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#badspaniels
I don't know who needs to know this, but you can still buy your own #BadSpaniels toy on Amazon: https://www.amazon.com/Silly-Squeakers-Liquor-Spaniels-Squeaker/dp/B00N3X6JBU?source=ps-sl-shoppingads-lpcontext&ref_=fplfs&smid=A1PA0BHWJSTAUZ&th=1
Luke Winkie on #BadSpaniels
"[T]he powers that be at Jack Daniel’s were so upset about this horrific incursion on their trademark that they took the issue all the way to the highest authority in the legal stratosphere, bringing to mind a third-grader who can’t back down from a dare."
https://slate.com/human-interest/2023/06/jack-daniels-supreme-court-ruling-dog-toy.html
Supreme Court Rules in Favor of Jack Daniel's Over Dog Toy in Trademark Dispute https://politicaliq.com/2023/06/08/supreme-court-rules-in-favor-of-jack-daniels-over-dog-toy-in-trademark-dispute/ #SupremeCourt #JackDaniels #trademark #BadSpaniels #ElenaKagan #FirstAmendment #politicaliq #news #politics
SCOTUS cites Stacey Dogan and @marklemley in #BadSpaniels: https://www.supremecourt.gov/opinions/22pdf/22-148_3e04.pdf
![The point is that whatever you make of Rogers—and again, we take no position on that issue—it has always beena cabined doctrine. If we put this case to the side, the Rogers test has applied only to cases involving “non-trademark uses”—or otherwise said, cases in which “the defendant has used the mark” at issue in a “non-source-identifying way.”
S. Dogan & M. Lemley, Grounding Trademark LawThrough Trademark Use, 92 Iowa L. Rev. 1669, 1684 (2007); see id., at 1683–1684, and n. 58. The test has not insulated from ordinary trademark scrutiny the use of trademarks as trademarks, “to identify or brand [a defendant’s] goods or services.” Id., at 1683.](https://files.mastodon.social/media_attachments/files/110/509/095/108/390/576/original/9d4a102855f98eac.jpg "The point is that whatever you make of Rogers—and again, we take no position on that issue—it has always beena cabined doctrine. If we put this case to the side, the Rogers test has applied only to cases involving “non-trademark uses”—or otherwise said, cases in which “the defendant has used the mark” at issue in a “non-source-identifying way.”
S. Dogan & M. Lemley, Grounding Trademark LawThrough Trademark Use, 92 Iowa L. Rev. 1669, 1684 (2007); see id., at 1683–1684, and n. 58. The test has not insulated from ordinary trademark scrutiny the use of trademarks as trademarks, “to identify or brand [a defendant’s] goods or services.” Id., at 1683.")
It's a #SCOTUS decision day.
Will today be the day we get #BadSpaniels?
It's a decision day at SCOTUS.
Will we get #BadSpaniels? #Goldsmith (the Andy Warhol case over the Prince portraits)? #AmgenVersusSanofi?
Stay tuned.
.@rtushnet at AUCWL: "Parodies can fail and still be parodies." #BadSpaniels
.@rtushnet at AUCWL: Cohen's "Fuck the Draft" jacket was still expressive even though it functioned as a jacket. SCOTUS understood that. #BadSpaniels
At this point, I'm just going to recommend to everyone this brief filed by @rtushnet et al: http://www.supremecourt.gov/DocketPDF/22/22-148/255392/20230223130058120_43246%20pdf%20Tushnet%20br.pdf
Q: "A dog toy is a utilitarian good." You're using someone else's mark as a source identifier. How is this a First Amendment issue?
VIP: Well, it might be sold as a collectible.
Justice Kagan: a dog toy is a purely utilitarian good (not speech)
I’m not sure why she doesn’t get that some thing useful can be two things. #BadSpaniels
Justice: "I don't see the parody but whatever." 
#BadSpaniels
Justice Gorsuch: if you win, why do you care how you win
Justice Kagan: for me, you still have to fight against a loss #BadSpaniels
VIP: "I think the word 'artistic' should be stricken from the text of Rogers." #BadSpaniels
Justices seem concerned about whether the Rogers test is the right test to protect speech concerns. #BadSpaniels
Q: Where does "explicitly misleading" come from? (in the Rogers test)
VIP: A type of confusion..."it factors into the Rogers test"
Q: When is something sufficiently expressive? Where's the line? Can expressive works NEVER confuse?
VIP: "I think it's highly unlikely" that an expressive use would confuse if it's not explicitly misleading.
Justice Thomas: "What is your best textual hook for Rogers?"
VIP: Not answering directly...eventually points to the IP professors' brief.