Copyright and Trademark

Question 1

1. Fiyero is likely to own one or more copyrights if he:
   A. writes an essay and posts it to his website
   B. writes an original song and posts a video of himself singing it to his website
   C. takes a photo of his friend and posts it to his website
   D. all of the above
   E. only two of the above

Answer 1

It’s D. All of these are works that are copyright protected automatically upon fixation, and the creator gets the copyright.

Question 1

1. Fiyero is likely to own one or more copyrights if he:
   A. writes an essay and posts it to his website
   B. writes an original song and posts a video of himself singing it to his website
   C. takes a photo of his friend and posts it to his website
   D. all of the above
   E. only two of the above

Answer 1

It’s D. All of these are works that are copyright protected automatically upon fixation, and the creator gets the copyright.

Question 2

2. In 2016, a documentary including an interview of WKWSCI administrators first reported that the school would make a statistics course required for all students. Who has copyright in the information that the course would be required?
   A. The owners of the documentary’s copyright
   B. The administrators interviewed
   C. Both A and B
   D. No one

Answer 2

It’s D. This is a fact that’s not protectable by copyright law, so neither A nor B.

Question 2

2. In 2016, a documentary including an interview of WKWSCI administrators first reported that the school would make a statistics course required for all students. Who has copyright in the information that the course would be required?
   A. The owners of the documentary’s copyright
   B. The administrators interviewed
   C. Both A and B
   D. No one

Answer 2

It’s D. This is a fact that’s not protectable by copyright law, so neither A nor B.

Question 3

3. In a 2017 short story that you wrote, Twilight protagonist Bella Swan continues her Twilight saga by attending WKWSCI with vampire Edward Cullen. In your story, she occasionally reflects on episodes from the Twilight novels. Your work:
   A. is unlikely to infringe anything in Twilight as long as your plot differs substantially
   B. may infringe Twilight characters, even if your plot differs from Twilight
   C. cannot infringe anything in Twilight because it’s a short story, not a novel
   D. consists only of unprotectable ideas
   E. none of the above

Answer 3

It’s B, not A. Well-delineated characters are copyright-protected, even if the plots differ. Not C; copyright protection is possible across types of work. Not D; a character is regarded as expression rather than just an idea.

Question 4

4. Local ad agency Arcade pitches and designs new ads for Gatsby featuring fictional flashbacks of Singapore’s founders using Gatsby’s hair pomade in the 1960s. Assume typical industry arrangements for copyright,
   A. Arcade owns rights in the finished ads
   B. Gatsby owns rights in the finished ads
   C. Gatsby pays a royalty to license rights in the finished ads from Arcade
   D. A and C
   E. B and C

Answer 4

It’s B. The typical arrangement is agency assigns rights to client, meaning that Arcade transfers ownership of all rights entirely to Gatsby, rather than merely giving a licence (permission) to use the ads (so not C). So, Arcade has no rights over the finished ads it created (not A).

Question 4

4. Local ad agency Arcade pitches and designs new ads for Gatsby featuring fictional flashbacks of Singapore’s founders using Gatsby’s hair pomade in the 1960s. Assume typical industry arrangements for copyright,
   A. Arcade owns rights in the finished ads
   B. Gatsby owns rights in the finished ads
   C. Gatsby pays a royalty to license rights in the finished ads from Arcade
   D. A and C
   E. B and C

Answer 4

It’s B. The typical arrangement is agency assigns rights to client, meaning that Arcade transfers ownership of all rights entirely to Gatsby, rather than merely giving a licence (permission) to use the ads (so not C). So, Arcade has no rights over the finished ads it created (not A).

Question 5

5. Katy Perry said she never heard Flame’s song “Joyful Noise” (released in 2008) till after Flame sued her, but a jury found she infringed Flame’s copyright with her 2013 song “Dark Horse”. Which is true?
   A. The fact that Flame’s song was released to the public before Perry’s weighs in favour of a causal connection indicating copying
   B. Among other things, Flame would have to demonstrate there was substantial similarity between the songs (or parts of them) to win the copyright infringement case
   C. In Singapore, Perry would also be liable for copyright dilution
   D. All of the above
   E. Only two of the above

Answer 5

It’s E. A is okay; the fact that the public had access to the work counts toward a causal connection indicating copying. B is okay; this is part of the test for copyright infringement. Not C; there is no such as copyright dilution, only trademark dilution, so far (some have proposed a cause of action for copyright dilution that resembles trademark dilution, specifically tarnishment).

Question 6

6. Creating a video game that is a continuation of The Hunger Games story, with the same main characters that appeared in the books and films (e.g., Katniss), is an example of:
   A. potentially infringing work
   B. work that requires a licence from the copyright owners of the original work
   C. work that is transformative because it appears as a game rather than a book or film, and therefore qualifies as fair use
   D. all of the above
   E. only two of the above

Answer 6

It’s E. A is okay; it’s potentially infringing of copyright in well-delineated characters. B is okay; because it’s potentially infringing, a licence is needed. Not C; just because it is in a different medium does not mean that it’s transformative; it’s doubly wrong because just because a work is transformative is not enough to make it fair use.

Question 6

6. Creating a video game that is a continuation of The Hunger Games story, with the same main characters that appeared in the books and films (e.g., Katniss), is an example of:
   A. potentially infringing work
   B. work that requires a licence from the copyright owners of the original work
   C. work that is transformative because it appears as a game rather than a book or film, and therefore qualifies as fair use
   D. all of the above
   E. only two of the above

Answer 6

It’s E. A is okay; it’s potentially infringing of copyright in well-delineated characters. B is okay; because it’s potentially infringing, a licence is needed. Not C; just because it is in a different medium does not mean that it’s transformative; it’s doubly wrong because just because a work is transformative is not enough to make it fair use.

Question 7

7. Singapore Airlines hires the creative studio Little Red Ants (founded by WKWSCI ’09 grads) to make a TV commercial. It’s standard industry practice for:
   A. Singapore Airlines to arrange to assign its copyright in the TV commercial to the Ants
   B. the Ants to arrange to assign their copyright in the TV commercial to Singapore Airlines
   C. the Ants to arrange to license use of the TV commercial to Singapore Airlines in exchange for royalties
   D. A & C

Answer 7

It’s B, not A. The legal default rule is that the agency (Ants) owns the copyrights to work it creates but the industry practice is to assign those copyrights (i.e., transfer ownership of them completely) to the client, SIA. Not C, although some critics of the current industry standards have suggested this alternative.

Question 8

8. YouTuber Bart Baker made a popular parody of recording artist The Weeknd’s hit song “Can’t Feel My Face.” The parody has tens of millions of views. Let’s say that Baker’s parody makes fun of the song and the video so effectively that it drives down demand for The Weeknd’s original; viewers even write in the comments on the parody, “I’ll never look at The Weeknd’s video the same way again. You ruined it for me!” The Weeknd’s team can document that after the release of the parody, plays of the original song decreased on multiple platforms. In the analysis specifically of the potential market effect factor of the fair use test,
   A. there is unlikely to be substitution, so the analysis of ‘potential market effect’ is likely to weaken the argument for fair use
   B. there is unlikely to be substitution, so the analysis of ‘potential market effect’ is likely to strengthen the argument for fair use
   C. there is likely to be substitution, so the analysis of ‘potential market effect’ is likely to strengthen the argument for fair use
   D. there is likely to be substitution, so the analysis of ‘potential market effect’ is likely to weaken the argument for fair use
   E. none of the above are considerations under the potential market effect analysis

Answer 8

It’s B; it’s poking fun at the original, not substituting for it, and substitution is required for potential negative market effect that hurts the case for fair use. Not A; without substitution, the case for fair use is stronger. Not C nor D; an effective parody is very unlikely to be a substitute for the original. Not E; substitution is an important consideration in the potential market effect prong of the fair use test.

Question 9

9. Fair use:
   A. occurs whenever less than 10% of a work is used by another party
   B. refers to unintentional infringement of copyright, without malice
   C. is sometimes described as a defence to copyright infringement in some jurisdictions
   D. all of the above
   E. only two of the above

Answer 9

It’s C; fair use is indeed described as a defence to infringement. Magic 10% figures are only relevant in copyright in very limited circumstances—e.g., certain educational exceptions to copyright—so not A; fair use requires balancing of other factors. Not B; fair use doesn’t directly address intention to infringe, and malice is not a factor. (Malice matters for fair comment in defamation law, not fair use in copyright law.)

Question 10

10. An online article published in the New York Times (NYT) reviews a trilogy of novels. Each novel in the trilogy consisted of many thousands of words. The review quotes the paragraph of the final novel that reveals the shocking conclusion of the series. This paragraph is 20 words. In the review, the quoted paragraph is attributed to its source. Which is true?
    A. If the NYT sought permission to use the work and was refused, then fair use is not legally possible
    B. In the analysis of the substantiality of what is taken, a court will likely conclude that it is highly substantial
    C. In the analysis of the amount that is taken, a court will likely conclude that it is small
    D. All of the above
    E. Only two of the above

Answer 10

It’s E. Substantiality refers to the importance of what was taken to the original work; the surprise ending is highly important, so B is correct. Amount refers only to the amount taken relative to the whole original work, which is tiny (just 20 words), so C is okay. Fair use is still possible even if no permission is sought—or if permission is sought and refused—so not A.

Question 11

11. You make a video of yourself singing the song “Let It Go” in which you make fun of low birth rates in Singapore. If the Singapore courts were to follow American fair use precedents, which is most likely true of the purpose of use?
    A. It is parody, a purpose which weighs in favour of fair use
    B. It is satire, a purpose which weighs in favour of fair use
    C. It is satire, a purpose which does not help your case for fair use very much, if at all
    D. It is criticism or review of the song, which weighs in favour of fair use
    E. It is parody of politics, a purpose which weighs in favour of fair use

Answer 11

It’s C; because it makes fun of something besides the original work, it’s satire. Not A; parody makes fun of the original work. Not B; satire counts against fair use. Not D; the target is not the song, and it’s not a review. Not E; there is no legal category of parody of politics. //

Question 11

11. You make a video of yourself singing the song “Let It Go” in which you make fun of low birth rates in Singapore. If the Singapore courts were to follow American fair use precedents, which is most likely true of the purpose of use?
    A. It is parody, a purpose which weighs in favour of fair use
    B. It is satire, a purpose which weighs in favour of fair use
    C. It is satire, a purpose which does not help your case for fair use very much, if at all
    D. It is criticism or review of the song, which weighs in favour of fair use
    E. It is parody of politics, a purpose which weighs in favour of fair use

Answer 11

It’s C; because it makes fun of something besides the original work, it’s satire. Not A; parody makes fun of the original work. Not B; satire counts against fair use. Not D; the target is not the song, and it’s not a review. Not E; there is no legal category of parody of politics. //

Question 12

12. Amos Yee posted a controversial video on YouTube, “Lee Kuan Yew is finally dead!” It was the subject of international news coverage. You are an Associated Press reporter, and you want to use a screenshot of Amos’s controversial video in your news article about multiple police reports filed about it. You are pretty sure this is fair use for news, but just to be safe, you contact Amos and ask his permission to include the screenshot. He refuses permission to use the photo. Which is most likely true?
    A. Your use of the screenshot still may qualify as fair use, because permission is not required for fair use
    B. Including the screenshot is automatically infringement, because you must have a copyright owner’s permission to avoid infringement liability
    C. You asked the wrong party for copyright permission; Amos doesn’t own copyright, but YouTube does
    D. There is no copyright in the video because it is the subject of police reports
    E. B and C

Answer 12

It’s A, not B; the whole point of fair use is that permission is not required. Amos owns the copyright, so he’s the right person to ask; YouTube only has a licence to distribute the work, so not C. Amos wouldn’t lose copyright just because a police report was filed (not D).

Question 13

13. Before a new Taylor Swift song is released to the public, an online reviewer obtains a leaked copy of it and quotes its opening lines. The song is big news in the music world, because it represents a new style for Taylor: The song is a hip hop song called “Booty.” In an analysis specifically of the “nature of the work” factor of the reviewer’s case for fair use, which is true?
    A. The song was unpublished, which counts toward fair use
    B. The song was unpublished, which counts against fair use
    C. This is likely to be deemed a transformative use, because it is used for reporting news
    D. This is likely to be deemed substitution for the original song
    E. Only two of the above

Answer 13

It’s B, not A; the fact that it’s unpublished counts against fair use under analysis of the second prong, nature of the work. Not C; remember that this question asks only about the “nature of the work” prong, not the other factors of the fair use test, so transformative use is irrelevant, because that is analysed under purpose of the use. Not D; it’s doubly wrong, because market effect and substitution are analysed under the 4th prong, and because this use wouldn’t count as substitution.

Question 14

14. At the WKWSCI benches, Toby and some classmates (hereinafter Toby & Others) are making up a song about their experiences at the school. After much improvisation and experimentation with many versions of the tune and lyrics, Toby finally announces, “Okay, this is it everybody,” and they sing a complete version of the song. Many classmates were there, listening and cheering them on, but nothing was recorded or written down. Toby & Others verbally agree they will write the tune and lyrics down later and make a video later. Thor, a Swedish exchange student who was listening to all of them practicing, but did not participate, goes ahead and makes a video of himself singing the music and lyrics exactly as they were in the last version that Toby & Others sang, without giving credit to Toby & Others. Which is true of intellectual property rights in the song?
    A. A requirement for Toby & Others to have copyright is unlikely to be met
    B. Toby & Others have a strong case against Thor for copyright infringement
    C. Thor needs to acquire master use rights to use the song from Toby & Others
    D. Thor’s case for fair use is strong because the song is unpublished
    E. Only two of the above

Answer 14

It’s A. Fixation–some sort of recording, whether written or electronic, in a form that can be communicated for more than a temporary, transitory duration–is required for copyright protection, and it’s absent here. Without copyright, all other choices are wrong. Not B, though a case against Thor might have been possible if Toby & Others’ song had been recorded first. Not C; it’s doubly wrong, because even if the song had been recorded, Thor is not using a recording of the song but singing his own version of it, so he wouldn’t need master rights. Not D; it can’t be fair use in a copyrighted work if there’s no copyrighted work, and it’s doubly wrong because even if it had been recorded, the fact that it was unpublished would weaken the case for fair use.

Question 15

15. In reporting on a disappeared airplane, an exclusive article in the Today newspaper breaks news about this new information: An investigator claims that there was a mobile phone call from the pilot’s phone to air traffic control. Seventy-five of the 1500 words of the original Today article describe this new information; the rest of the article discusses other developments and background. A Yahoo! News Singapore reporter, Jeanette, reports this new information on Yahoo’s news website, attributing it to Today and using her own, different words and phrasing to convey the new information. Today’s report uses some standard terms like “airplane” and “mobile phone,” which Jeanette also uses in her report. Which is true?
    A. Jeanette’s reporting of this new information is very likely to be considered copyright infringement
    B. Jeanette’s reporting of this new information is likely to be considered fair use
    C. Jeanette’s reporting of this new information is likely to be considered innocent dissemination of copyrighted material
    D. This new information about the phone call is not likely to be copyright protected
    E. Only two of the above

Answer 15

It’s D, not A. This new info is not copyright protected because it’s a fact, not expression. Not B; since it’s not copyright protected material, then fair use is irrelevant. Not C; there’s no innocent dissemination defence for copyright–only for libel.

Question 16

16. You shoot video on a set that includes a copy of a poster that you own from Ikea. The poster shows a copyright‐protected, computer‐generated illustration of a flower. The entire poster is clearly visible in the background of the video for two out of twenty‐two minutes. The characters, who are portrayed moving house, refer to it once, when one asks, “Are you going to take that awful poster with you, now that you are moving to such an expensive condominium?” Under an American‐style fair use analysis, which is the best answer?
    A. Your use of the poster is likely to be de minimis
    B. Your use of the poster is almost certainly fair use for criticism or review
    C. Your use of the poster is very unlikely to be fair use because the poster is criticised, meaning there is a potential negative market effect
    D. The nature of the work weighs against fair use

Answer 16

It’s D. It’s almost certainly not de minimis–or perhaps we should say “certainly not”–given the attention that was paid to it, so not A. There’s a chance it’s fair use, but that’s not “almost certain.” One reference to it doesn’t seem like the criticism involved in a review. Fair use seems even less likely given that the whole poster is clearly visible and the characters call attention to it, so not B. The fact that the poster is criticised does not mean there is a potential negative market effect–potential negative market effect comes from substitution for the original, rather than criticism. So not C. The nature of the work is likely to be deemed a creative, expressive work that is close to the heart of copyright‐protected expression, so D is true.

Question 17

17. In the US, a parody of a top 2019 hit, Lil Nas X’s “Old Town Road”, causes many listeners to rethink the song and stop purchasing and streaming it. Which is true?
    A. This parody’s market effect on the original weighs against fair use
    B. The parody may, in the end, be found to be fair use
    C. The fact that it’s a parody weighs in favour of fair use
    D. All of the above
    E. Only two of the above

Answer 17

It’s E. Not A; the potential market effect that counts against fair use occurs when one work can serve as a substitute for another, not when it makes fun of the other really effectively. B is okay; one can’t know for sure, but parody weighs in favour of fair use (C is okay).

Question 18

18. In a scene of a mother reading to a child in a new feature film, the mother reads aloud one unimportant line from a Harry Potter book. The moviemaker didn’t get permission to use the line. Which factor most clearly counts against fair use?
    A. Amount of the use
    B. Nature of the work
    C. Potential market effect, because of the possibility of substitution
    D. Substantiality of the use

Answer 18

It’s B; the work in question is the Harry Potter novel, which is a published work of fiction, and fiction is close to the core of copyright-protected work. Not A; one line of a novel is a very small amount. Not D; the question stipulates that the line the mother read is “unimportant”, so this counts against substantiality of the use. Not C; the potential market effect of using a single line of a novel without permission is small; it cannot serve as a substitute for the original work.

Question 19

19. Which is required for copyright protection in a short story?
    A. Literary quality in the eyes of the average, reasonable reader
    B. Copyright notice, e.g., ©2022
    C. Originality
    D. Publication
    E. At least two of the above

Answer 19

It’s C. Copyright requires originality, in the sense that the work originates with the author and is not copied, but not in the sense that a literary critic says that a work is original, e.g., that it has literary merit (not A). It’s automatic upon fixation; no “notice” is required, and neither is publication. //

Question 20

20. Which does NOT have copyright protection?
    A. An investigative reporter’s finding that an official took a bribe
    B. Four paragraphs from the published news article about the official taking a bribe
    C. A broadcast news report of 60 seconds about the official taking a bribe
    D. An interactive graphic on a news site about the official taking a bribe

Answer 20

It’s A; the finding is a fact that’s not protected by copyright. Paragraphs of text from the story may contain unprotected facts but are protected expression, as are broadcasts and graphics. //

Question 21

21. Nathan Hartono pays you a fee to write a biographical essay about him and take a photographic portrait of him. Which is true, if there is no contract that states otherwise?
    A. Copyright in the biographical essay belongs to you, and copyright in the photos belongs to Nathan
    B. Copyright in the biographical essay belongs to Nathan, and copyright in the photos belongs to Nathan
    C. Copyright in the biographical essay belongs to you, and copyright in the photos belongs to you
    D. Ownership is impossible to ascertain without a contract
    E. None of the above

Answer 21

It’s C. Because there’s no contract, the legal default rules apply. These are commissioned works; you have been hired specifically to create them. After the amendments, the default rule for both these works is that the creator owns the copyright. ///

Question 22

22. Gatsby is a brand of hair pomade. During a lunch meeting with Gatsby representatives, a creative from the ad agency Arcade speaks of a concept for a campaign she just thought of: “Maybe we could create fictional images of SG’s founders using Gatsby pomade!” She has not written anything down yet about this new concept. Who owns copyright for the concept at this point?
    A. Arcade
    B. Gatsby
    C. No one
    D. There are no default rules—it depends only on contracts between the parties

Answer 22

It’s C at this point; no one owns an idea until it’s fixed in a tangible medium of expression. This is the default rule (not D).

Question 23

23. CNN (USA) posts a 10-minute video that is a review of a song that lasts 3 minutes. For just under 10% of the CNN’s video’s length (just under one minute), the audio of the video is the recording of the song that was reviewed. Which is true?
    A. The fact that CNN’s video is a review weighs in favour of fair use
    B. The fact that less than 10% of CNN’s video contains the work it reviewed means there’s no possibility of copyright infringement of the reviewed work
    C. It’s possible that CNN may be liable for copyright infringement
    D. Only two of the above

Answer 23

It’s D. A is okay: The fact that it’s a review helps, but it’s not the end of the matter. C is okay: CNN may be liable for infringement; there’s never a guarantee with fair use. Not B: Amount in the fair use test refers to the percentage of the reviewed work that is borrowed, not the percentage of the review that consists of the borrowed work. Even if the percentage were calculated correctly: Though 10% comes up in some of the applications of Singapore’s fair use test and educational exceptions to copyright, it’s not the end of the analysis; other considerations come into play. And the 10% figure has been discredited as a criterion in US law. //

Question 24

23. CNN (USA) posts a 10-minute video that is a review of a song that lasts 3 minutes. For just under 10% of the CNN’s video’s length (just under one minute), the audio of the video is the recording of the song that was reviewed. Which is true?
    A. The fact that CNN’s video is a review weighs in favour of fair use
    B. The fact that less than 10% of CNN’s video contains the work it reviewed means there’s no possibility of copyright infringement of the reviewed work
    C. It’s possible that CNN may be liable for copyright infringement
    D. Only two of the above

Answer 24

It’s D. A is okay: The fact that it’s a review helps, but it’s not the end of the matter. C is okay: CNN may be liable for infringement; there’s never a guarantee with fair use. Not B: Amount in the fair use test refers to the percentage of the reviewed work that is borrowed, not the percentage of the review that consists of the borrowed work. Even if the percentage were calculated correctly: Though 10% comes up in some of the applications of Singapore’s fair use test and educational exceptions to copyright, it’s not the end of the analysis; other considerations come into play. And the 10% figure has been discredited as a criterion in US law. //

Question 25

24. In your 2022 short story, a vampire exchange student seduces and bites Rachel, a WKWSCI student, making Rachel a vampire. Your story:
    A. is likely to infringe vampire stories like Dracula, Buffy the Vampire Slayer, or Twilight
    B. is unlikely to infringe previous vampire stories if it only uses this element of such stories (i.e., the bite transforms the victim to a vampire)
    C. will gain copyright protection if and only if it is published with “© 2022” affixed to it
    D. only two of the above
    E. none of the above

Answer 25

It’s B, not A; standard elements of the vampire genre are unprotected. Not C; publication formalities like these are not required for copyright protection, though originality and fixation are. ///

Question 26

25. Which definitely does NOT have copyright protection?
    A. An NTU lab’s discovery that an illness is caused by a virus
    B. A 300-word Facebook post, made by the NTU lab, publicising its discovery
    C. A 2-minute segment of a 20-minute news video on YouTube in which other doctors critique the methods of the NTU lab that made the discovery
    D. At least two of the above definitely do NOT have copyright protection

Answer 26

It’s A; the finding is a fact that’s not protected by copyright. Not B; the post may contain unprotected facts but are protected expression, as is the video recording.

Question 27

26. Which is true?
    A. If you purchase a physical copy of a textbook from its publisher, you have a right to resell it on a platform like Carousell
    B. Some copyright law provisions have criminal penalties
    C. In copyright infringement, the test for substantial similarity requires looking through the eyes of a reasonable person
    D. All of the above
    E. Only two of the above

Answer 27

It’s D. A is okay, and the copyright owner has no right to exercise control or to collect royalties from you. B is okay; there are criminal penalties for commercial-scale violation of copyright. C is accurate; it’s not a subjective test based on an individual’s impression of substantial similarity. ///

Question 28

27. You work full time for ad agency OMD, whose client is McDonald’s Singapore. In 2019, you created an image used in a McDonald’s ad campaign. Who most likely owns the image, given ad industry conventions?
    A. You
    B. McDonald’s
    C. OMD
    D. No one, now that the ad has been released to the public and is in the “public domain”

Answer 28

It’s B, not A; your employer owns work you do as part of full-time employment—though the industry norm is for agency’s work to be assigned to the client. C is not the norm, though some believe that would be a great alternative arrangement. Not D; in copyright, public domain means there’s no copyright, not that it’s released to the public. ///

Question 28

27. You work full time for ad agency OMD, whose client is McDonald’s Singapore. In 2019, you created an image used in a McDonald’s ad campaign. Who most likely owns the image, given ad industry conventions?
    A. You
    B. McDonald’s
    C. OMD
    D. No one, now that the ad has been released to the public and is in the “public domain”

Answer 28

It’s B, not A; your employer owns work you do as part of full-time employment—though the industry norm is for agency’s work to be assigned to the client. C is not the norm, though some believe that would be a great alternative arrangement. Not D; in copyright, public domain means there’s no copyright, not that it’s released to the public. ///

Question 29

28. Which is protected by copyright?
    A. An idea to open a kids’ restaurant with décor based on the hit YouTube videos of the kids’ song “Baby Shark” (2015) (not the decorations but the idea)
    B. An artist’s realistic illustration of the shark that appears in a video of the hit kids’ song “Baby Shark” (2015); assume the illustration is quite similar to many other realistic illustrations of sharks appearing elsewhere, but not nearly identical to the others, and the artist can prove to a court that it originated with her
    C. The fact that Jean stole bread, which investigative reporter Victor uncovered last week but has not yet reported
    D. At least two of the above
    E. None of the above

Answer 29

It’s B; the illustration is original expression that is copyright protected. Not C; facts are not protected by copyright, even if it took investigation to uncover the facts. Not A; ideas, including business concepts, are not protected by copyright.

Question 30

29. In a class of 13 students, student Peter pulled out his camera and said, “Let’s take a class photo!” Another one of the students, Simon, grabbed Peter’s phone, stretched out his arm and took the photo. Peter and the other students post the photo to Instagram, where it circulates widely. Who is the owner of the copyright in the photo?
    A. Peter
    B. Simon
    C. All the students in the photo own the copyright collectively
    D. Instagram
    E. No one, because such a photo is not eligible for copyright protection

Answer 30

It’s B. The default rule is that the person who takes the photo is the creator who owns it, not the person who had the idea for the photo nor the person who owns the camera (not A). Not C; subjects of a photo have no claim to ownership. Not D; Instagram does not own the copyright but has a licence to circulate it consistently with the privacy settings of the students. Not E; the bar for copyright protection is very low; for photos, it requires simply making choices about framing the shot and when to press the button, and there is no need for any formalities like registration.

Question 31

30. If you decide to sell your hardcover copy of author Victoria Aveyard’s novel Red Queen (published by HarperCollins in 2015), which you purchased from the bookstore Kinokuniya,
    A. you are free to do so without any constraints from the copyright owner
    B. technically, Aveyard is entitled to royalties from the resale of her work, though such royalties are rarely collected
    C. technically, HarperCollins is entitled to royalties from the resale of Aveyard’s work, though such royalties are rarely collected
    D. all of the above
    E. only two of the above

Answer 31

It’s A. Under the first sale doctrine, aka copyright exhaustion, the copyright owner’s control of your physical copy of the work is “exhausted” by the first sale; you are free to do whatever you want with the physical copy, as long as you don’t copy it. Not B nor C; no royalties are owed. ///

Question 32

31. Award-winning CS grad Xiaobin posted a 2017 photo of shophouses in her online gallery. In 2023, Singapore Tourism Board asks her to use the photo in an ad campaign, and Xiaobin agrees. Which is true?
    A. Xiaobin must assign the photo to STB for the ad campaign
    B. Xiaobin could license the photo to STB for the ad campaign
    C. Xiaobin’s work will be considered a commissioned work to which she owns the copyright
    D. all of the above
    E. only two of the above

Answer 32

It’s B; typically Xiaobin would only give permission–a licence. She need not assign (transfer) ownership of the work to STB (not A); what’s more, assigning rights is the industry standard approach for ad agencies, not artists. Not C; a work is not commissioned unless one is hired specifically to create it; Xiaobin already created the work years before.

Question 33

38. Which is true?
    A. A South Korean songwriter’s copyright in a song she wrote is recognised in the US only if she registers it in the US
    B. The character Luke Skywalker, created for the first 1977 Star Wars film, is the sort of character that is copyright-protectable under US law
    C. You have a copyright in your unrecorded words spoken in a telephone conversation with your mother
    D. Only two of these choices are correct
    E. None of these choices is correct

Answer 33

It’s B; the character is well developed through not just one but multiple films, and so is copyright protected. Not A; the Berne Convention requires that no formalities like registration can be required for cross-border recognition of copyrights. Not C; since the words are not fixated (recorded in some way), you have no copyright.

Question 34

39. A review of American pop singer Lil Nas X’s work in Vogue magazine quotes 2 lines of his copyright-protected song “Industry Baby”. Which prong of the US fair use test definitely counts AGAINST fair use?
    A. Purpose of the use
    B. Amount & substantiality of use
    C. Nature of the work
    D. Potential market effect

Answer 34

It’s C; nature of the work concerns whether the work that is borrowed from is copyright protected; if it’s at the “core” of what’s copyright-protected—artistic expression—it counts against fair use. A song is definitely artistic expression and this song is copyright protected. Not A; the purpose of the use here—for a review—counts toward fair use. Not B; the amount taken is small and it would be difficult to say any part of the song is much more substantial (important to the work) than another. Not D; a quote in a review does not substitute for the song.

Question 35

40. US Pop star Troye Sivan’s 2018 copyright-protected song “Bloom” is the subject of the parodies and the review described below. Which is true?
    A. A parody of “Bloom” is so effective that it makes listeners think that “Bloom” is a silly song that they don’t want to hear, so the potential market effect of the parody weighs against fair use
    B. A review that quotes “Bloom” lyrics is negative, and makes readers think that “Bloom” is a silly song that they don’t want to hear, so the potential market effect of the review weighs against fair use
    C. Makers of a parody of “Bloom” didn’t get permission from Sivan’s representatives, so fair use of the song is impossible
    D. At least two of these choices are correct
    E. None of these choices is correct

Answer 35

It’s E, and the distractors are common misconceptions. Not A nor B: under potential market effect, the test is whether the new work substitutes for or replaces the original, not whether it merely hurts demand by making fun of it or criticising it. Not C; no permission is required for fair use—if the creator of the second work got permission, there would be no point at all in applying the fair use defence. //

Question 36

41. In 2007, Meg wrote a story and saved it in on her hard drive. Meg admits that no one else has ever seen or heard about her short story. Meg’s story’s plot is strikingly similar to the plot in a video that Jo made and released in 2018. Which is true?
    A. Jo may be liable for infringing Meg’s copyright in Meg’s plot
    B. Meg definitely has no copyright in her plot
    C. If Meg were to sue Jo for copyright infringement, Meg would surely lose because an essential element of infringement is absent
    D. Only two of these choices are correct

Answer 36

It’s C, not A. Copyright infringement requires not just substantial similarity (here the similarity is even greater than substantial—it’s striking) but requires that the potential plaintiff have access to the potential defendant’s work; access is not possible given that no one has seen Meg’s story. Not B; Meg may have a copyright in her plot, though such copyrights are difficult to enforce in infringement actions.

Question 37

42. The Korean TV series Squid Game (2021) is the latest popular story to feature a deathmatch and is considered part of the “survival fiction” genre. Among such works that came before is Suzanne Collins’ bestselling novels in The Hunger Games series (US, starting in 2008), which were adapted into hit films. If you wish to make your own work about a deathmatch in this genre with a similar plot, which is true?
    A. If your work is a comic book rather than a video or novel, you can safely borrow as much as you’d like from Squid Game or The Hunger Games without infringing their plots
    B. If you label your work with the word “parody”, this signals that it borrows from previous work, so you are safe from any infringement claims
    C. The level of legal risk you are taking will depend in part on how closely your story resembles previous works
    D. If you’ve never seen or read The Hunger Games, you are safe from claims that you infringed it, even if your work very closely resembles it
    E. Only two of these choices are correct

Answer 37

It’s C. Not A; just changing the format or genre doesn’t protect you from infringing the plot of previous works. Not B; simply labelling the work as parody or acknowledging that it borrows from other work—common practices online—does not insulate one from liability. Not D; if it’s published, this creates a presumption that you accessed it.

Question 38

43. The WKWSCI student theatre group Paparazzi publicly performs their new original play about Frankenstein’s monster, as portrayed in the novel Frankenstein (1818) by Mary Shelley (1797-1851). Among film versions of Frankenstein is one produced in 2015. Paparazzi’s play uses dialogue from Shelley’s 1818 novel but does not use any elements added by the 2015 film. Paparazzi must seek permission from:
    A. only Shelley’s heirs
    B. only the 2015 filmmakers
    C. both Shelley’s heirs and the 2015 filmmakers
    D. neither Shelley’s heirs nor the 2015 filmmakers, because of the fair use defence
    E. neither Shelley’s heirs nor the 2015 filmmakers, because what Paparazzi used is in the public domain

Answer 38

It’s E. Not A; Shelley’s novel long ago entered the public domain; everything published before 1923 has, and even if you didn’t know that, we’ve learned that the longest terms are 95 years after publication, or life of the author plus 70 years. Not B; the fact that more recent films were made has no effect on the underlying copyright in the novel, its characters and text, which were all that were borrowed here. Not D; the fair use defence is irrelevant, because there’s no copyright to infringe.

Question 39

43. The WKWSCI student theatre group Paparazzi publicly performs their new original play about Frankenstein’s monster, as portrayed in the novel Frankenstein (1818) by Mary Shelley (1797-1851). Among film versions of Frankenstein is one produced in 2015. Paparazzi’s play uses dialogue from Shelley’s 1818 novel but does not use any elements added by the 2015 film. Paparazzi must seek permission from:
    A. only Shelley’s heirs
    B. only the 2015 filmmakers
    C. both Shelley’s heirs and the 2015 filmmakers
    D. neither Shelley’s heirs nor the 2015 filmmakers, because of the fair use defence
    E. neither Shelley’s heirs nor the 2015 filmmakers, because what Paparazzi used is in the public domain

Answer 39

It’s E. Not A; Shelley’s novel long ago entered the public domain; everything published before 1923 has, and even if you didn’t know that, we’ve learned that the longest terms are 95 years after publication, or life of the author plus 70 years. Not B; the fact that more recent films were made has no effect on the underlying copyright in the novel, its characters and text, which were all that were borrowed here. Not D; the fair use defence is irrelevant, because there’s no copyright to infringe.

Question 40

44. An elderly Singapore actress pays you to write a biographical essay about her. Actress dies a few months after you complete it. Under the default rules for such work,
    A. actress’s heirs now own copyright in the essay
    B. you own copyright in the essay
    C. the actress’s heirs and you jointly own copyright in the essay
    D. the essay is in the public domain

Answer 40

It’s B. Actress commissioned the work, so applying the default rule, you as creator own copyright, so not A nor C. Not D; since it was just completed, the copyright term is still in effect. ///

Question 41

1. In recent decades, the legal doctrine of “trademark dilution” has been introduced in many jurisdictions. Which is NOT true?
   A. Blurring is a form of dilution
   B. Tarnishment is form of dilution
   C. Dilution is an expansion of the protections offered by trademark; it creates more opportunities for a trademark owner to sue
   D. Dilution is a reduction of the protections offered by trademark and an expansion of the rights of others to use a trademark; it diminishes the opportunities for a trademark owner to sue
   E. Dilution is not the same as infringement

Answer 41

D is not true, so it’s correct: Rather than a reduction in protections, dilution is an expansion, for it allows a trademark owner to proceed even when the mark is not used on similar goods or service. A and B are subtypes of dilution; blurring is the common type, and tarnishment is a special case. Dilution is different from, and broader than, infringement. //

Question 42

2. If you attempt to register the trademark “Spring roll” in Singapore for spring rolls, your registration will likely be:
   A. rejected, as this is an inherently distinctive mark
   B. rejected, as this is a mark that lacks distinctiveness
   C. accepted with the territorial limitation of protection in Singapore
   D. only two of the above
   E. none of the above

Answer 42

It’s B; this is most likely a generic mark, which cannot receive protection because it’s merely a name for the product. Not C; registration cannot be accepted for such marks. Not A; it has no inherent distinctiveness, or ability to identify the proprietor.

Question 42

2. If you attempt to register the trademark “Spring roll” in Singapore for spring rolls, your registration will likely be:
   A. rejected, as this is an inherently distinctive mark
   B. rejected, as this is a mark that lacks distinctiveness
   C. accepted with the territorial limitation of protection in Singapore
   D. only two of the above
   E. none of the above

Answer 42

It’s B; this is most likely a generic mark, which cannot receive protection because it’s merely a name for the product. Not C; registration cannot be accepted for such marks. Not A; it has no inherent distinctiveness, or ability to identify the proprietor.

Question 43

3. Which is NOT true?
   A. There has been some harmonisation of trademark law internationally
   B. There is no registration system for trademark, since protection is automatic
   C. If you don’t register your mark, you still may have a legal remedy through the tort of passing off
   D. A smell may be recognised as a trademark in some jurisdictions

Answer 43

It’s B. For trademark, registration is important and available in many jurisdictions, though it’s not required. Unlike copyright protection, protection is not automatic upon creation of the trademark in a fixed form.

Question 43

3. Which is NOT true?
   A. There has been some harmonisation of trademark law internationally
   B. There is no registration system for trademark, since protection is automatic
   C. If you don’t register your mark, you still may have a legal remedy through the tort of passing off
   D. A smell may be recognised as a trademark in some jurisdictions

Answer 43

It’s B. For trademark, registration is important and available in many jurisdictions, though it’s not required. Unlike copyright protection, protection is not automatic upon creation of the trademark in a fixed form.

Question 44

4. Since 1907, Tootsie Roll Industries has made Tootsie Rolls candy, and for nearly as long, has owned well-known marks for the words “Tootsie Roll” and the package colours and design seen here. Since 2009, Rollashoe has made rollable Footzyroll shoes, seen with their packaging here. TRI takes legal action against Rollashoe. Which is true?
   A. Rollashoe is safe against infringement & dilution claims because the logos, shown here, look different
   B. TRI can meet all requirements for the most basic type of trademark infringement
   C. TRI may prevail under dilution law
   D. only two of the above
   E. none of the above; TRI’s trademark protection will have expired by now, leaving them with no legal remedy

Answer 44

It’s C. Dilution requires a mark that is similar to a famous mark like this—and it can be used on non-competing goods or services. Not A; the criterion of similarity is fulfilled here, since trademark can subsist in the words alone, regardless of the logo. Not B; classic infringement requires similar marks and similar goods, but the goods aren’t similar. Not E; trademark protection is renewable indefinitely, and protection for well-known marks through common law of passing would be present for this well-known mark even in the unlikely event that TRI did not renew registration.

Question 45

5. Trademark:
   A. is a subcategory of copyright
   B. is another term for copyright
   C. is the general term for intellectual property, which includes the subcategories copyright and patent
   D. is another kind of intellectual property, in addition to copyright and patent
   E. none of the above

Answer 45

It’s D; trademark, copyright and patent are subcategories of intellectual property. Trademark is not a kind of copyright, so not A. Trademark is not another term for copyright; a name like Swenson’s is trademarked but not copyright protected, so not B. And trademark is not the umbrella term that includes copyright (let alone patent), so not C.

Question 46

6. As most of you know (better than me), in Singapore, the term “yong tau foo” (literal meaning: “stuffed bean curd”) is a term used to describe a dish consisting of stuffed tofu and a variety of other ingredients, such as fish balls, crab sticks, and sliced vegetables, served with a broth or gravy. The stall named “Yong Tau Foo” at campus Canteen G has been in business for 12 years. It has become popular, attracting lunch customers from across campus. It has no logo, and its signboard only says “Yong Tau Foo”, in the same font as the other stalls in the canteen. Mr Ng, the proprietor, moves to another stall across campus where the rent is lower, and Ms Chee opens a new yong tau foo stall in Canteen G, using the same signage: “Yong Tau Foo” in the standard font for the stalls of the canteen. Mr Ng has never attempted to register for a trademark of any kind. Which is most likely true?
   A. Ng has likely acquired distinctiveness in the mark “Yong Tau Foo”. so that he is eligible to register the mark
   B. “Yong Tau Foo” is a generic mark
   C. If Mr Ng attempts to register the mark, his registration will most likely be denied
   D. A and B
   E. B and C

Answer 46

It’s E. B is ok; “Yong Tau Foo” is a generic mark that cannot be protected because the authorities don’t want you to lock up this name of a dish so others can’t use it without permission. A generic mark cannot be registered, so C is ok. It’s not A, because you cannot acquire distinctiveness (nor register) a mark that lacks the capacity to distinguish Mr Ng’s stall from others.

Question 47

6. As most of you know (better than me), in Singapore, the term “yong tau foo” (literal meaning: “stuffed bean curd”) is a term used to describe a dish consisting of stuffed tofu and a variety of other ingredients, such as fish balls, crab sticks, and sliced vegetables, served with a broth or gravy. The stall named “Yong Tau Foo” at campus Canteen G has been in business for 12 years. It has become popular, attracting lunch customers from across campus. It has no logo, and its signboard only says “Yong Tau Foo”, in the same font as the other stalls in the canteen. Mr Ng, the proprietor, moves to another stall across campus where the rent is lower, and Ms Chee opens a new yong tau foo stall in Canteen G, using the same signage: “Yong Tau Foo” in the standard font for the stalls of the canteen. Mr Ng has never attempted to register for a trademark of any kind. Which is most likely true?
   A. Ng has likely acquired distinctiveness in the mark “Yong Tau Foo”. so that he is eligible to register the mark
   B. “Yong Tau Foo” is a generic mark
   C. If Mr Ng attempts to register the mark, his registration will most likely be denied
   D. A and B
   E. B and C

Answer 47

It’s E. B is ok; “Yong Tau Foo” is a generic mark that cannot be protected because the authorities don’t want you to lock up this name of a dish so others can’t use it without permission. A generic mark cannot be registered, so C is ok. It’s not A, because you cannot acquire distinctiveness (nor register) a mark that lacks the capacity to distinguish Mr Ng’s stall from others.

Question 48

7. Which lists of brands of air conditioner is ordered from most inherently distinctive (on the left) to least inherently distinctive (on the right)?
   A. Premium brand air conditioner, Arctic brand air conditioner, Lily brand air conditioner
   B. Lily brand air conditioner, Premium brand air conditioner, Arctic brand air conditioner
   C. Air conditioner brand air conditioner, Cool brand air conditioner, Lily brand air conditioner
   D. Lily brand air conditioner, Arctic brand air conditioner, Premium brand air conditioner

Answer 48

It’s D. Lily is an arbitrary mark for air conditioner—there’s no natural association between the flower and air conditioner. Arctic is suggestive—you can use your imagination to associate the air conditioner with the cold of the Arctic, but Arctic is not literally descriptive of the air conditioner. Premium brand is descriptive, because it is a laudatory word that the courts are reluctant to let you lock up with trademark protection unless you’ve obtained secondary meaning. Notice that in C, Air Conditioner brand would be a generic mark that is impossible to protect, and Cool could be seen as descriptive.

Question 49

8. Which is likely to be the most distinctive word mark for popcorn?
   A. Popcorn™
   B. Gerg (a made-up word)
   C. Crunchy
   D. Superior

Answer 49

It’s B. A made-up word mark has high inherent distinctiveness. Not A: it’s a generic mark, simply naming the product. Not C: Crunchy simply describes an attribute of popcorn, and would be a descriptive mark with low distinctiveness. Not D: Superior is what we call a laudatory word—a word of praise that could apply to any number of goods or services and lacks distinctiveness.

Question 50

9. A firm is making counterfeit Louis Vuitton bags, with the LV logo, that look nearly identical to one of the authentic LV designs. The fake bags are sold in boutiques at high prices, and many customers are fooled by these fakes. The maker of these fakes is involved in trademark:
   A. infringement
   B. blurring
   C. tarnishment
   D. dilution

Answer 50

It’s A: The marks are similar, the goods are similar, and confusion is likely—in fact, we know from the question that confusion is happening—so it’s infringement. Dilution, which is synonymous with its most common variant, blurring, is for cases where the marks are similar but the goods aren’t, and no confusion is likely to result (not B nor D). Another variant of dilution is for cases where the mark creates a negative association for the original mark—e.g., vulgar associations—which isn’t the case here.

Question 51

10. Which is true of Rolex’s trademark in the word Rolex?
    A. Another manufacturer could not be found legally liable for using the word on goods that aren’t similar to what Rolex makes
    B. The standard for trademark infringement of this mark is whether confusion is likely for an expert—in this case, perhaps a jeweller or a watch merchant
    C. It’s an arbitrary mark
    D. Only two of the above
    E. None of the above

Answer 51

It’s E. Not A; using the mark on goods that are dissimilar to watches would be dilution. Not B; the standard is whether confusion is likely for the average consumer. Not C; it’s a fanciful mark—a made-up word—not an arbitrary mark like Shell for oil.

Question 52

11. The words “Coffee Bean & Tea Leaf” are an example of a:
    A. fanciful mark
    B. arbitrary mark
    C. inherently distinctive mark
    D. only two of the above
    E. none of the above

Answer 52

It’s E. Not A; a fanciful mark is made up specifically to identify the product or service; these instead are common words. Not C; only fanciful marks are inherently distinctive. Not B; the words refer to products the café offers.

Question 52

11. The words “Coffee Bean & Tea Leaf” are an example of a:
    A. fanciful mark
    B. arbitrary mark
    C. inherently distinctive mark
    D. only two of the above
    E. none of the above

Answer 52

It’s E. Not A; a fanciful mark is made up specifically to identify the product or service; these instead are common words. Not C; only fanciful marks are inherently distinctive. Not B; the words refer to products the café offers.

Question 53

12. Hui Sin & Boon Chong open a family-friendly restaurant called HSBC Restaurant (get it?). HSBC, the bank, is not amused; it sues. The court determines that no consumers were confused or are likely to be confused that the restaurant is affiliated with the bank. The bank is likely to have a good case for:
    A. dilution
    B. trademark infringement
    C. tarnishment
    D. only two of the above
    E. none of the above

Answer 53

It’s A; dilution is a remedy that’s available even when there’s no confusion but mere similarity to a well-known mark. Not B; confusion, or likelihood of it, is required for trademark infringement. Not C; for tarnishment, the mark must have unflattering associations—e.g., sexual or offensive—with the well-known mark.

Question 54

13. Which is essential to prevent others from using your business name, The Last Resort, for a café that stays open 24 hours?
    A. I must have registered the name when I opened the café; if not, there’s nothing I can do to stop others from using it
    B. I must use the f ™ or ® symbol after the name
    C. I must have a logo design that required creativity to make
    D. At least two of the above
    E. None of the above

Answer 54

It’s E. Not A: Even if your name is not registered, you can attempt to protect it using the tort of passing off. Not B: These symbols are optional. Not C: A creative logo is not required for protection; the words alone can be protected. ¬¬¬

Question 55

14. In 2015, within days of starting Finest Pizza, a pizza delivery service, your business tried to register the words “Finest Pizza” as a mark. The Singapore trademark registrar refused registration, citing a lack of distinctiveness in this word mark. Your business continued using the mark and has quickly become as well-known throughout Singapore as Pizza Hut, market research indicates. Now, if your business attempts to register the words Finest Pizza as a mark,
    A. the registrar cannot grant registration for this generic mark
    B. the registrar can only grant registration if your business has used a logo with a distinctive design (e.g., an illustration) in commerce
    C. the registrar may grant registration based on the mark having acquired distinctiveness
    D. only two of the above
    E. none of the above

Answer 55

It’s C. Not A; it’s not a generic mark that simply says what’s available, like, for example, “Pizza”. It’s a descriptive mark, with a laudatory word (“Finest”), so it’s a very weak mark and it’s no surprise that registration wasn’t granted. C is ok, though, because if the mark has become so well known, it’s now able to distinguish your pizza delivery service from others. Not B; a distinctive logo is not required; word marks alone can be protected.

Question 56

15. Which is true regarding the well-known Singapore brands Tiger Beer and Tiger Balm ointment?
    A. If one of the trademark owners has failed to renew its registration, it can no longer take any legal action based on its mark
    B. Trademark dilution may be a possibility; depending on the circumstances, one may cause dilution to the other
    C. Eventually one of the trademark’s terms will reach its maximum permitted duration and can no longer be renewed; it will enter the public domain
    D. All of the above
    E. Only two of the above

Answer 56

It’s B; both marks are well known, and the marks that are at least arguably similar, so there could be dilution; no competition is required. Not A; the remedy of passing off is available even without current registration. Not C; trademarks are renewable indefinitely.

Question 57

16. Which is true?
    A. Trademark dilution does not require likelihood that the consumer will be confused
    B. The name for your new café, Czxnk, which you created by randomly pressing keys on your laptop, is a generic mark
    C. If you don’t register a trademark, there’s nothing you can do to enforce it
    D. All of the above
    E. None of the above

Answer 57

It’s A, which is a contrast to trademark infringement, which requires likelihood of consumer confusion. Not B; that’s an inherently distinctive mark; something like the name “Café” would be a generic mark. Not C; even without registration, an option is the tort of passing off. //

Question 58

17. Your name is Ms Lee. You name your Singapore restaurant “Lee’s”. Which is true?
    A. You will never be able to get any sort of protection for your mark—sorry ah
    B. You may be able to register & get protection for your mark in Singapore when you can demonstrate “Lee’s” has acquired the ability to distinguish your restaurant due to your use of the name
    C. As soon as you open your restaurant, it will be just as easy to lock up exclusive rights to use the name as it would be if you chose a made-up word for your restaurant’s name
    D. At least two of the above

Answer 58

It’s B, not A; you can acquire distinctiveness or secondary meaning by use in the market. Not C; because “Lee’s” lacks the distinctiveness a made-up word mark has, you may choose to go the route described in B. (Alternatively, you could forego registering & attempt to get a remedy for passing off if someone else uses “Lee’s”; this option also requires the mark to be recognised as distinguishing your restaurant.)

Question 59

18. The new brands below are unaffiliated with famous marks that sound and look similar. Which of these is most likely to be trademark dilution, rather than trademark infringement?
    A. Burger Kings, a new burger restaurant
    B. StarBuck, a new café
    C. StarBuck, a new kind of floor cleaner
    D. Subwayz, a new sandwich restaurant

Answer 59

It’s C; dilution occurs when a mark that is similar to a well-known mark is used on different goods or services. Not A, B, or D: These are similar marks used on similar goods and services, which is classic infringement.

Question 60

19. If a trademark acquired distinctiveness, the mark:
    A. acquired the capability to distinguish the proprietor’s goods or services in consumers’ minds
    B. became synonymous with a whole class of products, e.g., the way “Kleenex” is a synonym for tissues in some places
    C. is a nonsense word, like “Xerox”, that acquired a meaning as a brand of electronic equipment
    D. lost secondary meaning
    E. none of the above

Answer 60

It’s A. When a mark like Lee becomes associated in the public’s mind with its brand of jeans, despite lacking inherent distinctiveness, since Lee is just a common name, it has acquired distinctiveness. Not B; that’s what happens when a trademark loses distinctiveness, or the ability to distinguish the proprietor’s goods/services–this is sometimes called “genericide”. Not C; Xerox is a made-up word that is inherently distinctive—it’s able to distinguish its proprietor, even before it is in use, because the proprietor made it up. “Secondary meaning” is synonymous with acquired distinctiveness, so not D. //

Question 61

20. If you use the name Long John Silver’s as the name for your brand of pencils, this is most likely trademark:
    A. infringement
    B. dilution
    C. tarnishment
    D. at least two of the above
    E. none of the above—it’s perfectly permissible

Answer 61

It’s B; using a famous mark on different products or services in a way that’s not likely to cause confusion is not strictly infringement (not A) but is instead dilution. Not C; tarnishment occurs when you use it in a way that damages the reputation through inappropriate associations, e.g., vulgar associations.

Question 62

21. If a court ruled that one mark for rice infringed another, what must be true?
    A. Confusion for the average consumer was deemed likely
    B. Both marks must be identical
    C. One mark must be similar to, but not identical with, the other
    D. The goods must be identical (i.e., both marks are used for white rice, not one mark for white and one for brown rice)
    E. None of the above

Answer 62

It’s A; confusion must have been deemed likely. Though conflicting marks can be identical, they need not be identical (not B). Similarity is sufficient for trademark infringement, but an identical mark (e.g., on a counterfeit good) can surely infringe (not C). Goods need not be identical, just similar (not D).

Question 63

22. This blue Twitter logo above is most likely to:
    A. lack both copyright and protection as a mark
    B. have protection as a mark but not copyright protection
    C. have copyright protection but not protection as a mark
    D. have both copyright protection and protection as a mark
    E. be in the public domain because many people reproduce versions of it on their websites next to their Twitter handles

Answer 63

It’s D. It certainly has protection as a mark, and in fact is a registered trademark that is among the most well-known. Any sort of logo that includes an illustration is likely to have copyright protection, because the bar for the creativity necessary for copyright is very low.

Question 64

23. Ms Tan wants to protect the mark for her cleaning business’s name, Tan’s Cleaners. Ms Tan:
    A. cannot get trademark protection for this mark
    B. can get protection if the mark acquires distinctiveness
    C. can only get protection if she registers the mark
    D. only two of these choices are correct
    E. none of these choices is correct

Answer 64

It’s B. The mark is a combination of a name and a description of the business; it’s not distinctive enough to obtain trademark protection until it has acquired distinctiveness in use in the market. Not A; after acquiring distinctiveness, it can indeed get protection. Not C; protection under passing off applies regardless of registration.

Question 65

24. In 2023 in Singapore, Cammy opens a store called Sudsway. It sells bath products like soap and sponges. The store uses green and yellow colours in its logo and other branding. Subway, the sandwich chain restaurant that also uses green and yellow in its logo and branding, most likely has a case for trademark:
    A. dilution
    B. infringement
    C. tarnishment
    D. all of these choices are correct
    E. only two of these choices are correct

Answer 65

It’s A. Sudsway is using a mark that is similar to a well-known mark, Subway, for a different class of goods/services. Not B; infringement occurs when a similar mark is used for similar goods or services. Not C; tarnishment requires negative associations.

Question 66

25. Which is true?
    A. A trademark is a type of copyright
    B. A trademark must be registered for its owner to be able to take any legal action against others who use it
    C. A trademark notice—™ or ®—is required for a trademark to be valid
    D. Only two of these choices are correct
    E. None of these choices is correct

Answer 66

It’s E. Not A; like copyright, trademark is a type of intellectual property but it’s not a type of copyright. Not B; the owner of an unregistered trademark can enforce her rights through passing off. Not C; notice is not required.