Intellectual Property Law

Chapter 5 Case Study Answers

ase Study: Fit Forever would like to license the use of its mark FLEX FUSION (used
for exercise classes and for consulting in the areas of fitness and nutrition) to ABC Inc. It
would also like to file the first affidavit of use for its mark PUMP BANDS (used in
connection with exercise resistance bands). Unfortunately, Fit Forever has not been able
to sell its bands for the past 15 months because the rubber used in the bands originates in
China, and due to a labor stoppage in China, the bands have not been manufactured there
for the past 15 months.

Activities:
1. Identify the types of quality control provisions Fit Forever should include in its
license agreement with ABC Inc.
Fit Forever should include the following types of quality control
measures in connection with the license agreement (which should be
in writing) with ABC Inc.
i. Provisions enabling it to review ABC’s use of FLEX FUSION in
all advertising, signage, and promotional materials that use the
mark.
ii. Provisions enabling it to attend and review the exercise classes
offered under the mark, to ensure the classes are consistent with
the classes Fit Forever offers under the mark.
iii. Provisions allowing it to attend any consulting classes or sessions
in the areas of fitness and nutrition offered under the mark, again
to ensure that the consultations offered by ABC are consistent
with the quality and nature of the consultations Fit Forever offers.
iv. Provisions allowing it to conduct periodic inspection of ABC’s
facilities and any use of the mark.

2. What objections might Fit Forever encounter when it attempts to maintain its
mark PUMP BANDS? Discuss.
Fit Forever is likely to encounter an objection by the USPTO that the
mark PUMP BANDS is not in use and therefore the statement of use
is not acceptable. Fit Forever should provide an Affidavit of
Excusable Nonuse, describing the labor stoppage and its efforts to
find another supplier for the rubber materials (which it should be
doing—otherwise, it seems likely that Fit Forever is not making a
reasonable attempt to use the mark). It should show that as soon as
this external reason (the labor stoppage) passes, it will resume use
within a reasonable time.