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[Grooming Dispute] Marcus has a successful dog grooming business called “Bark & Bath.” He registered the business name for trademark protection. Jonah noticed how well Marcus was doing and opened his own business called “Bark & Bath II.” Marcus is unhappy about Jonah’s use of the name. He is also unhappy because Jonah is copying Marcus’s practice of tying a bright orange bandana around each dog’s neck immediately after grooming. Marcus sues Jonah for trademark infringement based upon the name and the use of the orange bandana. Jonah replies that one reason Marcus should not prevail is that he is involved primarily in the sale of dog grooming products while Marcus is involved in the grooming of dogs. Jonah claims that his use of the orange bandana is very rare because he does very little grooming. Jonah also defends on the basis that actual confusion among consumers does not exist. Marcus insists that he should prevail and notes that he is considering expanding into the product sales area. 56) Regarding Marcus’ claim of trademark infringement involving the color of the bandana, which statement is accurate? A) Color can be a trademark regardless of whether it identifies goods with their source. B) Color can be a consideration in a trademark infringement case only if a primary additional infringement has been established and secondary meaning has been established in regards to the color. C) Color may be a trademark if it identifies goods with their source. D) Color may not be a trademark. E) Color can be considered in a trademark infringement case only if another primary trademark infringement has been established. 57) Regarding Marcus’ claim that the name Jonah chose violates his trademark protection, which statement is accurate? A) In order to constitute trademark violation, Jonah’s store would need to have been called the exact same thing as Marcus’ store without the “II.” B) A key inquiry is whether the defendant sold goods or services to customers that likely would have been customers of the plaintiff were the defendant not in business. C) A key inquiry is whether a similarity exists which is likely to cause confusion applied from the perspective of the defendant. D) The key inquiry is whether a similarity exists which is likely to cause confusion from the perspective of the plaintiff meaning that the plaintiff has acted willfully. E) The key inquiry is whether a similarity exists which is likely to cause confusion applied from the perspective of prospective purchasers. 58) The question of whether Marcus intends to expand into the area of dog grooming product sales is relevant to which concept in a consideration of trademark infringement? A) The possibility of bridging the gap B) The possibility of building the bridge C) The possibility of twin competition D) The possibility of actual confusion E) The possibility of sweeping the product 59) Regarding Jonah’s claim that actual confusion among consumers did not exist, which statement is accurate? A) Evidence of actual confusion is not a prerequisite for the plaintiff to recover. B) Evidence of actual confusion among consumers is a necessary predicate to recovery only if secondary meaning cannot be established. C) Evidence of actual confusion is unnecessary if the plaintiff’s sales have decreased at least 10% since the use of the alleged offending product began. D) Evidence of actual confusion is necessary to recover only if secondary meaning is relied upon as a theory of recovery. E) Evidence of actual confusion among consumers is a necessary predicate to recovery. Tomas took a number of wedding photos at Maura’s wedding. He was paid as the photographer. On all of the photographs, he appropriately noted in the bottom right-hand corner information showing that he was claiming copyright protection. Maura came to see Tomas three years after the initial photographs were taken and requested that he grant her permission to run off as many copies as she wanted at the local photo shop from the pictures that she initially purchased. The photo shop had refused to reproduce the photographs without his permission. When he refused to give her permission to do so, Maura started a heated argument. She told Tomas that photographs are not entitled to copyright protection. She also told him that even if he was correct that there was some copyright protection, it only lasted for two years and that, in any event, damages for copyright infringement are unavailable. 60) Regarding Maura’s claim that photographs are not subject to copyright protection, which statement is accurate? A) She is correct but only because family pictures are involved. Family pictures may not be the subject of copyright, but landscape photographs may be the subject of copyright protection. B) She is partially correct. Tomas was entitled to copyright protection on the first picture. After Maura purchased the first picture, however, she could make as many copies as she wanted. C) She is correct. Photographs are not subject to copyright protection even if taken by a professional photographer. D) She is correct only because Tomas had not registered the photographs for copyright protection. E) She is incorrect. Photographs may be the subject of copyright protection. Â Â

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