Models by Musk – FIRAC Scenario

Elon Enterprises was founded in 2015 to sell models of the planets in our solar system, using the mark Models by Musk. The company registered Models by Musk under California trademark law and with the Patent and Trademark Office.

Universities and planetariums often purchase Elon’s planet models for educational purposes. While the products are typically sold online, they can also be purchased in licensed science supply stores located around the country at colleges and universities. Amongst astronomers and professors of theoretical physics, Elon Enterprises is the premier producer of planet models, producing consistent sales that have increased each year. However, to anyone outside the field of astronomy, Models by Musk is virtually unknown.

Models by Musk are packaged in Styrofoam molded to fit the shape of the planet and then in soft black cardboard boxes with white dots (giving the appearance of a starry night sky). Across the front of the box, the mark Models by Musk is written in white cursive font. Typically, one can only find advertisements for Models by Musk in astronomy magazines and instructor editions of physics textbooks. These advertisements contain information about how Elon Enterprises scales their models down and includes certification of the models' accuracy. Typically, the advertisements are only seen by older professors and astronomers with interests and expertise in this field who can confirm these models' accuracy and realism.

The term “Musk” is often used to describe scents of male cologne and deodorants. In 2017, Prometheus began to sell high-end cologne to be used by models in photo shoots and exclusive fashion weeks worldwide. A trademark search performed by Prometheus did not turn up the mark Models by Musk. Prometheus then began selling their newest cologne, Musk for Models, in a black box with the mark on the box in pixelated white lettering. Underneath the mark on the box, Prometheus’ slogan for its newest scent was also printed in a white pixelated font and read “Out of this World.” On the bottom of the box, Prometheus provided information explaining the purpose of the scent for models and how the scent itself was created and manufactured.

In 2018, Prometheus decided to expand its target market and began directing advertisements for Musk for Models in college student newspapers at universities throughout the US. Within these advertisements, Prometheus indicated that this cologne is “used by models worldwide.”

Elon Enterprises discovered this new advertisement strategy by Prometheus when reviewing its advertising strategy on college campuses. It immediately reached out to Prometheus and demanded they completely stop using its mark, reasoning that it has spent considerable resources in marketing, manufacturing, and advertising its planet models. Prometheus refused, and Elon Enterprises is considering bringing a suit against Prometheus for either trademark infringement or trademark dilution.

Analyze the scenario using the FIRAC model to determine if Elon Enterprises has a case against Prometheus for either trademark infringement or dilution of its trademark. 

Even though you are being asked to analyze two possible legal claims, you don't need two separate FIRACs. After you summarize the facts, you will need to identify two legal issues and rules in your issue and rule statements. Similarly, in your analysis section, analyze the problem by applying each rule to the facts, and reach a conclusion on both issues (which may or may not have the same outcome).

[Note: To give you some perspective on word length, the scenario (without the instructions) is 463 words.]