Bar Exam - Statutory Edition
This clause would prevent the color yellow from being protected for use on lemon-scented products.
Functional Marks (aesthetic)
The frequency for federal trademark registration renewal.
10 years
This test is used in the 9th Circuit to determine whether there is trademark infringement.
The Sleekcraft Test
This type of confusion occurs before the point of sale.
Initial Interest Confusion
The rule governing priority of unregistered trademarks.
This clause would prohibit the use of the mark "Vison Center" for a store that sells eyeglasses and tests eyesight.
Merely Descriptive Marks (without secondary meaning)
The name of the procedure in the USPTO for third party challenges to trademark applications.
Opposition
This test is used in the 2nd Circuit to determine whether there is trademark infrignement.
The Polaroid Test
This confusion theory would apply to a frozen meal product using "points" on the packaging without approval from a famous weight loss program.
Sponsorship or Affiliation Confusion
The early 1900s doctrine that limits an unregistered mark's reach to territories where it's known.
Tea Rose-Rectanus Doctrine
This clause was at issue in the Tam case for a band called "Slants."
Disparaging Marks
This step should be taken before filing a trademark application with the USPTO.
Conduct a trademark search
The "trilogy" test for measuring the similarity of marks factor when analyzing likelihood of confusion.
The Sight, Sound, Meaning Test
One of the main concerns/harms of initial interest confusion to the consumer, other than consumer confusion.
Wastes the consumers time
A junior user's federal registration does this against senior common law user
Freezes the junior user's rights to the actual area of use as of the senior user's registration date.
This clause would prohibit the use of the mark "Lebron James Apparel" without consent.
The Names Clause - The name, portrait or signature identifying a particular living individual unless that individual provides written consent.
This federal application filing basis for a client who uses its trademark throughout the Western U.S.
Section 1(a) Actual Use
The two ways to determine the strength of the mark, according to the Virgin Enterprises case (2d Cir.).
Inherent Distinctiveness and Acquired Distinctiveness (market strength)
This confusion theory applies where a larger junior user drowns out a smaller senior user.
Reverse Confusion
According to most courts, this shows an intermediate junior user acted in bad faith, destroying priority.
Knowledge of the other party's mark.
This clause would prohibit a company based in Los Angeles from using the mark "Tuscan Wine & Spirits" when they source their products from California wineries.
Geographically misdescriptive marks (false indication of geographic origin that is deceptive)
Required before registration for all application types except those based on a foreign registration.
Specimen of Use
This type of evidence is useful in demonstrating the existence of actual consumer confusion.
Survey Evidence
This confusion theory would apply to a company who manufacturers and sells car kits that make a car look like a Ferrari.
Post-Sale Confusion
Rule on availability of injunctive relief from the 1950's that is difficult to apply in the online world.
Dawn Donut Rule