Intellectual
Property
Professor
Ashley
Intellectual
Property in Context
PROBLEM I
Ace Breweries has, for over
fifty years, produced and marketed beer and ale in kegs, bottles and cans in
the area of the
Ace's marketing department
has proposed that the campaign take an American colonial theme. Working with
the company's design department, it has configured the Volt can to resemble a
pewter ale mug. The wall of the can slopes slightly inward from the base, and a
cut‑out handle, designed to be pulled out and back from the wall of the
can, is a stylized version of a traditional mug handle. The can is pewter‑colored
and bears a red oval emblem with the imprinted word, "Volt,"
predominant and, beneath it, the phrase, "Ace's Volt‑‑Always
Good for a Jolt."
The top of the container is
designed to be removed easily by an action consisting of grasping and pulling
upwards on an attached aluminum loop. Unlike the pull‑out tab employed on
other beer, ale and malt liquor cans, which affords only a narrow opening, the
entire top is removed to enable drinking directly from the mouth of the can.
The marketing executives hope that, aside from fitting into the mug concept,
this new design will win new customers by making consumption easier; their
theory is that the new design will curtail the amount of air taken in with
swigs from the can, consequently reducing the incidence of a painful syndrome
known in the trade as "beer drinker's burp."
One reason the concept of
making the entire top removable had not previously been employed by others is
that, whenever it was attempted, the resulting can was too weak to contain the
pressure required for storage of beer, ale or malt liquor. To employ this new
form of top without sacrificing the container's capacity to maintain the
necessary pressure, Ace's package design department, after considerable
experimentation, arrived at a new method of container construction,
accomplishing a significant advance in the can manufacturing art.
What forms of intellectual
property protection might be available for the pewter mug container? What
elements of the pewter mug container might be protected by each of the
available bodies of intellectual property law?
Assume that Ace takes
advantage of every available form of intellectual property protection and that
a competitor begins marketing malt liquor in a container that is identical to
the volt container in every detail. What
rights, if any, would Ace have against the competitor?
Ace
is interested in licensing a Philadelphia-based brewer to manufacture and
distribute Volt in the pewter mug container in the area east of the