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

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Speaker 1: Administration said it's as ready as it can be for

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Speaker 1: the expected surge of asylum seeking migrants at the southern

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Speaker 1: border when the Title forty two pandemic restrictions and this Wednesday,

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Speaker 1: but President Biden has requested three and a half billion

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Speaker 1: dollars for more agents and resources to help border towns,

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Speaker 1: and Press Secretary Karine Jean Pierre says Congress needs to

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Speaker 1: back them up with funding. We need Congress to provide

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Speaker 1: us the additional resources we've requested to do this in

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Speaker 1: a safe, orderly, and humane way. On the legal front,

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Speaker 1: nineteen Republican states are making a last ditch effort to

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Speaker 1: keep Title forty two in effect. They're asking the Supreme

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Speaker 1: Court to intervene and keep the rules in place while

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Speaker 1: litigation continues. Joining me is immigration law expertly on Fresco,

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Speaker 1: a partner at dinnite Lee has been litigation in two

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Speaker 1: different circuits over Title forty two with contrary results. So

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Speaker 1: the original Title forty two litigation was when the administration

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Speaker 1: said it was going to end Title forty two, a

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Speaker 1: bunch of states went to Louisiana to Louisiana courts in

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Speaker 1: the Fifth Circuit and got that Louisiana court to enjoin

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Speaker 1: the listing of Title forty two. And so the Biden administration,

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Speaker 1: which at the time didn't really want to end the

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Speaker 1: Title forty two, said Okay, we will basically appeal this

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Speaker 1: very slowly. We're not gonna ask for emergency says, and

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Speaker 1: so they were continuing to implement Title forty two. And

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Speaker 1: that case sort of slowly worked its way up to

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Speaker 1: the Fifth Circuit and it's been brief now and we're

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Speaker 1: waiting for a decision from the Fifth Circuit on whether

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Speaker 1: Title forty two can be lifted. But at the same

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Speaker 1: time that that injunction remained in the lower court. In

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Speaker 1: the district court case in Louisiana, the DC District Court,

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Speaker 1: a different court ruled that Title forty two has applied

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Speaker 1: in this instance wasn't lawful because it was preventing people

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Speaker 1: from seeking asylum and there wasn't a compelling public health

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Speaker 1: justification anymore for a band as opposed to using masks

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Speaker 1: and other protective measures, et cetera. And so that case

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Speaker 1: ruled that Title forty two had to be listed. We

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Speaker 1: have one thing, Title forty two can't be listed, and

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Speaker 1: you have another one thing. Title forty two has to

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Speaker 1: be listed. And what the administration did is it actually

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Speaker 1: said that it would acquiesce to the decision in the

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Speaker 1: District Court, which was subsequently appealed to the d C

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Speaker 1: Circuit and was not said. So they said they'd acquiesced

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Speaker 1: to that and that they would lift Title forty two

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Speaker 1: on December twenty if And so that's what's happening. Is

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Speaker 1: unless something changes, Title forty two will be lived to

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Speaker 1: December twentie. Now. Many states have sued to intervene in

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Speaker 1: that case, the DC Circuit has said that that intervention

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Speaker 1: was too late, so that it can't happen. A petition

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Speaker 1: was filed December nineteen to the Supreme Court asking for

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Speaker 1: an administrative say, and it's possible that that administrative saying

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Speaker 1: will indeed be approved. Leon the d C. Circuit Court

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Speaker 1: refused to keep the Title forty two restrictions in force,

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Speaker 1: saying the nineteen states waited too long to try to intervene.

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Speaker 1: So the states as the Supreme Court to intervene, and

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Speaker 1: Chief Justice John Roberts has temporarily blocked the ending of

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Speaker 1: Title forty two what happens next. They're giving the government

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Speaker 1: an opportunity to say why that state shouldn't remain until

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Speaker 1: this litigation is decided. And so we will see whether

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Speaker 1: the Supreme Court actually maintained the say for a significant

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Speaker 1: period of time while it decides on whether to keep

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Speaker 1: the injunction ending briefing up the case, or whether it

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Speaker 1: decides to just allow the Title forty two to be rescinded.

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Speaker 1: So the Chief Justice was the one who temporarily bluffed

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Speaker 1: the scheduled ending of Title forty two, and it came

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Speaker 1: just hours after the Republican States filed their request. What

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Speaker 1: does that tell you, Well, certainly the Chief Justice is

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Speaker 1: one of the key swing votes, and I think he

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Speaker 1: is one of the most practical votes. To the attention

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Speaker 1: to being a swing vote. I mean, he's the one

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Speaker 1: who had to decide because he has the jurisdiction over

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Speaker 1: the DC circuit. The fact that he was willing to

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Speaker 1: basically reward such a sort of very sudden say requests

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Speaker 1: that could have been filed earlier, but that was filed

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Speaker 1: in the nick of time probably shows some receptiveness to

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Speaker 1: the practical aspects of giving people more time to implement

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Speaker 1: this Title forty two solution rather than just lifting it

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Speaker 1: during the middle of all of this seems like a

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Speaker 1: case the Supreme Court will and should take, Yes, probably. Now,

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Speaker 1: what's complicated about this case at the end of the

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Speaker 1: day is you sort of have two very different worlds.

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Speaker 1: You have a world where if we had been maybe

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Speaker 1: in the first two or three months of the COVID crisis,

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Speaker 1: and somebody was challenging the administration's ability to have Title

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Speaker 1: forty two, you might have seen a vastly different case

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Speaker 1: than you have now, which is we're years into the

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Speaker 1: COVID crisis, and so the facts don't necessarily match up

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Speaker 1: with what's going on here, and so you sort of

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Speaker 1: have this very bizarre situation where assassins that's probably pretty

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Speaker 1: much needed and should be given vast difference to it

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Speaker 1: is still being examined under a set of facts where

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Speaker 1: pretty much everybody's trying to say that there is no

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Speaker 1: more COVID crisis. And so you really have a complicated

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Speaker 1: set of facts of how the Supreme Court will interpret

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Speaker 1: this now as opposed to how it might have interpreted

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Speaker 1: into the exact same gate in maybe June of So

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Speaker 1: that will be very interesting to see Republicans and many

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Speaker 1: Democrats have expressed fear about the ending of Title forty two.

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Speaker 1: California Governor Gavin Newsom said it could break his state,

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Speaker 1: and the border town of El Paso has declared a

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Speaker 1: state of emergency. Absolutely, the very difficult scenario right now

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Speaker 1: for any state along the southern border, or any state

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Speaker 1: that the federal government is going to plan to send

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Speaker 1: people crossing the border too, because at the moment, what

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Speaker 1: happens is this there becomes a temporary displacement between the

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Speaker 1: individual and where they're trying to go. And so what

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Speaker 1: do I mean by that? I mean that I would say,

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Speaker 1: with very few limited exceptions, a large, large, large majority

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Speaker 1: of the people, if not almost all of them, know

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Speaker 1: where they want to go when they enter America. They

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Speaker 1: have some for sins who's a relative and uncle, and

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Speaker 1: it's a cousin, a friend, a contact person that they're

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Speaker 1: supposed to go and see. And so the question is

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Speaker 1: how does that person get there? And the states have

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Speaker 1: been displacing that by sending them to all kinds of

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Speaker 1: other different places that are not the exact locations they're

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Speaker 1: trying to go. And now the federal government's actually talking

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Speaker 1: about doing that too, not as a matter of sight,

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Speaker 1: but just as a matter of needing to clear the

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Speaker 1: southern border locations of just massive amount of people. Because

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Speaker 1: they don't think it's fair to El Paso or Brownsville

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Speaker 1: or somewhere else that they just have a lot, a

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Speaker 1: lot of people. So they want to start sending them

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Speaker 1: other cities so that those cities can process people. And

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Speaker 1: that's where you see govin Newsom and other saying, well,

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Speaker 1: if you're gonna send them to California, we already have

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Speaker 1: a significant homelessness problem in a lot of our cities,

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Speaker 1: and now you're asking us to house these people, even

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Speaker 1: if it's not permanent housing. It's housing until you can

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Speaker 1: figure out what bust a sentiment or what plane. And

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Speaker 1: so the idea is that's gonna be way too much

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Speaker 1: resource intensive pool on those locations and it could lead

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Speaker 1: to a phiscal crisis. And so at that point you

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Speaker 1: now have the Biden administrations contemplating reinstating a Trump era

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Speaker 1: ban on getting asylum if you cross the border. This

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Speaker 1: is now being actively considered. It's something the Trump administration

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Speaker 1: that they said, if you cross the border illegally, we're

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Speaker 1: gonna ban you from getting asylum, And what they're gonna

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Speaker 1: try to do is they're gonna try to channel people

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Speaker 1: through the ports of entry to try to give them

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Speaker 1: as many opportunities to seek asylum through the ports as possible.

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Speaker 1: But the question is how long is it going to

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Speaker 1: take to build this infrastructure and are people are gonna

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Speaker 1: actually wait for two, three weeks, six weeks. We're gonna

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Speaker 1: wait to see. But I do think if they can

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Speaker 1: get it organized quickly enough, people can actually get an

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Speaker 1: appointment that is a tan rble thing, and they could

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Speaker 1: show up at that appointment. It's possible that people respect

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Speaker 1: that and will go to their appointment instead of crossing

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Speaker 1: the border illegally. But it's going to really need to

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Speaker 1: be a system that actually has credible appointments that are honored,

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Speaker 1: or otherwise people won't do that. And so that's the

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Speaker 1: problem that the Trump administration was facing until they were

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Speaker 1: able to put inside of forty two. So the Biden

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Speaker 1: administration is considering a policy that would stop migrants from

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Speaker 1: seeking asylum at the US Mexico border if they could

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Speaker 1: have sought asylum in another country they passed through. That's

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Speaker 1: one of two things they're considering, and they may end

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Speaker 1: up doing both. They may end up saying, look, you

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Speaker 1: had to seek asylum in a different country, that was

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Speaker 1: one of the things Trump did, or they may end

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Speaker 1: up saying you will lose the ability to get asylum,

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Speaker 1: which is easier to get than this other thing called

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Speaker 1: withholding of removals, because there's two types of protection you

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Speaker 1: can get. If you ask for protection asylum, you only

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Speaker 1: have to prove there's a ten percent chance you will

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Speaker 1: be persecuted in your home country. So that's all you

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Speaker 1: have to prove to get asylum because of the standard

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Speaker 1: is that you have a well founded fear of future persecution,

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Speaker 1: and a well founded fear has been interpreted by court

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Speaker 1: as having a one intent chance. For withholding of removal,

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Speaker 1: you have to show it's more likely than not. That

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Speaker 1: it's a much easier standard, and if you win, you

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Speaker 1: can get a past the citizenship, which allows you to

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Speaker 1: get a past the citizenship but also to petition for

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Speaker 1: your spouse and your mind or children who may have

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Speaker 1: been left behind. You can bring them into the United States.

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Speaker 1: But if you're banned from getting asylum, which is we're

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Speaker 1: actually not obligated under any internationable refugee laws from giving

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Speaker 1: people asylum. What we're obligated to do is give them

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Speaker 1: the second thing I'm about to talk about withholding of removal,

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Speaker 1: which basically just means you get to stay in purgatory.

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Speaker 1: And I'm Erica with only a right to work. But

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Speaker 1: that's it. You don't get a passive citizenship. You have

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Speaker 1: a much harder burden to win. You have to show

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Speaker 1: a fifty percent likelihood of persecution as opposed to a

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Speaker 1: ten percent likelihood of persecution. That's the hard road you're

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Speaker 1: gonna have to face if you try to get protection

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Speaker 1: by sneaking across the border illegally. And so that's what

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Speaker 1: the Biden administration. They can either do one of those

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Speaker 1: two things, or they could do both of those two things.

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Speaker 1: And so they're actively weighing these decisions as we seek

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Speaker 1: and we'll probably hear more about this if the Supreme

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Speaker 1: Court doesn't say the ending of Title forty two. I've

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Speaker 1: always heard how difficult it is to get asylum, but

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Speaker 1: showing doesn't seem that high. Difficult to get asylum because

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Speaker 1: not only do you have to have that well founded fear,

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Speaker 1: but that fear has to be on the basis ah

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Speaker 1: your race, your religion, in your national origin, your political opinion,

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Speaker 1: or your social group. So what happens with a lot

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Speaker 1: of these Central American migrants is they don't fit that,

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Speaker 1: and so that's the problem. That's why it's very hard

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Speaker 1: for them to get it. But for a lot of

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Speaker 1: these people coming from the Karagua or Venezuela or Cuba,

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Speaker 1: it might be easier if they can show that they

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Speaker 1: were somehow a political dissidents. But even in those cases,

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Speaker 1: the government does strive some really forced you to show

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Speaker 1: that in the past something bad had happened to you,

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Speaker 1: or that you can make a very clear indication of

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Speaker 1: how something that is going to happen to you if

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Speaker 1: you if you get supported in the future. And so

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Speaker 1: it's easier for the Venezuelan and the Cuban and the

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Speaker 1: Nicaraguan people, but it's not again super easy for anybody.

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Speaker 1: You really do have to make your case. But I'm

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Speaker 1: just saying if you can set forward a set of

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Speaker 1: facts and that set of facts is ten percent likely

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Speaker 1: to happen, then you're supposed to be able to get us.

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Speaker 1: Under the way the side is interpreted, so it can

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Speaker 1: take years to get asylum to go through the process.

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Speaker 1: Is there a way for the government to speed up

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Speaker 1: the process. So what happens is this is sort of

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Speaker 1: a Route Goldberg or our Balloon type process where if

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Speaker 1: you you know, if you move one part, the other

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Speaker 1: part is affected. And so here's what's complicated about that.

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Speaker 1: The government does move very quickly in about ninety days

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Speaker 1: in fact, in cases where someone is detained the entire time,

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Speaker 1: because they're very sensitive they don't want people detained for

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Speaker 1: a long period of time. The problem is they have

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Speaker 1: very few detention beds to keep people. The government, first

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Speaker 1: of all, is not permitted to detain miners at all,

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Speaker 1: and so it can't obtain a minor by themselves, and

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Speaker 1: it can't obtain a minor even if with their family.

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Speaker 1: And so the minor comes with their family, then they

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Speaker 1: either have to let out the entire family or separate

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Speaker 1: the miners from a family. And that's what the trumpet

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Speaker 1: industration did, and they were very roundly criticized for that.

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Speaker 1: So in cases where miners involved, the tension is not

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Speaker 1: even on the table, and so they're those cases all

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Speaker 1: get put into the four or five year backlog of

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Speaker 1: non detained cases, and so the people who end up

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Speaker 1: getting the faster processing. Are people who come as single adults,

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Speaker 1: and so for them they get the faster processing, but

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Speaker 1: again only to the extent that there is a sufficient

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Speaker 1: detensive capability to keep them in detention for the entire

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Speaker 1: time of their case. It just sounds like there's no

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Speaker 1: really good solution to what may turn out to be

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Speaker 1: a crisis at the border. The question is this, here's

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Speaker 1: the here's the two difficult questions that the Biden administration

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Speaker 1: is going to have to grapple with, which is, if

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Speaker 1: they really want a manageable border, do they have to

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Speaker 1: concede that there has to be a way to implement

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Speaker 1: Remain in Mexico in a humane a fashion, with actual

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Speaker 1: secure spaces and and lawyers and buildings and all of

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Speaker 1: that and courts. Will they want to create that architecture,

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Speaker 1: and quite frankly, will they be smart about it so

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Speaker 1: that they would trade that in exchange for something like DOCA.

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Speaker 1: Get this done congressionally instead of doing it unilaterally and

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Speaker 1: not even getting anything in exchange for it. So I

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Speaker 1: think there's an opportunity here if someone thinking outside the

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Speaker 1: box creatively to come up with a legislative version of

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Speaker 1: Remain in Mexico which will be very pleasing to Republicans

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Speaker 1: because it will actually confortize and memorialize this process forever

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Speaker 1: and trade it for the people here who are the dreamers.

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Speaker 1: So is there a way to do that. They should

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Speaker 1: consider doing that because otherwise it's just going to be

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Speaker 1: incremental changes that will ultimately lead you to this outcome anyway,

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Speaker 1: unless you want to just have a border that is,

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Speaker 1: you know, not manageable, and those are going to be

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Speaker 1: your options one or the other. Let's turn now to

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Speaker 1: the ending of another integration policy that's in court, the

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Speaker 1: Remain in Mexico program. A Texas federal judge for the

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Speaker 1: second time rule that the Biden administration cannot end the

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Speaker 1: Remain in Mexico program. I thought the Supreme Court had

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Speaker 1: ruled that the Biden administration could end the Remain in

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Speaker 1: Mexico program. So the Supreme Court rule that the Remain

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Speaker 1: in Mexico program was not a requirement under the statue,

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Speaker 1: saying that the Biden administration had the ability to end

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Speaker 1: the Remain in Mexico program. And they also ruled that

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Speaker 1: the States could not actually issue I mean could not

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Speaker 1: actually sup or an injunction uh to require the remain

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Speaker 1: in Mexico program to be kept in effect. But they

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Speaker 1: did remand a very small part of the case which

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Speaker 1: said the district court could consider whether the actual justification

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Speaker 1: given for ending the Remain in Mexico program was arbitrary

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Speaker 1: and capricius. And so that's what was remanded to the

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Speaker 1: district court. And the District Court ruled that the justification

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Speaker 1: given by the Bison administration for ending the Reprobatia Mexico

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Speaker 1: program is likely arbitrary and capricious, and so it vacated

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Speaker 1: that memo. Now, what's interesting is in vacating that memo,

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Speaker 1: all it basically said is that that memo cannot be

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Speaker 1: used to end Remain in Mexico. But because of the

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Speaker 1: pre court says, the District Court no longer has adjunct

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Speaker 1: of powers that can't really enjoin the inmistration into doing

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Speaker 1: particular things like, hey, you have to put five people

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Speaker 1: a day and remain in Mexico, or you have to

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Speaker 1: have these locations, or you have to They can't do

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Speaker 1: any of that. All they can do is say that

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Speaker 1: the memo itself is unlawful, and so they have to

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Speaker 1: use a new memo to quote unquote legally resend the

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Speaker 1: remain in Mexico program. This judge is a Trump appointee

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Speaker 1: and he seems to be on a mission. Well, I mean,

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Speaker 1: the judge certainly does not credit at all any justification

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Speaker 1: that's being given for ending the remain in Mexico programs.

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Speaker 1: That judge basically thinks there's no way that someone can

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Speaker 1: justify ending that program and so any attempt to end

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Speaker 1: that program is going to be viewed as arbitrary and

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Speaker 1: capricious by dis judge, and so that seems very obvious.

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Speaker 1: So the question is how does the Biden administration want

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Speaker 1: to move forward. They're certainly appealing it, but the question

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Speaker 1: is do they want to appeal this quickly and try

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Speaker 1: to us get the remainder Mexico program off the book completely,

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Speaker 1: or do they want to appeal it slowly, just knowing

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Speaker 1: that at the end of the day, this District Court

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Speaker 1: is going to be hamstrung in what it can actually

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Speaker 1: force the Biden administration to do under the remaining Mexico program.

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Speaker 1: Thanks so much, Leon for helping us see through this

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Speaker 1: tangle of immigration laws and policies. That's Leon Fresco, a

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Speaker 1: partnered Honda night Jack Daniels is fighting the use of

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Speaker 1: its brand on a dog toy. Christian Do Your is

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Speaker 1: fighting the use of its name buy an adult film star.

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Speaker 1: It's all about trademark delution. Joining me is Bloomberg Laws

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Speaker 1: Kyle john Er, who's written about the cases, start by

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Speaker 1: telling us a little bit about why do Your and

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Speaker 1: Jack Daniels are suing Jack Daniels and or are suing

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Speaker 1: both thermal reasons. The delution aspect is just one component

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Speaker 1: as it usually is. Um. In Jack Daniels case, they've

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Speaker 1: got a dog toy out there that's shaped like a

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Speaker 1: Jack Daniel's bottle, but instead of their logo, UM, it's

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Speaker 1: you know, similarly styled, but it's Bad Spaniels and it's

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Speaker 1: got some kind of some poop jokes on it, and

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Speaker 1: being like I said, being fold of the dog toy

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Speaker 1: by a company that actually has a bunch of these

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Speaker 1: kinds of toys. They are modeled after kind of puns

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Speaker 1: on different brands that are out there, and they ended

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Speaker 1: up losing a decision in the Ninth Circuit that found

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Speaker 1: it to be parody and protected by the First Amendment.

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Speaker 1: And that's the case that's going on to the Supreme Court.

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Speaker 1: There is a different kind of case because it's before

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Speaker 1: the trademark trial out of peel Board, and they are

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Speaker 1: simply opposing a registration of a trademark of a porn

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Speaker 1: star's name er Um, who is, like I said, just

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Speaker 1: trying to get a trademark to protect her and her

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Speaker 1: name as a brand, so UM. And their argument is

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Speaker 1: that number one, that people will think that they endorse

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Speaker 1: um that content because of because of the name. But

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Speaker 1: as relevant here talking about solution UM, it's also they're

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Speaker 1: concerned that they would not want their brand to be

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Speaker 1: associated with pornography. And that's a solution by carnishment claim,

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Speaker 1: which is can kind of stand separately from the confusion

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Speaker 1: aspect of things. So trademark dilution they're suing under a

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Speaker 1: federal law. Yes, trademark delusion is in federal law. It

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Speaker 1: UM actually was codified in the nineteen nineties. There were

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Speaker 1: some state laws out there over the decade that had

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Speaker 1: been had been slowly introduced, but since the forties or so,

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Speaker 1: the concept was really kind of introduced by a paper

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Speaker 1: uh in Harvard Law Review in and that concept is

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Speaker 1: kind of slowly gained steam. And the whole idea was

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Speaker 1: that you know, if someone's kind of trading on your

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Speaker 1: name and or making your mark less distinctive than you know,

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Speaker 1: the brand owner should be able to kind of protect

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Speaker 1: that and because they invest in their marks, so they

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Speaker 1: should be able to stop others from making that investments

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Speaker 1: valuable by coming after them and using that mark another thing,

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Speaker 1: once they've established a certain level of fame among the

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Speaker 1: general public. For this article, you spoke to a lot

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Speaker 1: of trademark lawyers professors. Why do some think that this

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Speaker 1: trademark delusion claims are just a step too far? Well,

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Speaker 1: and it kind of goes back to the origins of

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Speaker 1: trademark law and back kind of in the beginning, in

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Speaker 1: its early developments, it was really just a way to

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Speaker 1: prevent fraud passing off one product as made by someone

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Speaker 1: who didn't make it UM, and it was a pretty

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Speaker 1: straightforward thing UM that eventually kind of got expanded, as

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Speaker 1: you know, companies kind of started to branch out UM

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Speaker 1: and get and you become nationwide brands and that kind

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Speaker 1: of thing UM and the concept of consumer confusion kind

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Speaker 1: of came into play, and that became the dominant question

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Speaker 1: in trademark infringement. Would a consumer be likely to be

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Speaker 1: confused into thinking that this company made or endorsed ours

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Speaker 1: in some way affiliated with a product um. If so,

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Speaker 1: then that's infringement. If not, it's not. And that's broadly

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Speaker 1: speaking the general rule in trademark law. With polution, you

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Speaker 1: don't need to establish confusion um. You just need to

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Speaker 1: establish that one you have a famous mark, and two

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Speaker 1: that it's either blurs the market by making it less distinctive,

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Speaker 1: or that it tarnishes the mark by associating with something

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Speaker 1: you know, kind of unseemly like porn or and Jack

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Speaker 1: Daniels also brought delusion by tarnishment, claim saying that the

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Speaker 1: poop jokes on the dog toy tarnished the brand of

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Speaker 1: the liquor company, Which is kind of funny because I've

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Speaker 1: seen other cases where association with liquor has been claimed

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Speaker 1: as a reason that their product was tarnished. So it's

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Speaker 1: exactly exactly which for it's a problem and into itself

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Speaker 1: because that kind of presents kind of a moral judgment

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Speaker 1: and a subjective judgment. And in recent Supreme Court cases

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Speaker 1: we've had Burnetti and Taan, where was on registration work

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Speaker 1: struck down because they were not viewpoint neutral. They were

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Speaker 1: discrimination based on viewpoint. So prohibitions in the Tan case,

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Speaker 1: for example, on the disparaging trademarks. In that case, the Plants,

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Speaker 1: an Asian American band name that kind of took back

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Speaker 1: what was obviously known there as a slur. They kind

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Speaker 1: of took it and made it their own. In the

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Speaker 1: Trademark Office said no, that's not allowed under the law

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Speaker 1: because it's a disparaging mark. But they fought all the

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Speaker 1: way to the Supreme Court and they said that, you know,

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Speaker 1: you can't just have this law as it says, because

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Speaker 1: it's disparaging in whose opinions? Like, it's kind of a

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Speaker 1: First Amendment's issue at that point, where you know, the

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Speaker 1: governments deciding what's what's okay as a trademark, and they

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Speaker 1: didn't really distinguish. They could have said, as as known

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Speaker 1: in the article by a professor. They could have said,

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Speaker 1: you know, this isn't speech, this is you seen commerce

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Speaker 1: as a trademark. It's not the same as saying you

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Speaker 1: can't say it. But if they kind of said, you know,

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Speaker 1: it's like it's important to have a trade have a

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Speaker 1: protectable trademark, and that's you know, still a First Amendment issue.

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Speaker 1: So and then similar situation with the Burnetti case, where

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Speaker 1: fuct which you can imagine how that gets pronounced um

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Speaker 1: was the mark in question, and that was kind of

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Speaker 1: a violated terms and trademark law that you can't have

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Speaker 1: vulgar marks basically, and so that rule fell to which

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Speaker 1: brings into questions things like delution where by itself, if

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Speaker 1: delution was the only thing holding it back a trademark,

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Speaker 1: a delution by turnishment in particular, and you might be

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Speaker 1: able to argue that for the same reasons you can't

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Speaker 1: have this you know, subjective viewpoint based termination, which like

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Speaker 1: we just talked about with alcohol, Like so is alcohol

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Speaker 1: tarnishing a brand or not? So that really kind of

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Speaker 1: leaves the door open to, you know, obviously, the same

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Speaker 1: kinds of issues that the Supreme Court kind of ruled

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Speaker 1: in favor of the first moment in terms of hims

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Speaker 1: of him and Burnetti, and just about every lawyer you

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Speaker 1: spoke to thought that these kind of claims might prove

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Speaker 1: the Christian do your and the Jack Daniels might prove

435
00:26:15,840 --> 00:26:21,080
Speaker 1: unconstitutional in the end the tournishment claim. Yes, Uh, lawyers

436
00:26:21,080 --> 00:26:24,639
Speaker 1: in general are pretty in favor for me. These people

437
00:26:24,720 --> 00:26:28,080
Speaker 1: litigate um and defend brands all the time, so they

438
00:26:28,080 --> 00:26:31,000
Speaker 1: are can have an expansive view on you know, brand

439
00:26:31,040 --> 00:26:34,919
Speaker 1: holders rights, UM with professors UM that I talked to

440
00:26:35,240 --> 00:26:39,480
Speaker 1: UM or often at least not always UM more inclined

441
00:26:39,640 --> 00:26:43,640
Speaker 1: to say, you know, if it's confusing consumers, then why

442
00:26:43,680 --> 00:26:45,720
Speaker 1: are we restricting it? That doesn't make sense. This isn't

443
00:26:45,760 --> 00:26:49,880
Speaker 1: brand protection law. There's consumer protection law. UM. But as

444
00:26:49,880 --> 00:26:53,600
Speaker 1: far as punishment goes, Yes, even the attorneys that were

445
00:26:53,680 --> 00:26:57,960
Speaker 1: kind of provolution broadly speaking as a separate cause of action,

446
00:26:58,600 --> 00:27:00,760
Speaker 1: they acknowledge that, Yeah, that's actually a pretty good point.

447
00:27:01,000 --> 00:27:04,320
Speaker 1: That's that could actually that could actually fall. Jack Daniels

448
00:27:04,840 --> 00:27:07,639
Speaker 1: raised that claim at the Supreme Court. Is that something

449
00:27:07,640 --> 00:27:11,440
Speaker 1: that they're going to be considering the tarnishment claim that

450
00:27:11,600 --> 00:27:14,360
Speaker 1: is that is kind of a secondary issue. I kind

451
00:27:14,359 --> 00:27:16,800
Speaker 1: of brought that in along with through to our case

452
00:27:16,840 --> 00:27:20,960
Speaker 1: because it is another aspect of that very prominent case. UM.

453
00:27:21,359 --> 00:27:25,520
Speaker 1: The part that's going before the Supreme Court is kind

454
00:27:25,520 --> 00:27:30,200
Speaker 1: of more of a more direct consumer confusion versus First

455
00:27:30,240 --> 00:27:35,680
Speaker 1: Amendment writes question where they're going to analyze a rule

456
00:27:36,119 --> 00:27:40,440
Speaker 1: about trademarks in expressive works and whether a dog toy

457
00:27:40,520 --> 00:27:44,639
Speaker 1: counts as an expressive work, whether that circuit created law

458
00:27:44,800 --> 00:27:48,120
Speaker 1: that many circuits have adopted, none of rejected, but some

459
00:27:48,280 --> 00:27:52,920
Speaker 1: district courts have started to question basically was it artistically relevant,

460
00:27:53,400 --> 00:27:56,440
Speaker 1: which with a low bar to clear, and then did

461
00:27:56,440 --> 00:28:00,280
Speaker 1: they explicitly mislead consumers? Otherwise if it's an expressive work,

462
00:28:00,680 --> 00:28:03,560
Speaker 1: that's why you can see, you know, brands get invoked

463
00:28:03,720 --> 00:28:07,000
Speaker 1: in movies and TV shows, and especially if they're mocked.

464
00:28:07,040 --> 00:28:09,000
Speaker 1: But even if they aren't, necessarily as long as it's,

465
00:28:09,040 --> 00:28:11,800
Speaker 1: like I said, artistically relevant, um, then it's pretty hard

466
00:28:11,840 --> 00:28:14,639
Speaker 1: to for a brand owner to do much about it. Um.

467
00:28:14,720 --> 00:28:17,800
Speaker 1: For obviously good reason. With the First Amendment, you want

468
00:28:17,880 --> 00:28:21,040
Speaker 1: to have creators have the freedom to do those sorts

469
00:28:21,040 --> 00:28:23,520
Speaker 1: of things without having to fear of lawsuit just because

470
00:28:23,520 --> 00:28:25,840
Speaker 1: it put a smush in your movie. But that is

471
00:28:25,920 --> 00:28:28,080
Speaker 1: more about kind of where those lines are, because in

472
00:28:28,080 --> 00:28:31,280
Speaker 1: that case they're like, well, yeah, traditional expressive works. Most

473
00:28:31,280 --> 00:28:33,640
Speaker 1: people are pretty okay with that bar being pretty low.

474
00:28:33,760 --> 00:28:36,760
Speaker 1: Some people actually want it a little bit higher, want

475
00:28:36,800 --> 00:28:39,040
Speaker 1: it just to be part of a confusion analysis rather

476
00:28:39,080 --> 00:28:41,680
Speaker 1: than a way to short circuit one and just skip

477
00:28:41,680 --> 00:28:44,960
Speaker 1: it all together. Um. But overall people are okay with

478
00:28:44,960 --> 00:28:47,160
Speaker 1: the general you know, gist of it. It's when it's

479
00:28:47,440 --> 00:28:51,160
Speaker 1: products like a dog toy and other mass produced consumer

480
00:28:51,160 --> 00:28:53,080
Speaker 1: products that people like. That's not the kind of part

481
00:28:53,080 --> 00:28:55,800
Speaker 1: that we're trying to protect with that. The problem is

482
00:28:55,800 --> 00:28:58,040
Speaker 1: it's really hard to draw line there as far as

483
00:28:58,280 --> 00:29:01,720
Speaker 1: what can expressive work or not. I've heard the examples

484
00:29:01,800 --> 00:29:06,640
Speaker 1: before comparing Delta Airlines and Delta Faucets, and one of

485
00:29:06,680 --> 00:29:10,080
Speaker 1: the trademark professors you spoke to use that, So where's

486
00:29:10,080 --> 00:29:13,800
Speaker 1: the line. Well, it's interesting because you know, I think

487
00:29:13,880 --> 00:29:17,880
Speaker 1: those companies existed long before delusion law came into play.

488
00:29:17,960 --> 00:29:20,640
Speaker 1: I think his main point with that was that, you know,

489
00:29:21,000 --> 00:29:23,480
Speaker 1: that doesn't mean it's not possible for Delta to build

490
00:29:23,480 --> 00:29:26,600
Speaker 1: a big brand, a very strong brand in airlines just

491
00:29:26,640 --> 00:29:29,720
Speaker 1: because Delta faucet is a thing. If Delta Faucet was

492
00:29:29,760 --> 00:29:33,400
Speaker 1: an up and coming faucet maker, um, then you know

493
00:29:33,600 --> 00:29:35,520
Speaker 1: they would be able to point to delusion law. And

494
00:29:35,680 --> 00:29:38,720
Speaker 1: because usually you're very protected in your area of business

495
00:29:38,760 --> 00:29:41,520
Speaker 1: and even related areas of business. Areas of business that

496
00:29:41,600 --> 00:29:44,800
Speaker 1: an airline might go into that a consumer we can

497
00:29:44,840 --> 00:29:46,760
Speaker 1: see if you believe believe in airline would go into

498
00:29:47,040 --> 00:29:50,120
Speaker 1: that obviously doesn't really include faucets, so delusion law would

499
00:29:50,160 --> 00:29:51,840
Speaker 1: be the way they would be able to block that,

500
00:29:52,600 --> 00:29:54,880
Speaker 1: but I don't think that's something that you can do

501
00:29:55,680 --> 00:29:59,840
Speaker 1: after decades of coexistence. So and that's exactly the kind

502
00:29:59,880 --> 00:30:03,400
Speaker 1: of the professor's talk about when they're saying, yeah, this

503
00:30:03,640 --> 00:30:06,960
Speaker 1: is protecting from that, which is that that isn't that

504
00:30:07,240 --> 00:30:09,800
Speaker 1: big of a problem for a company like Delta. So

505
00:30:10,080 --> 00:30:13,000
Speaker 1: they're not sure exactly what it's supposed to prevent. Does

506
00:30:13,000 --> 00:30:15,320
Speaker 1: the brand have to prove that it's famous in any

507
00:30:15,360 --> 00:30:18,120
Speaker 1: way or you know, you know that Jack Daniels is famous,

508
00:30:18,160 --> 00:30:21,520
Speaker 1: you know that or is famous. It's not quite a

509
00:30:21,600 --> 00:30:23,720
Speaker 1: note when you see it kind of thing. There's ways

510
00:30:23,760 --> 00:30:26,600
Speaker 1: you can prove fame or provide pretty good evidence of fame.

511
00:30:27,040 --> 00:30:29,600
Speaker 1: First in the nineties, it was a little bit looser

512
00:30:29,640 --> 00:30:32,600
Speaker 1: and not really um as well spelled out. If you

513
00:30:32,600 --> 00:30:34,920
Speaker 1: were famous in your industry, it might have been enough.

514
00:30:35,120 --> 00:30:39,920
Speaker 1: They've clarified that about a decade later in six and said, no,

515
00:30:40,120 --> 00:30:42,200
Speaker 1: you have to be famous to the general public. So

516
00:30:42,520 --> 00:30:45,080
Speaker 1: even for people who don't fly airlines know what Delta.

517
00:30:45,320 --> 00:30:48,640
Speaker 1: People who don't drink soda know what coca cola is,

518
00:30:48,800 --> 00:30:51,320
Speaker 1: So it's beyond your market. It's just a general public.

519
00:30:51,400 --> 00:30:53,600
Speaker 1: And you can show that through you know, how much

520
00:30:53,600 --> 00:30:56,800
Speaker 1: you spent on advertising, consumer surveys, as long as you're

521
00:30:56,840 --> 00:31:00,080
Speaker 1: serving you know, proper sample to people and very so

522
00:31:00,120 --> 00:31:03,040
Speaker 1: other media coverage and you know a lot of other

523
00:31:03,440 --> 00:31:05,640
Speaker 1: pieces of evidence can fact. You're into this question, but

524
00:31:06,520 --> 00:31:11,520
Speaker 1: when do delusion claims succeed? When do they fail in court?

525
00:31:11,600 --> 00:31:14,960
Speaker 1: Are there are certain types that will definitely fail and

526
00:31:15,040 --> 00:31:19,120
Speaker 1: certain that will definitely succeed. Well, they'll definitely fail if

527
00:31:19,160 --> 00:31:21,560
Speaker 1: you're not famous, and sometimes, like I said, that's now

528
00:31:21,600 --> 00:31:24,520
Speaker 1: a relatively high bar as far as succeeding. The thing

529
00:31:24,560 --> 00:31:27,640
Speaker 1: about the lushing claims is that usually if there's a

530
00:31:27,640 --> 00:31:31,240
Speaker 1: delusion claim, there's probably also an infringement claim. It's not

531
00:31:31,480 --> 00:31:34,760
Speaker 1: super common, and I don't know of any court opinions

532
00:31:34,800 --> 00:31:37,000
Speaker 1: and no one can really provide me with one where

533
00:31:37,280 --> 00:31:40,400
Speaker 1: they said, no, this isn't going to be consumer confusion

534
00:31:40,440 --> 00:31:42,600
Speaker 1: at all. There's no likelihood that the consumer is going

535
00:31:42,680 --> 00:31:45,120
Speaker 1: to think that this product was for that or was

536
00:31:45,280 --> 00:31:47,800
Speaker 1: there product was made by that company, were affiliated by it,

537
00:31:47,880 --> 00:31:50,480
Speaker 1: and then also at the same time, but also there's

538
00:31:50,560 --> 00:31:54,000
Speaker 1: delusion here, and that's just not a combination. Anyone can

539
00:31:54,160 --> 00:31:57,040
Speaker 1: really point to a great example of seeing it does

540
00:31:57,080 --> 00:31:59,520
Speaker 1: speak a lot to the you know, the philosophy of

541
00:31:59,560 --> 00:32:02,280
Speaker 1: trademark long where we wanted to go and kind of

542
00:32:02,320 --> 00:32:05,040
Speaker 1: who we're protecting in the general purpose of it um.

543
00:32:05,080 --> 00:32:07,680
Speaker 1: So it's still an important question, but from a practical

544
00:32:07,720 --> 00:32:10,560
Speaker 1: manner it doesn't show up too much as an independent thing,

545
00:32:10,560 --> 00:32:13,360
Speaker 1: because usually if you're going to spend all this money

546
00:32:13,360 --> 00:32:16,560
Speaker 1: to litigate, it's because you're worried about consumers being confused.

547
00:32:16,640 --> 00:32:19,080
Speaker 1: The delusion claims get brought up in trademark compositions a

548
00:32:19,080 --> 00:32:21,280
Speaker 1: lot and a lot of times. If it's a delusion

549
00:32:21,320 --> 00:32:24,680
Speaker 1: claim and it's a small player, it ends up being

550
00:32:24,880 --> 00:32:28,000
Speaker 1: not worth their time to litigate it out anyway, because

551
00:32:28,160 --> 00:32:30,640
Speaker 1: you know, it's usually a giant company with a war

552
00:32:30,800 --> 00:32:33,760
Speaker 1: chest to protect their brand, and often a smaller company

553
00:32:33,760 --> 00:32:35,880
Speaker 1: that's you know, it's not worth it. I'll choose a

554
00:32:35,880 --> 00:32:37,840
Speaker 1: different brand and I don't need this headache. So it

555
00:32:37,880 --> 00:32:41,360
Speaker 1: doesn't really kind of get litigated out all that often.

556
00:32:41,520 --> 00:32:43,880
Speaker 1: So it's hard to say exactly kind of where those

557
00:32:43,920 --> 00:32:47,680
Speaker 1: lines end up being because usually there's a bigger trademark

558
00:32:47,720 --> 00:32:50,320
Speaker 1: conflict over you know, consumer confusion. If you and that

559
00:32:50,640 --> 00:32:53,320
Speaker 1: you probably in the delusion anyway, or you don't eat it.

560
00:32:53,400 --> 00:32:56,640
Speaker 1: So in trademark law, unless it's really flagrant, your best

561
00:32:56,640 --> 00:32:59,400
Speaker 1: hope is getting an injunction and making them to stop.

562
00:33:00,280 --> 00:33:02,600
Speaker 1: I thought it was really interesting that the u c

563
00:33:02,720 --> 00:33:05,920
Speaker 1: l A law professor you spoke to. Professor McKenna said

564
00:33:06,000 --> 00:33:09,520
Speaker 1: that people turn to delution claims because it's a big hammer,

565
00:33:09,720 --> 00:33:13,200
Speaker 1: or they think it's a big hammer, particularly in cease

566
00:33:13,240 --> 00:33:16,520
Speaker 1: and desist letters. Just explain what he means. They're for

567
00:33:16,520 --> 00:33:18,760
Speaker 1: the average person who may not know about those season

568
00:33:18,840 --> 00:33:24,680
Speaker 1: desist letters. Usually, um, even big brands that are pretty uh,

569
00:33:24,720 --> 00:33:26,920
Speaker 1: you know, gung coe with litigation, they usually start with

570
00:33:26,920 --> 00:33:29,040
Speaker 1: the season desist letter because it's cheap to have your

571
00:33:29,120 --> 00:33:31,760
Speaker 1: attorneys either in the house or entertainer or whatever. Just

572
00:33:31,960 --> 00:33:34,520
Speaker 1: ask people to stop first. And and I think what

573
00:33:34,560 --> 00:33:36,640
Speaker 1: he means is that to them it sounds like that

574
00:33:36,640 --> 00:33:40,120
Speaker 1: would be scarier. You're not scarier, but just adds to

575
00:33:40,200 --> 00:33:42,440
Speaker 1: the level of oh my god, this big company is

576
00:33:42,440 --> 00:33:44,000
Speaker 1: coming at us and they have all this on us,

577
00:33:44,040 --> 00:33:46,640
Speaker 1: so maybe we should go away. So, you know, if

578
00:33:46,680 --> 00:33:49,200
Speaker 1: you're able to say you're confusing consumers in the in

579
00:33:49,240 --> 00:33:53,360
Speaker 1: the brain owners like I don't think so. And maybe

580
00:33:53,240 --> 00:33:55,600
Speaker 1: if you know half an idea to maybe fight it,

581
00:33:55,920 --> 00:33:58,240
Speaker 1: but then they see the delution pardon thing. Yeah, but

582
00:33:58,280 --> 00:34:00,240
Speaker 1: there's also this law that it doesn't matter if you're

583
00:34:00,240 --> 00:34:02,120
Speaker 1: on an industry or not, or if consumers are confused

584
00:34:02,200 --> 00:34:04,880
Speaker 1: or not. Um, this is deluting our brand. Um. And

585
00:34:04,960 --> 00:34:08,360
Speaker 1: maybe that's just in their eyes, just another reason for

586
00:34:08,600 --> 00:34:13,200
Speaker 1: the alleged infringer or deluter to say, I don't want

587
00:34:13,200 --> 00:34:15,640
Speaker 1: to fight this. A rebrand is less costly than going

588
00:34:15,680 --> 00:34:17,839
Speaker 1: to war here with a lot less benefit at the end.

589
00:34:17,880 --> 00:34:20,440
Speaker 1: So because there's a season, does this letter successful. It

590
00:34:20,560 --> 00:34:22,600
Speaker 1: saves the brand money and it keeps their path clear

591
00:34:22,640 --> 00:34:25,359
Speaker 1: as far as trademarks, and because their whole idea is

592
00:34:25,640 --> 00:34:28,239
Speaker 1: I want my trademark as distinct as possible. I want

593
00:34:28,239 --> 00:34:30,359
Speaker 1: as few things like it as possible. I don't want

594
00:34:30,360 --> 00:34:34,400
Speaker 1: anything even like breathing on it. So further they can reach,

595
00:34:34,719 --> 00:34:37,920
Speaker 1: the longer stiff on they can throw basically, um, the

596
00:34:38,000 --> 00:34:40,240
Speaker 1: better for them to keep, you know, that wide berth

597
00:34:40,480 --> 00:34:43,920
Speaker 1: where their brand stays strong, and when anything like it

598
00:34:44,000 --> 00:34:46,799
Speaker 1: appears to consumers, the consumers think of that company. Thanks

599
00:34:46,800 --> 00:34:49,960
Speaker 1: so much, Kyle. That's Kyle john Are of Bloomberg Law.

600
00:34:50,480 --> 00:34:52,759
Speaker 1: And that's it for this edition of the Bloomberg Law Show.

601
00:34:53,120 --> 00:34:55,440
Speaker 1: Remember you can always get the latest legal news on

602
00:34:55,480 --> 00:34:59,759
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

603
00:35:00,040 --> 00:35:05,000
Speaker 1: in it www dot Bloomberg dot com, slash podcast Slash Law.

604
00:35:05,360 --> 00:35:10,840
Speaker 1: I'm June Grosso and you're listening to Bloomberg m