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

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Speaker 2: Special counsel Jack Smith is urging the Eleventh Circuit Court

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Speaker 2: of Appeals to reinstate the classified documents case against former

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Speaker 2: President Donald Trump, saying a judge made a serious error

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Speaker 2: in dismissing the case. Smith said that Federal Judge Eileen

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Speaker 2: Cannon's decision that he was unlawfully appointed by Attorney General

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Speaker 2: Merrick Garland runs counter to president rulings by judges across

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Speaker 2: the country history, as well as widespread and long standing

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Speaker 2: appointment practices in the Department of Justice and across the government.

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Speaker 2: Joining me is Dave Ahrenberg, Palm Beach County State Attorney

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Speaker 2: to put us on too contact Dave tell Us about

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Speaker 2: Judge Cannon's decision dismissing the case.

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Speaker 1: Judge Cannon made such a bizarre decision that it went

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Speaker 1: against all presidents, and I think will almost certainly be

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Speaker 1: overruled by the Eleventh Circuit. Cannon's best chance to keep

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Speaker 1: this on the books would be if the Supreme Court

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Speaker 1: decides to weigh in and then does something radical like

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Speaker 1: they did in the immunity case. Clarence Thomas has already

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Speaker 1: issued a concurring opinion that provided a roadmap for Judge

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Speaker 1: Cannon to rule the way she did, but no other

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Speaker 1: justice signed on his concurring opinion, So I suspect the

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Speaker 1: Supreme Court would not even go along with her approach.

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Speaker 1: I mean, I'm old enough to remember a guy named

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Speaker 1: Robert Mueller and Robert her and David Weiss. These are

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Speaker 1: all special counsels in recent years, and there was no

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Speaker 1: issue whether they could remain because of the constitutionality of

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Speaker 1: their appointment. Judge Cannon applied a different set of rules

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Speaker 1: to Jack Smith, and she'll be overruled for it. Then

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Speaker 1: the big question is will the Eleventh Circuit remove her

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Speaker 1: from the case. I know Jack Smith would want that,

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Speaker 1: he did not ask for it specifically, but the Eleventh

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Speaker 1: Circuit has the power to do it on its own.

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Speaker 1: Don't know if they're going to do it yet, but

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Speaker 1: maybe that day will come.

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Speaker 2: So Dave explain what her reasoning was why he was

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Speaker 2: wrongfully appointed.

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Speaker 1: There's the Appointment's clause in the Constitution that allows for

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Speaker 1: certain appointments and they have to be confirmed by the Senate,

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Speaker 1: and then there are inferior officers. So called inferior officers

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Speaker 1: that would be the Special Council. But what the lawyers

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Speaker 1: on Donald Trump's side. These are outside lawyers, by the way,

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Speaker 1: and it was bizarre again that Judge Cannon even allow

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Speaker 1: these outside lawyers to participate in the oral arguments. I mean,

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Speaker 1: this became a real political hot potato. This was not

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Speaker 1: a Trump lawyer, but these were outside lawyers that first

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Speaker 1: raised this argument, and they said that under the appointments

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Speaker 1: cause that Jacksmith needed to be confirmed by the US Senate.

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Speaker 1: He is not an inferior officer because he has total independence,

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Speaker 1: so just like the Attorney General, he needs to be confirmed.

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Speaker 1: He wasn't confirmed, therefore his appointment is unconstitutional, and Judge

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Speaker 1: Cannon agreed. Now, the problem with that argument is that

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Speaker 1: Jack Smith is not totally independent. He has a boss,

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Speaker 1: the Attorney General. He has to get approvals and permissions

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Speaker 1: from him, so he's not totally independent. And you know

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Speaker 1: who also has argued that Jack Smith is not independent,

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Speaker 1: Donald Trump. Donald Trump has repeatedly bashed Jack Smith for

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Speaker 1: being a tool of Joe Biden and Merrick Garland doing

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Speaker 1: their political business. So it's kind of ironic that the

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Speaker 1: argument that Donald Trump is proposing is opposite from the

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Speaker 1: argument that the lawyers are proposing. And it's that argument

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Speaker 1: in court that won the day with Judge Cannon, but

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Speaker 1: I don't think it's going to win the day anywhere else.

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Speaker 2: Jack Smith's brief covers the landscape of legal arguments, so

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Speaker 2: he starts with Cannon, ignoring decades of precedent, including binding

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Speaker 2: Supreme Court precedent. So tell us about the president.

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Speaker 1: The president is at Special counsels are legit, they're legal

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Speaker 1: under the law, They're inferior officer. An Attorney general can

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Speaker 1: appoint them, whether it's Archibald Cox or Robert Mueller. And

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Speaker 1: over the years have been different statutes in place, and

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Speaker 1: the statutes may have not been re enacted or repealed,

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Speaker 1: but special care Council's remain. And there's never been any

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Speaker 1: court that has looked at this issue, because the courts

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Speaker 1: have they have. There's never been a court that is said, yeah,

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Speaker 1: it's an unconstitutional appointment. You have to be confirmed by

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Speaker 1: the Senate. It's never happened. It didn't happen with Clinton

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Speaker 1: and Kenneth Starr. It didn't happen with Nixon and Archibald Coxino.

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Speaker 1: In fact, in the Nixon case, the Supreme Court did

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Speaker 1: weigh in on this and indicta meaning and just extra

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Speaker 1: language in the opinion. They did say that the special

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Speaker 1: Council was legit. The way that he was appointed was okay.

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Speaker 1: And so this goes against president for years, including Supreme

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Speaker 1: Court President. And so that's why I'm very confident that

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Speaker 1: Judge Cannon is going to be overturned.

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Speaker 2: She drew a distinction between the appointments of independent counsels,

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Speaker 2: you know, it's a predecessor to what's now called a

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Speaker 2: special council, and Garland's appointment of Smith as a special council.

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Speaker 2: And in that nineteen seventy four Supreme Court decision, the

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Speaker 2: Court was talking about a special prosecutor.

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Speaker 1: La duck and talks like a duck.

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Speaker 2: Right, I'm confused about the difference between them. I know

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Speaker 2: that Smith said there's no real difference, but is there

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Speaker 2: a difference.

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Speaker 1: It's a distinction without a difference. Whether you call them

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Speaker 1: independent council special council. They serve under the Attorney General.

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Speaker 1: They have to issue a report, they have to get

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Speaker 1: approvals and permissions. They are not completely independent. The way

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Speaker 1: that they serve, at least a special council is not.

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Speaker 1: And as a result, they don't have to be confirmed

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Speaker 1: by the Senate. This has been litigated in other cases.

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Speaker 1: I mean, Judge Chuck can review this. In DC. There

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Speaker 1: are lots of special councils out there, and we've never

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Speaker 1: seen this before. I mean, we just had a special

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Speaker 1: council investigate Hunter Biden is continuing to investigate Hunter Biden.

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Speaker 1: So I guess Hunter Biden's conviction should be overturned because

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Speaker 1: the Special Counsel David White who prosecuted him was improperly appointed. Unconstitutional.

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Speaker 1: You know, if you do it one way, you got

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Speaker 1: to do it the other way. So she is opening

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Speaker 1: up a count of worms. And that's why the Eleventh

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Speaker 1: Circuit is going to come in and say no, no, no,

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Speaker 1: stay in your lane. You're being reversed. And it's possible

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Speaker 1: because the Eleventh Circuit reversed her multiple times previously on

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Speaker 1: the special master issue in this case, that maybe they'll

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Speaker 1: say enough, we're removing you from the case altogether. That

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Speaker 1: would be Jackson's dream. Don't know if it happens yet,

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Speaker 1: but that could happen one day if she keeps ruling

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Speaker 1: this way.

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Speaker 2: So you're very confident, even though the Eleventh Circuit is

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Speaker 2: very conservative. Suppose Smith draws a very conservative panel.

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Speaker 1: Well, Smith drew a very conservative panel the last time

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Speaker 1: he went to the Eleventh Circuit to ask them to

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Speaker 1: reverse Judge Cannon on the special Master issue. Three judges,

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Speaker 1: one judge, the head judge, Judge Prior, very conservative, was

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Speaker 1: considered for the Supreme Court under a Bush. Then you

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Speaker 1: had the other two judges who were appointed by Donald Trump.

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Speaker 1: So it doesn't get more conservative than that. Three judges,

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Speaker 1: two of them appointed by Donald Trump. All three said

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Speaker 1: you're wrong Canon and chastise her and repudiated her. So

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Speaker 1: no matter how conservative panel will be, I think they'll

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Speaker 1: be the same result as last time.

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Speaker 2: What I think I think is one of the best

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Speaker 2: lines from Smith's brief is quote from before the creation

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Speaker 2: of the Department of Justice until the modern day, attorneys

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Speaker 2: general have repeatedly appointed special and independent counsels to handle

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Speaker 2: federal investigations, including the prosecution of Jefferson Davis, alleged corruption

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Speaker 2: in federal agencies, including the Department of Justice itself, Watergate,

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Speaker 2: and beyond. His argument covers I said before the legal landscape.

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Speaker 2: He also says, and tell me if you think this

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Speaker 2: is going too far, that if this is allowed to

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Speaker 2: stand and could jeopardize the operation of the Justice Department

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Speaker 2: and call into question hundreds of appointments throughout the executive branch.

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Speaker 2: Is that going too far?

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Speaker 1: No, it's true. If you're going to throw sand in

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Speaker 1: the gears here, then everything's at risk. When it comes

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Speaker 1: to the appointment's clause. There'll be a new interpretation of

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Speaker 1: the appointments clause. It just won't affect special counsels. They'll

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Speaker 1: affect any other inferior officer where there is at least

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Speaker 1: an accusation of extra independence. It puts every inferior officer

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Speaker 1: risk of being tossed aside unless they were confirmed by

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Speaker 1: the Senate. And so yeah, there are real ramifications for

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Speaker 1: this radical ruling by Judge Cannon, and that's why I

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Speaker 1: think for sure she's going to be overturned. No, unless

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Speaker 1: the Supreme Court steps in after the Eleventh Circuit and says, no,

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Speaker 1: we're going to now create a new standard, and they could.

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Speaker 1: I mean, I didn't think they were going to rule

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Speaker 1: the way they did in the immunity case, so maybe

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Speaker 1: they're going to do the same thing here. But I

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Speaker 1: still think this decision by Judge Cannon is doomed.

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Speaker 2: So Trump's reply is doing about thirty days. How long

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Speaker 2: will it take do you think for the Eleventh Circuit

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Speaker 2: to decide the case?

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Speaker 1: You know, it's hard to say. I never know with

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Speaker 1: these appellate courts, depends on their workload. And now, because

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Speaker 1: the election is in November and this case is not

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Speaker 1: going to be tried before the election, there's no real

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Speaker 1: sense of urgency to get it done right away. I

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Speaker 1: think it may take a while, but I'm not as

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Speaker 1: uncertained about the decision. I think the decision will be

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Speaker 1: unanimous and it will be scathing, and Judge Cannon needs

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Speaker 1: to worry that she'll be removed from this case and

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Speaker 1: be humiliated based on her decisions that have been out

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Speaker 1: of step with the law multiple times.

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Speaker 2: Is speaking of not rushing things. Smith filed his legal

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Speaker 2: argument one day before the deadline set by the appellate court.

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Speaker 2: I mean, usually you think of special Council offices as

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Speaker 2: being more efficient than that and getting it not waiting

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Speaker 2: until the last minute.

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Speaker 1: Oh, on this one, I have to have disagree with you,

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Speaker 1: and I think by filing a day in advance that

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Speaker 1: was efficient. Most parties were just pilot on the last day.

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Speaker 1: He's got much going on. He did it early, He

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Speaker 1: did it day before he had to. No. No, I

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Speaker 1: give him plants for it. I give him kudos for

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Speaker 1: doing it for federal prosecutors in a high profile case

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Speaker 1: where so much is riding on this. He could have

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Speaker 1: waited another twenty four hours. He did not. No, I

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Speaker 1: think that's fine. I think it's impressive.

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Speaker 2: Let's turn to DC, the DC election interference case for

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Speaker 2: a minute, because, according to Bloomberg sources, Smith has decided

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Speaker 2: against having a he daring to present evidence in the

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Speaker 2: case before voters go to the poll, sort of a

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Speaker 2: mini trial. I wonder what you think about that.

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Speaker 1: You know, I'm surprised. I thought that it could benefit

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Speaker 1: the public to see the extent of Trump's involvement before, during,

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Speaker 1: and after January sixth in a mini trial. But I

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Speaker 1: think it's just that Jack Smith has other considerations. First,

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Speaker 1: I think they're really taking the time to really understand

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Speaker 1: the Supreme Court's ruling. They're going line by line, I'm sure,

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Speaker 1: through the indictment and going up and down the ladder

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Speaker 1: talking the Solicitor General to determine what they can presume

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Speaker 1: and what they can't. They want to avoid some gray

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Speaker 1: area and that takes time. But also I think having

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Speaker 1: a mini trial could jeopardize the case in some ways.

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Speaker 1: Number One, it could tip off Donald Trump and his

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Speaker 1: team as to what the evidence is going to be,

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Speaker 1: what the witnesses are going to say. Number Two, it

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Speaker 1: could jeopardize Trump's sixth a men right to a fair

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Speaker 1: trial and thus jeopardize any conviction on appeal if a

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Speaker 1: judge rules that by doing a mini trial putting on

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Speaker 1: all this evidence, it unfairly taints the jury pool, and

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Speaker 1: Jack Smith wants to avoid that. And then third, Jackamith

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Speaker 1: is very careful about protecting his witnesses, and to put

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Speaker 1: Mike Pence on the stand right before the election man

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Speaker 1: would put him at risk, and I think that's part

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Speaker 1: of it. I think he'd worry about him and other

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Speaker 1: defendants being threatened, intimidating, harassed, and so he may just

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Speaker 1: say that we're just going to try this after the election. Now,

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Speaker 1: one other thing on this June there are some people

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Speaker 1: who think that it's because Jacksmith and America Oland don't

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Speaker 1: want to look political by doing a mini trial this

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Speaker 1: close to the election. I think it's a bad reason

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Speaker 1: not to do this mini trial. No matter what you do,

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Speaker 1: You're going to look political. No matter what you do,

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Speaker 1: You're going to be called out for being political. No

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Speaker 1: matter what decision you make. You've got to just follow

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Speaker 1: the evans of the law and tune out the noise.

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Speaker 2: Okay, Coming up, we're going to talk about the Special

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Speaker 2: council filing a new indictment against Trump. In that January

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Speaker 2: sixth case you're listening to Bloomberg, Special counsel Jack Smith

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Speaker 2: has filed a new indictment against Donald Trump over his

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Speaker 2: efforts to undo the twenty twenty presidential election. It keeps

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Speaker 2: the same criminal charges, but narrows the allegations against him

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Speaker 2: following a Supreme Court opinion that conferred broad immunity on

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Speaker 2: former president. The new indictment removes a section that dealt

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Speaker 2: with Trump's interactions with the Justice Department, an area of

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Speaker 2: conduct for which the Supreme Court, in a six to

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Speaker 2: three opinion, said Trump was entitled to immunity from prosecution,

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Speaker 2: and the updated criminal case no longer lists as a

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Speaker 2: co conspirator Jeffrey Clark, a Justice Department official who championed

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Speaker 2: Trump's false claims of election fraud. The indictment retained the

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Speaker 2: allegations that Trump attempted to pressure then Vice President Mike

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Speaker 2: Pence to refuse to certify the electoral vote count. I've

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Speaker 2: been talking to Palm Beach County State Attorney Dave Ehrenberg,

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Speaker 2: and as far as the election interference case, explain why

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Speaker 2: the Special Council had to file a superseding indictment.

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Speaker 1: Because, based on the Supreme Courts immunity ruling, he can't

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Speaker 1: charge him for things that are within his core official

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Speaker 1: duties as president, and one of those things is appointing

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Speaker 1: an attorney general, having communications with the Attorney general and

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Speaker 1: his team and Trump. Amongst the allegations against him is

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Speaker 1: that he improperly tried to pressure the Attorney general, the

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Speaker 1: acting attorney General, and tried to get him removed until

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Speaker 1: he would overturn the election, and was working with Jeff Clark,

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Speaker 1: another member of the DOJ, to try to have a

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Speaker 1: coup within the Department of Justice. The Supreme Court said, now,

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Speaker 1: all that's within the president's core powers, he's immune, and

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Speaker 1: so they've got to drop everything related to that. And

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Speaker 1: then the rule is so broad that you can't even

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Speaker 1: use official acts as evidence for criminal conduct, even when

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Speaker 1: that criminal conduct is unofficial. So you can't call a

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Speaker 1: witness from within Trump's executive branch to testify on something.

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Speaker 1: These are things that they are going to have to

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Speaker 1: meticularly go through to make sure they're not running a

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Speaker 1: foul of this very broad and very infusing Supreme Court opinion.

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Speaker 2: But the conspiracy to obstruct an official proceeding that remains.

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Speaker 1: That will remain, even though there was a different Supreme

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Speaker 1: Court decision that limited the use of that statute destruction

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Speaker 1: of an official proceeding. But I think you can still

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Speaker 1: charge that. You just can't use his evidence some of

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Speaker 1: the communications that may provide proof that he did obstructing

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Speaker 1: official proceeding. You have to try to get a conviction

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Speaker 1: with one hand, time behind your back. Thanks to the Supreme.

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Speaker 2: Court, Smith's team and Trump Steam are scheduled to file

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Speaker 2: briefings August thirtieth on how they want to proceed ahead

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Speaker 2: of a September fifth hearing before the judge. So perhaps

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Speaker 2: we'll learn even more then. Thanks so much, Dave. That's

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Speaker 2: Dave Ahrenberg, Palm Beach County State Attorney. Sharp. Turn now

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Speaker 2: to intellectual property law and guitars. Who doesn't love a

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Speaker 2: guitar battle to determine which player is the most skilled.

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Speaker 2: But recently, the guitar battle that's been getting the most

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Speaker 2: headlines is the one in court between two guitar companies

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Speaker 2: over trademark rights. Gibson Guitars argues that Dean Guitar's use

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Speaker 2: of the V and Z shapes ripped off its trademarks,

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Speaker 2: and Gibson won the first round when a jury decided

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Speaker 2: in twenty twenty two that Dean sold counterfeit guitars. But

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Speaker 2: Dean won the second round when a federal appeals court

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Speaker 2: recently reversed the decision, saying the trial court had wrongly

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Speaker 2: excluded evidence and ordered a new trial. So are they

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Speaker 2: back to square one? Joining me is intellectual property attorney

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Speaker 2: Ronald Beanstock of Scurency Hollandbeck. He represented Armadillo, the maker

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Speaker 2: of Dean guitars, at the federal appellate court. Can you

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Speaker 2: start by talking about what Gibson was accusing Dean of.

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Speaker 3: There's a lot of guitar history here, and we're going

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Speaker 3: back to the seventies, So set the way back machine

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Speaker 3: and maybe it's just back to the future part of

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Speaker 3: four five. We're talking about electric guitars here, and much

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Speaker 3: more so on the rock side. Of things not really

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Speaker 3: jazz guitars. You know, there are a lot of different

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Speaker 3: types of electric guitars, and everybody has a sort of

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Speaker 3: thing about growing up with. My first guitar was this,

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Speaker 3: and so I've stayed with that body style. Some people

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Speaker 3: are devotas and by ten fifteen of a certain style.

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Speaker 3: So we're going back to the seventies when upstart companies

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Speaker 3: started to make these guitars that weren't being made by

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Speaker 3: the older builders, if you will, The Gibsons defenders think

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Speaker 3: of this nature and started to compete with them. And

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Speaker 3: one of those competitors was a company called Dean Guitars

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Speaker 3: started in the Midwest nineteen seventy six nineteen seventy seven,

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Speaker 3: starts to bring out instruments, in particular shapes. Two of

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Speaker 3: the shapes at issue here are shapes you've seen before.

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Speaker 3: One is called a V literal V Gibson. The first

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Speaker 3: was a flying V and an Explorer shape or called

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Speaker 3: by Dan at the time the Z shape. And to

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Speaker 3: just make matters more complicated, stay with me on this.

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Speaker 3: These were guitars originally introduced by Gibson in nineteen fifty eight.

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Speaker 3: In nineteen fifty nine as an attempt to say that

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Speaker 3: Gibson to be competitive with the upstart in those days

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Speaker 3: Fender Fender Guitars was building solid body guitars. Gibson did

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Speaker 3: not build a lot of solid body guitars, and they

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Speaker 3: brought these these unusual guitars out solid body guitars, showed

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Speaker 3: them at a major trade show and they were miserable failures.

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Speaker 3: They made one hundred of one of them, the V

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Speaker 3: and twenty two of the Explorer, and they were gone

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Speaker 3: and you didn't see another one of these V guitars

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Speaker 3: until nineteen sixty seven when Jimmy Hendrix started playing a

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Speaker 3: V that was hand painted by a friend of his.

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Speaker 3: And you didn't see the Explorer shave come back until

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Speaker 3: Dean and another company called Hamer started building these, saying hey,

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Speaker 3: I can bring these back, I can reintroduce these, and

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Speaker 3: they did and brought them back in around seventy seven

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Speaker 3: with features and parts that people were looking for.

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Speaker 2: And what was the guitar market like.

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Speaker 3: So guitars can be very analogous to cars. I am

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Speaker 3: not a car guy necessarily, I am a guitar guy.

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Speaker 3: But there's hot rotted versions of these guitars literally where

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Speaker 3: pickups the thing that picks up the sound from the

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Speaker 3: strings is a very specific bill and certainly it's electronics,

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Speaker 3: so there's a certain sound to it, and you go,

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Speaker 3: I like that sound. I can't get that from my

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Speaker 3: other more standard Gibson's orfenders. That's how competition occur in

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Speaker 3: the guitar marketplace. Musicians say I really want that sound,

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Speaker 3: or i'd like that guitar that I enjoy playing that

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Speaker 3: looks like this, but it doesn't have the features I want.

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Speaker 3: So can you put those features into that shape? Sure

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Speaker 3: I can, says builder. I can do that, and I'll

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Speaker 3: put them into the marketplace. And maybe it's a fancier

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Speaker 3: wood top veneer of a very track of wood, or

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Speaker 3: a certain paint job or finish. Very much like fancy cars. Right,

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Speaker 3: everybody wants to have their car hot, ride it up

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Speaker 3: a little bit, and that's how you get here. So

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Speaker 3: that's the background of the where Dean started. Dean makes

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Speaker 3: these guitars for a solid ten plus years, and like

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Speaker 3: most companies upstart companies, they go through some trials and tribulations.

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Speaker 3: There's a couple of versions of that company, and eventually

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Speaker 3: in the nineties it is sold and eventually Armadillo distributor

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Speaker 3: buys the brand, Dean puts the brand on a higher

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Speaker 3: level in the marketplace and brings it out and starts

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Speaker 3: selling Dean model guitars and continuously does that. So you've

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Speaker 3: effectively got these guitars, these shapes for forty plus years.

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Speaker 2: So that brings us up to Gibson's suing. Dean tell

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Speaker 2: us what happened there.

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Speaker 3: In twenty nineteen, Gibson sued Armadillo slash Dean, saying, hey,

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Speaker 3: you're infringing and making counterfeit products, and of course Amadillo

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Speaker 3: Dean's response in the trial, which we did not handle,

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Speaker 3: was logically, we've been making these for a long time.

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Speaker 3: Latches should apply. What have you guys been doing for

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Speaker 3: the last forty something years? And more importantly, happy to

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Speaker 3: be account offit. We put our name on it, and

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Speaker 3: it's got a very specific unique headstock. That's our trademark.

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Speaker 3: We have a trademark on that.

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Speaker 2: Doesn't Gibson have a trademark on the shape.

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Speaker 3: Gibson doesn't apply for a trademark into the latter part

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Speaker 3: of the nineties for these two guitar body shapes and

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Speaker 3: their two dimensional outlines of the V just the body

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Speaker 3: of the V and the two dimensional outline of the

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Speaker 3: body of the z Or Explorer. They do get those

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Speaker 3: two trademarks, yes they do.

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Speaker 2: So Gibson is accusing Armadillo Dean of violating those trademarks.

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Speaker 2: Was Dean's main defense, that the shapes were generic.

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Speaker 3: So the defense position is that these body shapes have

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Speaker 3: been made by countless third parties, and we can prove it.

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Speaker 3: We have evidence to prove that, and we're going to

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Speaker 3: show that at trial that everybody, not just us, we're

383
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Speaker 3: not alone here, that everybody in the guitar marketplace for

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Speaker 3: some period of time. And remember Gibson stopped making these

385
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Speaker 3: guitars for a long time. One well over five to

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Speaker 3: six years and the other one is more like sixteen

387
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Speaker 3: to seventeen years. Gibson, they weren't focused on these guitars

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Speaker 3: per se. They may have made some of their own,

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Speaker 3: but everybody else was making them, and everybody else was

390
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Speaker 3: advertising them and saying here, this is my version of

391
00:22:06,440 --> 00:22:10,600
Speaker 3: this guitar style. Look that I have different things online.

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00:22:10,760 --> 00:22:13,040
Speaker 3: You should try mine, and then you also have them

393
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Speaker 3: advertising using and it's very big in the instrument business.

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Speaker 3: Endorsers very much like sports equipment. Look at us. We've

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Speaker 3: got this famous guitar player, and musicians are heavily influenced

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Speaker 3: by who plays what. You know, when you've got a

397
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Speaker 3: famous guitar player playing a certain style of guitar, people

398
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Speaker 3: gravitate and they go, I want one of those. In

399
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Speaker 3: the instrument side of things, we call it gas guitar

400
00:22:38,800 --> 00:22:41,520
Speaker 3: acquisition syndrome. Got to have that, I got to have that,

401
00:22:41,800 --> 00:22:45,080
Speaker 3: and people seldom have one guitar. People have lots of

402
00:22:45,119 --> 00:22:49,760
Speaker 3: guitars Armadillo. Dean's position is that lots of people made these. Therefore,

403
00:22:49,840 --> 00:22:53,760
Speaker 3: we're going to prove that these marks are actually generic. Sure,

404
00:22:53,800 --> 00:22:56,040
Speaker 3: you may have gotten a registration and at the time

405
00:22:56,119 --> 00:22:59,600
Speaker 3: people didn't oppose, and that happens. But just like the

406
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Speaker 3: Fen case, the Stuart Specter Versuspender Music Instrument Corporation case,

407
00:23:04,760 --> 00:23:08,760
Speaker 3: we're going to show decades of usage by other companies

408
00:23:09,000 --> 00:23:12,160
Speaker 3: makes this generic and have a trademark in something that's generic.

409
00:23:12,520 --> 00:23:15,320
Speaker 3: On the eve of trial, the court held something different.

410
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Speaker 3: The court allowed a motion in Lemonae which was a

411
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Speaker 3: wholesale solusion of evidence of all of these prior years

412
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Speaker 3: of usage by third parties because they're being accused of

413
00:23:26,160 --> 00:23:28,800
Speaker 3: copying them, but you can't have a trademark in something

414
00:23:28,840 --> 00:23:32,400
Speaker 3: that's generic. On the eve of trial, the court allowed

415
00:23:32,480 --> 00:23:35,600
Speaker 3: a motion in Lemonae which was a wholesale solusion of

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00:23:35,640 --> 00:23:40,360
Speaker 3: evidence of all of these prior years, and that affected

417
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Speaker 3: the trial, and hence, I think, is how you get

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Speaker 3: the somewhat unusual decision. The verdict from that trial, four

419
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Speaker 3: thousand dollars worth of damages latches applies. But you're a counterfeitter.

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Speaker 2: How far back did the judge allow evidence of similar shapes?

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00:23:59,359 --> 00:24:03,080
Speaker 3: Only ninety two, So that's still a long time. Well,

422
00:24:03,680 --> 00:24:06,320
Speaker 3: remember when the guitars got brought out. They were brought

423
00:24:06,359 --> 00:24:09,600
Speaker 3: out in the fifties, they stopped making them and other

424
00:24:09,640 --> 00:24:14,840
Speaker 3: people made them sixties, seventies, eighties, nineties. So you've got

425
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Speaker 3: four decades of evidence of third parties. And all these

426
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Speaker 3: third parties go to the largest guitar market in the

427
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Speaker 3: United States. Not all of them are made in the US,

428
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Speaker 3: but they're imported here. So you've got decades of other

429
00:24:30,359 --> 00:24:34,000
Speaker 3: third parties bringing guitars like this into the United States

430
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Speaker 3: and selling them here, advertising and selling them here.

431
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Speaker 2: Now, the Fifth Circuit reversed. Tell us about the Fifth

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Speaker 2: Circuit's decision.

433
00:24:41,840 --> 00:24:44,200
Speaker 3: We were brought into handle the appeal. So the Fifth

434
00:24:44,200 --> 00:24:48,080
Speaker 3: Circuit fully reversed and remanded and said that it was error,

435
00:24:48,200 --> 00:24:50,800
Speaker 3: that was abusive discretion by the lower court to have

436
00:24:50,960 --> 00:24:56,240
Speaker 3: had this wholesale exclusion of evidence, and said that the

437
00:24:56,320 --> 00:24:59,320
Speaker 3: defendant was deprived of fully being able to present the

438
00:24:59,320 --> 00:25:02,080
Speaker 3: evidence they f that they could in terms of proving

439
00:25:02,240 --> 00:25:05,760
Speaker 3: the genericism of the marks. So it's been reversed and remanded,

440
00:25:06,200 --> 00:25:08,119
Speaker 3: and you know, there'll be a new trial.

441
00:25:08,480 --> 00:25:12,080
Speaker 2: Gibson had asked for an on bank hearing of the

442
00:25:12,119 --> 00:25:14,480
Speaker 2: full Fifth Circuit. What happened to.

443
00:25:14,400 --> 00:25:17,080
Speaker 3: That the initial appeal was a three to zero decision,

444
00:25:17,520 --> 00:25:20,640
Speaker 3: and they requested on bank and that was rejected. Outright,

445
00:25:21,119 --> 00:25:21,720
Speaker 3: It's hard.

446
00:25:21,520 --> 00:25:25,320
Speaker 2: For you to judge this as the attorney who won

447
00:25:25,520 --> 00:25:29,400
Speaker 2: at the Fifth Circuit, but you're going back to trial

448
00:25:30,000 --> 00:25:33,360
Speaker 2: basically starting again. How big a victory was this.

449
00:25:33,680 --> 00:25:37,560
Speaker 3: I think there's two crucial issues here. One is, you know,

450
00:25:38,000 --> 00:25:40,679
Speaker 3: everybody loves to claim a victory lap. This is truly

451
00:25:40,680 --> 00:25:44,040
Speaker 3: a victory lap. They can't be claimed because that decision

452
00:25:44,200 --> 00:25:48,120
Speaker 3: in the lower court did prevent the defense from being

453
00:25:48,119 --> 00:25:51,000
Speaker 3: able to present this evidence. And there's other issues here

454
00:25:51,480 --> 00:25:55,639
Speaker 3: that probably won't make its way through the process because

455
00:25:55,640 --> 00:25:59,480
Speaker 3: they's somewhat extra territorial. But there's precedent for this type

456
00:25:59,520 --> 00:26:03,719
Speaker 3: of case in other jurisdictions. You know, in Japan, there

457
00:26:03,760 --> 00:26:06,840
Speaker 3: was a high court decision in Japan in two thousand

458
00:26:07,480 --> 00:26:11,600
Speaker 3: that said that all Gibson trademarks were generic because everybody

459
00:26:11,640 --> 00:26:15,240
Speaker 3: had used them, if you will, copy them in Japan

460
00:26:15,720 --> 00:26:20,240
Speaker 3: unfettered for decades, and they didn't have any protectable interest

461
00:26:20,359 --> 00:26:22,919
Speaker 3: now in this intellectual property in Japan. So you can

462
00:26:22,960 --> 00:26:25,760
Speaker 3: make any type of product in Japan that may look

463
00:26:25,800 --> 00:26:28,159
Speaker 3: like a Gibson model, and that's been going on for

464
00:26:28,200 --> 00:26:31,199
Speaker 3: twenty four years. There's a case in Europe, in the

465
00:26:31,240 --> 00:26:35,080
Speaker 3: EU that one of these models, this Flying D model,

466
00:26:35,280 --> 00:26:38,040
Speaker 3: that is also now to be judged generic. It was

467
00:26:38,080 --> 00:26:41,600
Speaker 3: appeal that lost. So you've got other other jurisdictions that

468
00:26:41,720 --> 00:26:47,280
Speaker 3: understand that certain guitar bodies, certain guitar shapes have become generic.

469
00:26:47,320 --> 00:26:50,760
Speaker 3: Everybody's made them, everybody's used them. And that's why I

470
00:26:50,800 --> 00:26:54,359
Speaker 3: go back to that Fender case because that's exactly the

471
00:26:54,400 --> 00:26:59,200
Speaker 3: same theory. Vender tried to bring trademark applications for three

472
00:26:59,240 --> 00:27:01,800
Speaker 3: of the most popular guitar shapes in the world and

473
00:27:02,119 --> 00:27:04,800
Speaker 3: they were unable to. I know that because I tried

474
00:27:04,800 --> 00:27:07,400
Speaker 3: that case. The matter is very clear. The parallels are

475
00:27:07,400 --> 00:27:10,320
Speaker 3: so stark that there are enough popular guitar shapes that

476
00:27:10,359 --> 00:27:13,199
Speaker 3: people make their versions of them and have made them

477
00:27:13,240 --> 00:27:17,119
Speaker 3: for decades. And the impact is that the usage of

478
00:27:17,160 --> 00:27:20,280
Speaker 3: third party in other cases. I think this case that's

479
00:27:20,320 --> 00:27:21,560
Speaker 3: the President, is.

480
00:27:21,520 --> 00:27:24,960
Speaker 2: The Gibson's more popular than the Dean. I mean, what

481
00:27:25,359 --> 00:27:28,440
Speaker 2: as far as today's musicians, Well, these.

482
00:27:28,240 --> 00:27:31,359
Speaker 3: Are pretty specific. These are interesting guitars that you really

483
00:27:31,720 --> 00:27:34,560
Speaker 3: the v literally you can't really play sitting down, so

484
00:27:34,720 --> 00:27:37,400
Speaker 3: it's just like a rock guitar kind of thing. It's

485
00:27:37,440 --> 00:27:40,600
Speaker 3: definitely an image type of guitar. And then the Explorer

486
00:27:40,720 --> 00:27:42,719
Speaker 3: is also a little more difficult to play sitting down,

487
00:27:43,000 --> 00:27:45,679
Speaker 3: also very sort of rock. Look, we remember they were

488
00:27:45,680 --> 00:27:47,439
Speaker 3: brought out in fifty eight and fifty nine during the

489
00:27:47,520 --> 00:27:51,120
Speaker 3: Sputnik era, sort of space age for the time. Are

490
00:27:51,160 --> 00:27:57,440
Speaker 3: they more popular? I don't think these were anybody's best sellers,

491
00:27:58,040 --> 00:28:02,600
Speaker 3: but I think these particular shapes were very much associated,

492
00:28:02,960 --> 00:28:07,359
Speaker 3: particularly in the seventies and eighties with Dean that people

493
00:28:07,840 --> 00:28:10,720
Speaker 3: knew the the V's and as they called them, Disease

494
00:28:11,280 --> 00:28:15,160
Speaker 3: were amongst two out of the three most popular Dean

495
00:28:15,240 --> 00:28:18,480
Speaker 3: guitars because they had, like I said, specific shape, but

496
00:28:18,720 --> 00:28:22,960
Speaker 3: different finishes and different features that were really popular. But

497
00:28:23,680 --> 00:28:26,080
Speaker 3: are they the most popular. No, they're not the most

498
00:28:26,080 --> 00:28:27,320
Speaker 3: popular for anybody.

499
00:28:28,000 --> 00:28:31,040
Speaker 2: Well, it will be fascinating to see if there's a

500
00:28:31,080 --> 00:28:34,240
Speaker 2: different verdict the second time around. Thanks so much for

501
00:28:34,359 --> 00:28:38,680
Speaker 2: joining us. That's Ronald Beanstock, a partner at Scarency Hollandbeck.

502
00:28:39,520 --> 00:28:42,160
Speaker 2: And that's it for this edition of the Bloomberg Law Podcast.

503
00:28:42,520 --> 00:28:44,920
Speaker 2: Remember you can always get the latest legal news by

504
00:28:44,960 --> 00:28:48,760
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,

505
00:28:49,080 --> 00:28:52,920
Speaker 2: and at Bloomberg dot com, slash podcast, slash Law. I'm

506
00:28:53,000 --> 00:28:55,400
Speaker 2: June Grosso and this is Bloomberg