1. What’s in a Trademark Anyway? Dan McKinnon, New Balance Athletic Shoe, Inc. Harvard University - July 10, 2008

2. 1 Confidential I. The Law Intellectual Property Definition: a bundle of exclusive rights over creations of the mind, both artistic and commercial PatentsCopyrights Trademarks Inventions, designs, processes Literary works, poems, photographs, modicums of expression “fixed in a tangible medium.” Anything used in commerce to designate the source of origin of a particular good or service.

3. 2 Confidential I. The Law Trademarks are always used in connection with a particular good or service   The USPTO follows the International Classification of Goods and Services (there are a total of 45 distinct classes)

4. 3 Confidential I. The Law TRADEMARKS Anythingused in commerce to designate source of origin of a particular good or service. Anything? Really? what about sounds? Reg. No. 916522 Reg. No. 2315261 Status: Opposed

5. 4 Confidential I. The Law Where’s the trademark? On April 12, 1960 Coca- Cola was granted trademark protection for this unique “contour bottle” shape. How about now? Ask Yourself: Without seeing the label, do you still know this is a Coke?

6. 5 Confidential I. The Law Not All Trademarks are Born Equal Under the Law Exercise:Suppose we are starting a refrigerator company a) The ‘Fridge b) Arctic c) Kasurion

7. 6 Confidential I. The Law SPECTRUM OF DISTINCTIVENESS FancifulArbitrarySuggestiveDescriptiveGeneric Easiest to RegisterImpossible to Register

8. 7 Confidential I. The Law Fanciful Arbitrary Suggestive Descriptive Generic Park’n Fly

9. 8 Confidential I. The Law FancifulArbitrarySuggestiveDescriptiveGeneric SPECTRUM OF DISTINCTIVENESS Exercise:

10. 9 Confidential I. The Law Acquired Distinctiveness/Secondary Meaning

11. 10 Confidential I. The Law TM VS Common lawFederal Law

12. 11 Confidential I. The Law Trademark Infringement Who remembers the Eddie Murphy movie “Coming to America”? Section 2(d) of the Lanham Act: “Likelihood of Confusion”

13. 12 Confidential I. The Law Any questions before we move on

14. 13 Confidential II. Business & Law So how does this impact business? On July 2, 2008, I received an email from one of my foreign associates in Ecuador.

15. 14 Confidential II. Business & Law

16. 15 Confidential II. Business & Law The Problems: 1. Goodwill 2. Liability 3. Dilution of the Brand/Poor Quality Product 4. Expenses and costs to fight this

17. 16 Confidential III. Bonus BONUS QUESTION FOR AN IPOD SHUFFLE From a trademark standpoint, why would new balance have a more difficult time protecting its brand than any of its three major competitors?

18. 17 Confidential IV. The End Thank you…Any Questions…