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Deborah wrote to me to ask what I do for the first day of class:
What do you do on your first day of class? I always do this exercise with water bottles where I line up about 10 of them and have them select which one they’d buy. It’s a great way to get them attuned to the power of brands, talk about what a mark is (words, symbols, bottle shape) and get them thinking about how brands are so much more than source identifiers.
But I always struggle with what to give them as an introductory reading. I’m curious what you do. I remember you saying you plan to create some introductory materials for your book, and would love to know what you are thinking about including.
Here’s my reply:
I’ve put together some reading for the first day, but it’s not completely ideal. It’s posted on the website here: https://www.tmcasebook.org/supplementary-readings/. You’ll see that I tend to work through the course of the semester with a recent SDNY case and invite the lawyers in to discuss the litigation towards the end of the semester. We read the pleadings, survey reports, main briefs, and trial transcript excerpts. (Again, 4 credits).
I think the water bottles idea is absolutely fantastic and may just borrow it.
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For several years, I have started students off not with a case but with a real registration problem, partly to show them what the nuts and bolts of trademark practice often look like but mostly — as with the water bottles (something that I do later, with product configuration marks) — to get them thinking about how trademark lawyers think. I use the record from efforts to register a mark in “Pantherade” for sports drinks. It’s a real file. And it’s fun because one of the opposers was/is my own school, the University of Pittsburgh. The story (which I eventually share with the students, because it’s not clear from the file itself) gets better: Pantherade is one of a family of proposed registrations. There’s also Buckeyeade. Wolverineade. Badgerade. Etc., etc. (there are several dozen in all). Sports fans, even casual sports fans, get the point. And the applicant is … Franco Harris, d/b/a Super Bakery, a Pittsburgh-based contract food producer. THE Franco Harris, Penn State and Pittsburgh Steelers superstar, from whom I learned the tale of the Pantherade mark at a cocktail party about 4 years ago.
Anyway, getting students to talk through Pitt’s arguments and Franco’s arguments is a good way to get them “in the mood,” as it were, and I always find it fun to tie IP questions to Pittsburgh-area culture, particularly because in Pittsburgh, people generally assume that IP means patents.
In addition, for the first day I will assign the first (background) chapter of Mary LaFrance’s Understanding Trademark Law *and* the case that Graeme and Mark use in their book: Elvis Presley Enterprises v Capece. That’s also a fun case, and it gets students thinking about the issues that came up in Pantherade but of course in a different context.
I’ve just posted my syllabus online, by the way. You can see it at http://madisonian.net/home/?page_id=1625. It’s a 3-credit course that meets twice a week.
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Has anyone used any of the USPTO’s videos? I’m thinking of assigning this one as background for the first day: http://www.uspto.gov/trademarks/basics/index.jsp
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Deborah, I just took a look at the video. It’s actually really well done, and just goofy enough to be good (I love how the guy skips up onto the stage to start things off). I’ll admit that I probably won’t assign it because it’s so lengthy but I will steal from it.
Mike, that’s perfect for Pitt. I try the local effect by choosing a recent SDNY case and assigning the pleadings (we read other documents from the docket as the semester proceeds, including the trial transcript). Last year we did a fashion case involving a store down the street that sued Kate Spade. This year it’s a dispute between Kind and Clif Bar over the suspiciously similar trade dress of their snack bars. Debevoise’s lawyers will come in later in the semester to talk with the class about the case.
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Answer key for Heidi Cody alphabet of trademarks included in my rather quirky first day slides posted on the casebook website:
Sometimes for the first day of class I include an alphabet of trademarks developed by the Brooklyn artist Heidi Cody some years ago and precede this alphabet with a quick quiz of tree leaves. It’s interesting and probably predictable that my students can’t typically identify more than one or two leaves associated with trees but can instantly identify 20 or more of the brand names based only on one letter from the brand. It’s an easy demonstration of the power of trademarks.
Answers to Media Literacy Alphabet Exercise
A: ALL
B: BUBBLICIOUS
C: CAMPBELLS
D: DAWN
E: EGGO
F: FRITOS
G: GATORADE
H: HEBREW NATIONAL
I: ICE
J: JELLO (SUGAR FREE)
K: KOOLAID
L: LYSOL
M: M N M’S
N: NILLA WAFERS
O: OREO
P: PEZ
Q: Q-TIPS
R: REESE’S
S: STARBURST
T: TIDE
U: UNCLE BEN’S
V: V8
W: WISK
X: XTRA LAUNDRY DETERGENT
Y: YORK PEPPERMINT PATTIES
Z: ZEST–based on an artwork by Heidi Cody
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