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

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Speaker 1: Frank Sinatra was a man. No, he was the man,

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Speaker 1: and he loved Jack. Jack as a Daniels on stage

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Speaker 1: every night. Three rocks, two fingers and a splash of waters.

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Speaker 1: A Frank, this one's for you. Frank Sinatra would often

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Speaker 1: hold up a glass of Jack Daniels on stage, contributing

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Speaker 1: to the popularity of the country's best selling whiskey with

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Speaker 1: its iconic shouldered bottle and it's fifty year history as

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Speaker 1: a Tennessee whiskey. Any wonder that Jack Daniels Properties would

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Speaker 1: take offense at a chewable dog toy mimicking its signature

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Speaker 1: whiskey bottle and bearing the label bad Spaniels the old

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Speaker 1: number you on your Tennessee carpet. Jack Daniels says it's

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Speaker 1: trademarks are being infringed, but the Ninth Circuit rule that

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Speaker 1: the toy maker v. I. P. Products was entitled to

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Speaker 1: First Amendment protection because the dog toy was an expressive work.

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Speaker 1: Now the Supreme Court has agreed to review that decision

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Speaker 1: in a case that will test the reach of trademark

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Speaker 1: rights in the face of First Amendment claims. My guest

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Speaker 1: is intellectual property litigator Terence Ross, a partner at Captain

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Speaker 1: Uchen Rosamond, So Terry tell us about the basic legal

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Speaker 1: fight here and the history of litigation. June number of

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Speaker 1: years ago, a company called v I P Products, which

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Speaker 1: puts out novelty toys especially for dogs, came out with

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Speaker 1: a dog toy called Bad Spaniels that mimicked the classic

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Speaker 1: Jack Daniels whiskey bottle for its old number seven. Jack

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Speaker 1: Daniel's parent company, Brown Foreman, not surprisingly sent out these

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Speaker 1: and desist letters to v I P Products, and v

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Speaker 1: I P Products brought declaratory judgment action in Arizona seeking

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Speaker 1: to a pain from the Court of ruling that what

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Speaker 1: they were doing was not a violation the trademark lass.

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Speaker 1: The district court had a bench trial, which is a

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Speaker 1: trial without a jury, and ruled that it was trademark infringement.

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Speaker 1: V I P Products took that case up to the

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Speaker 1: Ninth Circuit, and the Ninth Circuit reversed, saying that the

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Speaker 1: dog toy is a quote expressive work and it's protected

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Speaker 1: by the First Amendment. Jack Daniels took that decision from

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Speaker 1: the Ninth Circuit up to the Supreme Court, which refused

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Speaker 1: except the game. So the case was sent back to

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Speaker 1: the District Court, which entered a judgment on behalf of

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Speaker 1: the dog toy maker v IP Products. Brown Foreman's Jack

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Speaker 1: Daniels company appealed that decision the Ninth Circuit, which affirmed

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Speaker 1: it without even writing anything and in sort of a

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Speaker 1: Hail Mary, the company took the case back to the

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Speaker 1: Supreme Court second time, and to everybody's surprise, on November

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Speaker 1: twenty one this year, the Supreme Court granite surgery or

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Speaker 1: on the case and has accepted it's for review, which

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Speaker 1: was quite surprised. In the trademark law field, this involves

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Speaker 1: the Rogers test, named after Ginger Rogers. Explain a little

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Speaker 1: bit about that test for us. The Rogers test is

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Speaker 1: judge created rule that comes from case called Rodgers versus Grimaldi.

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Speaker 1: It involved the Frederico Felini film called Ginger and Fred

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Speaker 1: that was about two Italian cabaret dancers and the reference

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Speaker 1: in the title to Ginger Fred was to Ginger Rogers

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Speaker 1: and Fred Stair. Obviously, everybody understood it to be that,

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Speaker 1: and that's what Frederica Felini intended it to me. So

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Speaker 1: Ginger Rogers brought a lawsuit against the producer of the movie,

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Speaker 1: alleging that they weren't allowed to market the movie using

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Speaker 1: her name. And the case went up on appeal to

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Speaker 1: the Second Circuit, which is the federal pellate Court for

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Speaker 1: the New York area. And the court said no if

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Speaker 1: this was okay here, And they said specifically, it was

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Speaker 1: okay to use a celebrity's name in an expressive work

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Speaker 1: if it's artistically relevant to the work and not iplicitly misleading.

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Speaker 1: And that rule became the Rogers test and expanded beyond

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Speaker 1: merely the use of celebrity names, which was the nearer

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Speaker 1: holding in the case, to more broadly to the use

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Speaker 1: of trademarks in expressive works such as movies, books, songs,

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Speaker 1: that sort of thing. So is that the test that

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Speaker 1: the Ninth Circuit used in ruling for the toy company.

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Speaker 1: Here it is, and it represents one of the very

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Speaker 1: first times that an appellate court has ever applied the

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Speaker 1: Rogers test to commercial product. The Rogers test was expressly

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Speaker 1: directed at so called expressive works and was not intended

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Speaker 1: to apply to commercial products such as the dog Chewy

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Speaker 1: toy here at issue and so that was a bit

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Speaker 1: of a surprise in and of itself. And now we

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Speaker 1: have to assume that the Supreme Court has accepted this

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Speaker 1: case in order to consider whether the Ninth Circuit was

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Speaker 1: right in applying the Rogers test, because if the Rogers

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Speaker 1: test is applied, that's sort of a low bar. It's

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Speaker 1: a threshold issue. You don't have to then go into

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Speaker 1: whether there's consumer confusion in the marketplace. That's correct. The

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Speaker 1: Rogers test is intended to protect the legitimate First Amendment

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Speaker 1: interests that creators of expressive works have. And indeed, you

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Speaker 1: think about this in terms of something as simple as

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Speaker 1: a film review. If you need to do a review

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Speaker 1: for the newspaper, magazine, television of a new film that's

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Speaker 1: been released, you have to mention the name of the film.

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Speaker 1: So there has to be some realm of protection emanating

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Speaker 1: out the First Amendment even though you're using trademark names.

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Speaker 1: The question is how far does that expand so this

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Speaker 1: is the very first time that the Supreme Court will

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Speaker 1: consider in the trademark context, as supposed to copyright context,

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Speaker 1: what sort of First Amendment protections there are that limit

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Speaker 1: the applicability of trademark law. The toy company here also

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Speaker 1: sells parodies of other popular alcoholic bottles, including Stella r Paw,

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Speaker 1: which mimics designs from beer maker Stella Artois, and heine Sniffin,

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Speaker 1: which resembles Heineken. So are there any other suits like

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Speaker 1: this one? Indeed, this same company put out of chew

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Speaker 1: toy for dogs that was in the shape of a

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Speaker 1: beer bottle that had the title on a Budweiser and

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Speaker 1: looked very much like a bud Wiser beer bottle, and

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Speaker 1: Budweiser did not want its beer being associated with people's

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Speaker 1: bottoms and went to court suit and one, and that

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Speaker 1: product is no longer on the market. Similarly, there's a

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Speaker 1: case in the Fourth Circuit that's so similar to the

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Speaker 1: case here that it's almos shocking. It was a lawsuit

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Speaker 1: in two thousand seventh. The caption was Louis Vutan versus

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Speaker 1: Pote Digitty Dog, and it was about a chewy Vton

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Speaker 1: dog toy that was put out as a parody of

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Speaker 1: Louis Vatan's trademarks. And the Fourth Circuit in that case

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Speaker 1: did not even deign to consider the Rogers test. It

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Speaker 1: simply said, look, the way you approach case like this

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Speaker 1: is to consider whether or not consumers are likely to

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Speaker 1: be confused that somehow this Chewy Vaton dog toy is

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Speaker 1: put out by Louis Vaton, the fashion house, and that's

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Speaker 1: the way you approach this. Indeed, it just went back

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Speaker 1: this morning. Look, the Rogers test is not even mentioned

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Speaker 1: by the Fourth Circuit, So in a very real sense,

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Speaker 1: the Ninth Circuit is the first federal pellet court to

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Speaker 1: consider and to apply the Rogers test in the context

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Speaker 1: of a commercial product such as a dog toy, as

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Speaker 1: opposed to applying it only with respect to express of

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Speaker 1: works like songs, movies, and books. So do you have

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Speaker 1: any idea why the Court decided to take this case

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Speaker 1: the second time around? This is exactly the problem that

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Speaker 1: many of my friends in academia have discussed with me.

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Speaker 1: We don't really know why all of the Supreme Court

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Speaker 1: wants to look at this, and you know that raises fears.

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Speaker 1: The only difference in the law between when the Court

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Speaker 1: rejected this case the first time and November two, when

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Speaker 1: the Court decided to accept it on second go round,

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Speaker 1: is that the composition of the Supreme Court has changed,

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Speaker 1: and it only takes four votes amongst the justices to

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Speaker 1: hear case, and we've had at least my account, if

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Speaker 1: I've got it right, two new justices seed it since then,

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Speaker 1: So one can't help but wonder if that is the

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Speaker 1: driving force here, is that the new justices have a

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Speaker 1: different view of how trademark laws should have plot. But

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Speaker 1: the fear amongst academics and practitioners who followed this very

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Speaker 1: closely is that the Supreme Court might start with a

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Speaker 1: much bigger picture and ask does the Rogers test even exist?

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Speaker 1: The important thing to remember here is that there is

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Speaker 1: no Rogers test in the Lantam Act, the trademark law.

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Speaker 1: It was created by Judge Newman out a whole cloth

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Speaker 1: in Rogers v. Grimaldi. It's judge made law. And there's

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Speaker 1: also this fear that there's a number of justices on

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Speaker 1: the Court now who are anesthetical to judicial lawmaking, who

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Speaker 1: believe that that's the province of Congress, and they arguably

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Speaker 1: have some support in that thinking, and they may be

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Speaker 1: wanting to revisit this. Remember, in the Copyright Act, this

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Speaker 1: would be handled by the fair use doctrine. Fair use

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Speaker 1: doctrine is statutory. It's actually in the Copyright Act. There

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Speaker 1: is no equivalent here in the trademark last, So one

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Speaker 1: fear is that the Rogers test may not be accepted

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Speaker 1: by the court. This will be the first time spcour

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Speaker 1: its ever considered does the Rogers test even exist? The

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Speaker 1: second question that I think if they agree that there

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Speaker 1: is some sort of Rogers test, what is the makeup

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Speaker 1: of that test? I mean, he's necessarily simple testing, you know,

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Speaker 1: with respect expressive works. Is the use of trademarks artistically

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Speaker 1: relevant to that work and not explicitly intended to mislead?

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Speaker 1: And then if we get past that, the third question,

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Speaker 1: which I think is the one that they absolutely will consider,

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Speaker 1: is does the Rogers test apply to commercial products? Because

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Speaker 1: in its classic iteration it's limited to expressive works and

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Speaker 1: a dog jewey toy does not constitute in my box

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Speaker 1: as an expressive work. Does this then have the potential

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Speaker 1: to be a landmark case? Oh, this is going to

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Speaker 1: be a landmark case almost no matter what the court does.

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Speaker 1: If they say there is no Rogers test at all,

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Speaker 1: that it was just made up by judge and that

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Speaker 1: isn't the way we governed in the United States, then

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Speaker 1: that's a landmark issue. If they say that there is

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Speaker 1: Rogers test and then lay out what the test exactly

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Speaker 1: is that's a landmark decision. If they go so far

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Speaker 1: as to say applies across the board to trademark us

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Speaker 1: in all commercial products, not just expressive works, that's a

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Speaker 1: landmark decision. So, I mean, this is going to be

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Speaker 1: a really big case coming out of Supreme Court. One

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Speaker 1: of the most significant trademark cases in quite a few years,

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Speaker 1: for sure, and it's the second IP case the Court

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Speaker 1: has taken this term. We've of course discussed the suit

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Speaker 1: again the Andy Warhol Foundation over his Prince series. Thanks

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Speaker 1: so much, Terry. That's intellectual property litigator Terence Ross. Senate

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Speaker 1: majority leader Chuck Schumer was among the Democrats who condemned

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Speaker 1: former President Donald Trump for calling for the termination of

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Speaker 1: the Constitution over his disproved claims that the election was stolen.

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Speaker 1: Now he's calling for an end to America's constitutional democracy.

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Speaker 1: Donald Trump is out of control and a danger to

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Speaker 1: our democracy. Schumer asked his Republican colleagues to speak out

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Speaker 1: against the Trump comments, but their reaction was muted. My

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Speaker 1: guest is Kenneth Gross, senior political law counsel and consultant

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Speaker 1: at Achon Gump. He wrote on Truth Social a massive

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Speaker 1: fraud of this type and magnitude allows for the termination

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Speaker 1: of all rules, regulations, and articles, even those found in

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Speaker 1: the Constitution. Do you think these kinds of comments are

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Speaker 1: planned at all or just reactive on his part? It's

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Speaker 1: hard to say. It doesn't sound like a lot of

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Speaker 1: thought goes into it, because it blew up. You know.

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Speaker 1: It's one thing too, they ignore rules, but once you

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Speaker 1: start touching the Constitution, you're at the third rail, and

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Speaker 1: that is not a good place to go. The response

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Speaker 1: was kind of weak from Republicans. Republican senators focused on

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Speaker 1: the remarks themselves and the importance of the Constitution. I

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Speaker 1: didn't hear anyone say, oh, this means I won't vote

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Speaker 1: for Trump when he runs for election. It seems like

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Speaker 1: they're getting closer and closer to saying that because there

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Speaker 1: the criticism is becoming more directed at him than at

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Speaker 1: just the remarks, or it's more difficult to separate the two.

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Speaker 1: So I am hearing more and more senators really in

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Speaker 1: the last hours, Senator Tune and others are becoming more

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Speaker 1: vocal in their unhappiness with statements like this and connecting

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Speaker 1: them to the speaker of the statements. In this case, Mr. Trump, So,

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Speaker 1: you know, I think maybe it's moving like the like

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Speaker 1: the lava from Mauna Loa and Hawaii, but it seems

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Speaker 1: to be going in that direction. House Minority Leader Kevin

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Speaker 1: McCarthy has yet to comment on the post, but in

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Speaker 1: what may be a case of bad timing, on November,

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Speaker 1: McCarthy tweeted that on the very first day of the

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Speaker 1: new Republican led Congress, we will read every single word

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Speaker 1: of the Constitution allowed from the floor of the House,

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Speaker 1: something that hasn't been done in years. And yet do

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Speaker 1: we expect to hear anything negative from him on this now?

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Speaker 1: I think McConnell, you know, there is some speculation that

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Speaker 1: he may say something. McCarthy. I have not heard anything

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Speaker 1: from him or any statements that he plans to be making,

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Speaker 1: so it would be speculative to say that he would

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Speaker 1: come out and say anything other than you know, what

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Speaker 1: he has said historically, which of course doesn't relate to

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Speaker 1: these comments directly. The controversy intensified, so the former President

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Speaker 1: Trump returned to his platform. Basically he insisted that he

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Speaker 1: didn't write what he had written. The fake news is

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Speaker 1: actually trying to convince the American people that I said

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Speaker 1: I wanted to terminate the Constitution. This is simply more

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Speaker 1: disinformation and laws, just like Russia, Russia Russia and all

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Speaker 1: of their other hoaxes and scams with a lot of

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Speaker 1: capitals employed there as he likes to do. Deny what's

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Speaker 1: been said has been something that has sort of work

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Speaker 1: for him, hasn't it. Absolutely? You know, He's had many

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Speaker 1: strikes at the plate and none of them have resulted

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Speaker 1: in him being struck out. So um, it's something that

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Speaker 1: we will hear probably over and over again, and if

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Speaker 1: the heat gets really intense, it'll just direct the marks

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Speaker 1: of those who are criticizing him. So I think it's

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Speaker 1: hard to even comment on it, you know, saying that

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Speaker 1: somehow the Constitution should be set aside a patently is

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Speaker 1: not going to work. So he says it and then

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Speaker 1: the next day says, well, I didn't mean that. It's

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Speaker 1: the media that's characterizing it that way. We've seen this

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Speaker 1: show before. We've been living with Donald Trump politically since,

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Speaker 1: and he's continued to amaze both in some of the

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Speaker 1: things he said and done and also the fact that

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Speaker 1: nothing seems to stick. Do you think the Republicans fear

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Speaker 1: of speaking out against him? Is because of this rapid

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Speaker 1: magabase that no matter what I mean. Trump said early

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Speaker 1: on that if you shot someone on Fifth Avenue, no

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Speaker 1: one would do anything to him. That seems like it's

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Speaker 1: becoming true almost so nothing he says will make any

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Speaker 1: difference to them. It seems so that the Republican Party

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Speaker 1: is bound to him. There's no question about that. You

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Speaker 1: know that those that are running for office or looking

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Speaker 1: at their political standing within the party, they don't want

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Speaker 1: to alienate that part of the base. And it's significant

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Speaker 1: enough and continues to be significant enough where people are

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Speaker 1: very careful in what they're saying. An economist you gov

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Speaker 1: poll released last week showed Trump at thirty and Florida

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Speaker 1: Governor RN De Santis at in a potential Republican primary field.

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Speaker 1: But does anyone have a chance against Trump with the

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Speaker 1: base that supports him fervently? Well, if there's a number

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Speaker 1: of candidates in the field that will certainly improve former

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Speaker 1: President Trump's chances. You know, perhaps if it narrowed to

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Speaker 1: a one on one, you know, the Santis Trump the

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Speaker 1: base versus those others in the Republican Party, it would

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Speaker 1: be closed. As that pole seems to indicate. But it's

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Speaker 1: not going to be a head on contest between the

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Speaker 1: two of them. Most likely there will be others in

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Speaker 1: the mix, and that certainly helps Trump the more of

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Speaker 1: the ore than it's a replay of in the way

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Speaker 1: that he won the nomination. There speaking of a replay,

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Speaker 1: get another runoff in Georgia to determine the Senate and

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Speaker 1: Senator Raphael Warnock one over challenger football star herschel Walker.

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Speaker 1: Democrats already control the Senate, but the result in Georgia

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Speaker 1: will have an impact. The impact on a fifty one

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Speaker 1: Senate is very significant. You know, I understand that right

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Speaker 1: now the Vice President Harris can break ties and the

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Speaker 1: majority is still in the democrats favor. But when you

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Speaker 1: have a fifty one vote majority, you get a majority

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Speaker 1: on every committee of Congress. You can move things out

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Speaker 1: of committee on a partisan basis, whereas with a fifty

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Speaker 1: fifty it's an equal number on each committee, and in

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Speaker 1: order to move legislations, it slows the process found significantly

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Speaker 1: and made and required to go to the full floor,

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Speaker 1: so the Vice president can participate. Also, the budgets for

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Speaker 1: the committee are skewed in favor of the party and majority,

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Speaker 1: so the Democrats will have more money and more staffing,

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Speaker 1: you know, to handle their process, which is significant. Uh.

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Speaker 1: And you know it also raises the question of the

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Speaker 1: power of moderate Democrats such as Mansion and Cinema. Are

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Speaker 1: they in a position to hold a vote hostage? And

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Speaker 1: the answer is no. Even if the two of them

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Speaker 1: are together, you could, you know, they could create possible

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Speaker 1: tie and those two you know own agreed, certainly difficult

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Speaker 1: for the Democratic leadership and Schumer. But this gives enormous

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Speaker 1: increased power to Schumer over a fifty Senate. And I

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Speaker 1: think that even though this is being characterized what the

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Speaker 1: outcome is not going to change who control the Senate.

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Speaker 1: It will be the Democrats either way. The difference between

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Speaker 1: fifty one and fifty is very significant in all the processes,

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Speaker 1: including moving judges through the process and other presidential appointments.

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Speaker 1: There have been all kinds of scandals and questions surrounding

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Speaker 1: herschel Walker, even whether he lives in Georgia or in

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Speaker 1: Texas where he filed his taxes. So why do you

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Speaker 1: think this race was so tight? Well, herschel Walker, at

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Speaker 1: least in his tv as, and I think in a

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Speaker 1: lot of his sumph speeches has tied this election to Biden.

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Speaker 1: Raphael Warnock not so much. He's talked about what he's

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Speaker 1: done for Georgia voters and some of the other issues

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Speaker 1: that are more local. And Biden still is not that

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Speaker 1: popular in Georgia, even though he won the presidential election

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Speaker 1: against Trump in Georgia, but his popularity has sunk since

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Speaker 1: then in Georgia. So, you know, Walker just says, you

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Speaker 1: vote for me, and it's a vote against Biden and

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Speaker 1: to stop the Liberal Democrats. And there's still a decent

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Speaker 1: amount of people who that resonates with Georgia. I I

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Speaker 1: still remain a member of the Georgia Bar and came

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Speaker 1: to Washington back in the seventies from Georgia, going to

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Speaker 1: law school down there. And while the things changed down

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Speaker 1: in Georgia, you know, there's still a very strong red

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Speaker 1: representation in that state, and just aligning yourself with the

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Speaker 1: Republican Party is enough to get you a large chunk

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Speaker 1: of votes, even if you're not the most stellar candidate.

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Speaker 1: You know you were from Georgia. Well, I'm not originally

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Speaker 1: from Georgia, but I went to Emery Law School and

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Speaker 1: I came to Washington with Jimmy carterback in nineteen. That

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Speaker 1: gives you those qualifications. The Walker campaign kept former President

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Speaker 1: Trump away from this runoff except for one event to

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Speaker 1: Zoom event, and Biden stayed out of the runoff as well.

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Speaker 1: Former President Barack Obama went in to try to rally

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Speaker 1: the voters. There is that good strategy on both sides. Yes,

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Speaker 1: I think so. Actually, I think that both strategies were good.

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Speaker 1: I think, you know, President Obama is very popular. He's

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Speaker 1: a great in getting out the vote, which is what

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Speaker 1: the Democrats need more than anything in Georgia. And keeping

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Speaker 1: Trump at a distance probably helps Walker. So I think

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Speaker 1: a lot of good political strategizing on both sides. The

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Speaker 1: aisle there came into play. It's not only exhausting for

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Speaker 1: Georgia voters, but it must be exhausting for Warnock. He's

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Speaker 1: had to run basically four times in two years five.

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Speaker 1: He's been on the ballot five times for as he

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Speaker 1: says it, for the same dog on job. That's so true.

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Speaker 1: Thanks so much, Ken. That's Kenneth Grows, senior political law

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Speaker 1: council and consultant at Akin Gump. And that's it for

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Speaker 1: this edition of The Bloomberg Law Show. Remember you can

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Speaker 1: always get the latest legal news on our Bloomberg Law Podcast.

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Speaker 1: You can find them on Apple Podcasts, Spotify, and at

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Speaker 1: www dot bloomberg dot com, slash podcast slash Law, and

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Speaker 1: remember to tune into The Bloomberg Law Show every week

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Speaker 1: night at ten pm Wall Street Time. I'm June Grosso

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Speaker 1: and you're listening to Bloomberg