"Taco Tuesday" and Trademark Infringement on the Bar Exam
I see what you did there, Taco Bell.
Just before lunchtime, Taco Bell sent me a notification that it was, in fact, Tuesday.
It didn’t remind me that I needed to run to the nearest Taco Bell to order my Nacho Cheese Doritos Locos Tacos to celebrate “Taco Tuesday.” Rather, the notification simply stated, “Because it’s a Tuesday.”
Of course, we all know what’s going on, especially with the not-so-subtle inclusion of the taco emoji. Taco Bell can’t explicitly remind everyone that today is actually “Taco Tuesday.” That would be infringing on competitor Taco John’s trademark of “Taco Tuesday.”
That’s why Taco Bell is trying to cancel the trademark that Taco John’s has possessed for more than 30 years. Taco Bell claims that “Taco Tuesday” should belong to “all who make, sell, eat and celebrate tacos," asking: "How can anyone Live Más if they’re not allowed to freely say 'Taco Tuesday?'"
Even Los Angeles Lakers star LeBron James is joining Taco Bell’s efforts to end “Taco Tuesday” trademark registrations.
How does “Taco Tuesday” relate to the bar exam?
Coincidentally, trademark infringement recently appeared on the February 2023 bar exam. One of the two Multistate Performance Tests offered by the National Conference of Bar Examiners, which is administered in 50 jurisdictions, was based on a trademark infringement claim. (The MPT is not administered in California, Florida, Louisiana, Nevada, Virginia, and Puerto Rico.)
Of course, examinees don’t need to know trademark law for purposes of the MPT, as any applicable law is provided within the test packet for examinees to use. Instead, the MPT is designed to test an examinee’s ability to use fundamental lawyering skills in a realistic situation and complete a task that a beginning lawyer should be able to accomplish. That includes working your way through a library of information—cases, statutes, code, and other legal authority—and being able to apply certain fundamental skills that lawyers are expected to demonstrate regardless of the substantive law in which the skills are applied.
So, yes, on the MPT, examinees don’t need to know any substantive law and, in fact, it’s sometimes better to leave their understanding of specific rules at the door as the rules within the MPTs (as applied by the fictitious state of Franklin) might differ from the law that they actually learned in law school.
Still, it’s sometimes helpful to know what substantive law has previously been tested on past MPTs if just to reduce one's testing anxiety ahead of time.
Here’s a summary of the substantive law that has appeared on the MPTs since 2000:
Agency Law—1 administration
Business Organizations—3 administrations
Civil Procedure—10 administrations
Conflict of Laws—2 administrations
Constitutional Law—7 administrations
Consumer Protection—1 administration
Contracts and Sales—9 administrations
Copyright Infringement—1 administration
Criminal Law—1 administration
Criminal Procedure—9 administrations
Employment Law—2 administrations
Evidence—11 administrations
Family Law—9 administrations
Federal Income Taxation—1 administration
Health Law—1 administration
Immigration Law—2 administrations
Personal Property—1 administration
Professional Responsibility—12 administrations
Real Property—9 administrations
Remedies—1 administration
Torts—14 administrations
Trademark Infringement—1 administration
Wills and Estates—3 administrations
You can download the February 2023 MPT (B&B Inc. v. Happy Frocks Inc.) from Maryland's State Board of Law Examiners website.
Maryland's State Board of Law Examiners and the Minnesota Board of Law Examiners also provide representative good answers for this MPT as well as all the other questions on the February 2023 Uniform Bar Exam.
