Be sure to put your exam number on each item you give to the proctor.

Please answer in bluebooks, using only one side of a page and observing margins. Take plenty of time to read the facts and questions carefully. Answering unasked questions is at best a waste of time -- as is answering without noting critical facts. Where a question could be answered "yes" or "no," be sure to explain briefly!

The December 1993 issue of Consumer Reports discusses fragrances, at 765-771, differentiating them by, e.g., concentration, or price and quality. Fragrances of varying concentrations are called perfume (15-30% essence); eau de parfum (10-15%); eau de toilet, or toilet water (5-8%); or cologne (2-7%). Prices range from $350/oz for perfume to $2/oz for cologne. Quality (overall and within families) was evaluated by both sensory experts and amateurs.

At 768-9, the article states:

If you're buying cologne instead of perfume, consider fragrance knock-offs. In side-by-side comparisons, our experts judged Giorgio cologne and the knock-off, Primo, exactly the same in overall quality. ... In a comparison of Chanel No. 5 cologne and ... An Impression of Chanel, the real thing scored only a bit higher than the knock-off.

Ninja doesn't state outright that it's an Opium copy, but does invite the comparison. [O]ur experts... gave Ninja slightly higher marks than Opium toilet water and significantly higher marks than Opium perfume. Our experts found Ninja... more complex--and, therefore, more interesting--... than Opium. [Elsewhere on the same page, we learn that Ninja, sold only as a cologne, is $8/oz whereas Opium perfume is $205 and toilet water is $30/oz.]

The article says to watch out for too-good-to-be-true prices. Sometimes the fragrance is old. "Even in a sealed bottle, a fragrance has a life expectancy of only three years."

At 769, the article continues:

... With fragrances, first impressions are often misleading.

The blends that perfume chemists put together are designed to create different impressions at different times. The top notes are the scents you notice... for the first 10 to 15 minutes the perfume is on your skin. Then the middle notes surface. [And] dominate for the next several hours. ... The end notes are the scents that serve as the basis for the fragrance; they last until there's nothing left to smell. ...

Applying a fragrance to your wrist is pointless if you're buying... for someone else. The bottled chemicals react with the skin's chemicals, so the same fragrance can smell slightly different from one wearer to another.

1. [10 pts.] If the makers of Ninja try to exploit the favorable comparison to Opium, Consumer Reports might sue. What difference does it make whether Ninja (5 pts.) quotes language from the article or (5 pts.) merely recites the facts concerning the favorable comparison?

2.[10 pts.] (5 pts.) Would the makers of Opium have a cause of action in either of the aforesaid situations? (5 pts.) How about Chanel with regard to An Impression of Chanel?

3. [5 pts.] If a manufacturer brings a trademark action against a retailer for selling its 5 or 6 year old perfume at a deep discount, what is the likely best remedy?

The famous fragrance chemist, Organa Leptic, while working for In Scents, Inc., has created a surprisingly "complex" and "interesting" new essence. While it consists of a mixture of only ten chemicals purchased from duPont, none are 100% pure. The complexity probably arises from microcontaminents.

Figuring that another company will not take long to discover the major ingredients and supplier, In Scents hired the Franklin & Pierce firm to protect the invention. You are the only member of the firm who knows anything about intellectual property, so the job has fallen to you.

4. [5 pts.] What IP protection does In Scents already have? When are they apt to lose it?

5. [15 pts.] A prior art search reveals that the mixture is novel, but similar blends have been used to scent candles. (5 pts.) Very briefly discuss each substantive hurdle to a utility patent. (10 pts.) Which are most difficult in this case? Why? How would you try to overcome them?

6. [5 pts.] Why would a design patent application likely fail?

7. [10 pts.] You also try copyright protection. (5 pts.) A non-lawyer examiner has refused registration because of subject matter. His boss is a lawyer; she agrees to hear you out. What's your best argument for registration? What are your chances? (5 pts.) If another firm had already copied the fragrance at the time of attempted registration, would a refusal to register mean that you could not sue for infringement (ignore remedies)?

Answer any (but only) 20 of the following 25 questions by writing "true" or "false" in the blank provided on the left. If you answer more, I will count only the first 20. Again, please give these sheets to the proctor -- with your exam number in the space provided at the top of each page.

1. Forbidding people from using secret information they have sold is not Constitutionally equivalent to enjoining patent or copyright infringement.

2. In Baker v. Selden, by "art" the court meant plaintiff's book keeping "technology."

3. For purposes of contributory infringement, a "non-staple" product has essentially no use other than to infringe intellectual property.

4. For patent or trademark (in contrast with copyright) infringement, plaintiff must show that defendant copied.

5. The 11th Amendment to the Constitution no longer hinders owners of patents, trademarks or copyrights from seeking damages against infringing state entities.

6. Unlike patent or copyright protection, trade secret protection is basically cost-free.

7. If the potential fruits of capital intensive research cannot be kept secret or protected by copyright or patent, it would be unwise to risk private capital in such research.

8. Intellectual property co-owners who use without permission of other co-owners infringe.

9. Patents are useful to keep competitors at bay until consumers perceive the design of goods or containers as source indicators.

10. Damages look to the plaintiff's market whereas profits look to defendant's market.

11. Statutes often provide that so-called intellectual property is, in law, property.

12. One who knows of infringement and delays may find laches to bar injunctive relief.

13. Your instructor's surname is "Fields."

14. When in doubt as to how consumers perceive the meaning of potential marks, trademark examiners often commission surveys.

15. The most important part of a patent is its claims.

16. Many early cases discussing patentable subject matter seem to turn mostly on the relationship between the scope of disclosures and claims.

17. One who deliberately breaches a contract usually is liable in tort.

18. When three dimensional works are involved, copyright infringement is possible only if both the copied work and the copy are proper subject matter for copyright.

19. Products are not "useful" so as to prevent copyright protection if their sole utility lies in their appearance or conveyed information.

20. Once a term becomes generic, it is forever lost as a possible mark.

21. The definition of "commerce" in the Lanham Act clearly indicates that Congress did not intend the term to cover predominantly intrastate commerce.

22. Broadcast and print media may reject advertising without regard to Constitutional provisions governing "free speech."

23. If a trademark is not generic it can never become such.

24. Knowingly inducing another to breach a contract is generally tortious.

25. Consumers clearly have standing under § 43(a) of the Lanham Act.