Using Your Managerial Skills
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LEG 100 – Assignments and Rubrics
Assignment 2: Using Your Manager Skills
Note: The companies mentioned herein are merely hypothetical organizations with characteristics developed to enable students to respond to the assignment. You may create and / or make all necessary assumptions needed for the completion of this assignment.
In this assignment, you, in the role of a risk manager at Simply Green Products, will draft a document that is commonly used in the business world—a memorandum to your boss.
Simply Green Products is a $10 million company that produces biodegradable packing materials that orchards use in the Shenandoah Valley to transport their apples, peaches, and pears nationwide. Biodegradable materials are more eco-friendly because they break down into the environment. Such packing materials are marketed under the name “SafePack,” which is heavily advertised in trade journals. Simply Green Products have had the name “SafePack” imprinted on all of their packing material since 2008; however, they never filed for either state or federal trademark protection. With the movement toward more eco-friendly agricultural production, the fact that such packing materials are biodegradable provides a primary marketing advantage over non-biodegradable competitors.
The company president, Shep Howard, has recently become aware of several issues that may require referral to the company’s outside counsel. Because you serve as the company’s risk manager, Howard has asked you to leverage your legal and managerial skills to draft a memorandum that addresses one (1) of the two (2) situations described below:
• An environmental group is asserting that SafePack materials are not biodegradable. In fact, the group claims that these materials are causing an environmental hazard that is seeping from a local landfill into a nearby stream. An environmental group, SafePack Materials Pollute, has sprung up and launched an Internet campaign geared toward compelling fruit producers to stop purchasing your packing materials. The situation at hand raises environmental issues that relate to the Clean Water Act and the Solid Waste Disposal Act.
• A company called Safe Choices, Inc. has accused Simply Green Products of trademark infringement, and has sent a cease and desist letter to President Howard, demanding that Simply Green Products stop using the name “SafePack”. The letter asserts that a) Safe Choices uses the SafePack name to market an emergency weather kit in the form of a backpack; and that b) Safe Choices had received a federal registration for the mark from the Patent and Trademark Office in 2002. This backpack is sold both online at safepack.com and in sporting goods stores nationwide. The letter goes on to suggest that Simply Green Product’s use of this name “constitutes a false designation of origin which is likely to confuse customers as to the source of the goods”. The intellectual property issue at hand involves the Lanham Act.
For one (1) of the two (2) situations set out above, write a three to four (3-4) page memorandum to President Howard. Ensure that you address each of the questions below within your memo so that President Howard may assess whether or not Simply Green Products needs to hire outside counsel to address the matter at hand.
1. Discuss the elements that must be present in order for one to prove a valid claim under the law(s) specified (i.e., the Clean Water Act, the Solid Waste Disposal Act, or the Lanham Act).
2. Determine whether or not the activity of Simply Green Products amounts to a violation of the applicable law (i.e., the Clean Water Act, the Solid Waste Disposal Act, or the Lanham Act).
• If you chose the environmental issue, determine whether or not seepage from your products into a stream would violate the Clean Water Act, the Solid Waste Disposal Act, or both. Explain your Rationale.
• If you chose the intellectual property matter, determine whether or not continued use of the SafePack name by your company would violate the Lanham Act. Explain your rationale.
3. Decide whether or not President Howard should refer this chosen matter to the company’s outside counsel. Provide a rationale for your decision.
4. Use at least three (3) high-quality academic references. As the cases discussed within the assignment are hypothetical, you will not find any solutions to them on the Internet.
Further, note that Wikipedia, blogs, and such Websites as Free Dictionary do not qualify as academic resources, whereas your textbook does. Use the Strayer Learning Resource Center (LRC) to locate high-quality academic references.
Your assignment must follow these formatting requirements:
• Include a cover page containing the title of the assignment, your name, the professor’s name, the course title, and the date.
• Draft this in the form of a letter that is typed, double-spaced, and uses Times New Roman font (size 12) with one-inch margins on all sides.
• Include your citations in the body of your letter and include your list of references at the end. All citations must follow the APA.
• Be sure to follow all additional instructions provided by your professor.
The specific course learning outcomes associated with this assignment are:
• Describe the legal environment of business, the sources of American law, and the basis of authority for government to regulate business.
• Use technology and information resources to research issues in business law.
• Write clearly and concisely about business law using proper writing mechanics.
Grading for this assignment will be based on answer quality, logic / organization of the paper, and language and writing skills, using the following rubric. Points: 240 Assignment 2: Using Your Manager Skills
Criteria Unacceptable
Below 60% F Meets Minimum Expectations
60-69% D Fair
70-79% C Proficient
80-89% B Exemplary
90-100% A
1. Discuss the elements that must be present in order for one to prove a valid claim under the law(s) specified (i.e., the Clean Water Act, the Solid Waste Disposal Act, or the Lanham Act).
Weight: 25% Did not submit or incompletely discussed the elements that must be present in order for one to prove a valid claim under the law(s) specified. Insufficiently discussed the elements that must be present in order for one to prove a valid claim under the law(s) specified. Partially discussed the elements that must be present in order for one to prove a valid claim under the law(s) specified. Satisfactorily discussed the elements that must be present in order for one to prove a valid claim under the law(s) specified. Thoroughly discussed the elements that must be present in order for one to prove a valid claim under the law(s) specified.
2. Determine whether or not the activity of Simply Green Products amounts to a violation Did not submit or incompletely determined whether or not Insufficiently determined whether or not the activity of Partially determined whether or not the activity of Satisfactorily determined whether or not the activity of Thoroughly determined whether or not the activity of the applicable law (i.e., the Clean Water Act, the Solid Waste Disposal Act, or the Lanham Act). If you chose the environmental issue, determine whether or not seepage from your products into a stream would violate the Clean Water Act, the Solid Waste Disposal Act, or both. Explain your rationale. If you chose the intellectual property matter, determine whether or not continued use of the SafePack name by your company would violate the Lanham Act. Explain your rationale.
Weight: 25% the activity of Simply Green Products amounts to a violation of the applicable law. Did not submit or incompletely determined whether or not seepage from your products into a stream would violate the Clean Water Act, the Solid Waste Disposal Act, or both if you chose the environmental issue. Did not submit or incompletely explained your rationale. Did not submit or incompletely determined whether or not continued use of the SafePack name by your company would violate the Lanham Act, if you chose the intellectual property matter. Did not submit or incompletely explained your rationale. Simply Green Products amounts to a violation of the applicable law. Insufficiently determined whether or not seepage from your products into a stream would violate the Clean Water Act, the Solid Waste Disposal Act, or both, if you chose the environmental issue. Insufficiently explained your rationale. Insufficiently determined whether or not continued use of the SafePack name by your company would violate the Lanham Act, if you chose the intellectual property matter. Insufficiently explained your rationale. Simply Green Products amounts to a violation of the applicable law. Partially determined whether or not seepage from your products into a stream would violate the Clean Water Act, the Solid Waste Disposal Act, or both, if you chose the environmental issue. Partially explained your rationale. Partially determined whether or not continued use of the SafePack name by your company would violate the Lanham Act, if you chose the intellectual property matter. Partially explained your rationale. Simply Green Products amounts to a violation of the applicable law. Satisfactorily determined whether or not seepage from your products into a stream would violate the Clean Water Act, the Solid Waste Disposal Act, or both, if you chose the environmental issue. Satisfactorily explained your rationale. Satisfactorily determined whether or not continued use of the SafePack name by your company would violate the Lanham Act, if you chose the intellectual property matter. Satisfactorily explained your rationale. Simply Green Products amounts to a violation of the applicable law. Thoroughly determined whether or not seepage from your products into a stream would violate the Clean Water Act, the Solid Waste Disposal Act, or both, if you chose the environmental issue. Thoroughly explained your rationale. Thoroughly determined whether or not continued use of the SafePack name by your company would violate the Lanham Act, if you chose the intellectual property matter. Thoroughly explained your rationale.
3. Decide whether or not President Howard should refer this chosen matter to the company’s outside counsel. Provide a rationale for your decision.
Weight: 25% Did not submit or incompletely decided whether or not President Howard should refer this chosen matter to the company’s outside counsel. Did not submit or incompletely provided a rationale for your rationale. Insufficiently decided whether or not President Howard should refer this chosen matter to the company’s outside counsel. Insufficiently provided a rationale for your rationale. Partially decided whether or not President Howard should refer this chosen matter to the company’s outside counsel. Partially provided a rationale for your rationale. Satisfactorily decided whether or not President Howard should refer this chosen matter to the company’s outside counsel. Satisfactorily provided a rationale for your rationale. Thoroughly decided whether or not President Howard should refer this chosen matter to the company’s outside counsel. Thoroughly provided a rationale for your rationale.
4. 3 references
Weight: 10%
No references provided Does not meet the required number of required Exceeds number of number of references; all references poor quality choices.
number of references; some references poor quality choices. references; all references high quality choices. required references; all references high quality choices.
5. Clarity, writing mechanics, and formatting requirements
Weight: 15% More than 8 errors present 7-8 errors present 5-6 errors present 3-4 errors present 0-2 errors present
SAMPLE ANSWER
To:
From:
Date:
Re: Trademarks Infringement and the Lanham Act
You asked me to look into the possibility of liability resulting from the claims of trademark infringement. The genesis of your inquiry was the cease and desist letter sent by Safe Choices to Simply Green Products to halt the use of the trademark SafePack. This action can be interpreted as intent by the company to pursue legal redress in claiming ownership to the trademark. While the company has a case since it has owned the trademark since 2002, the determination of infringement is not made simply on registration but by a combination of many other factors. The important thing to note is that Safe Choices has the burden of proving trademark infringement beyond doubt for damages to be awarded. Issues of trademark are governed under the Lanham Act.
The Lanham Act deals with trademarks in the US and prevents a number of malpractices including false advertising, trademark infringement and trademark dilution. The act prohibits goods which have infringed trademarks from being imported. The civil enforcement of the act awards damages and applies injunctions in order to restrict dilution of trademarks and use of false descriptions. The act gives the courts the mandate to determine whether there is a likelihood of confusion for use of a trademark or trade dress to constitute infringement.
The act specifically states that any term, word, name, device or symbol or combination of these or a false or misleading description of fact, designation of origin or representation of fact that is likely to lead to a mistake, cause confusion or to deceive connection, affiliation or association with another person, regarding the origin, approval, or sponsorship of goods, services or other commercial activities by another person is in contravention to it (Phelps, 1949). It extends to commercial advertising or promotion that is misrepresentation of qualities, characteristics, nature and geographic origin of the goods, services, or commercial activities.
The law states that people in contravention of the above specifics are liable for civil action. Safe Choices must however prove that the actions of Simply Green hurt its business or its customers and that the misleading or false statement was strictly in commerce and likely to cause harm.
The Lanham Act has had extraterritorial impact, a fact that has changed in recent times with circuit courts being given leeway to offer interpretations that may extend its scope (Robins, & Donahue, 2013). There are three parts of the original ruling by the Supreme Court of the US that are still basic to the law today. For infringement to be imputed, at least two of these factors must be met (Lemley, 1999). The first is our conduct as Simply Green, which must have a substantial effect in relation to commerce in the US. The second is that Safe Choices must be registered in the US and the third is that there must be an absence of conflict with foreign law in the dispute.
Simply Green Products has been using the name SafePack since 2008 without checking for its availability with the state or federal trademark protection. On one hand, the activities of our company have been limited to packaging of orchards in the Shenadoah valley and on the other our products are heavily advertised in trade journals. These two components on the case will likely break or make it. Given these facts, the discussion below will be centred on the facts of the case that can be argued and that will give credence to Simply Green’s defence.
The company can argue that the products it markets are completely different from those of Safe Choices Inc. This is because the markets that the two products target are entirely different. For Simply Green, the SafePack trademark designates products that are targeted at orchards that use them to transport apples, peaches and pears. The second tenet of the SafePack product from Simply Green is that it is basically packaging that is biodegradable. While it can be argued that both companies market packaging, the types and target markets of these packaging are entirely different. Safe Choices uses the name SafePack for its emergency weather kits in form of backpacks. These products are primarily for use by individuals in camps or other activities which is different from the biodegradable packaging that is not targeted at individuals but rather at orchards that are primarily companies.
Simply Green’s advertising and promotion avenues are trade journals. While such journals are of wide constitution, it can be argued that it targets those that major in agricultural activities. The Safepack trademark is thus associated with materials that are eco-friendly and breakdown organically and thus cause no pollution. On the other hand, the SafePack trademark from Safe Choices is primarily marketed online at safepack.com and in sporting goods stores in the country.
The Lanham act specifically states that the senior user, Safe Choices, which was the first business to adopt the use of the trademark, must prove the likelihood of confusion. There are three ways in which issues of likelihood of confusion arise. The first is through registration, the second through inter parties’ proceedings and the third through infringement litigation. The only way at the moment that infringement by Simply Green can be proven is through registration where the trademark belongs to Safe Choices. However, this does not constitute grounds for indictment as Safe Choices must prove that there was confusion for its customers. Simply applying the trademark is not grounds enough for infringement litigation.
The most common standard for proving infringement is through the similarity of goods provided under the trademarks. This is determined through gauging whether an ordinary prudent purchaser would likely to purchase one item while believing that he was purchasing the other. The use of the same trademark has been permitted in numerous cases before where the products are completely different. In this case, the determination of infringement will be pegged on whether a common consumer would confuse emergency kits for biodegradable packs.
The degree of care that the consumer exercises is also important in determining infringement. This is usually through the costs of goods being purchased. It is expected that the buyers who make expensive purchases are likely to be more discriminatory and thus less confused by similar trademarks. This is because these expensive items are bought less frequently meaning that the consumer exercises a lot of care to ensure that he/she gets exactly what is required. In essence therefore, the determination of whether there is a trademark infringement must be considered depending on where the goods are available. The SafePack from Safe Choices is available online as well as in sporting goods stores. SafePack from Simply Green is not likely to be found in the same locations as the company sells its products directly to its customers at the point of use. It is likely that the latter SafePack is sold in bulk while the former is sold in single units.
The matter of determining whether Simply Green has infringed on the trademark SafePack is a delicate one. However, the simple fact is that the Lanham Act explicitly indicates that the plaintiff has the burden of proof which is indicated by whether he/she has suffered economic or reputational injury stemming from a deception by the defendant in the course of advertising or other activities of commerce that causes him to lose trade from customers (Rothman, 2005). In this case, there is no proof whatsoever that SafePack from Safe Choices has suffered any injury as a result of the use of the trademark by Simply Green. The other facts are that the companies deal in dissimilar goods, target different customer segments and use different promotional avenues. These facts make the case for Simply Green.
This therefore does not necessitate the involvement of outside counsel as the matter can be amicably settled by the in-house counsel as it is not a complicated case of law with many facets but rather a straightforward claim. On the face of it, the only claim that Safe Choices has is that the trademark infringement is as a result of false designation of origin. While this is a valid claim for the infringement case, it is just a single facet that must be considered in light of all the other facts espoused in this memorandum.
Regards,
Cc:
Bcc:
References
Lemley, M.A. (1999). The Modern Lanham Act and the Death of Common Sense. Yale Law Journal, 108 (7), 1687–1715.
Phelps, D.M. (1949). Certification Marks under the Lanham Act. Journal of Marketing, 13 (4), 498–505.
Robins, L.R., & Donahue, K. (2013). Extraterritorial reach of the Lanham Act: a viable option. World Trademark Review, pp. 106–107.
Rothman, J. E. (2005). Initial Interest Confusion: Standing at the Crossroads of Trademark Law. Cardozo Law Review 27 (1), 105–191.
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