Intellectual property law bar questions and

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Intellectual property law bar questions and

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INTELLECTUAL PROPERTY

 

LAWBAR Q&AsPage of124

Trademark (1990)In 1988, the Food and Drug Administration approved the labels submitted by TurboCorporation for its new drug brand name, “Axilon.” Turbo is now applying with theBureau of Patents, Trademarks and Technology Transfer for the registration of saidbrand name. It was subsequently confirmed that “Accilonne” is a generic term for a classof anti-fungal drugs and is used as such by the medical profession and thepharmaceutical industry, and that it is used as a generic chemical name in variousscientific and professional publications. A competing drug manufacturer asks you tocontest the registration of the brand name “Axilon” by Turbo. What will you advice be?SUGGESTED ANSWER:

The application for registration by Turbo Corporation may be contested. The Trademark Lawwould not allow the registration of a trademark which, when applied to or used in connectionwith his products, is merely descriptive or deceptively misdescriptive of them. Confusion canresult from the use of “Axilon” as the generic product itself.

ALTERNATIVE ANSWER:

 

Medical drugs may be procured only upon prescription made by a duly licensed physician. Thepossibility of deception could be rather remote. Since it cannot reallybe said that physicians can be so easily deceived by such trademark as “Axilon,” it may be hardto expect an opposition thereto to succeed.

ANOTHER ANSWER:

The application for registration of Turbo Corporation may be contested. The factual settings donot indicate that there had been prior use for at least 2 months of the trademark “Axilon.”

Patents; Rights Over the Invention (1990)Cheche invented a device that can convert rainwater into automobile fuel. She askedMacon, a lawyer, to assist in getting her invention patented. Macon suggested that theyform a corporation with other friends and have the corporation apply for the patent, 80%of the shares of stock thereof to be subscribed by Cheche and 5% by Macon. Thecorporation was formed and the patent application was filed. However, Cheche died 3months later of a heart attack.Franco, the estranged husband of Cheche, contested the application of the corporationand filed his own patent application as the sole surviving heir of Cheche. Decide theissue with reasons.SUGGESTED ANSWER:

The estranged husband of Checke cannot successfully contest the application. The right overinventions accrue from the moment of creation and as a right it can lawfully be assigned. Oncethe title thereto is vested in the transferee, the latter has the right to apply for its registration.The estranged husband of Cheche, if not disqualified to inherit, merely would succeed to theinterest of Cheche.

Explanation:

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