Transcripts For CSPAN3 Justices 20240706

This case involves a dog toy that copies jack daniels trademark and associates its whiskey. After a fourday trial the District Court found infringeme and delusion. They erroneously reversed the holdings. As to infringent the circuit didnt find the likelihood of confusion. It instead reversed by applying an exception to the act that the Second Circuit in rogers versus grimaldi invented. Under rogers inexpressive work is allowed to confuse asong as the use is relevant and not exicly misleading. But the act has no exception for expressive works. Itar using marks for any goods when liky to cause confusion as to sponsorship or approval. Arstic element has nothing to do with confusion and both plit and explicit uses c confuse. Nodoes constitutional avoidance justi rogers. Rogers doesnt possibly construe any text a there are no first endment issue as to avoid. A trademark Search Engine Property Rights that necessarily stct speech to protect investntn goodwill and event consumer confusion. And parodies can be confusing. As a practical matter, parodies wont confuse when differences in marks, markets or message typically ridicule signal the brancoany didnt make the joke. But absent these features, pervasive copying and trading off the brands goodwl tends to confuse. And survey results show the consumer confusion indicat that it did too much copying and not enough distinguishing. As to the delusion the ninth circuit held the exclusion for the noncmeial use and noncommercial speech the holding renders neighboring exclusions perfluous and nullifies the congress decisn to limit the exclusion to the u. S. Other than as a designation of source. The court should give noncmeial use its ordinary meaning, the use not involving the buying and selling of goods. I welcome your questions. Could a statement be misleading and not get be confusing under the act . Well, the statutory text is likely confused i understand that,utm wondinif the rock that two ships passing could be confusing. If it is misleading as to describing you are right that if it is misleadin t the origin, sponsorship or approval of the goods, then absolutely. Or services. So youre right, misleading in the abstract is irrelevant under the act. E confusion to the origin or sponsorship. So ifou just have i can go on with examples, but tre lots of explicitly misleading speech tha dsnt violate the act. So, what we have to dispose of or overrule rogers inrd to focus more clearly on the likelihood of confusion under the act or can they coexist . No, obviously not. Evy se recognizes that this is, the test inlv nonapplication of the lanham act because the Second Circuit ug the lanham act struck the wrong balance. So theres no way to keep rogers out for you to win this . We can win the case on a narrow ground. Theres no way to keeps and be faithful to t text. Assuming there is an a textual invent a break to thatgo on and exception. Its unorthodox for the to do it, but you can certainly do that, andeve offered a bunch of distinctions. The problem is the text doesnt make anyf these and its particularly urtdox for the courts to create exceptions as to parody and fair use when congress put in the fair use plicit exceptions in the act for both infringement a delusion. It didnt seek to do so here. What would you do with the argument that the respondent makes on the lha act resents difficulties for t n so well healed defendant o accused infringer . The consequence of having a property right is Property Owners are goingo protect them, and the consequence of their pitn is they would say if you have an it wld borderline be bad eech. I dont think the propert right is one tt erestricts speech. You have a limited monopoly on a right to use a name associated with your good or service. Im jt wondering why you e making a broad argument when there are pretty obvious narrow arguments. One could say whether it rogers test should exist or whatever the scope should be. This is an ordinary commercia product. Using the mark a a source identifier. In that ce, whatever we might thkbout the rogs test, thats far from the heartland of the rogers test. The ninth circuit just mad a mistake as to this, the end. Why wouldnt thate the obvious or appropriate way to resolve this case if we were coming out your way . Its an oious and appropriate way. As a lawyer we have a problem. Thats not this case. I think thats good legal princil. Its like an ordinary cmercial product using a mark as the source identifier. That doesnt get any special protecon. There is the legal principal f you. That looks like the fair usage exclusion congress didnt writein. Im fine with t commercial product. Once you assume rogers you get into the situation of saying i allow a confusing short film but not a commercial. Ill allow a confusing painting but not wallpaper. Ill allow a video game but not a board game. His is not to suggest there is a secure rogers healand. Its totly unnecessary to think about that questn or get there. Ill just add a little bit. The reason why every court of appeals that thought about the question has adopted Something Like rogers is because there are cases which lookeally different from this case. There are, you know, an art photographer does photographs using aarbie doll that has an expressive meaning and not an ordinary coml product like this one a doesnt use the barbie doll as a source identifier. What the courts have been groping tar, maybe they are right or wrong. Y decide that case when we decide this case. You dont have to. The barbie case is a classic example of a fair usage exception for delusion. We are fine with yr dog toy case. Its obvious someone will ask about a Halloween Costume or coloring book or ptery. There are all sorts of goods that are ordinary commercial goods that you are head scratching about i think the video game verses a board game. Scrabble comes in a board game and video game. A commeial is different than a short film. Can i ask this way, why is it a textu in your view as usage as a source identifier. It seems what you are describing as the problem is the court grappling with the degree of expressiveness in various i to derm if this art exception should apply. I wonder if the cleaner more tent with the statute way looking at it is to ask is source identifier at the threshold. If they arent, i guess, thi doesnt apply because as you confusion that arises from usage of a mark as source identifier. If they are not doing that there is problem. If they are, if they are doing that and used as a source identifi i supposed we get into the questions under the act test if there is trademark infringent. Whats wrong with that. Unfortunately, a lot. Yo are taking language in the text of parody and 1115b4 that you have a Supreme Court case on saying there are dignation of a source or exception. Im fine with you making up stuff. Im knot making it up. You said here it confusion issue. Do you agree cfusion is the heart the landom act. You could have confusing usage of a trademark. You said its misleadinor sponsorship thats the confusion we care about. What the act is trying to do is say are consumers confused as to origin source or spondylolisthesiseso nship of the product. I agree but w isnt that the question. The famous film prerogers case. The Dallas Cowboys cheerleader involving graphic sex wnt a trademark. It was confusing usage of a trademark this means a consistent origin of source even if its unknown. I found,here is not a Company Called iphone, its apple but iphone is a trademark. You can infringe their marks without indicating the source. You can put it in a movie or on a tshirt. Its not use as a trademark. It has nothing to do with usage of source its a mark. I know, im right about this designion of the source is a carve out. Confusion i what way. You put the apple mark not on something that looks like an iphone so people are confused. You put it on the tshirt. Likely how is that a Trademark Infringement in the sense of origin of source. Sure, you put a tshirt that says apple sucks. Its a usage of the trademark. It doesnt indicate the source but a statent. Put your favorite cartoon character in a move video thats a desigtion of source. A title is not a designation of source. Gone wit the wind is not a designation of soue. Harry potter might be. U can look at any case or mccarthy it violates the trademark law. Can i go back to the question of Justice Thomas has. In part, i have some hesitation withoutnong the likelihood of confusion test is confusing talkbo making things up. The tests are confusing. What judges have to do is figure out how do we get to that and decide what is confused. We have to create principals. I think you are right it cant be commercial products. You can use it in one setting but not another. It cant be designation of origin because that doesnt have to do with improper use. Its contextual i think. You are shaking your head yes. Yes, absolutely. If you lookt the factors. Im from the Second Circuit they are trying to get at is this context can or is confusin. I see the rogers test. Not as articulated. All of them have some form of it and its dferent. I see them doing something they are saying there are certain context o usage that are ls likely or not likel to confuse. At the Second Circuit said with respect to titles is, when you talk about a title usage the context of a movie, you ct decide if its confusing unt you look at the movie and you decide whether or not the movie uses the title in an asteddicly pleasing way. It has to have something greater than the likelihood of confusion. Artistic relevance. That might have gone too far. My point simply is, i would limit the severitynd not to anything else. Parody as a context doe ask all of the poliroid. Id like you t answer these hypotheticals. Consider some usage in context shouldnt require a lidny of polariod factors. Activist takes a Political Partys logo. Like a dkey or elephant. One of the Political Party imal. They make a tshirt wh an anal looking drunk. A Company Comes up with a slogan sober up america. You want my answer. She sells them on amazon. Okay. Theolical party gets a Consumer Survey showi tha 15 , 20, 25, 10,hatever number we makeup. The activisteeds the partys permission to copy the logo. So, im a judge. I know what id do. Telle what you would do ando they have too through a full trial und t polariod factor. First of all, thats funny. Ill give you that. If i could go back to the point of polariod. The fact that a product including yourshirt example isunny or has a parody is extremely relevant as any character the person vieng it would od get the joke. Isnthat the issue we are dealing with. Id like to get the answer out. Someone other than the brand wasntaking the joke. Ats all that matters. Haha ha is not a standard. In your republican elephant example. At going back to Justice Jacksons point. You sd its not just about source. What else is it about. Ka on yourleant example in terms of ande you had the copy. On conme survey they capture beus consumers are dumb or confused about the l surveys pick up the real world marketplace a jge with bias andnatical wont represent the perso the reason we haveurys is amazing. Jerome had a cas involving teen girls underwear and he said you have to be kidding me. Im man and everyone on the urt is a image and cldt someone do a surve and they were born. At was in 1948. Its rich to trash the bause they came out to help them. Its not on their inconception. Your example on theshirt. If there is a surveyf 15 . I also heard that 5 was too low. If they had a rule please do not have briefs that are lely misleading. If y wt to saydvocates and say its oka and 20 of judges found it receptive. Thats the basic problems the percentage. At some point its a political statement. Itd has First Amendment rights. Its not even a 75. It ear clear a certain point those people might be wrong. You dont need permission to make a political joke. They dont need permission to make a parody. You need to get permission. Id like to get this point out. There are three factors that baren the specifics of parody. The other dog toy case. It was a chewy vuitton was a play on lou vuitton. You have to congood evening up enough. Someone else is telling the vehicle. In the chewy vuitton case im struck willow different. Our court said im struck willow similar. Inhe chewy vuitton he said all of the designs were different. Louis vuitton makes dog products and they are high end products. Jack daniels mes dog products and sell them in same store that others sell their toys. They thought it w funny. Ly 7 people said they thought there was confusion as to who owned it and needed permission. That left 25 confusion. Ats a massively high Consumer Survey. Theth thing id like to say for 30 years is what the pto has been doing. Its confusing or not confusing. Look howimilar the mark is and something that says whoa, so obvious. Republicans going around drunk and need to sober up. They will say you need to do that. I can go on and o and on. The other thing about aesthetically. Debby does dallas wasnt aesthetically pleasing. I take it yourhort answer to justices hypothetical where the survey shows 2. Lets say it shows 30 . Your answer is that has to g to a jury. We sited the dark night case. Would it go to the jury or not . Can you give m an answer. It depends on the survey. It wouldnt go to jury it would be resolved on summery judgment. In favor of the Republican Party or democratic party. Well, unless itee 12b6 it survived the motion to dismiss. Let me give you some other examples that are in the briefs. Im sure you are familiar with it. This is a poster on a tshirt. It has a picture of two hands. One has diamond ring on it. At the btom, your purchase of diamonds will make it will enable us to donate to an african that lost his hands and it says from her fingers to his. I dont think thats confusing. If its diluting it will have an exception to fair usage. If its books and tv shows. You would not have that exclusion. So, you have the more it says someing ridiculous about the brand its likely to not be confusing. You run the chanc of having a dilation claim. There is a fair usage exception thats pretty robt. Could any reasonable person think that jack daniels approve this usage of the mark. Bsutely. Really. Let me envision the scene. Soon comes to theeo and said i have a gatdea for product tha w will produce. Its a dog toy and it will have a label that lks a lot like our label and name that looks like our name. Bad spaniels. What will be in this dog toy is dog urine. Do you think the ceoill say thats a great ia and well produce that. No, nationwide ran a super bowl commercial with a dead child in i because it was a bad idea. It was embarrassing for them. A rsonable person wouldnt think jack daniels would approve this. If you sell urine you will win on 12b6 but als violating a state law. You a not selling urine. I thought you saidt was. Ts a toy that contains some sort of dog urine. They will say ts is a great idea. Showing how confused i was id be your perfect consumer. Justice alito. You went toaw school and have hindsight bias. I went to a law school where didtearn any law. Its rich to say you know what the average purchasing public knows about. I just iad a dog. I kw something about dogs. The qstn isnt what the average person would think but a reasonable person standard. Simplify the thing. Since 1976 you had this substantial number of confusion. The best example is a re that says likelihood ofonfusion or deception. If you think thats the average reasonable judge, okay. Im not sure how you do a survey on tha if you think something is wrong yo have to say careful design and reading. Im concerned about the First Amendment implication of your position and you began by stressing that rogers is made up. You know, there is a text that says. Congress shall make no law inif i thinkg on freedom of speech. Your answer to the justices hythetical tells me tre are important constitutional issues. Trademarks have been around since the 1600. Same with copyrights. They had four cases. The San Francisco case, t zucchinni, a harper and monroe. Uaid on all four cases it didnt involve any kind of intent tse were harder cases. Its a property right. I agree when you dont have Property Rights i will infringe on someones speech. Its a limited monopoly. Anything that is soong as speaking is producted it by the hanham act there is no First Amendment. Uess you bring it as applied. It confusing and goes to the dilation. The lanham acts is important. You held that in the sage fran case. The question is if it should be interrupted. This is where they come from. This doesnt bring it into conflict. You should strike the statute as invalid or apply as a dog toy. You are overturning centuries and billions o dollars of brand investments as confusing. You are worried about you think are nonconfusing usages. We sited on page 25 case after case that projected parodies. Ne of them had survey cases. There were a lot of famous cases where the court had confusion. There is a Supreme Court case on point. The Athletic Association case. Thank y. Thank you. Anything farther . I just want to make sure i understand your position with respect to the First Amendment your primary position is consistent with the First Amendment. It was thought to be consistent by the founders at a time. It doesnt proct confusing speech. You are not opposed to the possibility there might be as applied cases in which trademark law does but up against the First Amendment. As applied its unconstitutional. That cou have happened here. Yes, thats the end of that. Onearther question. Your friend i should say the federal government is about to get up. Im not sur how much of a friend they are. I agree. [ laughter ] their argument is the District Court failed to, even under the appropriate test you are arguing for consider parody and confusion in this case and should remand for reconsideration. That iss index sisting standards forget abouthe rogers gloss. Id like to give you a chance to talk about that. Oka we agree with remand and vip had a lot of argunt we didnt meet the likelihood confuse. As to governmentsrgument the weighting of the capitollizing on the goodwill and not enough to be happy. We are relying on 30ears of pto case law that was never ntioned. Not once in 30 years has a pto case rejecting registrationn pardy we parody. We voled vacate remand and the ninth circuit would do what they would do. They are fullyrved and they have them on remand. Justice . Going back to justi corsuchs poi isnt trademark consistent with the First Amendment because of infringements limited scope, by that i mea be, isnt the point having a trademark to identify the mark owner own goods or services and prevent others from passing off their goods and services as mark owner . The confusion we care about is that people in the marketplace will look at these items a think they are the mark owners because of the way they are labeled rather than, the person who actually created them . If im right about that im trying to understand why shouldnt the defdants he to be using the mark in a way that identifies who is responsible for it in order for Trademark Infringement to apply . Reporter so, passing off was in the 1920s act. It got past that in 1946. Its never been limited. Since the first trademark act of 1881. You had trademark law since the lately 1800. You struck the first one. If its broader than that we worry about what other have brought up. Start being con aboutt we impairing artist who are referencing the mark from doing that in their work. I guess my t was, all righ w have these artist with First Amendmenthts or parod or whatever. The way we prevent infringing theirs is by making sure able to come in and accuse only of problem if they, the artist, are trying tonate the source of theirroducts by using the mark. I think thats a reasonable policy. This is my response to congress. When you regardless of what the statute was trying to do thats the point of confusion. Thats the area of confusion y say the statute is about. R wasnt until 2003. We had a vibrant film and ic community. The arts have flourished. Right, one last qution. All right, lets say thats my view. Kicks in if we have an item passed off as you say or antem that creating confusi as to the source oregon begin or sponsorship, right. Do you have an argument in this case with respect to this item . Yes. That its confusing in that way . As to origin or sponsorship or source. Yes, thats the survey. That was the finding of the apply brief. We know why this was source including their complaint. All right, great, thankou thank you, council. I think a lot of the intuition driving somef ose difficult questions is that reasonabl people are not likely to be confused about those products or whether the target of the pod sponsored or approved the product and i think that intuition is fully captured by the likelihood of confusion and th is the statutory standard at we think should bepped in all the cases rogers into the position that responded is very different. That says that you should be allodor various first amendmtolicy concerns. You shouldellowed to engage in this behavior even if it is likely to confuse consumers about the source of your goods or about the sponsorsh or approv a i think that if you just cant be squared away with the lanham acttself and isnt compelled by the First Amendment. I welcome any questions. So what exactly would you do with rogers. It was incorrectly decid and the standard is inconsist with of the tt of the act and i think y see that for at least three reasons. Firstplied by the ninth uit, it is a test that the infringement has to satisfy. You have to getver rogers and show the likelihood of confusion and that is plainly inconsistent with the way the statute was designed to operate. Seconds stively it requires showing eit relevance or that the use of the trademark is explicitly misleading but of course as explained, you can have cog marks that are misleading so r currently behaviors that could cause,ot of likely to cause confusion consumers and the act makes that kind of trademark use actionable as infringement. And of the third point rogers wouldnt conceive of as an application as the text in the act. Is doing awayit something that circuits have been relying on virtually all overut applying it in different contexts we have amicus bris for different stakeholders. Some say it may not apply in parodyut it might apply in Something Else and not of this and novels et cera. Why should we rule broadly and if we rule narrowly on what basis weve heard earlier at least three iterations, won the justice, one jtice jackson and one me limit the parodies becaus ty really do rely on if its a joke the people are ing to g. Justice sotomayor, let me get a up of points on this concern. First to address the status quo its not the case all circuits have applied to the rogers test. There are manyircus that ha never adopted rogers, including theh, fifth and seventh circuit that i think address parodie in the correct way that we advocate which is we can take the provided nature of likelihood of confusion standard which is the statutory standard. The second point is i w grant you there are a number that have followed rogers but of the cnvolve titles as rogers involved the title. The ninth circuit has dramatically expanded th scope ogers. That is my question. Why dont we just de parody whether it is everything else. I think rogers at least by the ninth circuit is not limited these, so the court if you are saying that rogers i integral to the circumstances of the c i think you would probably loy be saying it shouldnt be applied not just in cases involving parody, but others logical because we are nots dealing with titles or anything else. I think our principal onse is if the rationale for the decision the court adopt that rogers cant be squared with the lanham act,ts hard how that would be to parod and not apply to other uses of marks that are currently covered by the rogers test. Is the govts position that the case of likelihood confusion in the rogers test is out of the picture or that the First Amendment across the board is on the picture . I think it is just the former. We d test is the way to approach the cases for indeed in theirst amendment, but it was Justice Gorsuch and played of rogers and tells the lowerd courts rogers was in the correct way t do this, the c ways to apply the likelihood confusion standard, that doesnt foreclose as applied First Amendment a challenge i the case. Rogers is not itself an application at any established First Amendment principle. Cant think of any area in this jurisprudence which requires courts to make judgmentsf artistic relevance or in which the Government Authority regulate the turns of the judgmf artistic relevance. Thecitly misleading part sound basis and the courts first ant process. There are areas of false and misleading speech which the government can regulate, those including fraud, defamation, perjury, in those s of unprotected speech, it has never mattered whether it is that is just a distinction that was made up by the ccuit in rogers and i think thatt time to putting an end to it. Would like to understand what you would have us do with respecto the re manned because you do argue under the lanh act text was a place to start coming likelihood of confusion th District Court aired and it didnt fully account for the parody nature of this product. So exactly what instructions and how would you articulateha in our view they committed legal error in failing to take account of the future of t respondents use when alyg the likelihood of confusion factors that are applied ith ninth circuit. I think that is primaril apparent in the District Courts consideration of the similarity of the marks factor, which is a factor that all the courts of appeal consider relevant to evaluating the likelihood of confusion. The District Court, iur view the way theary enters into the picture in most of these cases that ordinarily you would take the more similar marks, the likely consumers are to be confused andheactfinder could conclude that is in the ca in the parody case because the parody by natures going to be dwn in some humorous contrast with the original and th will if self served to distinguish the two in the minds of consumers. And i think the cou could make that clear in its opinion and th petitne and the government of a disagreement about how best to read the District Courts opinion whether they actually made of the legal error that we think the court made that is a question for the ninth circuit to resolve. Let me see if i have it. The similarity of the marks was a great emphasis in the distric courts opinion and perhaps too much tohe point where there are some parodies whi the marks are going to be very similar, but everybody orost everybody or aeasonable person guess the question which of those, but understand the whole point of the joke is that it isnt t tdemark holders try to get somebody else. Yes, i think thats right. Whichf those is it . Me percentage or a reasonable person . And ordinary consumer exercising ordinary care, that is the longstanding standard thats derived from the cases that predated the lanham act. What about the fact aotf people surveyed may think that as a matter of law, it was necessary to get the appvaof the mark holder . Thats a hard case. There are certainly some respondents w say thats the kind of legal mistake that should be dismisdn the likelihood of confusion. I think thats hard say because the lanham act itself, the one theory of Trademark Infringement is consumers are confused about whether the mark holder h granted its provision to use its mark. Whether its granted legal permission to thalgedly infringing mark. If the survey consumers think yeah, you couldnt do this without getting jack daniels das permission, i think thats evidence of likelihood of nfion. Now i will say surveys are just i mean, its one piece of the puzzle here, but its not the whole thing. They are meant to be an approximation of the Consumer Perception in e marketplace. The surveys are expensive and they are in a test that is a multifactor test, which is confusing, which doesnt provide a lot of guidance in particular situations. Its an extremely kind of expense litigation to go through. So, when you look at these potheticals that were given to you, whether they are political or artistic speech and your first line defense of this and second and third line defensive is dont worry, you will win on likelihood of confusion. I think that what this rogers test is all about is to say that there are some things the political hypotheticals, arstic speech hypotheticals that shouldnt have to go through this holy analysis and we c g rid of in the first instance on the motion to dismiss without surveys, without well, justice kagan, you can add adjudicate on the motion to dismiss of the allegation and the complaint do not follow the alleged infringement. If they do not plausibly allege likelihood of confusion. Thats the ordinary standard that applies in every oer context in federal litigation. Ery other context of federal litigatio doesnt dissolve the kind of clearly first amement protected speech that these hypotheticals are about. So the point of these hypotheticals is to sayhat every other context in litigationeally doesnt cut it when youre talking about protected polic and aisc ee. In any other context if you were the defendant in one of these ces in the nontradema case into the subject of statutory claim and wanted to raise as a defense that the First Amendment protected your conduct you have to litigate the defense. You dont get a special oramp at the beginning ofitation because it mighte expensive to litigate the defense you would li to raise and i think in general theosof litigating a adark infringement for not a compelling reason to displace the stuty standard with t rogers standard that isnt itself based on trademark law or established first amdmt principles. The other thing i would point out t briefing on the other side there is a possibityr threat of abusive litigatio tactics that could have gone cousing uses of the marks and i tnk the Congress Already addresd at by some extent providing for fee sftg that is ielan unusual feature in federal law in an appropriate se the District Court that fod case was brought in bad faith but shows its not confusing, you could order attorneys fees into that serves as a deterrent to some extent. Some of the hypotheticals and actual cases are highlighted in the briefing of the case do seem to me to present serious First Amendment issues. You seem noto be very concned about the free speech imications of the positions that you are taking. Heres another example, this is a reallife example th one of the briefs. There is a college i want to say what it was lets say its abc college into the professor, theres a website that has abc in it and its dedicated to the criticism of the college or corruption and mismanagement and the cle claims that sin infringement of the mark. Its difficult t igine in a case like that that he and in ordinary consumer exercising ordina ce would be confused about whether tsebsite that is highly critical of the college, whether the college was the source of that website or otherwise sponsored or arod it. It could be dismissed under 126 that there was a likelihood of confusion . You would have to know more out the complaint and the factfinder wouldav to make a judgment about whether the alletis of confusion are plausible. I think you do have some cases that are dispensed in this area so its not impossible. I dont take a lot of the favor ofogs to say the cases uld really come out differently. Thela is just they dont want to have to go throughhe process of demonstrating that its not likely and i dont think that itself a sufficient bas maintaining rogers. Thank you, counsel. Justice Thoma Justice kavanagh. Im sorry, Justice Jackson. Mr. Cooper. Mr. Chief justice and may i please the court. In our popular cultu iconic brands or another kind of celebrity. Entitled to tk about celebrities and yes even make fun of them. Jack danls advertised in a serious way that jack is everyones friend and it is playful parody to other best frie. Its clear what the complaint was about is not spaniels. They are complaining about the speech, the parody, the comparison to dogs and a baddesd spaniel, not the mark. The noncompetitive goods like the spaniels a likely to cause confusion as to the source or as the court recnized quite properly in campbell, companies simply do not license tir own products. The circuieloped the rogers tt to protect exessive works generally and it keeps thehrt of litigation from silencing speech thats particularly true when celebrities go after parodies. The solicitor general agrees the multifactor test is usually applied doesntork for parodies and the District Court must apply the factors here. Broadly the test ttas your project speech like holocaust nce or michelob magazine is broken. A test that requires snificant resources to vindicate obvious. He is like al qaeda or holocaust is simply the wrong tool for the job. If the court is inclinedhe solicitor generals position the court should provide more guidance than simply keep that parody in mind. It was a burden of litigating the irrelevant or inverted factors of self. Stripping out those factors the lost version would ask three questions. Can they see the products character thats taken from campbell. To what is t proximity of the competitivenes of the parties goods . That is taken from the sndards testing third does the parody otherwise fail the parody mark. Whether denying the free pass but fundamentally the First Amendment is not a game show where the result is surveys as im confused stop talking. I wcome your questions. So, is your concern are you as much concerned about the test itself or the location of the test . What if your test into the factors concerning you are rolled into the multifactor test . I think the rogers test if i derstand is a simple way. Im trying to uand whether or not you are mor concerned about the fact that rogersempts the lanham act multifactor approach upfront as opposed to your having the exact same test but at the mtifactor stage. We think the test functions best as a screen that takes out all the expressive work at the begiing so you never have to get to so in other words, you prefer the rogers test because it precludes application of the full lanham test . At least multifactor test that is conceived of because the multifactor test as this court courtrecognized in wisconsin rio life that kind of openended inquiry and self kills speh. So with that, what is your best textual hook for rogers and for the offramp that youre proposing and that the ninth circuitlied . We think that the broad rd of likely con is fine. Theres an entirece built under the act to try to reconcil with First Amendment text whether its fair use doctrines atre nonsry, whether it is the rogers test there are w of mashing that and understanding that the text doesnt provide a andard for the mechanism. It doesnt seem to have its roots in the first. One has to differentiate the rogers test deserves formuti and i agree that its not the most well phrased test in terms of artistic relevance. Think the intellectual law ofsors brief supported neither is kind of appro the more accurate test to say is it a gratuitous use for the message so as long a theres a connection and its not just throwing on a funny trademark that has nothing to do with the stf the good then that has relevance and ihi is applied in the parody case, parody is an easy case because of the nature of. Using both saying im the original but im also not the original. Ca i ask you you said that rogers screams out expressive works and i think part of the problem that im struggling with is alle uncertaintye have as to wheth not something is sufficiently expressive and that seems to be where there is a problems in the rogers test so let m ask you one question which iss it your view that expressive n never confuse as to source or origin because if an pressive work can, i dont understand why it wld be entitled to be screened out. I think it is highl unlikely, and i fact an example where you could have an expressive work that was likely to confuse if it wast otherwise explicitly misleading. What about the hypothetical of this very scenario, so lets say they made a dog toy that was the exact size, shape and color of a jack daniels bottle, they call it bad spaniels, but the label is identical and everything is the same and there we have it. Are you saying that that scenario is o in which would still claim entitlement to expressive screening out in other words if we know these thingsre basically identical except one that says check daniels and the other says, or lets do it this way what if it says jack daniels thats an easier hypothetical, but the chewy dog toy says jack daniels and its the sameolor, size, shape and everying. Itould be explicitly misleading. The parody here though is not putting jack daniels on a dog toy. There is far more to i and in this case what is theody here . The purity. Maybe i just have no sense of humor ter] what is parody. s multi fold. The testimy the case, and sot been cited the parody is to make fun of marks that take themselves seriously. You say that but you make fun of a lot of marks. Are all of these Companies Taking themselves too seriously . Yesn fact [inaudible] i think tre are a lot that take themselves too seriously. Forxample you dont get that building up of an edifice of making them into an icon reference point. When you advertise on tv excessively and create this image of yourself as something thats so important. So any time you go out or after you use the mark of a Large Company a a parody despite the definition because they must take themselves too seriously because they are a big coany. I think as applied here theres no doubtt takes itself very serusly. Stella or to takes themselves very seriously. Ive seen their commercials. Jack daniels at the head of th line. [laughter] okay ive made my point. Council, the point has been made i just have a slightly different question. Youve said that the artisticrtc expressiveness isnt quite right and you would agree the judges would make for prettyousy art critics i assume. Thats correct. The other part is this explicitly misleading and the first amdment doesnt protect eech that is misleading often or doesnt give it the same protection always and im not re where explicitly comes from as opposed to implicitly misleading that would also have different First Amendment implications. So whe does that come fro the problemith artistic use, your honor, or any kind of expression weve already put that aside. Heres the problem first of all explicitly misleading is a way of identifying a mechanism of confusion. So its confusion. Caused by misleading it factors in through the misleading portion. I think i uerstand. You had a threepart test that you started with at the beginning thats different from the rogs test. Its an alternave that is based on more the multifactor test if you strip out the inverted or irrelevant factors of the parity. And of those are things that are grounded in the statute of the traditional interpretation. Grounded in the statute in the recognition of campbellnd the reality of those that dont license their own procts. Would you be okay wit that . You argued i think the answer is yes. For parities it approaches the test as a means t protect speech while not denying a free pass. Okay thank you. Ieen confused by your allegation in your complaint that the bad spaniels if you are the owner of it. The only trademark i see on your produc is on the silly squeaks. Thats the source correct thats the trademark. Thats the actual trademark. And thats the only thing that has dr on it. Or tm. Im not sure how you are calling bad spaniels a trademark or the bottle which youv you as the jack daniels trade because its unique square bottle how you could claim it as your own. We are not but to check daniels is claiming we are using that as a trademark. Sohat did the complaint to say that you arehe owner of all rights in the spaniels trademark. Its a form allegation of ownership that is the inclusion. Its n under the circuit precedent any kind of traditional admission. What we were just saying as the designation of source on the product. Every designer of product that puts their tradenames on it have manyamous designers. They have a logthat symlizes them. They each design a different thing. Thats what you do. Among many other this. Weve argued throughout the case and in the court of appeals that nther bad spaniels nor the appearance on the toy function as a trademark. Some of the others are registered trademarks, arent they . Doggy walk is registered. Oy the Standard Character mark that used to be cled the type of mark. Only the name,ot the product ime. Jack daniels made clear in this case they dont consider bad spaniels to be infringing. Its the totality of the whole look. In t confusion survey they used bad spaniels and the dog headed as it appears. Diyou agree with the suggesti that it does not protect speech that i mislding . Very much speech in the country if that were the case. I think that is an overbroad statement. In the way that mcdonalds sponsors something that comes from. So why dont we just ask that at the beginning of all this withespect to any argument about trademark in this way why dont we ask would a customer mistakenly believe that this thing came fromack daniels and was sponsored by jack daniels, why do we need a rogers test. With pares that should be operating and tirelessly slength. It is so difficult and sub to the misappln and expressive works including parities. No one loot this toy could be leave they threw away thees and in applied to the multifactor test andot it wrong. They may not have given adequate weight to the fact that this is a parody in the proximity and the differencein the label and its analysis. Woul you have any objection to that . Most dont stand at the lectern and oppose a win but this would be interesting. I would prefer more of the landslide when. Fair enough. Who wouldnt. And also in future cases would provide a cle guidance from saying consider how parody plays into it. When you have to litate six, seven,ight, nine or ten factors if we are going to talk about factors, yourasking us to put more factors into the equation, not fewer and some that are in the statute is an antecedent that is to be open before u get to the statute. I think iveotten it down to three factors here. Those you say are in the statute. Im talking abo the rogers factors llows the critics l that sort of thing has to be done before we even get to to. It should be sn from the copy o rogers. Its a matter of relevance rather than artistic relevce andnk in practice it hasnt proven the tes tt is difficult to on a fair and reasonable basis to distinguish in the harleydavids case, someone just ung a mark cl rogers and saying no, theres no message here. Theres nothing here you take as a secondbest when. Whats critically important is that whatever the test i something this case and other cases can apply simply and fairly without spendingeople that are bunching up every cas for me you still haveo fight against the loss. Whether the rogers test kits the question exactly right whether there should be a better test to think about First Amendment issues. Youre sort of out of that. This is a andard commercial produc this is not a political tshi. Its not film, its not an artistic photograph, its nothing of those things. Its a Standard Commercial product. I dont see the parod youre using this as your complaint say as the registration on the other products, as the placement of your hand tag says, youre using it as a source identifier. It s like just not a fir amendment rogers kind of case. The First Amendment rogers kind of case i what the argument suggests is those are hard questions. I gue questions why arent you leagues from rogers . One thing the distinction between the utilitaan goods and expressive wks your honor gave as an emple he tshirto not get caught up with utilitarian goods t they may also bear a message whether its a hat we all know can become political symbols or a shirt or coffee mug. So a dog toy is a utilitarian good . There might be some art cases. I dont think the political tshirt is a hard case if it says somethi thats making a point,ut dog toys are just utilitarian goods and youre using somebody elses market as a source identifier. Thats not First Amendment problem. If w change the hypothetical you say put on a tag not for use with real blogs and it was purely as a collectible because that is what the testimony was with thisntended from the Graphic Designer who worked it up. Then it wouldnt be a utilitarian goal that would be an art piece. Doesnt matter whether you uset with your dog or put it on the shelf as i plannedo do and laugh at it from time to time its still in expression. What jack daniels is upset about is not the utilitarianood. They are upset about the speech on it. But it does matter whether you put it on the shelf because the lanham act doesnt care about that. If you put it on the shelf, then ure not using it in commerce. Youre not shopping it around and potentially confusing people into thinking that jack daniels is selling this. At the whole heartland of the trademark. If theyol that way not to used with a dog but as a soft sculpture for people to buy an put on their shelf to get a good laugh at the joke which some people get iecd that would take away its utilitarian value but it would keep its expressive value because what people laugh at isnt the fact its a dog toy withhe speech. If jack daniels was doing that that would say when you were sued, i mean, if v was doing that to a test that would say is this item being used as a urce identifier for this product in a way that would confuse pele into thinking at jack daniels was actually sponsoring or it was made by jack daniels or whatever, would you object to that being the primary question asked . That inquiry doesnt determine whether its bng used as a utilitarianood or not. Its asking something slightly difrent. Its whether peoe perceive, whether e reasonable consumer would perceive that this came from jack daniels. Rather than this artistic value, is it explicitly misleading all these oer questions why isnt the question looking at this a reasonable person et cetera theay the lanham act i understood direct escorts to look at our people confused into believing that jack daniels created this, sponsored of this or whatever . That. Think your honor could do the problems that rogers recognized is to pare my opposing counsel weve got a survey. And also as the clies and others have reported that when you are dealing with expressive work, you have accept a ightly higher degree of confusion. But it sounds like youre saying with expressive work we get a pass under the lanm act even though the standard ordinarily for the trademark violations and what congress cared abo is people putting confuse consumers into believing from the mark holder if we can put our thing o there,we people can be totally confused but we dont just scream First Amendment and get out of the lanham liability and i dont see that istatute and thats what im worried about. I dont see that as a fi amendment either dt think you have to goards to accommodate thespeech considerations in the test and i k a lot of those cases where people say we are expressive and we are doing something the rs test itself would address through the applications they us gratuitous you d think that could be take of through the factors and the lanham act . Isnt the governments position in this case they say just to do it uer the lanham act, send it back and have parody taken into account . It could but it wont be unless this court provides more guidance as to what that means. And thats why we gave that strip down to the test. Justice thomas. On a parate subject could youust elaborate on why a product is noncommercial . Absolutely, your honor. Whether something is sold or not it doesnt make it commerciaor noncommercial. Under the test under section 1127 that has definitions if the test where whether y c buy or sell it in fact you would have the noncommercial use clusion would mean you would have to have sometnghich wasnt bought and sold in mmerce which is to find the ordinary courts of trade in the statute so thats just an impossibility and i think both the legislative history and the textual analysis of 1125nd 27. 2 the use as a reference o this courts commercia speec noncommercial speech distinction and that teaches that its only commercial if it does no more than ppo a transaction. In this case that. He isnt proposing a transacti because there is no product. Its simply making a joke and it is noncommercial. That is what the struggle was in the ninth circuit records case looking back at the legislative history a also the commentary weve submitted to the court analyzing what this exclusion was supposed to serve and what the reference was and how it fits with not only this courts doctrine on the noncommercial speech but also how it fit with of the other exclusions. I still dont know what that means, but to give me an example of something that commercial then. And advertisement. No, something that is commercial. I think an advertisement would be commercial speech that proposes a traaction. So if we were to have something is advertised a product, lets say bad daniels whiskey that advertisement would be commercial speech, youre proposing a transaction but that isnt what were doing here. We are not selling a bottle of diluted dog who which is the subject of the parody they are colaining about. The ninth cirit that the government is proposing e petitioner that noncommercial is anything you buy or sell and yove answered that, but they also make the point that saying that noncommercial i anything that has speech in it is too broad, that that wouldo away with the exception for parody and tha it would undermine the trademark definition you wouldnt even need the commercial because the definition says that it applies only to the goods that are in commerce so why would you need the word noncommercial at all . You could have a commercial use in commerce, but the problem is unless you read those exclusions broadly as we think is appropriate, you run into the fact that by tarnishing its unconstitution viewpoint discrimination. Its if you tarnish but not if you furnish. It is around defamatio that might be true if we were talking about a teletype case that we are not. We are talking about a case with many exceptions including the direct exception for parody, so im n sure how it runs into the constitutional First Amendment but the ninth circuit and otrs have relied on the commercial speech doctrine and analogize the noncommercial doctrine. The ninth circuit did it before this so why is that wrong . Its not wrong. I think its the appro interpretation to prepare it. Not on the commercial speech ctrine this would still b commerce. It wouldnt be commercial use bethe parody is doing more than png a transaction. Its n even you wante to buy this product because of the parody. I exaggerating only slightly, ive seen thousands of dog toys in the mard you pick bas on something uniquely funny about a particular toy. Thats correct so your proposing a ansaction. Any product you sell proposes a transaction in the sense that its an appealing product but that isnt what the test is. Justice alito, anything further . Justice sotomayor, justice kagan, Justice Gorsuch . Thank you counsel. Ms. Blatt, rebuttal. Thankou mr. Chief justice. Justice alito allrademarks are expressive. They have speech rights and every time you infringe them its going to impcate speech by definition. What the other side, and i dont hear you talking about is the ha of speech no one likes, the pornography and the poison and its hard for me to see how you can say that the trademark owner doesnt have an interest in something that approach is mpled speech if its been used in porn films and sex toys and people are profiting off o that. In terms of where we are gng with the message versus the pruct, the tshirt example, there is a very entertaining case on page 25 rejein parody and it involves thmii vice sht thats turned into miami vice. Very funny, no one would think its confusing because they are cartoon mice so theres plenty of tshirts that dont meet that confusion. The first, seventh tth dc circuit have not adopted rogers. Theres a case we cited on page o the seventh circuit and its case saying its completely implausible the Clean Slate Program in the dark knight movie could be confused with a clean ata Software Program softd the Court Dismissed that on tremblay, excu me, 12 b6. As far as i know rogers doesnt even get dismissed it goes to Summary Judgment so im not sure how rogers helps. In terms of the disconnect between Justice Jackson and Justice Sotomayor,usce jackson is talking about designio of source and Justice Sotomayor about parody butfhe two intersect you could have a political message on aogoy you can put a parody on a thi, a political message on calendar. Its another mans paperweight. They areot decorative and anytime you mention holidays like cisas lights, christmas ornaments, trees, Halloween Costumes and i mentioned dreidels, menorahs et cetera, i dont know what that is. It sounds expressive but they are all utilitarian. Finally, two moreoints, Justice Thomas, the examples of uses in commerce which means trader interstate commerce ses over state les the examples that wouldnt be commercial use arenything like videos about social media come in a televised mpaign speech, campaign buttons, oni articles and pamphlets soho are all goods at move noncommercial because they dont invol t buying and selling of goods. Finally in terms of the remand, of course we want the court to remand and we think the issues are preserved, but its somewhat galling to have the offic come up time and again and dontve mention the position. They have 30 years of case law but it doesnt mention anything they are talking about. Today the government doesnt even mention it in their brief. That is unacceptable to come up