Trademark & Unfair Competition Law
Tuesday & Thursday 2:00-3:20
Prof. Michael Froomkin
University of Miami School of Law
The casebook for this class will be Jane C. Ginsburg, Jessica Litman,
Mary L. Kevlin, TRADEMARK AND UNFAIR COMPETITION LAW: CASES AND MATERIALS
(3rd Edition 2001). Please note that there are TWO "3rd ed. 2001"
and you want the revised edition.
Beware of used copies that are not the revised edition. (The difference is
not visible from the cover, you have to look at the bottom of the
copyright page which
should say something like "first reprint 2002" or a later date.)
You should also acquire the most recent edition (2003) of the statutory appendix to
Grades will be based on a three-hour exam and a substantial class participation
Class cancellations requiring make-ups:
Feb 10 (possible) & March 25 (certain)
I can often be found in Rm. 382. My office hours are [TBA] and by
appointment. Please don't hesitate to come by during office hours
if you have any questions, or to make an appointment for another time.
I hope to be posting class notes shortly before each
class. By doing so I hope to minimize your need to take notes and
maximize your thinking and class participation.
Latest notes: 22
Fall 2001 Trademark
Here are some answers to pt. 1 of that exam. Please note that I also
partial or even full credit for different, well-reasoned answers.
2003 Exam...and a model
question 2. This is a genuine student answer that got an "A".
(don't peek until you've at least outlined your answer!)
Please note that the exam this year will be CLOSED BOOK.
is a tentative
Introduction (Ch.1): 1 unit
Optional: If you want a really heroic overview of many of the topics
we'll be covering this semester, you are invited to read Casebook (CB)
pp. 1-30. Read it now, re-read it at the end of the semester, and
measure how much you have learned.
For the first class, please read:
What is a Trademark? (Ch. 2): 2 units
Lanham Act §§ 2, 45 (
15 U.S.C. §§ 1052 , 1127
Acquisition of Trademark Rights (Ch. 3): 3 units
Lanham Act § 1 (
15 U.S.C. § 1051 )
CB 177-197, CB 201-214
Registration (Ch. 4): 2 units
Lanham Act §§ 1, 2- 4, 9, 12-17, 22 (15 U.S.C. §§ 1051-1054,
1059, 1062-1067, 1072).
Restatement (Third) of Unfair Competition § 17
Optional : Trademark
Manual of Examining Procedure §§ 1301, 1301.01, 1301.01(a),
1301.01(a)(i), 1301.01(a)(ii), 1301.01(b), 1301.01(b)(i), 1301.01(b)(ii),
1301.01(b)(iii), 1301.02, 1301.02(a), 1301.02(c), 1301.02(d)
Loss of Trademark Rights (Ch. 5): 2 units
Lanham Act §§ 10, 45 (15 U.S.C. §§ 1060, 1127)
Optional: Review Problems, CB 383-390
CB 356-374, 377-383
Infringement (Ch 6): 4 units
Likelihood of Confusion (2 units)
Lanham Act §§ 32, 33 (15 U.S.C. §§ 1114, 115)
Restatement (Third) of Unfair Competition §§ 20-23
CB 424-431, 440-454
Contributory Infringement, Defenses (2 units)
Lanham Act §§ 15, 33 (15 U.S.C. §§ 1065, 1115)
CB 474-496, 496-503
False Designation of Origin (Ch. 7): 2 units
Lanham Act § 43(a) (15 U.S.C. § 1125(a))
Please note change::CB 504-38
Dilution (Ch. 10): 3 units
Lanham Act § 43(c), (15 U.S.C. § 1124(c), 15 U.S.C. § 1127)
Trademarks and the Internet (Ch. 11, mostly): 4 units
Lanham Act § 43(d) (15 U.S.C. §§ 1125(c), 1125(d))
Restatement (Third) of Unfair Competition § 25
AntiCybersquatting Consumer Protection Act (ACPA)
CB 307-311, 431-440, 727-740
Trademarks as Speech (Ch. 12, mostly): 2 units
CB 570-583, 830-848 [, 848-874 if time permits]
CB 874-915, 915-937
International Aspects of Trademark Protection (Ch. 14): 2 units
CB 999-1004, 1020-1033, 1033-1050,
Review/Catch up: 1 unit
This might be a good time to read or re-read CB 1-30
Attendance. I used to be a total softie about attendance. People
took unfair advantage. So now I overcompensate and play hardball. I will
take attendance as and when it suits me, which tends to mean just about
every class. If you miss a class I don't want to hear your excuses unless
it involves a hospital (for you or yours) or worse. Take it up with the
Dean of Students (and be aware I plan to ignore "for your consideration"
or indeed anything less than "please excuse" notes from the Dean of Students).
You get three free passes -- miss more than three classes without an excuse
that the Dean of Students office directs me to accept and I reserve the
right hold it against you in some way relating to class participation credit.
The more classes you miss, the more I may hold it against you. If you are
consistently absent I will contact the Dean of Students office and ask
them to drop you from the class. But so long as you skip three or
fewer classes without excuses I guarantee you will not suffer any deduction
from class participation credit, so there's no need to even bother with
excuses for the rare and inevitable absence.
Please make every effort
to come on time as late arrivals confuse me and disrupt the class. If you are habitually late we will need to have a frank, private, discussion about your professionalism.
Taping. No classes may be taped without my specific permission,
which will not be given for reasons other than verified medical emergencies,
or to students with particular disabilities. Tapes make me nervous.
Disabilities. This class, like most law
school classes, is heavily oriented toward reading a large quantity of
difficult material in a small amount of time. If you are aware that you
have a learning disability, or if you just think that it takes you twice
as long to learn things by reading as other people, please talk to the
Disabilities Issues Coordinator, Assistant Dean Marnie Lennon who can tell
you about resources here that you may find valuable. All discussions will
be totally confidential. Any student who believe (s)he suffers from acute
"stage fright" and underperforms in public should see me early in the semester
to see if we can work out special arrangements in which you e-mail some
answers rather than giving them orally.
Exam. Grades will be based primarily on a three-hour in-class
final exam. Please do not contact me to discuss exam conflicts as this
undermines the blind grading system. Contact the Dean
of Students office for all exam conflict issues.
Class participation. Extraordinarily good class participation ("two
stars") will raise your final grade by one level (e.g. from a B+ to an
A); good class participation ("one star") will raise your grade by one
level if you are close to the line between two grades; very poor class
participation will lower your grade by one level if you are close to the
line between two grades ("minus one star" -- this, I am happy to say, is
rare); outrageously bad class participation (i.e. disruptive or offensive
behavior) will lower your grade one level. Very poor attendance may contribute
to a diagnosis of very poor class participation. [For your information,
I have now given a "minus two stars" for the first time in my teaching
career. The student missed a lot of classes.] In general, you
will find it to your advantage to volunteer, and not to your advantage
to pretend to be prepared when I call on you. You will find it highly
costly to disrupt class by talking or acting in a manner that disturbs
your neighbors (my pet peeve). Unless it's your day to be a "natural
resource" you may pass if called on as long as you I urge you not to pass
-- admit you are not prepared, and we will just take it from there. Please
note that participation in the class mailing lists counts towards class
participation credit (both positive and negative).
Mechanics of Grading. Consistent with the law school's rules,
I grade all exams "blind" -- I see only the blind grading number, not your
name. I do not curve grades in this class; the chips fall where they
may: in theory there could be all A's, or none, although reality tends
to fall between these extremes. After I turn in the exam grades to
the Registrar's office, the Registrar's office produces a list of names
and blind grading numbers so I can factor in class participation.
However, I ask my secretary not to show me this list, and instead I am
given a list of blind grading numbers sorted by the class participation
grades (one star or two stars) I have already given to my secretary.
I then compute the final grade. I make it a point to not know the
names that go with an exam until after the final grade has been turned
into the Registrar's office. Once grades are turned into the Registrar's
office, the law school's rules prohibit me from changing a grade for ANY
reason other than clerical error. These are rare.
Your chance to be a natural resource. A small number of students
will be selected in advance to serve as "resources" for each class (the
exact number depends on class size). Your performance as "resource
person" will be a part, but by no means all, of your class participation.
Early in the semester I will hand out a list of class dates and resource
person responsibilities. You are welcome to trade dates among yourself
if the dates I assign you happen to be inconvenient, but you must inform
me of the trades before the start of the relevant class. Failure to
attend class when you are a resource person without a serious medical problem
or the equivalent will be deeply prejudicial to class performance grade.
Alas, this has happened in the past...
Last modified: Jan 6, 2004