Intellectual Property Practice Exam
Trade Secret
I. Introduction
Pepper Ranch (PR) can pursue a trade secret claim against Nabonko. In order to satisfy a trade secret claim, a plaintiff must be able to show: (1) the subject matter qualifies for trade secret protection, (2) it took reasonable precautions to protect the trade secret, and (3) the defendant acquired the information by improper. PR can show these elements.
II. Subject Matter
Under the UTSA, a trade secret “means information, including a formula, pattern, compilation, program, device, method, technique, or process” that derives economic value from being secret and not “readily ascertainable by proper means.” Here, the baking technique quantified by Duncan is a formula for baking …show more content…
In the case of product design here, Nabonko is producing a product that looks extremely similar to PR’s GoldenFish, there is a case for infringement because of likelihood of confusion. Likelihood of confusion exists when the goods produced by the infringer compete for sales with those of the trademark owner. Infringement will be found if the marks are sufficiently similar that confusion can be expected. Under the Sleekcraft decision, there are eight factors to examine when comparing the two designs to determine whether likelihood of confusion will occur. The first Sleekcraft factor to examine is the strength of the mark, where the stronger the mark is the more protection is afforded to the mark. Here, the strength of the design of the GoldenFish is strong given its popularity and the television show that features characters with the design. The next factor to examine is the proximity of the goods, whether the goods are sold in the same markets and in the same areas. Based on the evidence, it appears that there is proximity of the goods as the two are direct competitors. Next is the similarity between the marks, the sight, sound, and meaning among other things. Here, the GoldenFish design is almost identical looking to the Nabonko fish design, so the two are very similar. …show more content…
Therefore, the Sleekcraft factors should be examined as above. First, there is a similarity between the packaging design marks used, here PR’s packaging features its two trademarked fish prominently and Nabonko features prominently on its packaging a fish that looks extremely similar to PR’s mark and a shark shape, with similar colors. Although the similarity is not as strong between the two as the actual design, there is some similarity between the two packaging designs. The two products appear to be direct competitors, so there is proximity of the goods. Next, for the sight, sound, and meaning, the packaging of both features the respective (and similar) characters and each packaging features drawings of the adventures of these characters, so the sight of the packaging looks familiar. There is no evidence of actual confusion, although PR could show this with consumer surveys and other direct evidence at trial. Both PR and Nabonko use the internet to post about their products, so there is overlap between the channels of marketing. The product being sold with the packaging is a snack cracker, something that consumers do not think long and hard before buying, therefore the sophistication and care when buying is low, pointing to likelihood of confusion. There is no evidence at this time that Nabonko had a bad faith intent, which points
Trade Secret
I. Introduction
Pepper Ranch (PR) can pursue a trade secret claim against Nabonko. In order to satisfy a trade secret claim, a plaintiff must be able to show: (1) the subject matter qualifies for trade secret protection, (2) it took reasonable precautions to protect the trade secret, and (3) the defendant acquired the information by improper. PR can show these elements.
II. Subject Matter
Under the UTSA, a trade secret “means information, including a formula, pattern, compilation, program, device, method, technique, or process” that derives economic value from being secret and not “readily ascertainable by proper means.” Here, the baking technique quantified by Duncan is a formula for baking …show more content…
In the case of product design here, Nabonko is producing a product that looks extremely similar to PR’s GoldenFish, there is a case for infringement because of likelihood of confusion. Likelihood of confusion exists when the goods produced by the infringer compete for sales with those of the trademark owner. Infringement will be found if the marks are sufficiently similar that confusion can be expected. Under the Sleekcraft decision, there are eight factors to examine when comparing the two designs to determine whether likelihood of confusion will occur. The first Sleekcraft factor to examine is the strength of the mark, where the stronger the mark is the more protection is afforded to the mark. Here, the strength of the design of the GoldenFish is strong given its popularity and the television show that features characters with the design. The next factor to examine is the proximity of the goods, whether the goods are sold in the same markets and in the same areas. Based on the evidence, it appears that there is proximity of the goods as the two are direct competitors. Next is the similarity between the marks, the sight, sound, and meaning among other things. Here, the GoldenFish design is almost identical looking to the Nabonko fish design, so the two are very similar. …show more content…
Therefore, the Sleekcraft factors should be examined as above. First, there is a similarity between the packaging design marks used, here PR’s packaging features its two trademarked fish prominently and Nabonko features prominently on its packaging a fish that looks extremely similar to PR’s mark and a shark shape, with similar colors. Although the similarity is not as strong between the two as the actual design, there is some similarity between the two packaging designs. The two products appear to be direct competitors, so there is proximity of the goods. Next, for the sight, sound, and meaning, the packaging of both features the respective (and similar) characters and each packaging features drawings of the adventures of these characters, so the sight of the packaging looks familiar. There is no evidence of actual confusion, although PR could show this with consumer surveys and other direct evidence at trial. Both PR and Nabonko use the internet to post about their products, so there is overlap between the channels of marketing. The product being sold with the packaging is a snack cracker, something that consumers do not think long and hard before buying, therefore the sophistication and care when buying is low, pointing to likelihood of confusion. There is no evidence at this time that Nabonko had a bad faith intent, which points