1 00:00:02,720 --> 00:00:06,800 Speaker 1: This is Bloomberg Law. A divided Supreme Court rejects a 2 00:00:06,920 --> 00:00:09,800 Speaker 1: religious challenge, tell us a little about the facts of 3 00:00:09,800 --> 00:00:13,600 Speaker 1: the case. Interviews with prominent attorneys in Bloomberg Legal experts, 4 00:00:13,680 --> 00:00:16,919 Speaker 1: I guess his former federal prosecutor Jimmy Grula joining me 5 00:00:16,960 --> 00:00:20,760 Speaker 1: is Bloomberg Law reporter Jordan Ruben. And analysis of important 6 00:00:20,800 --> 00:00:24,160 Speaker 1: legal issues, cases and headlines the Supreme Court takes on 7 00:00:24,239 --> 00:00:28,560 Speaker 1: state secrets. Multiple lawsuits were filed against the emergency rule. 8 00:00:28,800 --> 00:00:32,599 Speaker 1: Is this lawsuit for real? Bloomberg Law with June Grasso 9 00:00:32,960 --> 00:00:40,639 Speaker 1: from Bloomberg Radio. Welcome to the Bloomberg Law Show. I'm 10 00:00:40,720 --> 00:00:44,880 Speaker 1: June Grasso. Ahead in this hour. A federal appellate court 11 00:00:45,040 --> 00:00:49,040 Speaker 1: rules against Jay and Jay, saying it can't use bankruptcy 12 00:00:49,200 --> 00:00:52,680 Speaker 1: to resolve more than forty thousand lawsuits over its baby 13 00:00:52,720 --> 00:00:56,440 Speaker 1: powder and the first n f T trademark trial hits 14 00:00:56,480 --> 00:01:00,560 Speaker 1: hermes against an artists and digital images of the famous 15 00:01:00,600 --> 00:01:08,039 Speaker 1: broken bag. It's called the Texas two step, But a 16 00:01:08,120 --> 00:01:11,560 Speaker 1: federal appellate court his rule that Johnson and Johnson can't 17 00:01:11,680 --> 00:01:15,360 Speaker 1: use the bankruptcy of a specially created unit to resolve 18 00:01:15,400 --> 00:01:19,360 Speaker 1: more than forty thousand cancer lawsuits over its now withdrawn 19 00:01:19,440 --> 00:01:23,600 Speaker 1: baby powder. The Texas two step is a legal strategy 20 00:01:24,160 --> 00:01:27,760 Speaker 1: that involves a company spinning off a unit and transferring 21 00:01:27,800 --> 00:01:31,399 Speaker 1: its tort liability to that unit. The spinoff is then 22 00:01:31,440 --> 00:01:35,400 Speaker 1: put into bankruptcy to manage that liability without putting the 23 00:01:35,440 --> 00:01:39,200 Speaker 1: assets of the original company into play. The Third Circuit 24 00:01:39,280 --> 00:01:42,560 Speaker 1: Court of Appeals sided with cancer victims who argued that 25 00:01:42,680 --> 00:01:46,800 Speaker 1: J and J wrongly put its specially created unit LTL 26 00:01:46,920 --> 00:01:51,200 Speaker 1: Management under court protection in bankruptcy in order to block 27 00:01:51,320 --> 00:01:54,520 Speaker 1: juries around the country from hearing the lawsuits and handing 28 00:01:54,520 --> 00:01:58,560 Speaker 1: out damages. The bankruptcy case had put all TALC litigation 29 00:01:58,640 --> 00:02:02,000 Speaker 1: on whole while the appellate court made its decision. The 30 00:02:02,120 --> 00:02:04,880 Speaker 1: ruling means that J and J will most likely need 31 00:02:04,960 --> 00:02:08,400 Speaker 1: to defend itself against claims that tainted Talk and It's 32 00:02:08,480 --> 00:02:12,640 Speaker 1: baby Powder caused cancer. The company says it will appeal 33 00:02:12,680 --> 00:02:17,440 Speaker 1: the decision. Joining me is Bloomberg Intelligence litigation analyst Holly Frome. 34 00:02:18,120 --> 00:02:23,280 Speaker 1: Were there talks ongoing settlement talks before J and J 35 00:02:23,639 --> 00:02:27,280 Speaker 1: put this unit into bankruptcy? Well, I'm not pretty to 36 00:02:27,360 --> 00:02:29,960 Speaker 1: any of those, but there were a bunch of cases settled, 37 00:02:30,000 --> 00:02:32,359 Speaker 1: Like there were a thousand cases that had been settled 38 00:02:32,800 --> 00:02:35,840 Speaker 1: because it was reported, and so there must have been 39 00:02:35,880 --> 00:02:39,000 Speaker 1: settlement talks because they settle that big group of cases 40 00:02:39,040 --> 00:02:41,720 Speaker 1: requires you know, some kind of talk. But I don't 41 00:02:41,760 --> 00:02:45,200 Speaker 1: think a formal mediation was set up yet, you know, 42 00:02:45,639 --> 00:02:49,000 Speaker 1: the party must have done it themselves. How many cases 43 00:02:49,000 --> 00:02:53,320 Speaker 1: are there outstanding? Well, jame Day said in its October 44 00:02:54,360 --> 00:02:58,400 Speaker 1: finally it's forty cases outstanding. Most of those is how 45 00:02:58,440 --> 00:03:01,760 Speaker 1: we are variant cancer cases. The cases that have been settled, 46 00:03:01,760 --> 00:03:05,280 Speaker 1: are they ovarian cancer cases or others? We don't know 47 00:03:05,360 --> 00:03:07,840 Speaker 1: there were a group of them, so it's not clear. 48 00:03:08,000 --> 00:03:10,560 Speaker 1: I mean, the bankruptcy Court did say and it's ordered 49 00:03:10,560 --> 00:03:12,560 Speaker 1: that if I think that they settled a little bit 50 00:03:12,600 --> 00:03:15,839 Speaker 1: over six thousands form one billion dollars, but I wasn't 51 00:03:15,840 --> 00:03:18,399 Speaker 1: aware of that until the Big court put it in decision. 52 00:03:18,960 --> 00:03:21,920 Speaker 1: And it doesn't say whatn't breakout of those was in 53 00:03:22,000 --> 00:03:25,520 Speaker 1: terms of whether they were a varian or meso tell 54 00:03:25,560 --> 00:03:29,440 Speaker 1: us about the court's ruling here. So the bankruptcy Court 55 00:03:29,600 --> 00:03:35,240 Speaker 1: said that in order to use the bankruptcy procedure that 56 00:03:35,320 --> 00:03:37,720 Speaker 1: the climbing has to be in good space, and so 57 00:03:37,840 --> 00:03:40,840 Speaker 1: it has to have a valid organizational purpose. And they 58 00:03:41,000 --> 00:03:44,240 Speaker 1: basically found that it wasn't really good space because it 59 00:03:44,640 --> 00:03:47,640 Speaker 1: is not in financial distress. J and J has said 60 00:03:47,640 --> 00:03:50,760 Speaker 1: it will appeal, so it can either ask for the 61 00:03:50,840 --> 00:03:54,520 Speaker 1: full third Circuit to hear the case, or it can 62 00:03:54,720 --> 00:03:58,480 Speaker 1: go to the Supreme Court. And I'm curious about the 63 00:03:58,560 --> 00:04:02,560 Speaker 1: settlement value use what would a settlement look like at 64 00:04:02,560 --> 00:04:08,680 Speaker 1: this point? Well, in terms of you know, value, I've 65 00:04:08,720 --> 00:04:10,920 Speaker 1: put a value up for the cases of about a 66 00:04:10,960 --> 00:04:12,920 Speaker 1: hundred thousand, a little bit more than a hundred thousand, 67 00:04:12,920 --> 00:04:15,760 Speaker 1: about a hundred twenty five thousands of piece, and that 68 00:04:15,880 --> 00:04:20,200 Speaker 1: was pre bankruptcy and post sankruptcy with this ruling. But 69 00:04:20,400 --> 00:04:23,279 Speaker 1: in terms of whether they settle all at once, you 70 00:04:23,279 --> 00:04:26,960 Speaker 1: don't typically see that in these types of cases. You 71 00:04:27,080 --> 00:04:30,799 Speaker 1: see inventory deals, but it's you know, anything possible. So 72 00:04:31,520 --> 00:04:33,480 Speaker 1: you know, if you wanted to use an example where 73 00:04:33,680 --> 00:04:37,159 Speaker 1: a company settled, you know, a group of cases for 74 00:04:37,200 --> 00:04:39,520 Speaker 1: a certain amount, you could look at the buyer which 75 00:04:39,520 --> 00:04:43,000 Speaker 1: settled about a hundred thousand and I think for ten billion. 76 00:04:43,440 --> 00:04:46,560 Speaker 1: Now that's still over time, I think, because you know 77 00:04:46,600 --> 00:04:50,159 Speaker 1: they're deciding a lot of those cases will be vetted 78 00:04:50,240 --> 00:04:52,880 Speaker 1: and will be smithed um. But they came up with 79 00:04:52,920 --> 00:04:56,560 Speaker 1: a number for a group of cases, and you know 80 00:04:56,600 --> 00:05:00,599 Speaker 1: that's how they settled those. But typically in these cases 81 00:05:00,600 --> 00:05:03,080 Speaker 1: with the number of planets is so huge, you'll see 82 00:05:03,120 --> 00:05:07,880 Speaker 1: inventory deals where lawyers who represent groups of planets, sometimes 83 00:05:07,880 --> 00:05:11,839 Speaker 1: they represent thousands of planets will settle their cases with 84 00:05:11,960 --> 00:05:16,920 Speaker 1: the company and then distribution will be among their communi clients. 85 00:05:17,080 --> 00:05:20,039 Speaker 1: Do the math for us, what's your figure for J 86 00:05:20,200 --> 00:05:23,200 Speaker 1: and J settling? Well, right now on that five billion, 87 00:05:23,520 --> 00:05:25,280 Speaker 1: you know that's the numbers who go up or down. 88 00:05:25,600 --> 00:05:28,800 Speaker 1: We haven't seen any federal bell weathers yet, and so 89 00:05:29,080 --> 00:05:31,040 Speaker 1: typically the bell letthers can to be a good idea 90 00:05:31,080 --> 00:05:33,200 Speaker 1: of the strength of the cases that you haven't seen 91 00:05:33,240 --> 00:05:36,480 Speaker 1: any federal bell leathers. You've seen state court trials in 92 00:05:36,600 --> 00:05:39,880 Speaker 1: both meso and ovarian cancer cases, and the verdes have 93 00:05:39,960 --> 00:05:43,640 Speaker 1: been mixed. And James j. Despite this, you know, huge 94 00:05:43,640 --> 00:05:45,880 Speaker 1: two billion dollar verdes that wasn't overturned by the Spreme 95 00:05:45,960 --> 00:05:50,440 Speaker 1: Court in Missouri has had pretty significant successes on appeal. 96 00:05:50,560 --> 00:05:53,120 Speaker 1: So they reversed one that was for four hundred seven 97 00:05:53,160 --> 00:05:56,239 Speaker 1: to million dollars. You know, lower court issue a judgment 98 00:05:56,279 --> 00:05:57,840 Speaker 1: not with standing the vertices on a four hundred and 99 00:05:57,920 --> 00:06:00,120 Speaker 1: seven to million dollar verdict to a plane of a 100 00:06:00,200 --> 00:06:03,039 Speaker 1: legging overarian cancer from Chalco and that was in California, 101 00:06:03,600 --> 00:06:06,160 Speaker 1: and when it went up on appeal, the court upheld 102 00:06:06,240 --> 00:06:08,680 Speaker 1: us to J and J. So J and J was 103 00:06:08,760 --> 00:06:12,320 Speaker 1: dismissed but ordered new trial as to day J C I, 104 00:06:12,400 --> 00:06:16,720 Speaker 1: which is a subsidiary and that pool talk. And then 105 00:06:16,760 --> 00:06:18,920 Speaker 1: you also saw a mass overt actually I think it 106 00:06:18,960 --> 00:06:21,240 Speaker 1: was for three hundred million in New York and that 107 00:06:21,320 --> 00:06:23,799 Speaker 1: was overturned on appeal. And then there was a hundred 108 00:06:23,800 --> 00:06:26,080 Speaker 1: and seventy million dollar verds in New Jersey that was 109 00:06:26,120 --> 00:06:28,920 Speaker 1: overturned on a heel. So you've seen. You know, J 110 00:06:29,040 --> 00:06:32,440 Speaker 1: and J has some significant success on appeal, which is 111 00:06:32,520 --> 00:06:35,480 Speaker 1: why you know some people are throwing out of astronomical 112 00:06:35,560 --> 00:06:38,520 Speaker 1: members in terms of sealment value people, particularly because they 113 00:06:38,560 --> 00:06:42,040 Speaker 1: lost the bankruptsy maneuver. But these cases are not sully abunked, 114 00:06:42,080 --> 00:06:44,960 Speaker 1: that's certainly true. But the birds have a next so 115 00:06:45,240 --> 00:06:48,640 Speaker 1: you think that this result is still going to push 116 00:06:48,880 --> 00:06:51,560 Speaker 1: J and JA to settlement. Most of these cases have 117 00:06:51,760 --> 00:06:53,640 Speaker 1: to settle, I mean those the courts just don't have 118 00:06:53,960 --> 00:06:58,040 Speaker 1: the bandwidth to try all these cases. So if there 119 00:06:58,040 --> 00:07:02,080 Speaker 1: are no other way out, the tried um, it tried 120 00:07:02,160 --> 00:07:05,360 Speaker 1: various theories, but you know they haven't worked. Then they're 121 00:07:05,400 --> 00:07:08,080 Speaker 1: going to have to go to trial with the pedough 122 00:07:08,120 --> 00:07:10,640 Speaker 1: case of seats. And generally the way it works is 123 00:07:10,680 --> 00:07:12,520 Speaker 1: that they'll go to trial, then they'll get an idea 124 00:07:12,520 --> 00:07:14,400 Speaker 1: of the strength of the case until then they can 125 00:07:14,440 --> 00:07:17,880 Speaker 1: come up with some settlement value. That way, eventually they'll 126 00:07:17,880 --> 00:07:20,920 Speaker 1: have to settle these point can't the courts stiff can't 127 00:07:20,960 --> 00:07:23,160 Speaker 1: handle all these cases, and I don't think they do 128 00:07:23,280 --> 00:07:27,000 Speaker 1: wants to try the forever. In the chapter eleven filings, 129 00:07:27,600 --> 00:07:31,280 Speaker 1: J and J said that the subsidiary lt L had 130 00:07:31,320 --> 00:07:34,760 Speaker 1: a value of more than sixty one billion dollars and 131 00:07:34,800 --> 00:07:39,400 Speaker 1: those funds could be tapped to satisfy teal liabilities. So 132 00:07:39,960 --> 00:07:42,480 Speaker 1: why would it have been a smart move to to 133 00:07:42,600 --> 00:07:46,280 Speaker 1: go through bankruptcy, negotiate and have those sixty one billion 134 00:07:46,320 --> 00:07:50,520 Speaker 1: dollars in funds available for settlement? Why wouldn't the plantiffs 135 00:07:50,600 --> 00:07:53,440 Speaker 1: want that? Isn't that an easier way and the money's there. 136 00:07:54,360 --> 00:07:57,400 Speaker 1: I don't know a lot about bakery courts, so it's 137 00:07:57,400 --> 00:08:00,160 Speaker 1: hard for me to say what the plantiffs we're thinking. 138 00:08:00,800 --> 00:08:04,240 Speaker 1: But in terms of my understanding of it, which they 139 00:08:04,480 --> 00:08:07,440 Speaker 1: will do like an affirmation for seeding where they come 140 00:08:07,520 --> 00:08:10,840 Speaker 1: up with values for the case. And I think the 141 00:08:10,880 --> 00:08:13,960 Speaker 1: plaintive stuff that they would get less in bankruptcy court 142 00:08:14,040 --> 00:08:15,880 Speaker 1: because you're not in front of a jury, there's no 143 00:08:15,960 --> 00:08:19,200 Speaker 1: there's not that risk of like nuclear verdicts that you've 144 00:08:19,200 --> 00:08:21,520 Speaker 1: seen in some state courts. So I think that that was, 145 00:08:21,640 --> 00:08:25,480 Speaker 1: you know, that probably came into the calculation. The company 146 00:08:25,600 --> 00:08:29,400 Speaker 1: doesn't seem to be afraid of litigation. I mean, they've 147 00:08:29,400 --> 00:08:32,480 Speaker 1: gone to the Supreme Court. No, I mean it's an 148 00:08:32,520 --> 00:08:35,920 Speaker 1: interesting case. Certainly. I think I'm interested in seeing what 149 00:08:35,960 --> 00:08:39,480 Speaker 1: the Supreme Court does. J J has been on appeal 150 00:08:39,760 --> 00:08:42,120 Speaker 1: quite a number of times. You know, they lost their 151 00:08:42,160 --> 00:08:45,240 Speaker 1: appeal of the two point one billion dollar verdict. They 152 00:08:45,280 --> 00:08:48,840 Speaker 1: filed another appeal or they were trying to get a 153 00:08:48,920 --> 00:08:51,920 Speaker 1: citizens petition that they have they rejected to have primptive 154 00:08:51,960 --> 00:08:55,199 Speaker 1: affect and they lost that. So you know, they're really soliditate. 155 00:08:55,360 --> 00:08:58,520 Speaker 1: They're certainly willing solidigate these cases. Is there any other 156 00:08:58,720 --> 00:09:04,200 Speaker 1: um mass tortletication that these TALC suits resembles? Um, Well, 157 00:09:04,280 --> 00:09:06,560 Speaker 1: people compare it to his vest is because you know 158 00:09:06,640 --> 00:09:08,600 Speaker 1: that's the theory that the point is kept of using 159 00:09:08,760 --> 00:09:13,400 Speaker 1: but um you know, I would compare it to Glycostate litigation, 160 00:09:13,440 --> 00:09:15,440 Speaker 1: which isn't the round up litigation of buy your Face 161 00:09:15,559 --> 00:09:18,360 Speaker 1: because there were so many planets there and the science 162 00:09:18,480 --> 00:09:22,360 Speaker 1: was really not that strong in that case, which you know, 163 00:09:22,720 --> 00:09:24,840 Speaker 1: that's my view of the science here is that it's 164 00:09:24,880 --> 00:09:29,080 Speaker 1: not that strong. But still the company wounded up settling 165 00:09:29,840 --> 00:09:32,480 Speaker 1: like a hundred thousand for ten billion dollars. So I 166 00:09:32,480 --> 00:09:36,080 Speaker 1: would compare it to that case, where you do have 167 00:09:36,200 --> 00:09:39,920 Speaker 1: these you know you're gonna you're gonna face juries. Um, 168 00:09:39,960 --> 00:09:43,600 Speaker 1: there's no easy way out of these cases. And you know, 169 00:09:43,679 --> 00:09:46,680 Speaker 1: the difference there was that the verdicts up to the 170 00:09:46,720 --> 00:09:49,640 Speaker 1: point of settlement hadn't been that mixed. I think there 171 00:09:49,640 --> 00:09:51,840 Speaker 1: were three verdicts and they were all for planets. Here 172 00:09:51,880 --> 00:09:54,280 Speaker 1: they've been mixed, But I would still say that that 173 00:09:54,400 --> 00:09:56,880 Speaker 1: might be a good starting place to look at that 174 00:09:56,960 --> 00:09:59,800 Speaker 1: case and see how that one played out. Probably will 175 00:09:59,840 --> 00:10:02,880 Speaker 1: be talking about this J and J litigation for quite 176 00:10:02,920 --> 00:10:06,720 Speaker 1: some time. Thanks so much, Holly. That's Holly from Bloomberg 177 00:10:06,800 --> 00:10:12,040 Speaker 1: Intelligence Litigation analyst. Lt LS bankruptcy was the first Texas 178 00:10:12,080 --> 00:10:15,480 Speaker 1: to step to reach an appeals court. The handful of 179 00:10:15,520 --> 00:10:18,360 Speaker 1: companies that have used the strategy since it emerged in 180 00:10:18,440 --> 00:10:23,040 Speaker 1: tween have faced suits targeting their use of asbestos. Several 181 00:10:23,040 --> 00:10:27,880 Speaker 1: Texas two step mass towards asbestos bankruptcies that predate l 182 00:10:27,920 --> 00:10:31,600 Speaker 1: TLS bankruptcy are still alive and pending in the US 183 00:10:31,679 --> 00:10:35,360 Speaker 1: Bankruptcy Court for the Western District of North Carolina. The 184 00:10:35,480 --> 00:10:39,040 Speaker 1: Third Circuit's opinion isn't binding in North Carolina or the 185 00:10:39,120 --> 00:10:45,800 Speaker 1: Fourth Circuit, but its influence may still be felt. This 186 00:10:46,160 --> 00:10:51,000 Speaker 1: is Bloomberg Law with June Brusso from Bloomberg Radio. Is 187 00:10:51,000 --> 00:10:54,319 Speaker 1: it art or is it a digital knockoff? That's one 188 00:10:54,320 --> 00:10:57,040 Speaker 1: of the questions at a trademark trial in federal court 189 00:10:57,040 --> 00:11:01,280 Speaker 1: in New York, where French luxury design house or Mes International, 190 00:11:01,600 --> 00:11:06,400 Speaker 1: issuing digital artist Mason Rothschild for creating and selling Meta 191 00:11:06,480 --> 00:11:10,000 Speaker 1: Burken and f T s, which depict digital images of 192 00:11:10,040 --> 00:11:14,120 Speaker 1: the famous broken handbag. Rothschild claims the meta broken n 193 00:11:14,200 --> 00:11:17,240 Speaker 1: f T s are artworks entitled to protection under the 194 00:11:17,280 --> 00:11:21,120 Speaker 1: First Amendment, similar to Andy Warhol's silk screens of campbell 195 00:11:21,200 --> 00:11:25,600 Speaker 1: soup cans. Joining me is intellectual property litigator Terence Ross, 196 00:11:25,679 --> 00:11:29,080 Speaker 1: a partner at Caton Uchen Rosenman Terry, set the stage 197 00:11:29,120 --> 00:11:33,920 Speaker 1: for US tell us about these meta Berkens. So Hermes 198 00:11:33,920 --> 00:11:37,440 Speaker 1: has put out for a decade now a type of 199 00:11:37,679 --> 00:11:40,760 Speaker 1: pope bag for lack of better word that they branded 200 00:11:41,040 --> 00:11:45,360 Speaker 1: the Birken, and the Birken has literally become iconic in 201 00:11:45,360 --> 00:11:48,920 Speaker 1: the fashion world. The least expensive one I could find 202 00:11:48,960 --> 00:11:53,240 Speaker 1: online sold for but most of these are are far 203 00:11:53,280 --> 00:11:56,720 Speaker 1: more expensive and can run over a hundred thousand dollars each. 204 00:11:57,160 --> 00:12:00,880 Speaker 1: The very high quality bag made out of only the 205 00:12:00,920 --> 00:12:05,800 Speaker 1: finest materials and including m esoteric things like ostrich and crocodile. 206 00:12:06,120 --> 00:12:09,720 Speaker 1: The latches are made out of palladium or gold, you know, 207 00:12:09,840 --> 00:12:13,560 Speaker 1: very expensive metal. The craftsmanship is absolutely the best in 208 00:12:13,600 --> 00:12:15,840 Speaker 1: the world. It's a It's a phenomenal landbag. You can 209 00:12:15,880 --> 00:12:18,600 Speaker 1: afford to spend that much for a topebag. All the 210 00:12:18,640 --> 00:12:22,640 Speaker 1: celebrities and brag about them. The Kardashians, Cardi b all 211 00:12:22,679 --> 00:12:28,880 Speaker 1: have them. And so in December of one along comes 212 00:12:29,240 --> 00:12:33,680 Speaker 1: a gentleman by the name of Bason Rothschild who is 213 00:12:33,720 --> 00:12:38,400 Speaker 1: involved in fashion and art and entertainment in Los Angeles, 214 00:12:38,520 --> 00:12:42,600 Speaker 1: and he puts out online what he describes as meta Birken, 215 00:12:42,880 --> 00:12:47,240 Speaker 1: and they are an f t non fungible token in 216 00:12:47,280 --> 00:12:51,960 Speaker 1: the digital world of the metaverse, and for all practical purposes, 217 00:12:52,000 --> 00:12:55,240 Speaker 1: they are two dimensional image of the Birken. He has 218 00:12:55,360 --> 00:12:59,560 Speaker 1: embellished them in some ways, they are fundamally two dimensional 219 00:12:59,600 --> 00:13:02,800 Speaker 1: images of the Berkin in the form of n f 220 00:13:02,840 --> 00:13:05,840 Speaker 1: T s which he tried to sell online. Herm he 221 00:13:06,000 --> 00:13:08,800 Speaker 1: finds out about this and the cease and desist letter 222 00:13:08,960 --> 00:13:11,679 Speaker 1: accusing him the trademark in the fringement, and when he 223 00:13:11,760 --> 00:13:14,880 Speaker 1: refuses to comply with the cease and desist letter, Hermes 224 00:13:14,920 --> 00:13:19,000 Speaker 1: files a lawsuit or trademark infringement and and other causes 225 00:13:19,000 --> 00:13:20,960 Speaker 1: of action in the United States District Card for the 226 00:13:21,000 --> 00:13:26,520 Speaker 1: Southern District of New York as a January and a 227 00:13:26,640 --> 00:13:31,440 Speaker 1: year later here we are beginning of February, and that 228 00:13:31,679 --> 00:13:35,679 Speaker 1: lawsuit is now in trial in New York City in 229 00:13:35,720 --> 00:13:38,920 Speaker 1: front of a jury. Or miss claims that and it 230 00:13:39,160 --> 00:13:43,640 Speaker 1: cited social media post to that consumers were duped into 231 00:13:43,720 --> 00:13:47,200 Speaker 1: believing that the n f T s were created or 232 00:13:47,320 --> 00:13:50,880 Speaker 1: endorsed by her mess What about that cause of action? 233 00:13:52,720 --> 00:13:58,120 Speaker 1: So this is fundamental to trademark law in the United States. 234 00:13:58,200 --> 00:14:04,439 Speaker 1: Trademark law exists to protect consumers against being duped or 235 00:14:04,559 --> 00:14:10,400 Speaker 1: tricked into buying goods or services under the mistaken assumption 236 00:14:11,040 --> 00:14:15,360 Speaker 1: that they are being offered by someone other than the 237 00:14:15,360 --> 00:14:18,800 Speaker 1: person actually offering. So in every trademark infringement case, it 238 00:14:18,920 --> 00:14:21,920 Speaker 1: is necessary for the point of the trademark owner to 239 00:14:22,200 --> 00:14:26,440 Speaker 1: establish what we call consumer confusion. You don't have to 240 00:14:26,560 --> 00:14:30,480 Speaker 1: establish that every consumer is confused, just a significant portion 241 00:14:30,520 --> 00:14:34,200 Speaker 1: of them, and most courts say that that's in the 242 00:14:34,280 --> 00:14:37,880 Speaker 1: range of ten the consumers, depending on the type of 243 00:14:37,920 --> 00:14:40,480 Speaker 1: good or service, and the important aspect is it's got 244 00:14:40,480 --> 00:14:44,800 Speaker 1: to be amongst the specific consuming public for that good. 245 00:14:45,600 --> 00:14:51,840 Speaker 1: In this case, these high end Borkan totecs. And the 246 00:14:52,040 --> 00:14:56,320 Speaker 1: argument here, which there seems to be some support for, 247 00:14:56,760 --> 00:15:02,120 Speaker 1: is that people assume that Hermes had entered the metaverse 248 00:15:02,800 --> 00:15:06,000 Speaker 1: and was putting out these meta berkins, and there seems 249 00:15:06,040 --> 00:15:08,880 Speaker 1: to be some evidentially support for that. So far. We 250 00:15:08,960 --> 00:15:12,960 Speaker 1: are only on day three of the trial, but there 251 00:15:13,000 --> 00:15:16,880 Speaker 1: has been testimony that one Hermes executive was teaching a 252 00:15:16,920 --> 00:15:20,160 Speaker 1: class at I think Columbia University in New York City 253 00:15:20,400 --> 00:15:24,080 Speaker 1: and students came up to him after the class and 254 00:15:24,320 --> 00:15:29,000 Speaker 1: asked about the new Hermes line Meta berken and I 255 00:15:29,040 --> 00:15:31,040 Speaker 1: think there are obviously the air Columbia University of Smart 256 00:15:31,120 --> 00:15:34,160 Speaker 1: Kids and you know, if they're being duped, that suggests 257 00:15:34,160 --> 00:15:36,920 Speaker 1: that the broader public probably is also being duped into 258 00:15:36,920 --> 00:15:40,680 Speaker 1: thinking that somehow Hermes is affiliated or associated with these 259 00:15:40,880 --> 00:15:46,040 Speaker 1: meta Berkins. Rothschild says, quote, my meta Berkins project as 260 00:15:46,040 --> 00:15:49,400 Speaker 1: a whole was an artistic experiment to explore where the 261 00:15:49,520 --> 00:15:53,800 Speaker 1: value in the Berken handbag actually lies in the handcrafted 262 00:15:53,840 --> 00:15:57,480 Speaker 1: physical objects or in the image it projects. And so 263 00:15:57,520 --> 00:16:01,400 Speaker 1: he says they're not replica Berkins, but there are that 264 00:16:01,480 --> 00:16:06,000 Speaker 1: depicts an imaginary bag. So his story has changed over time. 265 00:16:06,120 --> 00:16:09,960 Speaker 1: When he first put these out in December, he described 266 00:16:10,040 --> 00:16:15,000 Speaker 1: them as a tribute to the iconic Hermes Birkin. Apparently, 267 00:16:15,080 --> 00:16:18,400 Speaker 1: after the lawsuit was filed and he got legal counsel, 268 00:16:18,920 --> 00:16:22,680 Speaker 1: he started to describe the meta Berkins as a a 269 00:16:22,760 --> 00:16:28,680 Speaker 1: commentary on the fashion company's mistreatment of animals and a 270 00:16:28,720 --> 00:16:32,840 Speaker 1: way to own a berkin without actually having to kill 271 00:16:33,320 --> 00:16:37,320 Speaker 1: a crocodile and ostrich cow whatever the particular berkin is 272 00:16:37,360 --> 00:16:41,040 Speaker 1: made out of. So the story shifted over time, and 273 00:16:41,320 --> 00:16:44,640 Speaker 1: the reason for that is that the defense strategy is 274 00:16:44,720 --> 00:16:49,480 Speaker 1: trying to bring itself within the Rogers v. Grimaldi test, 275 00:16:49,920 --> 00:16:52,440 Speaker 1: which is a tricky test, and provide the First Amendment 276 00:16:52,440 --> 00:16:56,920 Speaker 1: protection against trademark infringement, and we've talked about that test before. 277 00:16:57,360 --> 00:17:00,000 Speaker 1: There's a case before the Supreme Court that we discussed 278 00:17:00,320 --> 00:17:05,399 Speaker 1: involving Jack Daniels and their trademark bottle. We have June 279 00:17:05,400 --> 00:17:08,400 Speaker 1: talked about this before, and I think just in December 280 00:17:08,480 --> 00:17:11,400 Speaker 1: when the taste you're referring to, which goes by the 281 00:17:11,440 --> 00:17:14,399 Speaker 1: title Jack Daniels versus v I P. Products, was first 282 00:17:14,400 --> 00:17:17,800 Speaker 1: accepted by the Supreme Court, they granted cert cr on it. 283 00:17:18,040 --> 00:17:21,000 Speaker 1: And it's one of the confusing things here. Clearly, Jed 284 00:17:21,160 --> 00:17:24,600 Speaker 1: Rakoff is the trial judge on this case. Very smart man, 285 00:17:24,840 --> 00:17:27,880 Speaker 1: very good judge. He must know that the Supreme Court 286 00:17:27,920 --> 00:17:32,200 Speaker 1: is considering the Rogers Grimaldi test, and I would have thought, indeed, 287 00:17:32,200 --> 00:17:34,520 Speaker 1: if I were the judge, I would have simply stayed 288 00:17:34,520 --> 00:17:39,240 Speaker 1: this lawsuit pending Supreme Court guidance on whether the Rogers 289 00:17:39,240 --> 00:17:41,960 Speaker 1: test even exists anymore, and if it does exist, what 290 00:17:42,040 --> 00:17:46,000 Speaker 1: are the parameters for it. The same thought crossed my mind, Although, 291 00:17:46,040 --> 00:17:49,680 Speaker 1: as you said, Judge Rakoff is very good and very smart. 292 00:17:49,840 --> 00:17:53,480 Speaker 1: So when I heard about this, I thought a couple 293 00:17:53,480 --> 00:17:56,439 Speaker 1: of things. First, who would have bought these n f 294 00:17:56,480 --> 00:17:58,960 Speaker 1: T s if it was you know, these fur lined 295 00:17:59,000 --> 00:18:03,480 Speaker 1: bags not shape like a Berkin, but also about Andy 296 00:18:03,520 --> 00:18:07,320 Speaker 1: Warhol's staying silk screens of campbell soup cans. If this 297 00:18:07,520 --> 00:18:11,960 Speaker 1: was a painting in a gallery of Birken handbag, you know, 298 00:18:11,960 --> 00:18:16,800 Speaker 1: would there be any question that it was considered art. So, June, 299 00:18:16,840 --> 00:18:19,480 Speaker 1: I can't help you with the question of who's buying 300 00:18:19,520 --> 00:18:22,840 Speaker 1: these nfc and it's not just the meta Berkin. I 301 00:18:22,920 --> 00:18:26,800 Speaker 1: don't understand why anyone buys any n f t s, 302 00:18:27,359 --> 00:18:31,439 Speaker 1: so we'll just have to leave that answer. And I 303 00:18:31,720 --> 00:18:35,159 Speaker 1: understand that some of these n f t s sold 304 00:18:35,200 --> 00:18:38,520 Speaker 1: for as much as an actual berkein, so I'd rather 305 00:18:38,560 --> 00:18:42,199 Speaker 1: have the handbag. Yeah, I agree with you. As for 306 00:18:42,280 --> 00:18:46,560 Speaker 1: the Campbell suit, the Andy Warhol famous painting, that has 307 00:18:46,600 --> 00:18:51,360 Speaker 1: been a trope that the defense has trotted out from 308 00:18:51,520 --> 00:18:55,680 Speaker 1: a very early point in the case. They want to 309 00:18:56,000 --> 00:19:00,359 Speaker 1: sell the notion that this is artwork and therefore an 310 00:19:00,440 --> 00:19:03,919 Speaker 1: expressive work within the Rogers test that's protected by the 311 00:19:03,960 --> 00:19:09,960 Speaker 1: First Amendment. That argument took a body blow yesterday in 312 00:19:10,119 --> 00:19:17,960 Speaker 1: trial when Jeddrakoff barred the defenses expert witness from testifying 313 00:19:18,200 --> 00:19:21,520 Speaker 1: that the meta Berkins were nothing more than the digital 314 00:19:21,560 --> 00:19:26,679 Speaker 1: equivalent of Andy Warhol's Campbell soup painting. The trial started 315 00:19:26,680 --> 00:19:29,400 Speaker 1: on Monday with jury selection. I think the testimony first 316 00:19:29,400 --> 00:19:32,240 Speaker 1: started yesterday Tuesday, so we're in day three today. But 317 00:19:32,440 --> 00:19:36,120 Speaker 1: that in terms of trial strategy, was very serious blow 318 00:19:36,160 --> 00:19:39,720 Speaker 1: to the defense on the very first day of evidence 319 00:19:39,760 --> 00:19:41,679 Speaker 1: through witnesses coming in that they weren't going to be 320 00:19:41,680 --> 00:19:45,080 Speaker 1: allowed to present this key witness and probably weren't going 321 00:19:45,119 --> 00:19:47,240 Speaker 1: to be able to talk about the Campbell soup argument 322 00:19:47,359 --> 00:19:51,160 Speaker 1: coming up. I'll continue this conversation with Terence Ross and 323 00:19:51,200 --> 00:19:53,840 Speaker 1: we'll talk about how both sides got off to a 324 00:19:53,920 --> 00:19:57,479 Speaker 1: bad start at trial. I'm June Grass. When you're listening 325 00:19:57,480 --> 00:20:01,720 Speaker 1: to Bloomberg, we were discussing how the judge ruled on 326 00:20:01,800 --> 00:20:06,439 Speaker 1: the first day of the trial that Rothschild can't present 327 00:20:06,600 --> 00:20:09,879 Speaker 1: testimony from an art critic who studies the work of 328 00:20:09,960 --> 00:20:14,440 Speaker 1: Andy Warhol. The critic was going to compare Rothschild's n 329 00:20:14,600 --> 00:20:17,600 Speaker 1: F T s to the famous art created by Warhol, 330 00:20:17,760 --> 00:20:21,640 Speaker 1: like the Campbell soup cans. Why did Judge Rakoff make 331 00:20:21,680 --> 00:20:25,800 Speaker 1: that decision, Well, the Supreme Court number of years ago 332 00:20:26,560 --> 00:20:32,399 Speaker 1: established a very tough test for allowing expert witnesses to 333 00:20:32,440 --> 00:20:37,399 Speaker 1: testify uh. And under that test, the disrecord judge, the 334 00:20:37,400 --> 00:20:41,359 Speaker 1: trial judge has to determine that first the witness is 335 00:20:41,480 --> 00:20:45,160 Speaker 1: qualified in whatever field to gran testify. It too, that 336 00:20:45,920 --> 00:20:51,000 Speaker 1: the opinion they intend to offer is um based on 337 00:20:51,560 --> 00:20:57,560 Speaker 1: solid methodology and grounded in some form of scientific approach. 338 00:20:57,640 --> 00:21:01,560 Speaker 1: And third, that the results of aimed by the expert 339 00:21:02,119 --> 00:21:06,000 Speaker 1: in coming to its opinion are replicable by other experts, 340 00:21:06,040 --> 00:21:10,919 Speaker 1: because that's ultimately under science, the way new theories are 341 00:21:11,119 --> 00:21:15,240 Speaker 1: established and accepted in the scientific community. Somebody does the procedure, 342 00:21:15,680 --> 00:21:18,720 Speaker 1: reports upon it in a peer review journal. Other scientists 343 00:21:18,760 --> 00:21:21,080 Speaker 1: go out, they repeat the exact procedure, and they come 344 00:21:21,160 --> 00:21:23,800 Speaker 1: up with the same result that therefore it becomes accepted 345 00:21:23,840 --> 00:21:27,000 Speaker 1: the scientific community. And what Judge ray Cost said here 346 00:21:27,080 --> 00:21:31,040 Speaker 1: is you maybe have the qualifications and experience to offer 347 00:21:31,280 --> 00:21:34,600 Speaker 1: expert testimony, but there's nothing about how you reached your 348 00:21:34,600 --> 00:21:38,160 Speaker 1: opinion that's based through grounded in any scientific approach, let 349 00:21:38,200 --> 00:21:42,679 Speaker 1: alone replicable by other experts, And therefore it doesn't pass 350 00:21:42,840 --> 00:21:46,560 Speaker 1: the Supreme Court tests and I cannot allow it ind evidence. 351 00:21:46,840 --> 00:21:49,959 Speaker 1: And I thought Judge ray Costs decision was absolutely correct 352 00:21:50,080 --> 00:21:55,399 Speaker 1: in that regard. He also said that the ROMs experts 353 00:21:55,560 --> 00:21:59,280 Speaker 1: explanation of n f t S was over complicated, and 354 00:21:59,320 --> 00:22:02,879 Speaker 1: that the jury appeared puzzled to join the crowd. He said, 355 00:22:03,160 --> 00:22:06,679 Speaker 1: it was far more confusing than helpful. So this is 356 00:22:06,720 --> 00:22:10,440 Speaker 1: the most common criticism of trial lawyers that you get 357 00:22:10,600 --> 00:22:13,560 Speaker 1: from juries and individual drawers when you interviewed the map 358 00:22:13,600 --> 00:22:16,680 Speaker 1: to this fact, I built my career on the ability 359 00:22:16,720 --> 00:22:20,080 Speaker 1: to explain very complex things in very simple ways to 360 00:22:20,240 --> 00:22:23,200 Speaker 1: lay people such as jurors or judges. That is unusual. 361 00:22:23,600 --> 00:22:27,040 Speaker 1: The vast majority of trial lawyers in the intellectual property 362 00:22:27,080 --> 00:22:32,080 Speaker 1: space seemed to um fall into the trap of over 363 00:22:32,200 --> 00:22:39,359 Speaker 1: explaining and very unnecessary detail how things work and n 364 00:22:39,400 --> 00:22:42,800 Speaker 1: f t s are fundamentally about digital source codes, and 365 00:22:43,000 --> 00:22:45,480 Speaker 1: the lawyers and the expert they put on and explained 366 00:22:45,520 --> 00:22:48,920 Speaker 1: this when did the great detail about how would write 367 00:22:48,920 --> 00:22:52,840 Speaker 1: source code and and about digital coding and things that 368 00:22:52,840 --> 00:22:55,760 Speaker 1: were really unnecessary instead of talking about n f t 369 00:22:55,920 --> 00:22:58,399 Speaker 1: S in the way that most human beings talk about 370 00:22:58,440 --> 00:23:00,800 Speaker 1: it in in terms of an ally gez to real 371 00:23:00,840 --> 00:23:03,280 Speaker 1: world objects. You know, on day one of the trough 372 00:23:03,600 --> 00:23:05,320 Speaker 1: of the of the evidence of the trial, it seems 373 00:23:05,359 --> 00:23:08,720 Speaker 1: like both sides suffered significant blows. The loss of the 374 00:23:08,760 --> 00:23:12,920 Speaker 1: expert was a blow the defense um this dreadful approach 375 00:23:12,960 --> 00:23:16,919 Speaker 1: to testifying about explaining fts by the planets expert was 376 00:23:17,440 --> 00:23:19,960 Speaker 1: a mistake in a blow to their case. So neither 377 00:23:20,040 --> 00:23:23,000 Speaker 1: side got off to quick starts in this drought. So, 378 00:23:23,200 --> 00:23:27,400 Speaker 1: I mean, what does ers have to prove that it's 379 00:23:27,440 --> 00:23:31,560 Speaker 1: confusing in the marketplace, that it's like, you know, the 380 00:23:31,680 --> 00:23:34,159 Speaker 1: rip off handbags that we see on the street. What 381 00:23:34,280 --> 00:23:39,240 Speaker 1: exactly is is its burden of proof? Hear the law 382 00:23:39,400 --> 00:23:41,760 Speaker 1: the land of Act is the name of the trademark 383 00:23:41,840 --> 00:23:47,359 Speaker 1: law in the United States, and it prohibits anyone from 384 00:23:47,520 --> 00:23:51,560 Speaker 1: and I'm just reading here now causing confusion or deceit 385 00:23:51,680 --> 00:23:59,680 Speaker 1: as to affiliation, connection or association, or as to origin, sponsorship, 386 00:24:00,160 --> 00:24:04,440 Speaker 1: or approval of their goods or services with a trademark 387 00:24:04,920 --> 00:24:10,200 Speaker 1: because their services. And so you have to show that 388 00:24:10,520 --> 00:24:15,119 Speaker 1: the consuming public, which I think would be someone in 389 00:24:15,800 --> 00:24:19,840 Speaker 1: the luxury goods marketplace, that the consuming public would be 390 00:24:20,600 --> 00:24:26,280 Speaker 1: thinking that somehow the meta burkin was affiliated with, connected with, 391 00:24:26,480 --> 00:24:32,399 Speaker 1: associated with, sponsored by, or approved by Hermes. And so 392 00:24:32,560 --> 00:24:35,200 Speaker 1: what we were in here a lot of is testimony 393 00:24:35,440 --> 00:24:41,000 Speaker 1: on the planet side of instances in which consumers reported 394 00:24:41,160 --> 00:24:43,760 Speaker 1: that sort of confusion to them and the example of 395 00:24:43,800 --> 00:24:47,200 Speaker 1: this one executive going and teaching at Columbian being approached 396 00:24:47,200 --> 00:24:52,280 Speaker 1: by students about the Hermes New Meta Burkin is a 397 00:24:52,320 --> 00:24:56,560 Speaker 1: classic example of the sort of consumer confusion that's required 398 00:24:56,600 --> 00:24:59,720 Speaker 1: to establish trademark infringement. And we'll just have to wait 399 00:24:59,760 --> 00:25:01,960 Speaker 1: for the trible to go on to see how much 400 00:25:01,960 --> 00:25:03,439 Speaker 1: more of that is, and then it'll be up to 401 00:25:03,440 --> 00:25:06,800 Speaker 1: the jury to decide whether that's sufficient or not. And 402 00:25:07,080 --> 00:25:10,560 Speaker 1: then there's the Rogers v. Grimaldi test, which would be 403 00:25:10,680 --> 00:25:14,600 Speaker 1: a defense even if there was consumer confusion. So if 404 00:25:14,600 --> 00:25:18,000 Speaker 1: this jury believes that these n f T s are 405 00:25:18,600 --> 00:25:22,560 Speaker 1: in fact art, then the defense would win. So let's 406 00:25:22,600 --> 00:25:25,560 Speaker 1: just remember what the Rogers v. Grimaldi test is all 407 00:25:25,560 --> 00:25:27,639 Speaker 1: about and remind people even though we just did an 408 00:25:27,640 --> 00:25:30,640 Speaker 1: episode and that back in December, this was a lawsuit 409 00:25:30,720 --> 00:25:35,159 Speaker 1: by Ginger Rogers, the famous forties dancer, against the producers 410 00:25:35,200 --> 00:25:38,359 Speaker 1: of a movie who had titled the movie Friend and 411 00:25:38,400 --> 00:25:40,600 Speaker 1: Ginger I think was the name of Ginger referring to her. 412 00:25:40,800 --> 00:25:44,760 Speaker 1: Went up on appeal of second Circuit, and they held 413 00:25:44,800 --> 00:25:49,040 Speaker 1: that the use of a celebrity name in an expressive work, 414 00:25:49,680 --> 00:25:54,160 Speaker 1: if artistically relevant to that expressive work and not intentionally 415 00:25:54,200 --> 00:25:58,919 Speaker 1: misleading is protected under the First Amendment against trademark infringement, 416 00:25:59,280 --> 00:26:01,760 Speaker 1: and so it was a real actively narrow ruling. You know, 417 00:26:01,920 --> 00:26:06,600 Speaker 1: it was limited to US celebrity names. It's been expanded 418 00:26:07,680 --> 00:26:11,680 Speaker 1: beyond that to a broader range of trademarks. But again, 419 00:26:12,040 --> 00:26:15,080 Speaker 1: the requirement has always been in connection with the use 420 00:26:15,119 --> 00:26:19,680 Speaker 1: of that trademard, connection with an expressive work, if it's 421 00:26:19,720 --> 00:26:24,520 Speaker 1: really artistically necessary to use that trademark, and if it's 422 00:26:24,560 --> 00:26:29,280 Speaker 1: not misleading, intentionally misleading. And there's a lot of factual 423 00:26:29,280 --> 00:26:32,320 Speaker 1: predicates there that and facts are determined by juries, not 424 00:26:32,440 --> 00:26:35,600 Speaker 1: judges or lawyers. And so the first thing that juries 425 00:26:35,640 --> 00:26:37,959 Speaker 1: greing to have to decide is whether or not the 426 00:26:37,960 --> 00:26:40,600 Speaker 1: meta Birkin is an expressive work. And that's why you 427 00:26:40,720 --> 00:26:46,160 Speaker 1: see the plainiff trying to push the notion that Mr 428 00:26:46,240 --> 00:26:49,240 Speaker 1: Rosschaw was just about to make money here. And you 429 00:26:49,320 --> 00:26:51,359 Speaker 1: see on the other side, on the defense side, the 430 00:26:51,440 --> 00:26:53,760 Speaker 1: argument Mr Rothschild is an artist and this is an 431 00:26:53,840 --> 00:26:56,200 Speaker 1: artistic work. I mean, they want to bring it within 432 00:26:56,280 --> 00:26:58,760 Speaker 1: this Rogers test, and the requirement established it was an 433 00:26:58,760 --> 00:27:04,120 Speaker 1: expressive work and artistically relevant, not intentionally misleading. And we'll 434 00:27:04,160 --> 00:27:05,639 Speaker 1: just have to see how that plays out. I mean, 435 00:27:05,680 --> 00:27:08,000 Speaker 1: Judge Rakoff said on a motion to dismiss brought by 436 00:27:08,040 --> 00:27:11,560 Speaker 1: the defendants that he thought Rogers v. Grimaldi applied here. 437 00:27:12,200 --> 00:27:14,600 Speaker 1: I think there's a big question mark about that. The 438 00:27:14,680 --> 00:27:17,080 Speaker 1: case accepted by the Supreme Court, which came out of 439 00:27:17,080 --> 00:27:19,520 Speaker 1: the Ninth Circuit, is the very first case in which 440 00:27:19,560 --> 00:27:22,800 Speaker 1: the Rogers test was applied to a commercial product. There 441 00:27:22,800 --> 00:27:26,280 Speaker 1: it was a dog shoot toy, and other circuit courts 442 00:27:26,280 --> 00:27:29,600 Speaker 1: have consistency. Was said that Rogers test is not applied 443 00:27:29,640 --> 00:27:32,240 Speaker 1: to commercial products. N f T s are really a 444 00:27:32,280 --> 00:27:34,719 Speaker 1: type of commercial product. And that's why this is at 445 00:27:34,720 --> 00:27:38,240 Speaker 1: the intersection of technology and art. I mean, is the 446 00:27:38,320 --> 00:27:41,600 Speaker 1: n f T work of art? Is it? Technology is 447 00:27:41,680 --> 00:27:43,920 Speaker 1: a bunch of source code? I mean, what is it? 448 00:27:44,760 --> 00:27:46,760 Speaker 1: And I think Jedd Rickoff may have sort of jumped 449 00:27:46,760 --> 00:27:49,560 Speaker 1: the gun by saying that the Rodgers test applies when 450 00:27:49,560 --> 00:27:51,400 Speaker 1: I think there's a lot of factual issues about that. 451 00:27:51,680 --> 00:27:53,240 Speaker 1: And I really think it's going to depend on what 452 00:27:53,320 --> 00:27:55,960 Speaker 1: Supreme Court says in the Jack Daniels case, because the 453 00:27:55,960 --> 00:27:58,560 Speaker 1: Supreme Court could one option for them, is it saying, hey, 454 00:27:58,600 --> 00:28:00,080 Speaker 1: you know, there is no such thing as rod Just 455 00:28:00,240 --> 00:28:02,639 Speaker 1: test that was made up by a court that's not 456 00:28:02,760 --> 00:28:06,040 Speaker 1: in the statute. Statute already has a fair use test 457 00:28:06,080 --> 00:28:08,639 Speaker 1: that should be applied instead of this Rogers test. I 458 00:28:08,680 --> 00:28:10,399 Speaker 1: don't know what's going to happen. That's why I think 459 00:28:10,440 --> 00:28:12,919 Speaker 1: it's very curious to allow this case to go forward 460 00:28:13,080 --> 00:28:15,919 Speaker 1: when it all could become moot in June. Which side 461 00:28:15,920 --> 00:28:18,760 Speaker 1: do you think has the better argument? Which side would 462 00:28:18,760 --> 00:28:23,240 Speaker 1: you rather be representing? I always prefer representing the side 463 00:28:23,240 --> 00:28:26,119 Speaker 1: that has the money to pay me, and I doubt 464 00:28:26,160 --> 00:28:29,160 Speaker 1: Mason rots Sound has that money, is apparently using a 465 00:28:29,160 --> 00:28:31,080 Speaker 1: new law firm that I think it's sort of a 466 00:28:31,080 --> 00:28:33,879 Speaker 1: public interest type firm called Lex Lumina that's made up 467 00:28:33,920 --> 00:28:36,679 Speaker 1: of I P. Professors from Harvard and n y U. 468 00:28:37,160 --> 00:28:39,080 Speaker 1: But as far as the law and the fact this 469 00:28:39,160 --> 00:28:41,280 Speaker 1: is the case, the first impression I think it's fair 470 00:28:41,320 --> 00:28:46,240 Speaker 1: to say, my gut reaction is that the Hermes side 471 00:28:46,280 --> 00:28:50,360 Speaker 1: of the argument is a bit stronger. Particularly, I don't 472 00:28:50,400 --> 00:28:53,560 Speaker 1: like the way that the defendant story kept kept changing 473 00:28:53,560 --> 00:28:56,760 Speaker 1: over time, apparently in a sort of post hoc attempt 474 00:28:57,000 --> 00:28:59,480 Speaker 1: to fit itself within the Rogers test. It's like the 475 00:28:59,600 --> 00:29:01,000 Speaker 1: lawyer up and you go, oh, you know what I 476 00:29:01,040 --> 00:29:04,280 Speaker 1: should have been saying along is it, this is artistically relevant, 477 00:29:04,400 --> 00:29:05,920 Speaker 1: is an expressive work, I'm not just trying to make 478 00:29:05,920 --> 00:29:07,840 Speaker 1: money on. I mean, they seem to be trying to 479 00:29:07,880 --> 00:29:12,480 Speaker 1: force fit this into the Rogers test, and I'm not 480 00:29:12,640 --> 00:29:18,120 Speaker 1: so sure that it fits quite frankly very well. Who 481 00:29:18,160 --> 00:29:20,720 Speaker 1: would buy this if it didn't have the burke In 482 00:29:20,840 --> 00:29:24,560 Speaker 1: name on it? If these were just called handbags, would 483 00:29:24,600 --> 00:29:27,560 Speaker 1: any consumer actually buy these? I mean, isn't it the 484 00:29:27,640 --> 00:29:34,120 Speaker 1: association with the Birkin iconic handbag that makes it purchasable 485 00:29:34,240 --> 00:29:37,000 Speaker 1: and people interested in it? I don't know. I mean, 486 00:29:37,000 --> 00:29:40,880 Speaker 1: it's an interesting question. This case is fascinating on so 487 00:29:40,920 --> 00:29:44,280 Speaker 1: many levels. It will be really interesting to see what 488 00:29:44,480 --> 00:29:47,280 Speaker 1: the jury makes of all this. And um, you know, 489 00:29:47,400 --> 00:29:51,640 Speaker 1: this is a really important case to trademark law as 490 00:29:51,680 --> 00:29:57,240 Speaker 1: the metaverse expands and more companies move into it in 491 00:29:57,240 --> 00:29:59,880 Speaker 1: an explicit way. And we've heard a lot of testimony 492 00:30:00,000 --> 00:30:02,160 Speaker 1: already in just a couple of days that her Knees 493 00:30:02,640 --> 00:30:06,400 Speaker 1: has planned to move into the metaverse. Uh and and 494 00:30:06,600 --> 00:30:10,160 Speaker 1: therefore this would directly impact their ability to do that. 495 00:30:10,560 --> 00:30:14,720 Speaker 1: So I mean, we we need to probably um update 496 00:30:14,800 --> 00:30:17,360 Speaker 1: the land of Act to take into account as land 497 00:30:17,400 --> 00:30:21,440 Speaker 1: Mack was enacted. If I recall correctly long before we 498 00:30:21,480 --> 00:30:24,440 Speaker 1: had an Internet or let along a metaharts. And I 499 00:30:24,480 --> 00:30:26,959 Speaker 1: really think Congress needs to take a look at this. 500 00:30:27,440 --> 00:30:32,160 Speaker 1: And they've made a few minor tweaks over the years, um, 501 00:30:32,200 --> 00:30:36,400 Speaker 1: but nothing to really address this sort of issue. UM. 502 00:30:36,640 --> 00:30:40,440 Speaker 1: So you're absolutely right, June, it is a cutting edge 503 00:30:40,520 --> 00:30:42,800 Speaker 1: case and or be just the first of many. I 504 00:30:42,800 --> 00:30:45,200 Speaker 1: think we're seeing this field. We'll keep track of what 505 00:30:45,320 --> 00:30:49,360 Speaker 1: happens here, and that Jack Daniels case is going to 506 00:30:49,400 --> 00:30:53,440 Speaker 1: be heard by the Supreme Court on March two, so 507 00:30:53,920 --> 00:30:56,800 Speaker 1: maybe we'll learn more about their take on the Rogers 508 00:30:56,840 --> 00:30:59,920 Speaker 1: test at that point. Thanks so much, Terry. That's into 509 00:31:00,000 --> 00:31:04,160 Speaker 1: actual property litigator Terence Ross, a partner at Caton Uchen Rosenman. 510 00:31:04,560 --> 00:31:06,960 Speaker 1: And that's it for this edition of the Bloomberg Law Show. 511 00:31:07,360 --> 00:31:09,640 Speaker 1: Remember you can always get the latest legal news by 512 00:31:09,640 --> 00:31:13,440 Speaker 1: subscribing to the Bloomberg Law Podcast or downloading this show 513 00:31:13,480 --> 00:31:17,760 Speaker 1: at Bloomberg dot com, slash podcast, Slash Law, and attorneys 514 00:31:17,800 --> 00:31:21,880 Speaker 1: get the latest in AI powered legal analytics, business insights, 515 00:31:21,920 --> 00:31:25,920 Speaker 1: and workflow tools at Bloomberg Law dot com. 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