Jack Daniel's Properties, Inc. v. VIP Products (22-148)
argument 22-148Jack Daniel's Properties, Inc. v. VIP Products
Supreme Court of the United States
1h 23m
6 speakers
8 chapters
transcribed 8 days ago
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Transcript
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What is the overall background and legal issue in Jack Daniel’s Properties v. VIP Products?
We'll hear argument this morning in case twenty two one hundred and forty eight, Jack Daniels properties versus VIP products. Ms. Platt?
Mr Chief Justice, or may it please the Court. This case involves a dog toy that copies Jack Daniels' trademark and trade dress and associates its whiskey with dog poop. After a four day trial, the district court found both infringement and dilution. The Ninth Circuit erroneously reversed both holdings. As to infringement, the Ninth Circuit did not disturb the trial court's finding of likelihood of confusion. It instead reversed by applying an exception to the Lanham Act that the Second Circuit in Rogers versus Grimaldi invented for movie titles. Under Rogers, an expressive work is allowed to confuse as long as the use of a mark is artistically relevant and not explicitly misleading. But the Lanham Act has no exceptions for expressive works.
It bars using marks for any goods when likely to cause confusion as to origin, sponsorship, or approval. Artistic relevance has nothing to do with confusion, and both implicit and explicit uses can confuse. Nor does constitutional avoidance justify Rogers. Rogers doesn't plausibly construe any text, and there are no First Amendment issues to avoid. Trademarks are ancient property rights that necessarily restrict speech to protect investment in goodwill and prevent consumer confusion. And parodies can be confusing. Now as a practical matter, parodies won't confuse when differences in marks, markets or message typically ridicule, signal that the brand company didn't make the joke. But absent these features, pervasive copying and trading off a brand's goodwill tends to confuse, and survey results showing consumer confusion indicate that the paradist did too much copying and not enough distinguishing.
As to dilution, the Ninth Circuit held that the exclusions for non commercial use mean non commercial speech. That holding renders neighbouring exclusion superfluous and it nullifies Congress's decision to limit the parity exclusion to uses other than as a designation of source. This court should give non commercial use its ordinary meaning, a use not involving the buying and selling of goods. I welcome your questions.
Could um a uh statement be uh could it fail Rogers and be misleading yet not be confusing under the Lanham Act?
Well the statutory test is likely to confuse as to sponsor. I
understand that, but I'm just wondering if the rot there are two ships passing in the night that it could be misleading yet have nothing to do with confusing. Likelihood to confuse.
So if it's misleading as to the sky being blue, you're right. That has nothing to do with confusion. But if it's misleading as to the origin, sponsorship or approval of the goods, then absolutely, or services. So it's not you're right. Misleading in the abstract is irrelevant under the Lanham Act. It's confusion as to origin, source, or sponsorship. So if you just have a I mean I can go on with examples, but there's lots of explicitly misleading speech that s doesn't violate the Lanham Act.
So would we have to uh dispose of uh or overrule Rogers in order to uh Uh focus uh more clearly on likelihood of confusion under the Lanham Act, or can they coexist?
No, obviously not, since every case recognizes that the la the this is a the test involves non application of the Lanham Act because the Second Circuit thought the Lanham Act struck the wrong balance.
So there's no way to keep Rogers and uh for you to win this.
No, we can win this case on a narrow ground. There's no way to keep Rogers and be faithful to the text. We can win this case by the court assuming there's an atextual exception, and this court can go on and invent an atextual break to that exception. It's unorthodox for this court to do it. But you can certainly do that, and we've offered a bunch of uh distinctions. The problem is the text doesn't make any of these, and it's particularly, particularly unorthodox for this court to create exceptions as to parity and fair use when Congress put in two fair use, explicit exceptions in the Act for both infringement and dilution and didn't see fit to do so here.
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Chapters
8 chapters
1
What is the overall background and legal issue in Jack Daniel’s Properties v. VIP Products?
0:00–11:20
2
How does the Court address the Rogers test and its applicability to expressive works?
11:20–19:34
3
Why is the likelihood‑of‑confusion standard central to the trademark analysis here?
19:34–29:13
4
What First Amendment arguments are raised concerning parody and trademark law?
29:13–39:10
5
How are consumer surveys used to assess confusion in this case?
39:10–52:34
6
What procedural relief (remand, summary judgment, 12(b)(6)) is being considered?
52:34–1:02:56
7
How do parity, non‑commercial use, and dilution factors affect the outcome?
1:02:56–1:14:11
8
What conclusions and next steps does the Court suggest for trademark disputes like this?
1:14:11–1:23:25