This is just once again showing that intellectual privilege laws are too draconian and the only solution is massive congressional reform, but that has little hope as just like the Supreme Court, the congress believes in intellectual privilege maximalism, any reform from congress will likely expand not reduce intellectual privilege
If you read the article carefully, SCOTUS agrees. What the toy maker was trying to do was use a "shortcut" called the "Rogers test"; all that SCOTUS said was that the "Rogers test" shortcut wasn't applicable in this case. That means it goes back to normal trademark "customer confusion", which SCOTUS seems to think will go in favor of the toymaker; from the article (emphasis mine):
> Elizabeth Brannen, a partner at Stris & Maher, said Jack Daniel's victory "could turn out to be pyrrhic." The whiskey maker will still have to prove VIP's toys are likely to confuse potential customers into thinking it was affiliated with them in order to win its infringement case.
> "The likelihood of confusion analysis will still take the challenged product's funny message into account," Brannen said. She noted that the high court said consumers are "not so likely to think that the maker of a mocked product is itself doing the mocking."
Here, the court is saying that Jack Daniels gets to make its case to a jury.
This case is a classic "nothing to see here" moment being paraded as if the sky is falling.
I get it though, I sometimes have to read a ruling five times just to figure out what the hell has been decided.
The cases where SCOTUS attracts the most attention are the ones where fairly broad decisions are made, or at least hinted at.
The public is usually wrong in their understanding of it -- as non-experts practically always are. Nonetheless, SCOTUS does make, several times a year, decisions that have a direct bearing on people's lives. They may not understand the nuances of the decision but they know when their rights have expanded or collapsed.
Such decisions are usually issued at the end of June. Expect there to be several significant and not-at-all-narrow decisions very soon.
That's not SCOTUS's job and that's not what they do (usually). It doesn't carry the voice of the people and has no mandate to do what the people want. Its job is to decide whether our system of laws as constructed by Congress (which is the voice of the people) and as bounded by the Constitution ultimately allows A or B to prevail. In no way should a ruling in favor of A be construed as an endorsement of A's action.
See Antonin Scalia's strongly worded thoughts about the Texas v Johnson flag-burning case, in which he voted contrary to his personal convictions about the morality of Johnson's actions. Because, ultimately, he knew his vote was not a moral judgment but a legal one.
For those following along at home, when a case is vacated and remanded per the Judgment, what happens from there in a particular case is for the lower courts—SCOTUS opinion in-hand—to decide, if the parties choose not to settle anyway.
EDIT: Also, just as a background again for those following along at home, here is an explanation of the Rogers Test: https://moellerip.com/the-moeller-blog/the-rogers-test-free-...
> Thus was born the Rogers Test, which may only be applied to non-commercial marks, which determines that the title of an artistic work is protected under free speech from the Lanham Act when a) the title of the work has some artistic relevance to the underlying work and b) that the title is not explicitly misleading as to the source of the content of the work.
This is not a good take on the Supreme Court ruling, at all. I generally agree with your rhetoric about IP maximalism, but this is not the right case to trot it out for.
This case was not about whether anyone was confused. The ruling does not take a position on whether there was confusion between Bad Spaniels and Jack Daniels.
Instead, this ruling says that humor is not an absolute defense in trademark disputes. It reverses a Ninth Circuit ruling that held that, in the case of humor, the court does not need to even evaluate whether or not there was confusion.
This ruling sends the case back to the Ninth to evaluate the totality of the case, including fair use, parody, and whether the for-profit Bad Spaniels is appropriating Jack Daniels' trademarks to sell their products in a way that a reasonable person would think Jack Daniels was involved in.
The Ninth may very well find that no, there is no confusion, and the use of the trademark is indeed fair use. But they will have to consider that as a dimension of the dispute, where previously they ruled it was immaterial.
IANAL, and it's possible I've gotten some details wrong here, but IMO this is the right ruling. Just slapping a joke on an otherwise infringing product should not provide immunity from trademark claims.
Kind of read to your comment and didn't bother reading much further, the article is pretty clear when you look for it and the headline is wildly overstating the situation.
expression that everyone supports generally does not need protection in the first place, so laws that protect only expression that is as broad appeal or support are pointless.
protection of expression needs to be for things we dislike, despise or even find abhorrent, people that claim they support protection of expression but for only things they find value in are in reality declaring they do not support freedom of expression at all.
That’s “expression”. What I’m trying to do is come up with a hypothetical where you really would like there to be a test for what is and is not protected.
The Supreme Court called spending money on political campaigns “expression” in the Citizens United decision, do you support that?
You can call literally any act expression, the extreme of which is literally anarchy.
Yes... I do.
Why should Donald Trump be able to spend millions of his own money to create political speech, but I can not spend $1 along with 1 million of my friends to counter is. Contrary to what the common tag line is of "corporations are people now" the court recognized that corporations are made up of people, as such the people acting as a group ( corporation) are entitled to protections just as if they were acting alone as an individual.
>>So you’d be ok with someone using AI to generate an image of your self/spouse/child doing something unspeakably awful and putting it up on billboards around town with a suggestion that people take matters into their own hands?
Well that escalated quickly, that said in generally... I would probably consider that protected. The last part would be murky as I so recognize the "True Threat" doctrine, of course I am also a self defense absolutist along with a free expression absolutist, so if the hypothetical bill board expressed a true threat I believe it with in my ethical right to defend myself from that true threat.
Per the government's argument, "the government would have the power to ban books if those books contained even one sentence expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or labor union."
It wasn't some crazy hypothetical about violence being an act of personal expression, or something like that. It was about other people can organize to share verbal, written, and recorded political ideas.
As with many Supreme Court rulings, the political spin far eclipsed the actual decision and arguments.
Also, all this case establishes is that there is no exception for comedy/sarcasm when it comes to a trademark copying someone else's trademark.
It is actually very likely that the case will be won by Bad Spaniels on simpler grounds - that their trademark will not confuse anyone into thinking they are buying a Jack Daniels bottle. And that is the right thing that the courts should decide - but it was something that Bad Spaniels was trying to avoid.
Except that it would not happen. In a word without trademark protection, people would be like "what the heck is an iPhone, what does it do?" because the word iPhone would have no meaning. You would have to sell based on capabilities, rather than brand name. There would have to be sufficiently strong laws against false advertising and deceptive marketing, but I can see number of advantages over the current system.
I agree with the rest of your post. The whole case is increasingly looking like a successful publicity stunt by the two companies to me. I don't think I would know anything about Bad Spaniels otherwise, and while Jack Daniels is well known, the way addiction works I would not be surprised if a large number of people were hitting their local liqueur store after seeing this case on the news.
I am not aware of this ever having occurred across history. Instead, brands become personal. You don’t buy an iPhone, you buy master Tim Cook’s phone.
And the reason is also self-evident: it is very hard if not impossible to assess all of the relevant capabilities of a manufactured product just on an quick inspection. Even if you were able to do so for one category of product, you'll not be an expert in every category. As such, the only way to know the true quality of products you are buying is to rely on the reputation of the one crafting them, and the branding of the products is used to establish the chain of trust (this shoe has such-and-such craftsman's mark, so I know its a quality shoe because I've bought other shoes from them in the past and they lasted two decades).
Even if you had very strong laws to prevent false advertising of features, it's extremely cost-prohibitive to establish build quality objectively without relying on the reputation of the maker. How would that even look? What would you expect to see on a non-branded shirt to tell you whether it's a good quality weave or a poor one? Whether the color is strongly bonded to the fabric or it will wash off? Whether the seams are sturdy or prone to breaking?
I disagree about the confusion.
1) Trying to answer the question "Is that dog toy sponsored by Jack Daniels?" suggests that there is plenty of confusion here. You have to look and read the toy in question to see that it's not actual Jack Daniel's merchandise.
2) Jack Daniel's must enforce it's trademark or it will lose it.
3) Jack Daniel's are some of the nicest people about enforcing their trademarks. See: https://brokenpianoforpresident.com/2012/07/19/jack-daniels-...
Really? I believe that if you put this product in front of 100 average Walmart shoppers (mixed in with other products, some officially-licensed, some not), and asked them which items were "officially licensed", they would likely mostly have believed this toy to be "officially licensed".
Even if someone, somewhere, somehow managed to assume that Jack Daniel's was the entity behind a cute dog toy it still wouldn't hurt them any. It feels like Jack Daniel's is doing far more harm to their own reputation than the dog toy ever would have. I know lawyers love insisting that companies must to defend their trademarks to the death and treat everything that could ever conceivably come close to infringing on a trademark like it were a deadly threat, and I'm sure Jack Daniel's would love to make this toy company pay them excessive licensing fees to keep the product on shelves, but this is just silly.
This is a strawman. Nobody is arguing that this loses Jack Daniels revenue, they're arguing that it waters down their IP and deprives them of the ability to monetize their brand image. Sheesh.