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 EngineProperty 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