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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: At the center of a trademark dispute at the Supreme

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Speaker 1: Court was a chewable dog toy mimicking the iconic Jack

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Speaker 1: Daniels bottle, but with poop jokes. So perhaps it was

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Speaker 1: inevitable that there would be quips, laughter and confusion. Here's

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Speaker 1: Johnsys Samuel Alito asking the attorney for Jack Daniels, Lisa Blatt,

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Speaker 1: whether any reasonable person would think the Whiskey company had

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Speaker 1: approved the use of its trademark on the dog toy.

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Speaker 1: A reasonable person would not think that Jack Daniels had

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Speaker 1: approve this. I think if you're selling urine, you're probably

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Speaker 1: gonna win on a motion to I mean, on a

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Speaker 1: Twelvey six. But you're probably also violating some state law.

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Speaker 1: But sure, Oh no, we thought you're not selling urine exactly.

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Speaker 1: I thought, no, it's exactly this toy. I'm sorry, which

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Speaker 1: purportedly contains some sort of dog I'm sorry, Okay, my bad,

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Speaker 1: Justice Alito. I don't know how old you are, but

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Speaker 1: you wants a law school. You're very smart, you're analytical,

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Speaker 1: you have hindsight bias. And when I went to a

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Speaker 1: law school where I didn't learn any laws. Okay, by

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Speaker 1: the way, that was a disc of Yale law school

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Speaker 1: jokes aside, The issue was whether the donk Toy, which

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Speaker 1: includes references to old number two and forty three percent

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Speaker 1: Pooh by volume, is entitled to First Amendment protection as

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Speaker 1: a parody of the whiskey. But Justice Elena Kagan didn't

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Speaker 1: get it in this case. What is there to it?

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Speaker 1: What is the parody here? The parody parody? Because maybe

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Speaker 1: I just have no sense of humor, But what's the parody?

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Speaker 1: My guest is intellectual property litigator Terrence Frost, a partner

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Speaker 1: at Captain Yuchen Rosenman. Terry, so many of the Supreme

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Speaker 1: Court arguments are so weighty, so heavy, but not this one.

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Speaker 1: I mean the humor at times see to sync to

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Speaker 1: the level of the doctor I here, and this is

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Speaker 1: a case we've been waiting for, so Terry, did it

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Speaker 1: meet your expectations? I thought the actual argument, particularly from

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Speaker 1: the Solicitor General's office, was particularly good and cut through

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Speaker 1: a lot of the murkiness and went straight to the

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Speaker 1: heart of the issue. I thought the tone of the

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Speaker 1: questioning did as you describe it, descend a little bit

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Speaker 1: into the gutter for reasons I can't explain. Over about

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Speaker 1: a year year and a half, now this court, with

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Speaker 1: its new makeup, seems to be unable to approach intellectual

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Speaker 1: property cases without using a raft of examples, many of

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Speaker 1: which are sort of ludicrous and really don't advance the

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Speaker 1: ball much. But that's been the name of the game

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Speaker 1: in intellectual property cases. You know, you go to the

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Speaker 1: Supreme Court to argue one of those, and you better

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Speaker 1: be prepared for a bunch of rather silly examples being

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Speaker 1: tossed at you. And that's how this hypothetical works. Now

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Speaker 1: that hypothetical works, let's just talk about the very, very basic.

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Speaker 1: What does trademark ownership protected company from. Trademark ownership is actually,

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Speaker 1: in the first instance, intended to protect consumers. And this

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Speaker 1: is a fundamental mistake that many lay people make, is

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Speaker 1: that they think it's a protection for the corporate owner.

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Speaker 1: But the protection originates in the concern in previous centuries

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Speaker 1: over consumers being victimized by having counter for goods passed

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Speaker 1: off as being legitimate goods from a known producer of

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Speaker 1: that could. And so that's the genesis this need to

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Speaker 1: protect the consumer from being victimized by having goods passed

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Speaker 1: off that aren't what they're supposed to be. Now, the

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Speaker 1: law has expanded beyond that in the last hundred years,

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Speaker 1: and it also provides protections for the company that owns

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Speaker 1: the trademark in a doctrine called trademark dilution. And this

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Speaker 1: is statutory. It simply says that you cannot use a

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Speaker 1: trademark of another person in such a way as to

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Speaker 1: dilute the reputation or the quality of that mark. And

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Speaker 1: so one of the things that the court struggled with

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Speaker 1: here was their failure to grasp that. In the complaint

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Speaker 1: the lawsuit at the district court, there were multiple causes

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Speaker 1: of action. It was not a straight up trademark infringement case.

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Speaker 1: It was both a trademark infringement case and a trademark

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Speaker 1: dilution case, and that there are different tests that apply

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Speaker 1: to each. And the discord found in favor of the

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Speaker 1: trademark owner, and both found that there was trademark infringement

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Speaker 1: and trademark dilution. And that seemed to be confusing to

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Speaker 1: the justices. What is the main issue, as the justices sought,

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Speaker 1: I mean, I heard a lot of trademark rights versus

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Speaker 1: free speech rights. What did you hear? It's a great question, June,

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Speaker 1: because part of the problem here is that the Supreme

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Speaker 1: Court when it granted the redissartsory, in other words, when

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Speaker 1: it agreed to review the decision that came out of

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Speaker 1: the Ninth Circuit, it was a little bit cryptic asked

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Speaker 1: to what it believed the issue presented for review was.

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Speaker 1: And so you and I had a conversation at that time,

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Speaker 1: I believe it was the last November in which we

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Speaker 1: discussed this, and we said, well, there's multiple possibilities as

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Speaker 1: to what the Court could be concerned about. The Court

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Speaker 1: could be concerned about whether or not there should be

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Speaker 1: a Rogers test. It might not want the Rogers test

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Speaker 1: to be stated exactly the way Second Circuit stated it,

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Speaker 1: and they want a different test. It may have other concerns.

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Speaker 1: It may have a First Amendment concern. It may want

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Speaker 1: something completely different from Rogers to protect First Amendment interests.

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Speaker 1: So we went into this argument a little bit confused

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Speaker 1: as to exactly what the issue the Court thought it

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Speaker 1: was according to decide, and we came out of the

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Speaker 1: oral argument not knowing much more. There are probably three

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Speaker 1: things that emerged from the oral argument that tell us something.

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Speaker 1: The first thing is should the Court adopt the Rogers

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Speaker 1: test or jettison the Rogers Test? And this was one

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Speaker 1: of the things we talked about in the past June,

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Speaker 1: as to whether that was on the table here. And

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Speaker 1: given the strong support across multiple circuit courts and in

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Speaker 1: the academic community for the Rogers Test, we had speculated

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Speaker 1: that maybe that's not even on the table here. They

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Speaker 1: may want to refine it, they may want to officially

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Speaker 1: adopt it. Because remember, the Supreme Court has never ever

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Speaker 1: confronted the Rogers Test. It's never said the Rogers Test

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Speaker 1: is valid. It's never said the Rogers Test is not valid.

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Speaker 1: This is the first time it's ever considered the Rogers Test.

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Speaker 1: And we now know from the or argument that whether

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Speaker 1: or not the Rogers Test continues to be valid is

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Speaker 1: on the table in this appeal. Indeed, Justice Thomas came

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Speaker 1: straight out four minutes into the argument and asked that question,

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Speaker 1: and he asked it in multiple different ways over the

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Speaker 1: course of the argument. To his credit, he did not

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Speaker 1: take Missi Mashie answers. He didn't accept us. He kept insisting,

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Speaker 1: I want to know what your position is is Rogers

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Speaker 1: good is not good law? So that's the first theme,

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Speaker 1: does Rogers survive this appeal? The second theme that came

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Speaker 1: out of the or argument is, well, if we abandon Rogers,

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Speaker 1: how do we protect against First Amendment concerns? And the

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Speaker 1: First Amendment was a very central theme here, and that's

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Speaker 1: in large measure a product of the heavy amikut CURII

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Speaker 1: briefing alerting the Court to the First Amendment issue and

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Speaker 1: expressing concern about protecting First Amendment rights. The third issue

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Speaker 1: was sort of a lesser of the three issues, was

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Speaker 1: how do we protect parodists people who are engaged in

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Speaker 1: parodying trademarks? How do we protect them from having their

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Speaker 1: paradives chilled in the first place, from never ever producing

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Speaker 1: the parody because they may be facing expensive litigation. In

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Speaker 1: other words, as I believe Justice Kagan put it, how

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Speaker 1: do we make available a work cut for such a

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Speaker 1: person to get out of an expensive litigation early on,

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Speaker 1: right after the lawsuit is filed. And that was also

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Speaker 1: a theme that came out and again was the product

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Speaker 1: largely of the meekest Curie I briefe who argued very

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Speaker 1: strenuously that there has to be some concern given to

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Speaker 1: legitimate parody and protecting it against the chilling impact of

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Speaker 1: well healed trademark owners engaged in trademark bullying. I eat

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Speaker 1: filing lawsuits against everybody who attempts to undermine their trademark.

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Speaker 1: Does a parody have to be good? Because Justice Elena

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Speaker 1: Kagan said she didn't get it, how this was a parody. Yeah.

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Speaker 1: When I heard Justice Kagan asked that question and say

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Speaker 1: she didn't get it, I think the way she phrased

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Speaker 1: it is something like maybe I'm the only one here

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Speaker 1: who doesn't get it. And I felt like jumping up

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Speaker 1: and saying, no, I don't get it too. I see

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Speaker 1: where the parody is. I mean, I would go so

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Speaker 1: far as to describe this as merely sophomoric humor, and

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Speaker 1: as Groucho Marx would say, that's even an the sophomores.

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Speaker 1: I don't see what the parody is. And mister Cooper,

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Speaker 1: who was representing VIP Products that produced this dog toy,

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Speaker 1: kept saying, you know it was a parody and trying

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Speaker 1: to explain why, and it wasn't just Justice cake In.

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Speaker 1: At one point, Justice Jackson Shimden said, you didn't get it? Either.

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Speaker 1: So this is one of the whole problems with the

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Speaker 1: Rogers test. I mean, what's the Rogers test says in

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Speaker 1: its pure form is that the name of a celebrity

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Speaker 1: used in the title of an expressive work does not

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Speaker 1: constitute trademark infringement if it is artistically relevant and not

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Speaker 1: explicitly misleading. And various justice attack what does it mean

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Speaker 1: to be artistically relevant? Other justices attacked what's an expressive

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Speaker 1: work is everything that has a statement on a T

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Speaker 1: shirt and expressive work automatically. And yet one other justice,

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Speaker 1: I believe it was Justice Court such attacked this concept

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Speaker 1: of what does it mean to be explicitly misleading? Since

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Speaker 1: the standard under the Lambmact the trademark laws is confusion

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Speaker 1: not misleading them. And so there seemed to be this

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Speaker 1: consensus on the Court that the test was very difficult

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Speaker 1: to understand or apply, and frankly, mister Cooper, representing the

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Speaker 1: IP products didn't do much doubt it. Indeed, he came

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Speaker 1: up with his own test. Well, I would say, confusion misleading,

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Speaker 1: welcome to intellectual property law. Would they ever be able

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Speaker 1: to come up with a test that's easier to follow

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Speaker 1: than the Rogers test? I'm not sure that the Rogers

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Speaker 1: test is easy to follow. I'm not sure that there's

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Speaker 1: an alternative. And this was an issue that was explicitly

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Speaker 1: posed by Justice Jackson, who eventually said, Okay, well, what

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Speaker 1: do we replace it with? I agree with you though,

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Speaker 1: that there seems to be a lot of confusion at

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Speaker 1: the Court on this, and I think it reflects the

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Speaker 1: new makeup of the Court. And I've said this before

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Speaker 1: your show June. The loss of Justice Ginsburg the laws

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Speaker 1: of Justice Bryor were body blows to the Supreme Court

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Speaker 1: with respect to intellectual property jurisprudence. They were the two

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Speaker 1: justices who had experienced academic experience and judicial experience in

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Speaker 1: copyright and trademarks. None of the current sitting justices due

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Speaker 1: and it was reflected in the argument. There seemed to

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Speaker 1: be a really poor grasp of how the land Um

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Speaker 1: Act sets out the US trademark laws works questions that

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Speaker 1: to trademark lawyers didn't make any sense. And as Black,

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Speaker 1: the Council for Jack Daniels did a very nice job

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Speaker 1: of respectfully trying to correct their misunderstanding a fundamental trademark law.

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Speaker 1: But it was a steep mountain. The climate I'm not

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Speaker 1: sure she got there. The Rogers Test is not very

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Speaker 1: popular in some quarters, is it? The trademark owners desperately

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Speaker 1: want to get rid of the Rogers Test. There is

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Speaker 1: an element within the academic community that wants to get

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Speaker 1: rid of the Rogers Test, and the Biden administration, to

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Speaker 1: their credit, a very simple, plain spoken, but effective argument

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Speaker 1: said outright that the Rogers Test was made up by

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Speaker 1: the Second Circuit, it has no statutory basis, and it

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Speaker 1: should be discarded. That's what's that issue here. And the

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Speaker 1: arguments in favor of eliminating the Rogers Test in TOTO

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Speaker 1: are pretty daring strong. As Justice Thomas says, what's the

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Speaker 1: textual support for that? And all three councils said there

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Speaker 1: is not. Justice Alito chime did, well, what about the

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Speaker 1: First Amendment and the trademark law that we now have.

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Speaker 1: The landomat has been held consistent with First Amendment no

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Speaker 1: less than four time, and so it's sort of an

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Speaker 1: odd question. But Justice Alito was the one justice who

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Speaker 1: seemed desperate to hang on to the Rogers Test. Three justices,

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Speaker 1: by my count did not ask a single question, and

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Speaker 1: that was Justice Barrett, Justice Cavanaugh, the Chief Justice. They

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Speaker 1: are all textualist. They are probably looking at this appeal

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Speaker 1: from the point of view that Justice Thomas expressed and

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Speaker 1: may have expressed part of all of them. That's making

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Speaker 1: it unnecessary for them to talk. What is the textual

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Speaker 1: support for the Rogers Test? And as the government said,

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Speaker 1: there is none. The Rogers Test is an exception to

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Speaker 1: illegal activity and it does not have any textural basis,

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Speaker 1: and therefore I think it's very much at risk ridiculously

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Speaker 1: if this click of justices who did not engage in

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Speaker 1: debate all vote to remove it. At some point I

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Speaker 1: thought maybe there were a couple justices who were fight

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Speaker 1: to the death to keep the Rogers Test, but I

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Speaker 1: thought Justice Kagan Justice Jackson were in that camp. But

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Speaker 1: then after the pelle If Council got up, they both

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Speaker 1: went after him. They wanted to know too, where you

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Speaker 1: get this and how does this test work? And you know,

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Speaker 1: they called it unworkable. Despite all the confusion, what's your

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Speaker 1: take on whether Jack Daniels will win here? It lost

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Speaker 1: at the Ninth Circuit. So the overarching sentiment seemed to

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Speaker 1: be that the Ninth Circuit got this raw and that

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Speaker 1: should be reversed, that that would be technically a win

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Speaker 1: or Jack Daniels. The Ninth Circuit decision indeed took the

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Speaker 1: Rodgers test and maximalized it, creating a lot of problems.

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Speaker 1: The test had evolved over time to not be strictly

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Speaker 1: limited to the use of celebrity names in titles of

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Speaker 1: expressive works. It had been extended to just run in

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Speaker 1: the mill products, and the Ninth Circuit took that as

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Speaker 1: far as possible here. And I think the sentiment is

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Speaker 1: based on the or argument yesterday that that's wrong, and

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Speaker 1: that's wrong. It was noted at one point that there

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Speaker 1: are four circuit courts. One of justice is said, well, yeah,

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Speaker 1: but Rogers has been accepted by all the circuit courts,

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Speaker 1: and that's sort of it seems to be working out

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Speaker 1: there somehow. And the bonds from the government and from

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Speaker 1: Jack Daniels cancelers know that's not true. There are four

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Speaker 1: circuit courts. I think it's the DC Circuit, the First Circuit,

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Speaker 1: the fourth Circuit, and the seventh Circuit. So I recall

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Speaker 1: correctly who have had opportunities to adopt the Rogers testiness

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Speaker 1: and no, and I do that, and I've simply applied

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Speaker 1: the multi factor test as part of that. So I

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Speaker 1: think where the Court's going to go this is to

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Speaker 1: say the Ninth Circuit got it raw. It's got to

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Speaker 1: go back to the district court and they've got to

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Speaker 1: consider parody. And then the next part is the question

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Speaker 1: mark to they say, we're not going to decide the

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Speaker 1: Rodgers question now because this case isn't right. We'll go

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Speaker 1: send it back and let it come back up the

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Speaker 1: chain again. So go back the district courter will again

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Speaker 1: find infringement, go to Ninth Circuit. I assume they'll apply

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Speaker 1: Rogers again, and then I'll come up to the Supreme Court.

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Speaker 1: So three years from now we'll be right here again.

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Speaker 1: But that's one option, and it's a favorite option of

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Speaker 1: this Subreme Court. The second option is that Justice Thomas

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Speaker 1: cobbles together five vote to do what the Biden administration

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Speaker 1: wants to get rid of the Rodgers test. And so

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Speaker 1: it goes back to the district court with an instruction

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Speaker 1: to consider parity and being told that the Rodgers test

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Speaker 1: does not exist, and therefore when it gets appealed to

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Speaker 1: the Ninth Circuit, to Ninth Circuit will have to affirm

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Speaker 1: and it will never come back to the Supreme point

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Speaker 1: The third option is that somebody cobbles together or enough

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Speaker 1: votes to change the Rogers test. I think that's the

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Speaker 1: least likely outcome here. Indeed, I could see this being

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Speaker 1: one of these decisions where you get five six votes

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Speaker 1: to reverse and send it back to the district court,

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Speaker 1: and you don't get enough votes on any of the rodgersies,

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Speaker 1: so that remains undecided. In other words, you don't get

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Speaker 1: five votes on whether Rogers stays, whether it gets jettisoned,

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Speaker 1: whether it gets amended. The camp has just split up.

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Speaker 1: We've seen this before in copyright cases. You've had three

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Speaker 1: justices for one thing, three justice for another thing, three

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Speaker 1: justice for yet a third option, and the only thing

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Speaker 1: they agreed on was the result, which was to send

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Speaker 1: it back to the district court. So I think that's

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Speaker 1: probably what I would bet on if I had to

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Speaker 1: bet here, that the case, we'll go back to the discord,

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Speaker 1: which is a win for Jack Daniels, but without any

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Speaker 1: guidance on the rogerstaff, which would be a shape a

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Speaker 1: non decision decision. Thanks so much, Terry. That's Terence Ross

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Speaker 1: of Captain Yuchen Rosenman, and that's it for this edition

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Speaker 1: of the Bloomberg Law Show. Remember you can always get

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