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

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Speaker 2: Under our system of justice, the government cannot force anyone

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Speaker 2: to answer for a serious crime unless you, the people

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Speaker 2: of the community sitting on a grand jury, decide there

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Speaker 2: is enough evidence to warrant an indictment. It is you

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Speaker 2: who protect the rights of both victims and defendants.

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Speaker 3: In an orientation video for new grand jurors, the Chief

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Speaker 3: Judge of New York, Rowan Wilson, explains the importance of

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Speaker 3: the grand jury in protecting individuals from the power of

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Speaker 3: an abusive prosecutor.

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Speaker 2: But in the United States and the state of New York,

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Speaker 2: we protect against prosecutorial abuse by requiring the prosecution to

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Speaker 2: first convince a panel of regular citizens just like you,

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Speaker 2: a grand jury, that there is probable cause or good

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Speaker 2: reason to charge someone with a crime.

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Speaker 3: And in the past several months, it appears that grand

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Speaker 3: jurors across the country are doing just that. The Justice

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Speaker 3: Department has encountered case after case where grand jurors are

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Speaker 3: refusing to return indictments, and in some of those cases,

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Speaker 3: federal judges have accused prosecutors of misconduct during the grand

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Speaker 3: jury proceedings. One example in a high profile case at

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Speaker 3: the end of May, just days before trial, there was

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Speaker 3: a stunning implosion of a case against a group of

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Speaker 3: protesters accused of blocking a federal agent from an ice

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Speaker 3: facility in Chicago. Judge April Perry said her trust in

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Speaker 3: federal prosecutors had been broken after finding out that prosecutors

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Speaker 3: improperly spoke to grand jurors outside the grand jury room,

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Speaker 3: personally vouched for the strength of the case, and excused

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Speaker 3: grand jurors who disagreed with the government's case. My guest

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Speaker 3: his former federal prosecutor, Jimmy Garoula, a professor at Notrede

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Speaker 3: Law School. Jimmy, what's your reaction to the prosecutor's misconduct

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Speaker 3: during the grand jury proceedings.

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Speaker 4: They're shocking. It's a scandal.

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Speaker 5: Prosecutors are supposed to be a minister of justice, not

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Speaker 5: a minister of corruption, dishonesty, and deception, and that's what

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Speaker 5: we're seeing here. I think this was just the end

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Speaker 5: Justifi Sapedes, you know, they wanted to get indictments against

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Speaker 5: the Chicago protesters and they were going to take no

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Speaker 5: for an answers. So basically this was an attempt to

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Speaker 5: rig the grand jury system to ensure that they would

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Speaker 5: get the indictments that they were seeking.

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Speaker 3: The judge said that she'd read through hundreds, if not thousands,

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Speaker 3: of grand jury transcripts and she'd never seen this behavior

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Speaker 3: from prosecutors. So let's go through some of the things

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Speaker 3: she found disturbing. Explain what's wrong with a prosecutor vouching

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Speaker 3: for the case saying something like, you can believe me,

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Speaker 3: we have the evidence to prove this case.

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Speaker 5: Grand jurors are to make the decision of whether or

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Speaker 5: not there's probable cause to believe that a crime has

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Speaker 5: been admitted, and if so, whether there's probable cost believe

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Speaker 5: that the target of the grand jury investigation committed the crime,

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Speaker 5: and those decisions should be made exclusively on the evidence

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Speaker 5: that's been presented to the grand jury, not the prosecutor's

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Speaker 5: opinion regarding the strength of the case, the strength of

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Speaker 5: the evidence, but on the evidence itself. And this is

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Speaker 5: very basic, fundamental you know, professional responsibility.

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Speaker 4: One point. Oh, this wasn't a mistake.

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Speaker 5: I mean, this was just a blatant violation of fundamental

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Speaker 5: rules of professional responsibility and ethics.

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Speaker 3: Talking about blatant speaking to grand jurors outside the grand

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Speaker 3: jury room and then dismissing some grand jurors. How would

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Speaker 3: they expect to get away with that? I mean, is

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Speaker 3: the problem that the grand jury process is secret and

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Speaker 3: how does a defense lawyer or judge know what's going on.

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Speaker 4: That's exactly the case.

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Speaker 5: And so because of the secretive nature of the granduurary proceedings,

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Speaker 5: I'm sure the prosecutors think, well, whatever we're doing that's improper,

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Speaker 5: whatever misconduct rings aged in is not going to be revealed,

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Speaker 5: it's not going to be dislow.

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Speaker 3: And I mean, this is not the only case. In Wyoming,

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Speaker 3: a panel of three judges throughout nine indictments, including some

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Speaker 3: for murder, after the examination of the grand jury proceedings

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Speaker 3: revealed misconduct by the Trump appointed US attorney who had

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Speaker 3: had no prosecutorial experience at all. So you have inexperienced

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Speaker 3: people leading a US attorney's office. But some of this

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Speaker 3: seems really basic.

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Speaker 4: It is, you know, there's really no excuse.

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Speaker 5: I mean, this goes to just fundamental principles of fairness

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Speaker 5: and new process, independence, impartiality. As I stated, this is

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Speaker 5: an attempt to rig the system to obtain the result

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Speaker 5: of the prosecutors are seeking to obtain, which is shocking

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Speaker 5: considering the fact that the granduury system really favors prosecutors.

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Speaker 5: There's no judge, there's no defense lawyer. The standard of

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Speaker 5: proof is merely probable cause, and then an ad tissue.

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Speaker 5: The prosecutor doesn't have to prove probable cause by unanimous

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Speaker 5: determination of the grand jurors. Well, they have to prove

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Speaker 5: is twelve of the twenty three grand jurors, just a

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Speaker 5: simple majority have concluded that there's probable cause. And further,

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Speaker 5: the rules of evidence don't apply in the grand jury room,

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Speaker 5: so prosecutors can introduce hearsay evidence, double hearsay, triple hearsay evidence.

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Speaker 5: And despite all of these rules favoring the prosecution, these

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Speaker 5: prosecutors still felt that it was necessary to rig the system.

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Speaker 5: They were confident that they could prevail based upon those rules,

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Speaker 5: and they needed to reach out and have improper contact

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Speaker 5: with the members of the grand jury. With respect to

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Speaker 5: grand jurors that had decided against them in prior cases,

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Speaker 5: they decided, well, let's just exclude those grand jurors. We

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Speaker 5: don't want them on the grand jury because they might

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Speaker 5: decide against us. I mean, this is just shocking conduct

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Speaker 5: and most it's not limited to the fairness and the

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Speaker 5: injustice of the particular case, but it creates a loss

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Speaker 5: of trust. There's this loss of trust in the Justice

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Speaker 5: Department that's beginning to emerge, and judges across the country

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Speaker 5: are beginning to question, can we really believe what the

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Speaker 5: prosecutors say? Can we really trust the arguments and the

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Speaker 5: representation that prosecutors are making.

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Speaker 4: And when we get to that point, that becomes a crisis.

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Speaker 5: I think that we're really on the verge of a

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Speaker 5: crisis within the Department of Justice.

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Speaker 3: And that appeared to have happened in this case. Judge

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Speaker 3: Perry told Andrew Boutros, the US attorney for Chicago, who

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Speaker 3: personally came into the courtroom to dismiss the case, quote,

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Speaker 3: I do believe deeply the presumption of regularity and that

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Speaker 3: most government attorneys are doing the best they can to

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Speaker 3: do the right thing. That trust has been broken, and

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Speaker 3: that's been happening in courtrooms across the country.

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Speaker 5: And what we're beginning to see is in more and

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Speaker 5: more cases, defendants are challenging raising legal challenges to the

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Speaker 5: integrity of the procedures of process inside the grand jury room.

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Speaker 5: And this is now an argument that is being raised

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Speaker 5: in multiple cases across the country, again challenging the regularity

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Speaker 5: of fairness, the presumption of regularity, and again I think

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Speaker 5: it is creating a crisis of trust.

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Speaker 4: Crisis of trust within the Department of Justice.

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Speaker 5: And not only with judges, but I think more broadly

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Speaker 5: with the public at large. If the public starts losing

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Speaker 5: trust in the criminal justice system, starts losing trust in

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Speaker 5: the integrity of prosecutor's offices, then that does not speak

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Speaker 5: well for the future of criminal.

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Speaker 4: Justice in this country.

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Speaker 3: As you mentioned, lawyers in journalist Don Lemon's case as

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Speaker 3: well as the case against the Southern Poverty Law Center

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Speaker 3: reference this Chicago grand jury and some defense lawyers are

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Speaker 3: trying to get the transcripts of the grand jury proceedings,

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Speaker 3: which had always been super super secret, shall we say,

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Speaker 3: but I mean Judge Perry is thinking of releasing the

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Speaker 3: grand jury transcripts here. How else can defendants really find

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Speaker 3: out what happened in the grand jury room?

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Speaker 5: Well, that creates a problem because grand jury secrecy. It's

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Speaker 5: embodied in Rule sixty of the Rules of Criminal Procedure,

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Speaker 5: and it's important because we want persons that appear before

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Speaker 5: the grand jury. We want them to testify openly, freely,

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Speaker 5: be frank and open about what evidence they may have,

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Speaker 5: and if their identity is going to be disclosed, then

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Speaker 5: this could have a chilling effect on their willingness to

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Speaker 5: participate in the grand jury proceding. So it has implications

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Speaker 5: far beyond the individual case. But when the seed of

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Speaker 5: distrust has been planted with the courts, with the general public,

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Speaker 5: we're going to see more and more challenges to the

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Speaker 5: integrity the grand jury process, and it could have a

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Speaker 5: chilling effect with respect to witnesses willing to come forward

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Speaker 5: and testified before the grand jury for fear that again

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Speaker 5: the transferit is going to be disclosed, and maybe their

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Speaker 5: name might not be disclosed, but someone could determine their

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Speaker 5: identity based upon the testimony that is presented to the

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Speaker 5: grand jury.

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Speaker 3: The Chicago US Attorney's Office is reaching out to the

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Speaker 3: defense attorneys in cases that were handled by these prosecutors,

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Speaker 3: and they've agreed to give the defense the minutes of

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Speaker 3: the grand jury proceedings in their cases.

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Speaker 5: This is totally unhearbal and in all the years that

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Speaker 5: I worked as a prosecutor, as an assistant US attorney,

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Speaker 5: as a doj prosecutor, this didn't happen.

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Speaker 4: What we're witnessing today is not normal.

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Speaker 5: You know, this is exceedingly rare, and it's very disturbing

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Speaker 5: and it raises serious consequences about prosecutors that are engaging

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Speaker 5: in this misconduct and they should not be leaving their

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Speaker 5: ethics outside of the Grand Jury of Rome. We need

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Speaker 5: prosecutors that embrace honesty justice.

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Speaker 3: They're going to have a say hearing. Do you think

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Speaker 3: that these prosecutors will be sanctioned, Well.

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Speaker 4: It's possible.

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Speaker 5: This misconduct in the Chicago case in particular is quite

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Speaker 5: quite eggregious, So I think that there could be some

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Speaker 5: individual sanctions.

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Speaker 4: We'll wait and see.

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Speaker 5: When prosecutors engage in gross misconduct, there are very few

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Speaker 5: sanctions that they are subjected to, and that's part of

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Speaker 5: the problem. And that's in large part because of the

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Speaker 5: qualified immunity. Because internal disciplinary proceedings within the bar, it's

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Speaker 5: very difficult to a very very high standard, high bar

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Speaker 5: that has we met in order to sanction the prosecutor,

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Speaker 5: and so there isn't much of a deterrent effect. So

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Speaker 5: if you engage in this type of misconduct, yeah, the

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Speaker 5: case might be dismissed, but there's nothing that's going to

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Speaker 5: happen to the prosecutor personally for his or her misconduct.

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Speaker 5: And I think that's a problem. There's no price to pay,

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Speaker 5: So if you're not going to be sanctioned, then what's

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Speaker 5: a disincentive here for engaging this kind of conduct.

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Speaker 3: The Chicago US Attorney's Office is implementing a quote remediation

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Speaker 3: plan for its grand jury procedures, and that includes increase

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Speaker 3: and expanded education about grand jury presentations and extensive deep

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Speaker 3: dive training from national experts outside the office.

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Speaker 5: You don't need deep dive training on the violations that

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Speaker 5: are at issue here. I mean the prohibition on vouching

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Speaker 5: regarding the evidence. That doesn't need any kind of a

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Speaker 5: deep dive. That's not a complicated issue that requires, you know,

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Speaker 5: extensive training. Dismissing members of the grand jury that you

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Speaker 5: don't like. This stuff is just so fundamentally basic. It

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Speaker 5: doesn't require any type of extensive, extra deep dive training

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Speaker 5: for prosecutors to know right from wrong on these very

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Speaker 5: fundamental issues.

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Speaker 4: It's just so disturbing.

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Speaker 5: You know, we're seeing cases being dismissed because of selective prosecution.

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Speaker 5: We're seeing grand jurors time and time again failing to

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Speaker 5: bring charges because they think that the evidence doesn't support

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Speaker 5: the charges, or the have been overcharged by the prosecutor,

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Speaker 5: and all of it. It's really damaged the reputation of

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Speaker 5: the Department of Justice, and it's going to take I

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Speaker 5: think years and years to regain that trust with the judiciary,

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Speaker 5: with members of the court, with the general public. This

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Speaker 5: is going to be damaged. It's going to be a

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Speaker 5: long lasting it's not going to be quickly remedy.

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Speaker 3: I'm sure we're going to hear a lot more when

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Speaker 3: grand jury transcripts are released in some of these cases.

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Speaker 3: Thanks for sharing your insights, Jimmy. That's Professor Jimmy Garula

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Speaker 3: of Notre Dame Law School. Coming up, Taylor Swift is

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Speaker 3: fighting allegations of trademark infringement over her hit album, The

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Speaker 3: Life of a Showgirl. I'm June Grosso and you're listening

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Speaker 3: to Bloomberg. The Supreme Court's conservatives made another decision this week,

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Speaker 3: favoring Republicans in the redistricting frenzy. The Court itself set

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Speaker 3: off with its decision eviscerating the Voting Rights Act in

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Speaker 3: a six to three vote with Republican appointee in the

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Speaker 3: majority and Democratic appointees in dissent. The Court reinstated a

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Speaker 3: Republican friendly congressional map in Alabama. It allows the state

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Speaker 3: to eliminate a majority black House district and likely flip

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Speaker 3: that Democratic district in the midterms. In doing so, the

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Speaker 3: Court rejected the decision of a panel of federal judges

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Speaker 3: that found Alabama intentionally discriminated against black people when drawing

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Speaker 3: that map. This ruling caps a run of redistricting decisions

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Speaker 3: in the past six months that have bolstered Republican chances

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Speaker 3: to retain their narrow majority in the House. Although Chief

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Speaker 3: Justice John Roberts continues to insist that the Justices do

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Speaker 3: not make decisions based on politics.

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Speaker 6: The notion that we carry forward the views of the

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Speaker 6: people that appointed us is absurd. President George W. Bush

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Speaker 6: appointed me twenty years ago. The idea is that I'm

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Speaker 6: carrying out his agenda somehow is absurd.

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Speaker 3: If you're keeping count, the Alabama decision makes it Republicans

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Speaker 3: five Democrats won in the redistricting battles before the Supreme Court.

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Speaker 3: Joining me is Bloomberg. Supreme Court reporter Greg Store, who

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Speaker 3: is keeping count Greg, I'm not going to ask you

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Speaker 3: to go all the way back through the years, through

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Speaker 3: all the times the Alabama legislature has been before the

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Speaker 3: Supreme Court over its maps. Just go back to the

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Speaker 3: latest decision by the three judge panel at the end

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Speaker 3: of May.

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Speaker 7: The three judge panel said that Alabama needed to keep

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Speaker 7: a second majority black district, and it said that for

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Speaker 7: two reasons. First of all, the court said Alabama had

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Speaker 7: previously engaged in intentional discrimination and defied earlier court rulings

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Speaker 7: by trying to draw a key district that had just

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Speaker 7: a little bit less than majority of black voters. And secondly,

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Speaker 7: the lower court said, the primary election is on August

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Speaker 7: the eleventh, and there's just not enough time for the

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Speaker 7: state to shift everybody to different districts in time.

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Speaker 8: For that election.

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Speaker 7: And so by keeping the existing map, which has the

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Speaker 7: two majority black districts, we're actually reducing the amount of

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Speaker 7: confusion that would occur over the next few weeks.

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Speaker 3: And I just want to point out that that three

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Speaker 3: judge panel consisted of two Trump appointees and a Clinton appointee.

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Speaker 3: Now tell us about this unsigned Supreme Court decision of

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Speaker 3: just a little over three pages rejecting the decision by

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Speaker 3: the panel, which was supported by findings in a seventy

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Speaker 3: nine page decision.

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Speaker 7: It was an unsigned opinion, but it was basically a six'

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Speaker 7: to three ruling with the six conservative justices the Six republican.

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Speaker 8: Appointees in the.

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Speaker 7: Majority and what they said is that the lower court

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Speaker 7: got it wrong in multiple. Respects it, said among other,

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Speaker 7: things this big ruling The Supreme court issue On april

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Speaker 7: twenty ninth that really scaled back the use of The

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Speaker 7: Voting Rights act and, redistricting that that undercut the claim Against.

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Speaker 8: Alabama it also said.

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Speaker 7: That the lower court was too quick to presume That

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Speaker 7: alabama legislators were acting with racial, animus that they should

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Speaker 7: have accorded more of a presumption of good faith for the.

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Speaker 7: Legislature and, finally The Supreme court said the sixth and

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Speaker 7: the majority said that if there's going to be chaos

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Speaker 7: leading up to the, election that's the state's. Choice it's

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Speaker 7: not for a lower court to intervene and say we're

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Speaker 7: going to do something because it's going to reduce the

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Speaker 7: confusion that's On. Alabama and if they want to proceed this,

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Speaker 7: way they.

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Speaker 3: Can just As Sonya sotomayor wrote a blistering, dissent and

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Speaker 3: she said this decision corrodes the rule of.

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Speaker 8: Law, well she didn't hold.

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Speaker 7: Back she wrote for all three of The court's, liberals

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Speaker 7: and she said that The court is disregarding both democratic

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Speaker 7: values and the rule of. Law she said that when

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Speaker 7: The Supreme court issued That Voting Rights act decision a

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Speaker 7: few weeks, ago it explicitly left open the possibility that

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Speaker 7: there could be a showing of intentional discrimination by a

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Speaker 7: state against minority, voters and she said that's exactly what

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Speaker 7: the lower court found in this. Case she also pointed

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Speaker 7: out that This alabama case has a really, long entangled

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Speaker 7: history THAT i won't walk all the way, through but

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Speaker 7: The Supreme court has actually ruled in this very case

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Speaker 7: after hearing arguments, before and what it said in that case,

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Speaker 7: was we're going to uphold this lower court decision that

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Speaker 7: says that there has to be a second district where

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Speaker 7: black voters can select the candidate of their, choice And

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Speaker 7: sodavirus says The Supreme court has effectively ignored. That and,

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Speaker 7: finally she pointed out what the lower court pointed, out

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Speaker 7: which is that this is going to invite chaos The

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Speaker 7: director Of elections has suggested it's going to be near

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Speaker 7: impossible to shift everybody into the proper districts in time

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Speaker 7: for The august eleventh primary. Election and so we will

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Speaker 7: see how that works out In, alabama but.

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Speaker 8: She at least is skeptical that it will be a smooth.

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Speaker 3: Process so this is the first test since The justice's

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Speaker 3: WEEKEND i, say eviscerated The Voting Rights. Act is this

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Speaker 3: sending a message that even findings of intentional discrimination are not?

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Speaker 3: ENOUGH i, mean what's the message?

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Speaker 7: Here it certainly suggests that that might be the. Case

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Speaker 7: that was the area that The court said it.

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Speaker 8: Was leaving open when it ruled in The Footing Rights

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Speaker 8: act case On april twenty.

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Speaker 7: Ninth but in this, case a lower, court as you

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Speaker 7: pointed out in a lot of, detail explain, why in its,

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Speaker 7: view this was different from that case because it involved

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Speaker 7: that intentional, discrimination because they Said alabama legislators were trying

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Speaker 7: to limit black voting, power and The Supreme court, said

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Speaker 7: and even was willing to do it in this emergency

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Speaker 7: posture where it didn't have allo a lot of time

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Speaker 7: to hear arguments and that sort of, thing it was

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Speaker 7: willing to say we're sure enough that the lower court

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Speaker 7: got it wrong that we are going to block that

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Speaker 7: ruling and allow this district that the lower court thinks

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Speaker 7: is a product of intentional. Discrimination we're going to allow

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Speaker 7: that map to be in place for The november.

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Speaker 3: Election greg when you look at the redistricting decisions from

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Speaker 3: The court Since, december they've overwhelmingly Favored, republicans and like

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Speaker 3: in this, case it's always by six to three, votes

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Speaker 3: with The republican appointees in the majority and The democratic

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Speaker 3: appointees in. Dessent so it's hard to look at these

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Speaker 3: decisions as anything but. Political despite how much the chief

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Speaker 3: protest that they're not political, actors.

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Speaker 7: It is certainly having a big, effect and that effect

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Speaker 7: is to help The Republican party in particular for The november.

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Speaker 7: Election so there are basically six states in this cycle

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Speaker 7: where The Supreme court has acted in redisciping. Cases they

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Speaker 7: are not all the, same But republicans have won five of.

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Speaker 7: Them The Big Voting Rights act, case which was A louisiana,

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Speaker 7: case there's this. One there's a case where they blocked

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Speaker 7: a lower court ruling that would have required a new

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Speaker 7: map In New. York there Was, virginia where The Supreme

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Speaker 7: court refused to reinstate A democratic drawn map that the

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Speaker 7: voters of the state had approved after the State Supreme

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Speaker 7: court blocked that. Map and then there Was texas where

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Speaker 7: they intervened to Let Texas republicans change the map. There,

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Speaker 7: now The texas case was very similar to A california

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Speaker 7: case later on that ended up Helping, democrats letting them

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Speaker 7: put a new map in. Place then The Big Voting

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Speaker 7: Rights act decision also spawned some redistricting in states Like,

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Speaker 7: tennessee eliminating some majority black And democratic leaning. Districts and

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Speaker 7: the upshot of that will be that there will be

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Speaker 7: a number of districts that used to be fairly Safe

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Speaker 7: democratic districts that are now going to be fairly Safe

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Speaker 7: republican districts In. November and we haven't even talked about

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Speaker 7: other types of, cases election cases The Supreme court has

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Speaker 7: that might also affect the Election.

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Speaker 3: November The percel principle about judges not interfering close to an.

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Speaker 3: Election i've been discussing that a lot, lately And i'm

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Speaker 3: confused about what The Supreme court considers The percel principle to.

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Speaker 8: Be you Joined Justice Soda.

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Speaker 7: Mayora there The percel, principle and it's named after the

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Speaker 7: two thousand and six case that invoked the idea in

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Speaker 7: the first.

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Speaker 8: Place the idea is.

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Speaker 7: That federal judges shouldn't intervene at kind of the last

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Speaker 7: minute to change the rules of a state run. Election

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Speaker 7: and The Supreme court over the years has started to

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Speaker 7: make pretty clear that while that restricts lower court federal,

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Speaker 7: judges it doesn't restrict. Them so in this, case one

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Speaker 7: of the things The Supreme court said it didn't use

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Speaker 7: the word, percel but that was the principle it, used

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Speaker 7: was that when this three judge panel reinstated the earlier

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Speaker 7: map and a ruling that came down just a week

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Speaker 7: or two, ago that that was interjecting itself in properly

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Speaker 7: in the way the state wanted to conduct the election

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Speaker 7: with this other, map and it didn't matter to The

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Speaker 7: Supreme court that the only reason the lower court had

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Speaker 7: to act again was because The Supreme court itself had

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Speaker 7: previously vacated a decision that everybody thought up until a

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Speaker 7: month ago was going to govern the fall. Election so

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Speaker 7: The Supreme court is restricting federal. Courts it is giving

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Speaker 7: a lot of leeway to states that want a, redistrict

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Speaker 7: particularly for partisan, purposes and it is leaving open the

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Speaker 7: possibility that it itself might cause some, confusion as long

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Speaker 7: as it is moving in support of those principles of

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Speaker 7: letting states craft their own maps and keeping lower court

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Speaker 7: judges from overstepping their.

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Speaker 3: Authority it's nice to be able to exempt yourself from a.

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Speaker 3: Rule greg Tell us about the two cases The Supreme

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Speaker 3: court has yet to decide that may affect the.

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Speaker 8: Elections one is a campaign finance.

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Speaker 7: Case it involves what right now is a limit on

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Speaker 7: so called coordinated party, expenditures in other, words money that

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00:23:04,480 --> 00:23:08,960
Speaker 7: political parties can spend in coordination with their, candidates and

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Speaker 7: The Supreme court sure seems like it's going to overturn those.

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Speaker 7: Limits this is a court that very much sees campaign

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Speaker 7: finance restrictions as a problem for free, speech and if

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Speaker 7: they do, that it will give parties a lot more,

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Speaker 7: power and at least For, november will probably help The

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00:23:24,000 --> 00:23:27,240
Speaker 7: Republican party because they have a lot more cash on

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Speaker 7: hand right now than The Democratic party, does and they.

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Speaker 8: Will also be able to use this.

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Speaker 7: Money when you spend money in coordination with the, candidate

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Speaker 7: you can get these discounted rates that candidates can, get

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Speaker 7: so that's one that The Republican party is almost certain to.

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Speaker 7: Win the second case has to do with the deadlines

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Speaker 7: for mail in, ballots in which the argument is That

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Speaker 7: congress has set election day for a particular date In,

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Speaker 7: november and all ballots have to be received by that.

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Speaker 7: DAY a number of states right now have laws that's

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Speaker 7: as long as the ballots are postmarked by that, day

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Speaker 7: we'll give you a few extra days for them to actually.

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Speaker 7: Arrive The Supreme court might knock out those. Laws republicans

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Speaker 7: are the ones who are arguing for those strict, limits

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Speaker 7: And democrats are the ones who say that grace periods are.

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Speaker 7: Appropriate remains to be seen exactly how much effect that.

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Speaker 3: Has The Supreme court is expected to announce decisions again This.

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Speaker 3: Thursday we'll see if these are among. Them thanks so, Much.

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Speaker 3: Greg That's, Bloomberg Supreme court Reporter Greg. Storr I'm June,

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Speaker 3: grasso and this Is.

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Speaker 9: Bloomberg her name Was kitty made the money being pretty and.

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00:24:43,200 --> 00:24:47,680
Speaker 9: Witty they gave her the keys to this. City then

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00:24:47,720 --> 00:24:49,000
Speaker 9: they said she did enjoy it.

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00:24:49,119 --> 00:24:53,000
Speaker 3: Legitly Taylor Swift's The life of A showgirl was the

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00:24:53,200 --> 00:24:57,200
Speaker 3: fastest selling album in. History it became the pop stars

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00:24:57,480 --> 00:25:01,480
Speaker 3: fifteenth number one. Album not quite it is fast. Moving in.

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00:25:01,640 --> 00:25:05,440
Speaker 3: Fact about six months later came the lawsuit by a

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Speaker 3: Former Las vegas showgirl who claimed that the album's title

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00:25:09,840 --> 00:25:13,680
Speaker 3: infringed on her trademark for the phrase confessions of a,

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00:25:13,760 --> 00:25:17,200
Speaker 3: showgirl And Maren flagg is asking a court for a

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00:25:17,280 --> 00:25:21,760
Speaker 3: preliminary injunction to stops with from using the phrase while

439
00:25:21,800 --> 00:25:26,679
Speaker 3: the litigation plays. Out my guest is intellectual property Litigator Terence,

440
00:25:26,840 --> 00:25:30,479
Speaker 3: ross a partner At Katain Muchen Rosenman terry tell us

441
00:25:30,480 --> 00:25:32,440
Speaker 3: about this trademark infringement.

442
00:25:32,560 --> 00:25:36,600
Speaker 10: Dispute the plaintiff was a showgirl In Las.

443
00:25:36,800 --> 00:25:42,560
Speaker 1: Vegas she at one point in time started a BLOG

444
00:25:42,760 --> 00:25:44,639
Speaker 1: i guess it would have been called in those, days

445
00:25:45,000 --> 00:25:48,080
Speaker 1: talking about her life as a showgirl and how challenging

446
00:25:48,119 --> 00:25:51,040
Speaker 1: a difficult life in the entertainment Business Las vegas.

447
00:25:50,880 --> 00:25:55,080
Speaker 10: Is it morphed over time into a cabaret.

448
00:25:55,119 --> 00:25:59,800
Speaker 1: Show she at one point decided that she would register

449
00:26:00,359 --> 00:26:03,639
Speaker 1: as a trademark the title she was using for, this

450
00:26:03,840 --> 00:26:07,520
Speaker 1: which Is confessions of A. Showgirl and that was back

451
00:26:07,840 --> 00:26:13,680
Speaker 1: in two thoy. Fourteen In august of twenty twenty. Five Last,

452
00:26:13,800 --> 00:26:19,040
Speaker 1: August Taylor swift announces her next album will be Entitled

453
00:26:19,240 --> 00:26:23,080
Speaker 1: The life of A, showgirl based on her experiences of

454
00:26:23,200 --> 00:26:24,000
Speaker 1: her worldwide.

455
00:26:24,200 --> 00:26:27,960
Speaker 10: Tour the, Plaintiff miss flag saw this at the, time

456
00:26:28,119 --> 00:26:29,240
Speaker 10: as everybody In america.

457
00:26:29,359 --> 00:26:32,280
Speaker 1: Did everybody knew That Taylor swift had a new album

458
00:26:32,359 --> 00:26:34,480
Speaker 1: coming out was going to be Called life of a Show.

459
00:26:34,640 --> 00:26:37,600
Speaker 1: Girl Miss flagg chose not to do anything in the.

460
00:26:38,040 --> 00:26:42,159
Speaker 1: Paper she argues, that, well she did not realize that

461
00:26:42,880 --> 00:26:44,760
Speaker 1: it was going to be used as. Broadly she did

462
00:26:44,800 --> 00:26:47,280
Speaker 1: not realize That Taylor swift was going to see a

463
00:26:47,320 --> 00:26:48,399
Speaker 1: trademark registration in.

464
00:26:48,480 --> 00:26:49,240
Speaker 10: It she has other.

465
00:26:49,320 --> 00:26:54,080
Speaker 1: Excuses shortly after the, Announcement Taylor swift's lawyers applied for

466
00:26:54,160 --> 00:26:58,159
Speaker 1: a trademark registration in the word mark The life of

467
00:26:58,240 --> 00:27:02,560
Speaker 1: A Showgirl IN i think it Was november of twenty twenty.

468
00:27:02,640 --> 00:27:04,440
Speaker 10: Five The United.

469
00:27:04,200 --> 00:27:09,240
Speaker 1: States Trademark office issued a non final office action saying

470
00:27:09,240 --> 00:27:12,880
Speaker 1: that they were going to deny the application as likely

471
00:27:13,240 --> 00:27:18,280
Speaker 1: confusing with other marks that already. Existed notwithstanding that the

472
00:27:18,480 --> 00:27:24,359
Speaker 1: album was, launched wide range of products were. Sold the

473
00:27:24,480 --> 00:27:27,440
Speaker 1: album used the Title The life of a Shell, girl

474
00:27:27,520 --> 00:27:30,040
Speaker 1: and many of these products that were being sold By

475
00:27:30,440 --> 00:27:34,080
Speaker 1: Taylor swift's various business entities also used that clearly in

476
00:27:34,119 --> 00:27:38,399
Speaker 1: a trademark. Sense In march of twenty twenty, six The

477
00:27:39,280 --> 00:27:43,080
Speaker 1: United Say Trademark office Suspended Taylor swift's. Application there is

478
00:27:43,160 --> 00:27:44,920
Speaker 1: a suggestion in the papers that this was at the

479
00:27:45,000 --> 00:27:48,119
Speaker 1: request of the, Plaintiff Marin. FLAG i don't know if

480
00:27:48,160 --> 00:27:52,040
Speaker 1: that's true or, not but within weeks of the suspension

481
00:27:52,560 --> 00:27:56,800
Speaker 1: Of Taylor swift's trademark, Registration Miss flag filed a lawsuit

482
00:27:57,160 --> 00:27:59,800
Speaker 1: in The Central district To, california which is the law

483
00:27:59,840 --> 00:28:04,680
Speaker 1: Same angela's, area in which she alleged trademark infringement of

484
00:28:04,800 --> 00:28:08,200
Speaker 1: her registered mark in The Trademark confessions of a Show,

485
00:28:08,240 --> 00:28:11,600
Speaker 1: girl as well as a federal cause of action for

486
00:28:12,119 --> 00:28:15,639
Speaker 1: unfair competition in A california state cause of action for unfair.

487
00:28:15,720 --> 00:28:19,800
Speaker 1: Competition and a couple weeks after filing the, Lawsuit Miss

488
00:28:19,840 --> 00:28:23,480
Speaker 1: flag also filed a motion for a preliminary. Injunction now

489
00:28:23,600 --> 00:28:28,600
Speaker 1: preliminary injunction essentially is a procedure by which a plaintive

490
00:28:28,640 --> 00:28:33,080
Speaker 1: and a lawsuit can have something stopped pending the outcome

491
00:28:33,119 --> 00:28:36,000
Speaker 1: of the. Lawsuit it is a very hard thing to

492
00:28:36,119 --> 00:28:39,560
Speaker 1: get and for understandable. Reasons no decision is made on

493
00:28:39,640 --> 00:28:42,440
Speaker 1: the merits of the, case and yet you're asking the

494
00:28:42,600 --> 00:28:46,520
Speaker 1: court to make the defendant stop doing. Something so there's

495
00:28:46,600 --> 00:28:50,400
Speaker 1: a very high bar to obtain a preliminary. Injunction Miss

496
00:28:50,480 --> 00:28:54,680
Speaker 1: swift and her business entities responded and opposed that motion

497
00:28:54,840 --> 00:28:58,200
Speaker 1: for a preliminary, junction as you, expect and a hearing

498
00:28:58,440 --> 00:29:01,600
Speaker 1: was held On may twenty, seven twenty, six in front

499
00:29:01,800 --> 00:29:04,680
Speaker 1: Of Judge marillo in The Central, District. California and that's

500
00:29:04,800 --> 00:29:07,120
Speaker 1: essentially where we are, procedurally.

501
00:29:06,880 --> 00:29:09,080
Speaker 3: And at the hearing on the motion for a preliminary

502
00:29:09,160 --> 00:29:13,280
Speaker 3: injunction last, Week Taylor swift's attorney argued That The life

503
00:29:13,360 --> 00:29:18,000
Speaker 3: of A showgirl didn't infringe On flagg's trademark because it

504
00:29:18,200 --> 00:29:23,080
Speaker 3: was absolutely undisputed that the album is an expressive work

505
00:29:23,440 --> 00:29:27,120
Speaker 3: entitled to legal protection so protected by The First. Amendment

506
00:29:27,560 --> 00:29:29,680
Speaker 3: is that the basic defense, argument.

507
00:29:29,640 --> 00:29:30,880
Speaker 10: Well that's one of many.

508
00:29:31,000 --> 00:29:34,840
Speaker 1: Arguments the defense took the typical shotgun approach where it

509
00:29:34,920 --> 00:29:37,680
Speaker 1: threw up every argument under the, sun some of which

510
00:29:37,720 --> 00:29:41,800
Speaker 1: are stronger than. Others clearly at the core of the, argument,

511
00:29:41,920 --> 00:29:46,080
Speaker 1: however was the notion that The First amendment protects express's

512
00:29:46,200 --> 00:29:52,160
Speaker 1: speech against trademark. Liability and this is a doctrine that

513
00:29:52,920 --> 00:29:55,479
Speaker 1: was first pioneered by The Second, circuit which Is New

514
00:29:55,560 --> 00:29:59,680
Speaker 1: york And, connecticut in connection with a movie that Used

515
00:29:59,720 --> 00:30:02,360
Speaker 1: Ginger rogers name as part of the. Title and that

516
00:30:02,520 --> 00:30:06,560
Speaker 1: lawsuit was Called rogers Versus, grimaldi and the test that was,

517
00:30:06,640 --> 00:30:08,880
Speaker 1: developed the doctrine that came out that became known as

518
00:30:08,920 --> 00:30:11,320
Speaker 1: The Rogers, Test and at its, core it says that

519
00:30:11,480 --> 00:30:15,640
Speaker 1: you cannot use trademark to restrict expressive speech because of

520
00:30:15,680 --> 00:30:18,520
Speaker 1: The First amendment. Protections you AND i talked about a

521
00:30:18,680 --> 00:30:21,320
Speaker 1: case about a year and a half ago in The

522
00:30:21,360 --> 00:30:25,200
Speaker 1: Supreme court that adjusted The Rogers. Test it was a

523
00:30:25,320 --> 00:30:30,000
Speaker 1: case Involving Jack daniels VERSUS Vip. Toys in that, case

524
00:30:30,120 --> 00:30:34,560
Speaker 1: The Supreme court cabined The rogers. Doctrine in other, words

525
00:30:34,600 --> 00:30:36,880
Speaker 1: it took position That rogers doctrine has to be narrowly

526
00:30:36,960 --> 00:30:40,880
Speaker 1: interpreted to apply to the titles of expressive. Works in

527
00:30:41,080 --> 00:30:44,400
Speaker 1: light of that, case a lot of changes have happened

528
00:30:44,400 --> 00:30:47,720
Speaker 1: in the way we approach trademark law in the context

529
00:30:47,800 --> 00:30:51,080
Speaker 1: of expressive works such As Taylor swift's. Album, now all

530
00:30:51,080 --> 00:30:53,320
Speaker 1: of that, said it seems pretty clear to me that

531
00:30:53,560 --> 00:30:56,480
Speaker 1: the album's Title life of Jo girl is going to

532
00:30:56,520 --> 00:30:59,600
Speaker 1: be preserved even in its changed. Form The rogers test

533
00:30:59,600 --> 00:31:02,480
Speaker 1: will still protect that because it is being used as

534
00:31:02,520 --> 00:31:06,320
Speaker 1: a title of an expressive Work Taylor swift's sound.

535
00:31:06,400 --> 00:31:08,120
Speaker 10: Recordings and SO i think at the end of the,

536
00:31:08,200 --> 00:31:09,720
Speaker 10: day that's a win For Taylor.

537
00:31:09,800 --> 00:31:13,240
Speaker 1: Swift and, indeed it seems as if in her briefs the,

538
00:31:13,320 --> 00:31:17,320
Speaker 1: Plantiff Miss flagg conceives that that The rogers test applies

539
00:31:17,480 --> 00:31:20,479
Speaker 1: to the title of the. Album the distinction drawn by

540
00:31:20,480 --> 00:31:22,640
Speaker 1: A planeff is it should not apply to anything, else

541
00:31:23,040 --> 00:31:25,680
Speaker 1: and that is a slightly better argument by The.

542
00:31:25,720 --> 00:31:29,720
Speaker 3: Planeff swift's attorney also argued that the plaintiff waited eight

543
00:31:29,880 --> 00:31:33,280
Speaker 3: months after the album was first announced to ask for an,

544
00:31:33,320 --> 00:31:37,040
Speaker 3: injunction and that shows there's no urgency or need for immediate,

545
00:31:37,120 --> 00:31:41,520
Speaker 3: relief and also that during some of those months she

546
00:31:41,720 --> 00:31:45,720
Speaker 3: tried to associate herself With swift and The life of

547
00:31:45,760 --> 00:31:49,880
Speaker 3: A showgirl album in her. Messaging the defense is in one,

548
00:31:49,960 --> 00:31:53,920
Speaker 3: post the plaintiff used an album cover logo audio from

549
00:31:54,000 --> 00:31:59,880
Speaker 3: the album's title track hashtags including The life of A, Showgirl, Swift,

550
00:32:00,000 --> 00:32:04,440
Speaker 3: ease And Tailor. Nation is that a problem for the, plaintiff.

551
00:32:04,400 --> 00:32:07,640
Speaker 1: It's probably worthwhile to, briefly without giving a law school,

552
00:32:07,680 --> 00:32:09,640
Speaker 1: lecture explains how you get preliminary.

553
00:32:09,760 --> 00:32:12,880
Speaker 10: Junction it's very hard to. Get the party seeking a

554
00:32:12,960 --> 00:32:14,480
Speaker 10: preliminary junction has to prove fourth.

555
00:32:14,520 --> 00:32:17,480
Speaker 1: Things they have to prove first and foremost a likelihood

556
00:32:17,480 --> 00:32:19,400
Speaker 1: of success on the merits that at the end of

557
00:32:19,440 --> 00:32:21,800
Speaker 1: the day they're going to, win and it's not worth

558
00:32:22,080 --> 00:32:22,680
Speaker 1: the time to.

559
00:32:22,800 --> 00:32:24,040
Speaker 10: Wait just give me the injunction.

560
00:32:24,160 --> 00:32:27,200
Speaker 1: Now the second thing they have to prove is irreparable

561
00:32:27,320 --> 00:32:30,360
Speaker 1: harm that money damages at the end of the process

562
00:32:30,400 --> 00:32:32,000
Speaker 1: isn't going to be good. Enough and the third thing

563
00:32:32,000 --> 00:32:35,040
Speaker 1: that go to show is that the balance of hardships

564
00:32:35,080 --> 00:32:37,480
Speaker 1: tips in their. Favor more pain is going to be.

565
00:32:37,600 --> 00:32:40,160
Speaker 1: Inflicted more damage is going to be inflicted on the

566
00:32:40,240 --> 00:32:43,120
Speaker 1: plaintiff by waiting until the end of the case for

567
00:32:43,160 --> 00:32:47,120
Speaker 1: an adjunction than inflicted upon the defendant by granting the injunction.

568
00:32:47,280 --> 00:32:49,040
Speaker 1: Now and then the fourth thing you have to show

569
00:32:49,280 --> 00:32:51,720
Speaker 1: is that a preliminary junction would be in the public.

570
00:32:51,800 --> 00:32:53,160
Speaker 8: Interest so this is.

571
00:32:53,320 --> 00:32:55,440
Speaker 1: Part of what it's known in the Old english law

572
00:32:55,480 --> 00:32:58,920
Speaker 1: procedure is equitable. Jurisdiction so it's within the equity power

573
00:32:58,920 --> 00:33:00,840
Speaker 1: of the. Court you don't have a jury deciding, This

574
00:33:00,960 --> 00:33:03,520
Speaker 1: it's decided by the. Court if you come into equity

575
00:33:03,720 --> 00:33:06,800
Speaker 1: seeking some sort of equity, remedy as Miss flagg pass,

576
00:33:06,840 --> 00:33:10,480
Speaker 1: here you have to do, equity and one of the

577
00:33:10,560 --> 00:33:13,560
Speaker 1: ways you get undone one of the ways you aren't

578
00:33:13,640 --> 00:33:17,080
Speaker 1: doing equity is to come into equity with unclean. Hands

579
00:33:17,360 --> 00:33:20,000
Speaker 1: is the doctor and That stone Has and here the

580
00:33:20,080 --> 00:33:23,400
Speaker 1: defense is making the argument that Miss flagg has been

581
00:33:23,840 --> 00:33:27,719
Speaker 1: writing the coattails Of Taylor swift and her phenomenal new

582
00:33:27,800 --> 00:33:32,360
Speaker 1: Album life of A, showgirl and that constitutes unclean, hands and,

583
00:33:32,440 --> 00:33:34,880
Speaker 1: therefore on that ground, alone a preliminary junction has to

584
00:33:34,960 --> 00:33:38,040
Speaker 1: be denied because coming into equity and she's not doing.

585
00:33:38,120 --> 00:33:40,640
Speaker 10: EQUITY i think it's a real stretch of an.

586
00:33:40,720 --> 00:33:43,400
Speaker 1: ARGUMENT i think it is an argument that makes more

587
00:33:43,520 --> 00:33:47,320
Speaker 1: sense in a jury setting where you can persuade lay.

588
00:33:47,400 --> 00:33:50,520
Speaker 1: People that's just unfair what's going on. HERE i don't

589
00:33:50,560 --> 00:33:53,000
Speaker 1: think that argument in the self will go very. Far

590
00:33:53,120 --> 00:33:54,440
Speaker 1: it's like a flavor of the.

591
00:33:54,560 --> 00:33:57,280
Speaker 3: Case so, then what do you think Is swift's best?

592
00:33:57,400 --> 00:34:01,880
Speaker 1: ARGUMENT i think the strongest argument for the defense here

593
00:34:02,040 --> 00:34:03,800
Speaker 1: was the one they made that there's no likelihood of

594
00:34:03,840 --> 00:34:06,720
Speaker 1: success of the, merits and every circuit, court Every court

595
00:34:06,720 --> 00:34:09,920
Speaker 1: Of appeals has a different standard and different. Name but

596
00:34:10,000 --> 00:34:11,960
Speaker 1: here in The Ninth circuit it's referred to as the

597
00:34:12,080 --> 00:34:15,680
Speaker 1: Sleek craft. Factors based on an Old ninth, circucase there

598
00:34:15,719 --> 00:34:19,000
Speaker 1: are eight things you have to show to prove likelihood of.

599
00:34:19,080 --> 00:34:24,480
Speaker 1: Confusion they are questions of. Fact questions of fact have

600
00:34:24,640 --> 00:34:27,720
Speaker 1: to be decided by a, jury not by a. Judge

601
00:34:28,239 --> 00:34:31,759
Speaker 1: it makes it really really hard in trying to get

602
00:34:31,760 --> 00:34:35,760
Speaker 1: A pi in a trademark case to satisfy the likelihood

603
00:34:35,760 --> 00:34:37,719
Speaker 1: of success of the Merrit just think about this. Way

604
00:34:38,000 --> 00:34:42,160
Speaker 1: are you confused by this Notion confessions of a showgirl

605
00:34:42,320 --> 00:34:45,320
Speaker 1: versus life of a? Showgirl knowing that the one Is Taylor.

606
00:34:45,400 --> 00:34:49,600
Speaker 1: Swift this is the problem with plaint suing. Celebrities everybody

607
00:34:49,600 --> 00:34:51,560
Speaker 1: in the world Knows Taylor. Swift come, on let's be.

608
00:34:51,640 --> 00:34:54,239
Speaker 1: Honest and this is the best selling album of all

609
00:34:54,239 --> 00:34:55,120
Speaker 1: the great albums.

610
00:34:54,880 --> 00:34:55,400
Speaker 10: As long as she's.

611
00:34:55,440 --> 00:34:59,080
Speaker 1: Had this is the best selling album so far in her,

612
00:34:59,160 --> 00:35:01,960
Speaker 1: career AND I i, believe the best selling album of all.

613
00:35:02,080 --> 00:35:03,840
Speaker 10: Time and it makes it.

614
00:35:04,120 --> 00:35:07,840
Speaker 1: Real hard to think in your mind, that, oh this

615
00:35:08,040 --> 00:35:11,520
Speaker 1: cabaret act being done by mister flive is somehow associated

616
00:35:11,560 --> 00:35:11,960
Speaker 1: with tailor.

617
00:35:12,000 --> 00:35:13,640
Speaker 10: Swift it's just very hard to.

618
00:35:13,719 --> 00:35:17,400
Speaker 1: See but that, said a jury gets to make that,

619
00:35:17,600 --> 00:35:21,360
Speaker 1: decision and one big part of that is has.

620
00:35:21,239 --> 00:35:24,080
Speaker 10: Anybody really been confused out? There the planiff, says, oh,

621
00:35:24,160 --> 00:35:25,160
Speaker 10: yeah there's all these acts of.

622
00:35:25,239 --> 00:35:29,800
Speaker 1: Confusion people are hashtagging me into, conversations hashtagging my market

623
00:35:29,800 --> 00:35:33,080
Speaker 1: in the conversation vice. VERSA i don't know that that's actual.

624
00:35:33,160 --> 00:35:36,719
Speaker 1: Confusion so that's why we do expert. Surveys we go

625
00:35:36,840 --> 00:35:39,400
Speaker 1: out and we find the audience for these types of

626
00:35:39,600 --> 00:35:42,239
Speaker 1: goods and products and entertainment, services and we have the

627
00:35:42,320 --> 00:35:44,360
Speaker 1: experts due to surveys see if anybody's actually.

628
00:35:44,440 --> 00:35:45,680
Speaker 10: Confused we haven't done that.

629
00:35:45,840 --> 00:35:47,400
Speaker 1: Yet at the end of the, DAY i think the

630
00:35:47,440 --> 00:35:50,120
Speaker 1: district court judge is likely to SAY i can't on

631
00:35:50,239 --> 00:35:53,320
Speaker 1: this record find a likelihood of success on the merits

632
00:35:53,480 --> 00:35:57,000
Speaker 1: BECAUSE i can't find likely, confusion.

633
00:35:56,880 --> 00:35:58,480
Speaker 10: And therefore could deny the preliminary in.

634
00:35:58,560 --> 00:36:01,440
Speaker 1: Junction that's just my, Opinion but you, know reading the

635
00:36:01,520 --> 00:36:04,520
Speaker 1: tea leaves of the oral argument at the, hearing seemed

636
00:36:04,600 --> 00:36:08,440
Speaker 1: like the judge was disinclined to grant preliminary junction, anyway.

637
00:36:08,480 --> 00:36:12,640
Speaker 3: Putting the preliminary injunction, aside let's say this goes to,

638
00:36:12,800 --> 00:36:14,919
Speaker 3: trial which side has the better.

639
00:36:15,080 --> 00:36:18,360
Speaker 1: CASE i think this is one of the more interesting

640
00:36:18,719 --> 00:36:21,720
Speaker 1: celebrity cases That i've seen come, along because both sides

641
00:36:21,800 --> 00:36:25,520
Speaker 1: have pretty good, arguments and we are living in Post

642
00:36:25,640 --> 00:36:28,480
Speaker 1: Jack daniels world where The Supreme court has changed The

643
00:36:28,600 --> 00:36:31,200
Speaker 1: rogers test and we really don't know the parameters of.

644
00:36:31,280 --> 00:36:34,040
Speaker 1: It the one Thing i'm pretty confident of is that

645
00:36:34,239 --> 00:36:36,960
Speaker 1: the album will not have to change its, name and

646
00:36:37,080 --> 00:36:41,080
Speaker 1: that the album will not get recalled or felling of

647
00:36:41,120 --> 00:36:43,680
Speaker 1: the album gets, stopped or streaming of the songs get.

648
00:36:43,719 --> 00:36:46,800
Speaker 1: STOPPED i would bet dollars to donates on. That and

649
00:36:46,920 --> 00:36:49,960
Speaker 1: that's not simply because the music's phenomenal And Taylor.

650
00:36:49,680 --> 00:36:50,360
Speaker 10: Swift is who she.

651
00:36:50,520 --> 00:36:52,840
Speaker 1: IS i, think as a matter of law and approaching

652
00:36:52,880 --> 00:36:55,560
Speaker 1: this from a neutral, PERSPECTIVE i think The rogers test

653
00:36:55,680 --> 00:36:59,719
Speaker 1: still applies to titles of musical, works and SO i

654
00:36:59,760 --> 00:37:03,520
Speaker 1: think that's the one Outcome i'm certain. Of, However i'm

655
00:37:03,640 --> 00:37:06,839
Speaker 1: really uncertain about all the other products that are being

656
00:37:06,920 --> 00:37:09,920
Speaker 1: selled By Taylor swift entities that are also using the

657
00:37:10,000 --> 00:37:12,960
Speaker 1: Trademark life of A. Showgirl i'll give you one, Example

658
00:37:13,280 --> 00:37:16,920
Speaker 1: apparently Some Taylor swift entity is selling candles with that.

659
00:37:17,400 --> 00:37:21,319
Speaker 1: NAME i don't know why they would choose to sell

660
00:37:21,400 --> 00:37:24,320
Speaker 1: candles with that. Name i'm not enough of a SWIFTYE

661
00:37:24,360 --> 00:37:27,040
Speaker 1: i guess to understand THAT i probably should have consulted

662
00:37:27,120 --> 00:37:29,920
Speaker 1: one of my. Daughters but it is using that, mark

663
00:37:30,400 --> 00:37:34,840
Speaker 1: and that's not expressive, conduct and therefore it's not, entitled

664
00:37:34,880 --> 00:37:36,720
Speaker 1: in my, view to the protection of The rogers.

665
00:37:36,800 --> 00:37:39,800
Speaker 10: Test, now the defense argues it's.

666
00:37:39,680 --> 00:37:43,439
Speaker 1: A promotional product to support the, album And i'm really

667
00:37:43,480 --> 00:37:46,040
Speaker 1: hard pressed to see. THAT i went online and it

668
00:37:46,120 --> 00:37:48,600
Speaker 1: looked like these products are just goods being sold to the.

669
00:37:48,680 --> 00:37:51,719
Speaker 1: Public And Taylor swift's business entities do this all the.

670
00:37:51,800 --> 00:37:54,920
Speaker 1: Time they're constantly SELLING t shirts and things of. That, like,

671
00:37:55,120 --> 00:37:58,880
Speaker 1: hey don't see how this promotes the. Album Maybe i'm missing.

672
00:37:58,960 --> 00:38:03,160
Speaker 1: Something the defense points to another case that came out

673
00:38:03,239 --> 00:38:06,960
Speaker 1: recently in same, Court Central Distric. California different, judge, though

674
00:38:07,200 --> 00:38:10,839
Speaker 1: that took the position that promotional products are protected by

675
00:38:10,840 --> 00:38:12,760
Speaker 1: The rogers, test and they're not a lot of casel

676
00:38:12,840 --> 00:38:15,239
Speaker 1: on that out. There i'm not sure that court got it.

677
00:38:15,480 --> 00:38:18,680
Speaker 1: Right but ALSO i think it's factually different from, here

678
00:38:18,719 --> 00:38:21,279
Speaker 1: where we're selling. CANDLES i, mean if you're Selling Taylor

679
00:38:21,320 --> 00:38:23,520
Speaker 1: swift t shirts with that logo on it had A

680
00:38:23,840 --> 00:38:26,480
Speaker 1: life of The showgirl, CONCERT i think you've probably got

681
00:38:26,520 --> 00:38:28,719
Speaker 1: an argument it's a promotional. Product BUT i don't know

682
00:38:28,800 --> 00:38:31,920
Speaker 1: if these candles and other goods are promotional. Products one and,

683
00:38:32,040 --> 00:38:34,719
Speaker 1: two The Supreme court didn't tell us whether or not

684
00:38:35,120 --> 00:38:39,200
Speaker 1: promotional products are covered by The rogers test. Anymore the

685
00:38:39,320 --> 00:38:43,640
Speaker 1: other argument that's made by the plaintive THAT i think

686
00:38:43,760 --> 00:38:46,800
Speaker 1: is a very interesting argument is that the fact That

687
00:38:47,480 --> 00:38:50,160
Speaker 1: Taylor swift went out and applied for a trademark. Registration

688
00:38:50,760 --> 00:38:53,400
Speaker 1: you only apply for trademark registrations if you intend to

689
00:38:53,560 --> 00:38:56,440
Speaker 1: label or brand a good or a, service and that's

690
00:38:56,520 --> 00:38:58,840
Speaker 1: exactly what The Supreme Court Jack daniels, said is not

691
00:38:58,960 --> 00:39:02,560
Speaker 1: protected by The Rogers so that might have been a

692
00:39:02,680 --> 00:39:05,399
Speaker 1: mistake on the part of the Tailor swift, entities BECAUSE

693
00:39:05,400 --> 00:39:08,800
Speaker 1: i think by applying for the, trademark they're sort of

694
00:39:08,880 --> 00:39:12,600
Speaker 1: conceding that the Phrase life of Show girl is going

695
00:39:12,640 --> 00:39:16,200
Speaker 1: to be used in a business identifier, sense and The

696
00:39:16,239 --> 00:39:18,360
Speaker 1: Supreme court, said, sorry you lose protection when you do.

697
00:39:18,480 --> 00:39:20,839
Speaker 10: That but these are all issues of first.

698
00:39:20,880 --> 00:39:24,879
Speaker 1: Impression because we're in this new world with this New

699
00:39:25,080 --> 00:39:28,080
Speaker 1: rogers test Post Supreme horse that's In Jack, daniels and

700
00:39:28,160 --> 00:39:28,920
Speaker 1: that's what makes this so.

701
00:39:29,040 --> 00:39:31,320
Speaker 10: INTERESTING i consider it fascinating.

702
00:39:31,360 --> 00:39:36,040
Speaker 1: And an interesting point that the plaintiff makes in its

703
00:39:36,120 --> 00:39:39,560
Speaker 1: motion for preliminary junction is the fact that if the

704
00:39:39,680 --> 00:39:44,400
Speaker 1: lawyers who applied For life of A showgirl registration on

705
00:39:44,560 --> 00:39:48,360
Speaker 1: behalf Of Taylor swift had done the most cursory trademark,

706
00:39:48,400 --> 00:39:52,640
Speaker 1: search they would have found her trademark and that should.

707
00:39:52,440 --> 00:39:53,080
Speaker 10: Have given them.

708
00:39:53,160 --> 00:39:57,400
Speaker 1: Pause and the paper then goes on to explain that

709
00:39:57,760 --> 00:40:01,000
Speaker 1: assuming that the lawyers did such to, search that means

710
00:40:01,080 --> 00:40:04,480
Speaker 1: That Taylor swift went forward with the application and use

711
00:40:04,520 --> 00:40:07,279
Speaker 1: of the mark knowing that there was another mark out,

712
00:40:07,320 --> 00:40:11,359
Speaker 1: there and therefore the infringement has to be branded as

713
00:40:11,520 --> 00:40:13,359
Speaker 1: willful and, intentional.

714
00:40:13,160 --> 00:40:15,720
Speaker 10: Which is bad thing, obviously especially on the damages.

715
00:40:15,800 --> 00:40:19,600
Speaker 1: Side it is absolutely true that whenever we file for

716
00:40:20,000 --> 00:40:24,240
Speaker 1: a trademark, application we conduct a search of the existing

717
00:40:24,320 --> 00:40:27,759
Speaker 1: register marks at a, minimum in a really important trademark,

718
00:40:27,960 --> 00:40:30,719
Speaker 1: application AS i would consider this to be a really

719
00:40:30,800 --> 00:40:34,400
Speaker 1: really important trademark applications For Taylor swift's new. Album in

720
00:40:34,480 --> 00:40:39,120
Speaker 1: addition to searching the trademark registration, list we would search

721
00:40:39,440 --> 00:40:44,120
Speaker 1: all the fifty states doing business names in corporation, names

722
00:40:44,360 --> 00:40:46,960
Speaker 1: we would do A google. Search is a really comprehensive

723
00:40:46,960 --> 00:40:49,279
Speaker 1: search to make sure we weren't getting into trouble and

724
00:40:49,400 --> 00:40:52,240
Speaker 1: that we were using a viable name and getting registration

725
00:40:52,320 --> 00:40:55,000
Speaker 1: on viable name before we launched the. BUSINESS i can't

726
00:40:55,080 --> 00:40:58,439
Speaker 1: imagine that didn't happen, here and that makes it even

727
00:40:58,520 --> 00:41:02,000
Speaker 1: more interesting or. Not the lawyers who did the search

728
00:41:02,560 --> 00:41:05,520
Speaker 1: and reported back To Taylor swift gave her some sort

729
00:41:05,560 --> 00:41:09,520
Speaker 1: of assurance or opinion that she would prevail if, challenged

730
00:41:09,880 --> 00:41:11,440
Speaker 1: AND i would have loved to have been a fly

731
00:41:11,560 --> 00:41:13,960
Speaker 1: on the wall that discussion when they came back and

732
00:41:14,080 --> 00:41:18,080
Speaker 1: Told Taylor, Swift i'm, sorry somebody has already Got confessions

733
00:41:18,120 --> 00:41:19,800
Speaker 1: of The Shell, girl so we got a problem.

734
00:41:19,880 --> 00:41:22,080
Speaker 10: HERE i, mean that would have been very interesting.

735
00:41:21,760 --> 00:41:25,400
Speaker 1: To see for her, reaction but that is ignored completely

736
00:41:25,640 --> 00:41:29,919
Speaker 1: in the defense opposition to the motion for prelimity, junction

737
00:41:30,000 --> 00:41:32,920
Speaker 1: WHICH i also found interesting and very telling that they

738
00:41:33,000 --> 00:41:35,840
Speaker 1: want to stay away from any discussion of whether or

739
00:41:35,880 --> 00:41:38,399
Speaker 1: not they did a search and what the search, found

740
00:41:38,560 --> 00:41:40,239
Speaker 1: and why they went forward with the name.

741
00:41:40,320 --> 00:41:42,400
Speaker 10: Anyway these little.

742
00:41:42,200 --> 00:41:45,600
Speaker 1: Subtleties and Briefs it's always interesting to see what the

743
00:41:45,719 --> 00:41:47,880
Speaker 1: thinking is and what's going on behind the scenes by

744
00:41:47,920 --> 00:41:49,600
Speaker 1: a few little subtleties in the briefs like.

745
00:41:49,680 --> 00:41:52,440
Speaker 3: That, So, terry just to clarify one, Thing let's say

746
00:41:52,480 --> 00:41:56,360
Speaker 3: The rogers test doesn't apply because of the trademark element to.

747
00:41:56,480 --> 00:41:59,200
Speaker 3: IT i, mean do they then go to a likelhood confusion.

748
00:41:59,280 --> 00:42:00,640
Speaker 3: Test what's the t after?

749
00:42:00,760 --> 00:42:02,240
Speaker 10: That, yes that's exactly.

750
00:42:02,360 --> 00:42:06,760
Speaker 1: Right that means that the central Defense First amendment defense

751
00:42:07,160 --> 00:42:11,400
Speaker 1: is not, applicable and so you engage in ordinary process

752
00:42:11,680 --> 00:42:14,439
Speaker 1: of determining whether or not trademark infringement has taken, place

753
00:42:14,840 --> 00:42:16,840
Speaker 1: and that is the likelihood of confusion.

754
00:42:16,920 --> 00:42:19,880
Speaker 10: Tests is the consumer for these goods and.

755
00:42:19,920 --> 00:42:23,320
Speaker 1: Services likely to be confused between the two products the

756
00:42:23,520 --> 00:42:27,799
Speaker 1: two services as a result of the two different trademarks being,

757
00:42:27,960 --> 00:42:30,400
Speaker 1: Used and again THAT'S whatu go to the jury for a.

758
00:42:30,480 --> 00:42:32,200
Speaker 10: DECISION i would love.

759
00:42:32,120 --> 00:42:36,640
Speaker 1: To see how the survey of consumers is, constructed BECAUSE

760
00:42:36,640 --> 00:42:37,360
Speaker 1: i think that would be.

761
00:42:37,480 --> 00:42:39,880
Speaker 10: Complicated i'd love to see the results.

762
00:42:39,920 --> 00:42:40,480
Speaker 3: You may get.

763
00:42:40,560 --> 00:42:43,479
Speaker 10: To we may. Well you, know there's an.

764
00:42:43,400 --> 00:42:47,600
Speaker 1: Interesting subtext in the pleadings on the motion for preliminary.

765
00:42:47,680 --> 00:42:51,560
Speaker 1: Injunction one of the requirements is you have to show

766
00:42:51,600 --> 00:42:54,120
Speaker 1: that the harm is, irreparable and by irreparable they mean

767
00:42:54,200 --> 00:42:57,520
Speaker 1: can't be fixed by monetary. Damages in arguing that the

768
00:42:57,600 --> 00:43:02,359
Speaker 1: harm is not, irreparable these uns argued that we can

769
00:43:02,440 --> 00:43:05,759
Speaker 1: simply pay money to the plaintiff at the end of

770
00:43:05,800 --> 00:43:06,680
Speaker 1: the day if this is.

771
00:43:06,719 --> 00:43:09,680
Speaker 10: Infringing AND i don't know how.

772
00:43:09,600 --> 00:43:11,840
Speaker 1: That was, intended BUT i read it as an invitation

773
00:43:11,960 --> 00:43:15,480
Speaker 1: to settlement talks that will simply buy the mark from.

774
00:43:15,600 --> 00:43:18,839
Speaker 1: You and Certainly Taylor swift's in a position to throw

775
00:43:18,960 --> 00:43:23,040
Speaker 1: money at problems like. This AND i think if the

776
00:43:23,440 --> 00:43:27,600
Speaker 1: plaintiff loses the preliminary junction, motion that Puts Taylor swift

777
00:43:27,680 --> 00:43:30,080
Speaker 1: in the defendant's a much stronger bargain, pocision and we

778
00:43:30,160 --> 00:43:33,319
Speaker 1: might then see a settlement and we might never get

779
00:43:33,360 --> 00:43:35,120
Speaker 1: to see a. Survey we might never get to see

780
00:43:35,120 --> 00:43:37,239
Speaker 1: how the jury reacts to any of, This but that's

781
00:43:37,320 --> 00:43:38,520
Speaker 1: probably for the best.

782
00:43:38,400 --> 00:43:40,680
Speaker 10: For the judicial, system although for those of us.

783
00:43:40,640 --> 00:43:42,800
Speaker 1: Who follow these, things we'd really like to see a

784
00:43:42,920 --> 00:43:46,000
Speaker 1: judicial decision on some of these. ISSUES a first, impression.

785
00:43:45,640 --> 00:43:48,160
Speaker 3: Oh, Yeah Taylor swift to the, courtroom, Please that would be.

786
00:43:48,280 --> 00:43:50,640
Speaker 1: Fascinating that would be a hard ticket to, get almost

787
00:43:50,680 --> 00:43:51,319
Speaker 1: as hard as her.

788
00:43:51,400 --> 00:43:54,440
Speaker 3: Tour don't forget to ask your daughters about those, Candles,

789
00:43:54,520 --> 00:43:59,120
Speaker 3: terry thanks so. Much as, always that's intellectual property Litigator Terrence.

790
00:43:59,239 --> 00:44:02,239
Speaker 3: Ross and that's it for this edition Of The Bloomberg Law.

791
00:44:02,360 --> 00:44:05,040
Speaker 3: Show remember you can always get the latest legal news

792
00:44:05,200 --> 00:44:08,920
Speaker 3: on Our Bloomberg law. Podcasts you can find them On Apple, Podcasts,

793
00:44:09,000 --> 00:44:14,480
Speaker 3: spotify and at www dot bloomberg dot com slash, Podcast Slash,

794
00:44:14,600 --> 00:44:17,359
Speaker 3: Law and remember to tune Into The Bloomberg Law show

795
00:44:17,520 --> 00:44:21,319
Speaker 3: every weeknight at ten Pm Wall Street. Time I'm June

796
00:44:21,360 --> 00:44:23,520
Speaker 3: grosso and you're listening To bloomberg