head. People’s real names are considered to be “Descriptive” until they acquire secondary meaning. However, just because you can Trademark your name and prevent others from using it within your area of business, that doesn’t mean you can prevent people from using it as a legal name. McDonald’s can’t stop someone from having the legal name McDonald. They just can’t use McDonald’s as a trademark for a restaurant name and, likely, for other businesses either given the likelihood of consumer confusion due to how well known McDonalds is. But if someone opened a McDonald’s skydiving company, and McDonald’s the restaurant sued, there is no guarantee a court would prevent that. Fake last names usually fall into the Arbitrary category unless they are “made up” last names used to sell the product in a certain way. For example, “Mrs. Butterworth” is a suggestive or descriptive mark unless there is a real Mrs. Butterworth. If my real last name is Salt and I’m selling salt, I have to establish secondary meaning in commerce. Using your own last name as a trademark does not have inherent distinctiveness. Generic: This is literally advertising what the product is. If I were to set up a brand named “Salt” to sell actual salt that would be generic. You can't get any trademark protection, or even classify for secondary meaning, if you use the actual name of what the product is. There's no secondary meaning and it would confuse consumers if “salt” was a brand or company that sold salt. However, if I set up a company or brand called “Salt” and sold televisions, Salt would be arbitrary much like Apple is for computers. If you are selling a medication under the actual chemical name, that is generic too. Discussion Question: “Should the ‘Line of Inherent Distinctiveness’ be placed higher or lower by the Courts in relation to the categories so that it becomes harder or easier for a name to automatically get Trademark protection?” Let's say you register for a Trademark and your brand name is initially denied as the P.T.O. consider it Descriptive. You can appeal and reapply at a later date. What would help your appeal is showing the P.T.O. that your trademark acquired "secondary meaning" after 5 years use in commerce. You show acquisition of secondary meaning for Trademark filing (as well as during litigation) showing market surveys of consumers discussing how they see the name of a mark. There are different ways to do that but the main idea is that consumers must start to recognize the brand name as connected to a product or company and not just as the initial meaning of the word. Remember that trademarks cover the names of products and companies. You want to protect both of them if they are your business. That’s why McDonalds has trademarks for McDonalds and for the Big Mac. So, if you are a car company called "Mouse" (a strong arbitrary mark for a car) and want to sell an “SUV” (sports utility vehicle), you shouldn’t just say “Mouse’s SUV’s”. An SUV would be a generic term and do little to help you show/protect its origin. Your company name has a strong mark, but that car name doesn’t. You want strong marks for both so people know a "Land-Destroyer" is a specific brand of SUV made by the Mouse car company. It's double origin protection from a legal and business perspective. You want “Land-Destroyer” to communicate your origin to the public just like you want “Mouse” to communicate your origin to the public. If you have a special line of products, you’d want the line to have trademark protection too. Genericide: We talked about what happens when a mark gains distinctiveness through secondary meaning in commerce. But a mark can also lose the distinctiveness that it may have initially had when placed in commerce. Ironically, this often happens when a brand name, specifically a fanciful/imaginative one. is too successful with the public to the point where people start using that brand name to mean that type of product. This is called “Genericide.” Don’t get concerned, this is not under criminal law. Discussion Question: What is the difference between “killing” and “genericide?” (not a real question!) The effect of “Genericide” is that a brand name once recognized and protected as a trademark loses its distinctiveness. Therefore, it then loses its legal status as a trademark. That is because the brand name, once just attached to the company’s product, now becomes used by the public to refer to the generic or overall type of the product. Genericide is when a brand name for a company or brand name for a product becomes confused by the public for the name of the type of product. The brand name essentially becomes what people see as the “generic” name of the product. Here are two examples: Kleenex and Xerox were names of companies that offered a specific product name which eventually became known as the generic name of the product. When people wanted a photocopy, they'd ask for a “Xerox” even if the machine wasn't made by Xerox. Even if you had a copy machine made by IBM, people would ask you to make a Xerox with the IBM machine because that term was so well known. When people wanted a tissue, they'd ask for a Kleenex even if the tissues weren't made by Kleenex. Kleenex isn’t a tissue itself, it’s a name for the brand of tissues made by Kleenex. Google is quickly becoming generic as it is used to mean “internet search” rather than “an internet search provided by the Google company.” People use “Google” to mean search the internet in the same way people use Xerox to mean make a copy. This is due to a brand name getting so popular that it actually hurts the company that failed to properly present it as a brand name. The name is a victim of its own popular commercial success and often a victim of the company’s poor initial planning. You'd think that type of brand popularity would be good but, in the law, it actually weakens the legal value of the brand name because the meaning of the name changes to something else. People are then no longer able to differentiate between the origin of the product and the type of product. However, the reason Xerox and Kleenex are still protected by Trademark is because the companies eventually rehabilitated their names as brand names through public education/marketing. They let people know the difference between the company or product name and the type of products that were being sold. They told people that “Kleenex” was the name of the company, not the product. The product name was “tissue” and Kleenex was just one company that made them. That “re-education” process doesn’t always work though. Many people don’t find it fun to be told by a company that they want you to keep their trademark strong, and do their job for them, by distinguishing in your language between a brand name and a generic. Who walks around asking: “Would you like a Pepsi-brand cola product?” Who corrects their coworkers when they ask you to Xerox something? Do you say “no, that is actually a photocopy you want, but I will be happy to use Xerox’s machine in order to do so.” In an era where people are more cynical of marketing campaigns, it’s likely to backfire if a company expects consumers to change their language to protect trademarks. I’m sure there are potential entrepreneurs here as well as lawyers. So if you were to ever set up a company based around an entirely new and unique product, the best legal protection would be to create fanciful names for both the company AND the product. Let people know that your created nonsense word for this new product is brought to you by this created nonsense word for your company. That way people still use the company's name in the proper way from the start so you won’t lose your distinctiveness for either of the two marks. The public won't be able to be confused or need patronizing re-education. For example, Xerox as a company should have invented a new name for Xerox copy machines or the process of making an electronic copy or the name of the resulting pages themselves. They could have also developed a generic name for the new process that they created. This is called a “generic descriptor” and allows a company to protect their company’s and product’s brand name by creating a generic term for the type of product they are selling. Then they educate the public and encourage them to use that generic name rather than the trademarked name when they want to refer to that type of product. People wouldn't have confused their name of the product that way even when competitors came along and made their own versions of copy machines. Every company would make their own version of the “generic descriptor” product. That way, the name Xerox would have remained known as the company, the origin of the product, to consumers. And the product could have gotten its own generic name so that if any other company competed with it, people would know the “Xerox” copy version by its own name rather than just as the company’s name. You want that double protection. That way if you ever sue a company for using your Trademark, the Court doesn’t find that your once distinctive and legally recognized Trademark is no longer valid due to the dreaded “Genericide.” Sometimes the fanciful or imaginative names carry business and legal risks despite being in the highest category of trademark protection. They can confuse the public as to what the product actually is compared to a lesser protected suggestive mark that has a name with a clearer connection with the product and can be seen as cleverer and catchier. Fanciful marks are also much more vulnerable to “Genericide” because the company and the product are the primary meaning of the newly created word. People learn about that trademark name at the same time as they learn about the new type of product that is being created and confusion is a reasonable possibility. This is especially true if the brand name is easier to use than the type of product. Like “Google” vs. “search engine.” Discussion Question: Do you think that incorrect understanding or usage of brand names by the public should be able to negatively affect the legal trademark rights of a company? Reading Assignment to be completed before Session 24: - Read Session 24 notes: Final Exam Review Notes. Session 24 – Thursday, May 6 Topic: FINAL EXAM REVIEW and our last Zoom Session. Tuesday, May 11 NO ZOOM SESSION SCHEDULED SO YOU HAVE FULL TIME FOR FINAL EXAM COMPLETION. Thursday, May 13 NO ZOOM SESSION SCHEDULED SO YOU HAVE FULL TIME FOR FINAL EXAM COMPLETION. END OF SEMESTER INFORMATION: You will continue to have the opportunity to earn points for your “Participation” grade by posting on Blackboard until Sunday, May 16 at 11:59 PM. After that time, I will be closing it to further comments, and you will no longer have the ability to increase your “Participation” score. John Jay Final Examination week: Wednesday, May 19 - Tuesday, May 25. FINAL EXAM: You will have 14 days to complete it once it begins. Begin: The Final Exam Questions will be emailed to you all and uploaded to Blackboard by 6 PM on Friday, May 7. Due: Your Final Exam Essay needs to be emailed to me and uploaded to the Examinations section of Blackboard by 11:59 PM on Friday, May 21.

Option 1

Low Cost Option
Download this past answer in few clicks

17.89 USD


Already member?

Option 2

Custom new solution created by our subject matter experts


Related Questions