Sunday, June 27, 2010

Today's fake exam question

At the Smithsonian Folklife Festival, I bought earrings made by Kathy Whitman from recycled soda cans. On her site, you can choose which brand of can you want for your order; I just bought ones made from Coke Zero off the shelf. Given the Ninth Circuit's recent ruling that confusion trumps first sale, and given that Coca-Cola itself licenses recycled Coke can jewelry, what happens to Whitman? Bonus: the earrings I bought were made from Olympic sponsorship cans, and have a substantial portion of the five rings on them. How should S.F. Arts & Athletics, or whatever rule you believe is the law today, apply to this use?


Laura Heymann said...

A version of this *was* my exam question a couple of years back. But, of course, the Au-Tomotive Gold opinion hadn't been issued then!

David Welkowitz said...

One of my favorite props for trademark class is a model airplane made out of a Coke can that I bought many years ago at a crafts fair in Massachusetts (the seller made various items out of numerous brands of canned soft drinks). Au-tomotive does make the question more interesting.