Intellectual Property Fact Pattern.

Intellectual Property Fact PatternStudent’s Name
Institutional Affiliation
Intellectual Property Fact Pattern
Issue: Kramer, an eccentric entrepreneur wants to enter the fast-growing nutritional drinks market. He formulates a new drink that has all the recommended daily allowances for vitamins and minerals, plenty of calories, and some herbs he claims will make you peppy, thin, virile and strong. He also suspects that it may have hair growing potential but with the side effect that new hair growth will stand straight up. He packages the drink in a square brushed titanium can with a pop top. While titanium is expensive, it has a distinctive look which he enhances by printing his label in translucent colors over the brushed metal finish. Titanium is very durable and much more resistant to crushing and scratching than aluminum or steel cans, and, combined with the square shape; it allows much denser packing for shipping than conventional cans. He calls his drink the Square Meal. He claims trade dress protection for the can and trademark for the name and wants you to register these with the PTO. He also wants to file for a patent on his new drink. Finally, he has written a catchy little jingle about Square Meal he intends to use in a future commercial. Kramer would like to copyright his song.
Kramer has also learned that a competing drink firm V9 owned by Newman is considering suing him for patent and trademark infringement. V9 is a megacorporation with a large proportion of the drink market share.

V9 also claims their drink has all the daily allowances for vitamins and minerals and has been on the market for many years. Their drink comes in a steel can with a pop top.
Question: Kramer, an old college classmate, comes to you a newly minted intellectual property attorney for advice. Inform Kramer of his copyright, trademark, and patent options.
ANSWERS
Intellectual property fact pattern.
Issue 1: Kramer’s formulation of a drink with the same nutritious and medicinal property which supposedly has the same components as V9.
Rule: obtaining a patent does not give one exclusive right to stop anyone else from making such product unless the invention is novel and not common or obvious.
Analysis: By formulating a new drink by himself, and adding additional properties to it. Kramer made sure that his drink was different and is justified to seek for a patent. The claim by V9 that the product is a copy of their own is ridiculous and cannot hold any water.
Trade dress protection.
Issue: The packaging his drink using a square container with a pop top which is deemed similar to that of V9’s.
Rule: the trade dresses of two competing products must be distinctive to prevent any likelihood of confusion.
Analysis: Kramer has the right to dress his product as he had planned. The laws governing dress protection stipulates that for a plaintiff to succeed, he or she must prove that the trade dress is similar to that of the other product. In this case, Kramer has done everything to make it distinguishable and unique. Despite it having a pop top, the brushed aluminum, the colors and the printed label make the packaging sufficiently distinguishable from V9’s.
A trademark for the name.
Issue: Can Kramer apply for a patent on the name ‘Square Meal’?
Rule: for a trademark on a name to be granted, the name must be available for use and not already in use by another brand. An application can be filled to establish priority over any given name at the patents office.
Trademarks are words, symbols or names that make products distinguishable. To obtain a trademark, Kramer will have to conduct a name search to ascertain that the name is not already in use. The Name Square Meal is quite different from V9 and thus, if it’s not already in use, he has the right to trademark it as his own. Kramer can file an application for priority over the use of the name ‘Square Meal’.
Patent for his new drink.
Issue: Can Kramer patent his drink ‘Square Meal’ having being sued already for patent infringement by V9?
Rule: unless an idea or invention is novel, no one has exclusive rights over its use.
Analysis: In relation to his formulated drink, Kramer has the right to sell his product. For him to be successfully sued for utility patent infringement, V9 Company must prove that they registered and obtained a patent and that the details of their invented drink are available to the public to be granted limited monopoly (Joyce et al, 2016). The invention of a drink is not novel. Furthermore, a patent holder may not have exclusive rights to stop anyone from using a product.
Copyright for his song.
Issue: can Kramer patent his catchy little jingle and use it as the commercial song for his Drink?
Rule: One can copyright an original work of composition or authorship.
Analysis: Having composed the song on his own, Kramer has every right to obtain copyright and protect it from being used by others.
References
Joyce, C., Ochoa, T. T., Carroll, M. W., Leaffer, M. A., & Jaszi, P. (2016). Copyright law (p. 85). Carolina Academic Press. Retrieved from https://case.edu/affil/sce/authorship/Joyce-part1.pdf on 24th Oct. 2018.