Let’s boogie oogie oogie over to today's legal news.
The US Supreme Court heard arguments in a case involving a parody dog toy named "Bad Spaniels," which resembles a Jack Daniel's whiskey bottle. Jack Daniel's is appealing a lower court's ruling that the toy is protected by the First Amendment as an "expressive work," while also raising trademark infringement concerns. The justices were cautious about scrapping the Rogers test, which allows artists to lawfully use another's trademark when it has artistic relevance to their work and would not mislead consumers about its source. Some justices, however, questioned whether the Rogers test struck the right balance between a company's interest in protecting its corporate image against free speech protections. The Biden administration's lawyer urged the justices to adopt the likelihood-of-confusion test, which considers whether the acts would likely cause marketplace confusion, in place of the Rogers test. The decision is expected to be made by the end of June.
By way of very brief background on the Rogers test: The Rogers test is a legal test used in trademark law to determine whether the use of a trademark in a creative work, such as a book or movie or dog toy, is protected by the First Amendment's guarantee of free speech. The test was established by the Second Circuit Court of Appeals in Rogers v. Grimaldi in 1989 and has since been adopted by other courts. The case centered on a movie, Ginger and Fred, that saw two characters emulating the dancing style of Ginger Rogers and Fred Astaire. Ginger Rogers took umbrage with, among other things, her name being used in the title.
Under the Rogers test, a trademark use in a creative work is protected by the First Amendment if it has some artistic relevance to the work and does not explicitly mislead consumers as to the source of the work. This means that if a trademark is used in a creative work in a way that is relevant to the work and not likely to confuse consumers as to its source, the use is protected by the First Amendment.
The Rogers test strikes a balance between the interests of trademark owners in protecting their marks and the interests of creators in expressing themselves through their works. It recognizes that the use of trademarks in creative works can be a legitimate form of artistic expression and that trademark law should not be used to restrict such expression unless it would cause consumer confusion or other harm to the trademark owner.
The Federal Trade Commission (FTC) has proposed a new rule, known as the "Click to Cancel" rule, which would require companies to offer online cancellation options that are as easy as the online sign-up process for subscriptions. This proposal would affect various companies, including fitness and media companies, and would also require companies to send reminders before automatic renewals are billed. The FTC's chair, Lina Khan, stated that companies should not be able to manipulate consumers into paying for subscriptions they don't want. The proposal comes as more companies have shifted to a subscription-based business model, creating greater opportunities for mischief. While some companies, such as Netflix, Peloton, and Spotify, already offer easy cancellation options, others, such as cable-television companies and Adobe, make it harder. The subscription market is expected to expand into a $1.5 trillion market by 2025, up from $650 billion in 2020, and the average American spent $273 a month on subscription services in 2021, according to a consulting firm. The proposed rule is the latest from the FTC, which has taken a more aggressive approach under Khan, proposing rules to curb online data collection and ban nationwide non-compete clauses.
The US National Labor Relations Board (NLRB) prosecutors in Brooklyn have found merit in charges filed against Amazon by the Amazon Labor Union that the company engaged in illegal union busting. The charges include allegations that Amazon refused to bargain with the union, restricted access to facilities, disciplined a union leader and committed other unfair labor practices. The new allegations stem from a unionization vote at an Amazon warehouse in Staten Island in April 2022, which triggered the company’s obligation to negotiate a first contract with workers. In January, an administrative law judge found Amazon guilty of violating federal labor law in its attempt to resist unionization at Staten Island facilities. This is the latest in a string of labor issues at Amazon warehouses across the country.
A U.S. District Judge in New York has ordered Iran's central bank and a European intermediary, Clearstream Banking SA, to pay $1.68 billion to the families of troops killed in the 1983 bombing of the U.S. Marine Corps barracks in Lebanon. The lawsuit, which was filed by the victims and their families, sought to enforce a judgment against Iran for providing material support to the attackers. Bank Markazi, the Iran central bank, and Clearstream were named in the lawsuit. Clearstream, which is holding the assets in a client account, said that it is considering appealing the decision. Deutsche Boerse AG, Clearstream's parent company, said that it does not view the ruling as increasing the risk from the lawsuit in a way that would require the companies to make financial provisions. The Oct. 23, 1983, bombing at the Marine Corps barracks killed 241 U.S. service members. In 2007, the victims and their families won a $2.65 billion judgment against Iran in federal court over the attack. They sought to seize bond proceeds allegedly owned by Bank Markazi and processed by Clearstream to partially satisfy the court judgment. In January 2020, the U.S. Supreme Court overturned a lower court ruling in the families' favor, and ordered the case to be reconsidered in light of a new law adopted a month earlier as part of the National Defense Authorization Act.