4 ms·

Trademark is suppose to be about customer confusion, no one is confused here. This is just once again showing that intellectual privilege laws are too draconia

Trademark is suppose to be about customer confusion, no one is confused here. 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

colechristensen 3y ago
I’d have a problem if this was an artist, but it’s not art it’s somebody trying to sell dog toys that look like Jack Daniels. This is not expression that I care about protecting. The ruling talked about “trademark of a trademark” not being protected and that’s just fine.
- phpisthebest 3y ago
  Novel concept, my belief is there should not be any kind of test for which types of expressions should be "protected" or not... 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.
  - colechristensen 3y ago
    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? 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.
    - phpisthebest 3y ago
      >>The Supreme Court called spending money on political campaigns “expression” in the Citizens United decision, do you support that? 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.
    - s1artibartfast 3y ago
      Citizens united was clearly about expression as the term is commonly understood. Upholding the law would have given the government power to ban books, pamphlets, and most forms of communication commonly understood to be first amendment speech. 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.
  - simiones 3y ago
    You're choosing the wrong thing to start this crusade over. Trademark law is by far the most defensible form of intellectual property, since it is very clearly necessary for a decent economy. There is no world in which it would be better for anyone to be able to claim they are selling an iPhone with iPhone branding and everything over it while selling an old Alcatel feature phone. 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.
    - lahvak 3y ago
      > There is no world in which it would be better for anyone to be able to claim they are selling an iPhone with iPhone branding and everything over it while selling an old Alcatel feature phone. 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.
      - JumpCrisscross 3y ago
        > 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 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.
gwd 3y ago
> Trademark is suppose to be about customer confusion, no one is confused here. 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."
- MisterBastahrd 3y ago
  A lot of people who don't follow the courts make the mistake that whatever ruling the USSC makes must necessarily be the final one on the entire case, without considering that the USSC often rules on specific issues related to the case.
  - bdowling 3y ago
    Exactly. Many cases before the Supreme Court are about whether a type of case should be in court at all or should get to be heard by a jury. The decisions do not dictate the outcome, but have to do with whether the lower court made a mistake in dismissing a case early. Here, the court is saying that Jack Daniels gets to make its case to a jury.
  - qingcharles 3y ago
    It's hard for the public to understand most court rulings, especially when the headlines are always so alarmist and yet the rulings, especially SCOTUS rulings, are usually so incredibly narrow and on some tiny statutory interpretation. 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.
brookst 3y ago
> Trademark is suppose to be about customer confusion, no one is confused here. 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.
- neltnerb 3y ago
  It sounds like even in this case it's the context (on a bottle of whiskey) and that they trademarked their own product which made it need to even look at these other tests. And it still might be fine. 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.
kevin_thibedeau 3y ago
The distinctive bottle design is part of the JD trade livery. It gets used on licensed products officially endorsed by them. It does create an implied approval when others copy the design.
phendrenad2 3y ago
> no one is confused here 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".
- autoexec 3y ago
  I'd bet that if you asked 100 average Walmart shoppers what "officially licensed" even meant you'd get some fraction which couldn't tell you. A reasonable person however wouldn't assume it was an official Jack Daniel's product and they'd certainly have to be extremely drunk to mistake the dog toy for an actual bottle of Jack Daniel's which is the only time such a misunderstanding would cost Jack Daniel's a lost sale anyway. 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.
  - phendrenad2 3y ago
    > only time such a misunderstanding would cost Jack Daniel's a lost sale anyway 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.
bsder 3y ago
> Trademark is suppose to be about customer confusion, no one is confused here. 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-lawsuit-the-full-scoop/ https://brokenpianoforpresident.com/2012/07/19/jack-daniels-...

colechristensen 3y ago

I’d have a problem if this was an artist, but it’s not art it’s somebody trying to sell dog toys that look like Jack Daniels. This is not expression that I care about protecting. The ruling talked about “trademark of a trademark” not being protected and that’s just fine.

phpisthebest 3y ago
Novel concept, my belief is there should not be any kind of test for which types of expressions should be "protected" or not... 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.
- colechristensen 3y ago
  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? 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.
  - phpisthebest 3y ago
    >>The Supreme Court called spending money on political campaigns “expression” in the Citizens United decision, do you support that? 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.
  - s1artibartfast 3y ago
    Citizens united was clearly about expression as the term is commonly understood. Upholding the law would have given the government power to ban books, pamphlets, and most forms of communication commonly understood to be first amendment speech. 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.
- simiones 3y ago
  You're choosing the wrong thing to start this crusade over. Trademark law is by far the most defensible form of intellectual property, since it is very clearly necessary for a decent economy. There is no world in which it would be better for anyone to be able to claim they are selling an iPhone with iPhone branding and everything over it while selling an old Alcatel feature phone. 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.
  - lahvak 3y ago
    > There is no world in which it would be better for anyone to be able to claim they are selling an iPhone with iPhone branding and everything over it while selling an old Alcatel feature phone. 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.
    - JumpCrisscross 3y ago
      > 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 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.

gwd 3y ago

> Trademark is suppose to be about customer confusion, no one is confused here. 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."

MisterBastahrd 3y ago
A lot of people who don't follow the courts make the mistake that whatever ruling the USSC makes must necessarily be the final one on the entire case, without considering that the USSC often rules on specific issues related to the case.
- bdowling 3y ago
  Exactly. Many cases before the Supreme Court are about whether a type of case should be in court at all or should get to be heard by a jury. The decisions do not dictate the outcome, but have to do with whether the lower court made a mistake in dismissing a case early. Here, the court is saying that Jack Daniels gets to make its case to a jury.
- qingcharles 3y ago
  It's hard for the public to understand most court rulings, especially when the headlines are always so alarmist and yet the rulings, especially SCOTUS rulings, are usually so incredibly narrow and on some tiny statutory interpretation. 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.

brookst 3y ago

> Trademark is suppose to be about customer confusion, no one is confused here. 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.

neltnerb 3y ago
It sounds like even in this case it's the context (on a bottle of whiskey) and that they trademarked their own product which made it need to even look at these other tests. And it still might be fine. 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.

kevin_thibedeau 3y ago

The distinctive bottle design is part of the JD trade livery. It gets used on licensed products officially endorsed by them. It does create an implied approval when others copy the design.

phendrenad2 3y ago

> no one is confused here 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".

autoexec 3y ago
I'd bet that if you asked 100 average Walmart shoppers what "officially licensed" even meant you'd get some fraction which couldn't tell you. A reasonable person however wouldn't assume it was an official Jack Daniel's product and they'd certainly have to be extremely drunk to mistake the dog toy for an actual bottle of Jack Daniel's which is the only time such a misunderstanding would cost Jack Daniel's a lost sale anyway. 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.
- phendrenad2 3y ago
  > only time such a misunderstanding would cost Jack Daniel's a lost sale anyway 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.

bsder 3y ago

> Trademark is suppose to be about customer confusion, no one is confused here. 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-lawsuit-the-full-scoop/ https://brokenpianoforpresident.com/2012/07/19/jack-daniels-...