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Hi everyone,
Laura Heymann wrote to me with a very good question/comment about the Innovation Ventures opinion in the casebook (in which Judge Boggs analyzed whether “5-hour ENERGY” is descriptive or suggestive for an energy drink).
I’ve included the opinion in the casebook because it offers an example of a particularly strange, even fundamentally misguided way of conducting the descriptiveness/suggestiveness analysis. It makes for a good contrast with the more standard approach presented in Zatarains (the Fish-Fri case). In class, I typically end up asking something along the line of “Which would a plaintiff prefer: the Innovation Ventures approach or the Zatarains approach?” I also maybe ask something like “Which makes sense as a matter of competition policy?”
In Version 5.0 of the casebook, I’ll add some text to make this clear. I know Laura already adds to her version of the casebook the following sentence before Innovation Ventures: “As you read this excerpt, consider whether the court frames the descriptiveness question in the right way.”
I hope everyone has a good semester,
Barton -
Thanks Barton. I think it’s a great idea to include a little bit more about it. One thing I’ve always wondered about the case was why the court was assessing the mark in a vacuum in deciding how much imagination etc was necessary in order to classify it as either suggestive or descriptive. Judge Boggs asks how would the energy be transferred to the consumer: “The first question one would ask is how would the energy be transferred? Through food? Through drink? Through injections? Through pills? Through exercise?” But to me wouldn’t we be assessing this by looking at the mark vis-a-vis the goods or services already known to be involved? And my recollection is that the mark was for a non-alcoholic beverage, so that means, to me that the mark is certainly more descriptive than suggestive. But maybe I’m misreading things.
Best,
Tomas
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