Daubert-Proofing Your Lanham Act Survey.pptxMike Keyes
Developing persuasive and admissible consumer survey evidence is often times a vital necessity in Lanham Act disputes involving trademarks and advertising. Drawing on recent case law developments, this presentation covers important issues that call for special attention from trial counsel and their experts, including selection of the correct survey population, designing proper questions, thinking through the best options for survey stimuli, and much more. Whether you are already a pro at designing and critiquing consumer surveys, or are just getting into this arena, this presentation developed by J. Michael Keyes--a consumer survey expert and veteran trademark trial lawyer--provides many practical insights and tips along the way. If you have comments or questions, please feel free to contact Mr. Keyes directly at keyes.mike@dorsey.com or 206-903-8757.
Victor Moseley and Kathy Moseley et al., dba Victor’s Little Secre.docxdickonsondorris
Victor Moseley and Kathy Moseley et al., dba Victor’s Little Secret v. V Secret Catalogue, Inc. et al.
Supreme Court of the United States 537 U.S. 418, 123 S. Ct. 1115 (2003)
Petitioners, Victor and Cathy Moseley, own and operate an adult novelty store named “Victor’s Secret” in a strip mall in Elizabethtown, Kentucky. An army colonel saw an advertisement for the store and thought petitioners were using a reputable trademark to promote unwholesome merchandise, so he sent a copy of the advertisement to respondents, the corporations that own the Victoria’s Secret trademarks. These corporations operate more than 750 Victoria’s Secret stores and spent more than $55 million advertising their brand in 1998.
Respondents asked petitioners to discontinue using the name, and they responded by changing the store’s name to “Victor’s Little Secret.” Respondents then filed a lawsuit containing four separate claims for (1) trademark infringement, alleging that petitioners’ use of their trade name was “likely to cause confusion and/or mistake”; (2) unfair competition, alleging misrepresentation; (3) “federal dilution” in violation of the FTDA; and (4) trademark infringement and unfair competition in violation of the common law of Kentucky. The dilution count was premised on the claim that petitioners’ conduct was “likely to blur and erode the distinctiveness” and “tarnish the reputation” of the Victoria’s Secret trademark.
Finding that the record contained no evidence of actual confusion between the parties’ marks, the district court concluded that “no likelihood of confusion exists as a matter of law” and entered summary judgment for the Moseleys on the infringement and unfair competition claims. With respect to the FTDA claim, however, the court ruled for V Secret Catalogue, and the Moseleys appealed. The Sixth Circuit affirmed, finding that respondents’ mark was “distinctive” and that the evidence established “dilution” even though no actual harm had been proved.
Justice Stevens
The Victoria’s Secret mark is unquestionably valuable and petitioners have not challenged the conclusion that it qualifies as a “famous mark” within the meaning of the statute. Moreover, as we understand their submission, petitioners do not contend that the statutory protection is confined to identical uses of famous marks, or that the statute should be construed more narrowly in a case such as this.
The District Court’s decision in this case rested on the conclusion that the name of petitioners’ store “tarnished” the reputation of respondents’ mark, and the Court of Appeals relied on both “tarnishment” and “blurring” to support its affirmance. Petitioners have not disputed the relevance of tarnishment, presumably because that concept was prominent in litigation brought under state antidilution statutes and because it was mentioned in the legislative history…. Indeed, the contrast between the state statutes, which expressly refer to both “injury to business reputation” and ...
Motion to Dismiss 12 B 5 FILING Stamped-1 July 2021.pdfFrankEkejija1
Frank Ekejija and NVC Fund evidence supporting the Court filings exposed and debunked the SEC's wrongful actions and false assumptions. The facts are clear and on record.
PELTON PowerPoint: ABA Cyberspace Institute 2011-01-28erikpelton
"Trademark Strategies for 2012" Presentation to the American Bar Association's Cyberspace Institute in Austin Texas on January 28, 2011. The presentation explores recent changes to the practice of trademark law, and what the future might hold for trademark owners and attorneys who advise them.
Daubert-Proofing Your Lanham Act Survey.pptxMike Keyes
Developing persuasive and admissible consumer survey evidence is often times a vital necessity in Lanham Act disputes involving trademarks and advertising. Drawing on recent case law developments, this presentation covers important issues that call for special attention from trial counsel and their experts, including selection of the correct survey population, designing proper questions, thinking through the best options for survey stimuli, and much more. Whether you are already a pro at designing and critiquing consumer surveys, or are just getting into this arena, this presentation developed by J. Michael Keyes--a consumer survey expert and veteran trademark trial lawyer--provides many practical insights and tips along the way. If you have comments or questions, please feel free to contact Mr. Keyes directly at keyes.mike@dorsey.com or 206-903-8757.
Victor Moseley and Kathy Moseley et al., dba Victor’s Little Secre.docxdickonsondorris
Victor Moseley and Kathy Moseley et al., dba Victor’s Little Secret v. V Secret Catalogue, Inc. et al.
Supreme Court of the United States 537 U.S. 418, 123 S. Ct. 1115 (2003)
Petitioners, Victor and Cathy Moseley, own and operate an adult novelty store named “Victor’s Secret” in a strip mall in Elizabethtown, Kentucky. An army colonel saw an advertisement for the store and thought petitioners were using a reputable trademark to promote unwholesome merchandise, so he sent a copy of the advertisement to respondents, the corporations that own the Victoria’s Secret trademarks. These corporations operate more than 750 Victoria’s Secret stores and spent more than $55 million advertising their brand in 1998.
Respondents asked petitioners to discontinue using the name, and they responded by changing the store’s name to “Victor’s Little Secret.” Respondents then filed a lawsuit containing four separate claims for (1) trademark infringement, alleging that petitioners’ use of their trade name was “likely to cause confusion and/or mistake”; (2) unfair competition, alleging misrepresentation; (3) “federal dilution” in violation of the FTDA; and (4) trademark infringement and unfair competition in violation of the common law of Kentucky. The dilution count was premised on the claim that petitioners’ conduct was “likely to blur and erode the distinctiveness” and “tarnish the reputation” of the Victoria’s Secret trademark.
Finding that the record contained no evidence of actual confusion between the parties’ marks, the district court concluded that “no likelihood of confusion exists as a matter of law” and entered summary judgment for the Moseleys on the infringement and unfair competition claims. With respect to the FTDA claim, however, the court ruled for V Secret Catalogue, and the Moseleys appealed. The Sixth Circuit affirmed, finding that respondents’ mark was “distinctive” and that the evidence established “dilution” even though no actual harm had been proved.
Justice Stevens
The Victoria’s Secret mark is unquestionably valuable and petitioners have not challenged the conclusion that it qualifies as a “famous mark” within the meaning of the statute. Moreover, as we understand their submission, petitioners do not contend that the statutory protection is confined to identical uses of famous marks, or that the statute should be construed more narrowly in a case such as this.
The District Court’s decision in this case rested on the conclusion that the name of petitioners’ store “tarnished” the reputation of respondents’ mark, and the Court of Appeals relied on both “tarnishment” and “blurring” to support its affirmance. Petitioners have not disputed the relevance of tarnishment, presumably because that concept was prominent in litigation brought under state antidilution statutes and because it was mentioned in the legislative history…. Indeed, the contrast between the state statutes, which expressly refer to both “injury to business reputation” and ...
Motion to Dismiss 12 B 5 FILING Stamped-1 July 2021.pdfFrankEkejija1
Frank Ekejija and NVC Fund evidence supporting the Court filings exposed and debunked the SEC's wrongful actions and false assumptions. The facts are clear and on record.
PELTON PowerPoint: ABA Cyberspace Institute 2011-01-28erikpelton
"Trademark Strategies for 2012" Presentation to the American Bar Association's Cyberspace Institute in Austin Texas on January 28, 2011. The presentation explores recent changes to the practice of trademark law, and what the future might hold for trademark owners and attorneys who advise them.
After a period of sustained retail closures since the global pandemic, retailers are increasingly aware of the need to repurpose existing malls.
Information about repurposing retail malls, shopping mall facelift, abandoned malls, shopping mall renovation, mall renovation cost, strategies for repurposing retail malls,
This is the lawsuit filed by Monster and CEO Noel Lee against Beats Electronics, Dr. Dre and Jimmy Iovine. Filed Tuesday, Jan. 6, 2015, in San Mateo County Superior Court
ReferencesKahnke, R. E., Bundy, K. L., & Long, R. J. (2015). Key.docxsodhi3
References
Kahnke, R. E., Bundy, K. L., & Long, R. J. (2015). Key Developments in Trade Secrets Litigation. Business Torts Journal, 22(2), 7-12.
<!--Additional Information:
Persistent link to this record (Permalink): https://lopes.idm.oclc.org/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=102831068&site=eds-live&scope=site
End of citation-->
Key Developments in Trade Secrets Litigation
ARTICLES
Keywords: litigation; business torts; trade secrets; damages; patents; Defend Trade Secrets Act; Trade Secrets Protection Act
Trade secrets continue to increase in importance as companies and the U.S. government are focusing attention on their value and protection. This past year has brought a number of significant developments in trade secrets law. In this article, we highlight five of them: (1) the need to protect trade secrets during litigation, and the potential consequences of not doing so (i.e., the DuPont reversal); (2) the growing importance of specifically identifying trade secrets early in litigation; (3) the narrowing of patentable subject matter for software and the alternative of trade secret protection; (4) increasing support for passage of a federal civil trade secrets law; and (5) the continuing trend toward large damages awards and settlements in trade secrets cases.
The Reversal of a Massive Verdict on the Basis of Disclosure in Prior Litigation
When discussing reasonable efforts to protect trade secrets, the discussion typically focuses on the efforts taken by the company during its normal course of business. Equally important, however, are the reasonable efforts taken to protect trade secrets during litigation. Unsealed filings and public presentations in the course of past litigation can lead to a finding that the "trade secret" in question is no longer secret in future litigation, costing clients massive judgments. Such was the case in E.I. DuPont De Nemours & Co. v. Kolon Industries, Inc., 564 F. App'x 710, 714 (4th Cir. 2014).
In DuPont, the Fourth Circuit reversed a nearly $1 billion jury verdict on the basis of the lower court's evidentiary ruling. DuPont sued Kolon under the Virginia Uniform Trade Secrets Act, alleging that Kolon hired former DuPont employees in an effort to acquire its trade secrets related to the production of Kevlar, a proprietary DuPont product. At trial, Kolon intended to introduce evidence showing that a number of the alleged trade secrets at issue in the case involved publicly available information. Specifically, Kolon sought to demonstrate that DuPont had disclosed the trade secrets in the course of a 1980s intellectual property litigation between DuPont and a competitor called AkzoNobel.
According to Kolon, the Akzo litigation was a "widely publicized patent dispute" in which DuPont "disclosed vast amounts of technical information about the Kevlar manufacturing process-beyond its patent disclosures-in open court and public filings." Kolon contended that 42 of the 149 trad ...
United states securities_and_exchange_v_middleton_et_al__nyedce-19-04625__0001.0Hindenburg Research
SEC files emergency action to stop the founders of VERI tokens from dissipating the remaining $8 million of allegedly fraudulently raised crypto proceeds
12-‹#›1Describe the characteristics, valuation, and amo.docxdrennanmicah
12-‹#›
1Describe the characteristics, valuation, and amortization of intangible assets.
2Describe the accounting for various types of intangible assets.
3Explain the accounting issues for recording goodwill.
LEARNING OBJECTIVES
4Explain impairment procedures and presentation requirements for intangible assets.
5Describe accounting and presentation for research and development and similar costs.
After studying this chapter, you should be able to:
Intangible Assets
12
12-‹#›
PREVIEW OF CHAPTER 12
Intermediate Accounting
16th Edition
Kieso ● Weygandt ● Warfield
12-‹#›
LO 1 Describe the characteristics, valuation, and amortization of intangible assets.
Characteristics
Lack physical existence.
Not financial instruments.
Normally classified as long-term asset.
Common types of intangibles:
Patents
Copyrights
Franchises or licenses
Trademarks or trade names
Goodwill
INTANGIBLE ASSET ISSUES
The Coca-Cola Company’s success comes from its secret formula for making Coca-Cola, not
its plant facilities.
12-‹#›
Purchased Intangibles
Recorded at cost.
Includes all costs necessary to make the intangible asset ready for its intended use.
Typical costs include:
Purchase price.
Legal fees.
Other incidental expenses.
Valuation
INTANGIBLE ASSET ISSUES
LO 1
12-‹#›
Valuation
Google expensed the R&D costs incurred to develop its valuable search engine.
INTANGIBLE ASSET ISSUES
Internally Created Intangibles
Recorded at cost.
Generally expensed.
Only capitalize direct costs incurred in developing the intangible, such as legal costs.
LO 1
12-‹#›
Amortization of Intangibles
Limited-Life Intangibles
Amortize to expense over useful life.
Credit asset account or accumulated amortization.
Useful life should reflect the periods over which the asset will contribute to cash flows.
Amortization should be cost less residual value.
Companies should evaluate the limited-life intangibles for impairment.
INTANGIBLE ASSET ISSUES
LO 1
12-‹#›
Indefinite-Life Intangibles
No foreseeable limit on time the asset is expected to provide cash flows.
Must test indefinite-life intangibles for impairment at least annually.
No amortization.
INTANGIBLE ASSET ISSUES
Amortization of Intangibles
LO 1
12-‹#›
ILLUSTRATION 12-1
Accounting Treatment for Intangibles
INTANGIBLE ASSET ISSUES
Amortization of Intangibles
LO 1
12-‹#›
Does it matter how a company builds brand value? In a word, yes. If the brand is internally developed, its value does not appear in the financial statements. This is the case for The Coca-Cola Company, whose brand value is estimated to be roughly worth $79.2 billion but its balance sheet values its “trademarks within definite-lives” (i.e., brands) at just $6.7 billion. As you are learning in this chapter, this reporting results because the accounting rules prohibit companies from recognizing brands and many other “intangible” assets if they created them themselves. In contrast, when Procter & Gamble (P&G) acquired Gillette in 20.
QUIZ 3CMUN 272April 3, 2017Note You need to do two ou.docxmakdul
QUIZ 3 CMUN 272 April 3, 2017
Note: You need to do two out of three quizzes. If you did not do quiz 2, you must do quiz 3. If you choose to do three quizzes the lesser grade will be dropped. If you partnered for a previous quiz, do this alone. If you did previous quiz(zes) alone, you may partner with someone else for quiz 3.
Date due: Thursday, April 13, at 1:00 p.m. Please submit a hard copy in class and post an electronic copy in Sakai> Assignments. If you do quiz with someone else, submit only one hard copy but upload separately in Sakai.
Length: 2-3 pp. Single space. Double-sided is OK. You are encouraged to attach images. They do not count towards the minimum amount of pages. Please consult external references to back up or confirm historical or political facts, and consider the use of one or more maps.
· Make sure your answers are 1) well organized; 2) carefully proofread; 3) well argued for (with claims and evidence); and 4) cogent. Always re-read final draft to make sure you have addressed the questions asked.
· Be sure to cite, quote and paraphrase the textbook in a substantial manner (i.e., you need to demonstrate deep familiarity with the chapter’s content)
· Always re-read questions and final draft (aloud) to make sure you have addressed the questions asked.
· In order to answer this quiz you need to use and cite Chs. 4-5 from Sorrells (2013), as well as one of the films listed below.
· Use external sources to support your answers, and include a reference list.
· Provide a brief synopsis of the film and basic data (director, date of release, country of origin, actors, producers)
· Provide strong introductory and conclusion paragraphs
· Consider using stills from the film chosen.
Question: Using one the films listed below, please define, explain and apply four of the following clusters of concepts:
· Ascribed and avowed identity
· Cultural Spaces ( contested, hybrid, or segregated )
· Waves of immigration (first, second, third) and world systems theory
· Stages of adaptation (anticipation, shock and adjustment; and re-entry)
· Migrant-Host modes of relationship ( Assimilation, Separation, Marginalization, Integration)
· Migrant networks and Social capital.
Feature Films: Maria Full of Grace, Persepolis. Documentary: Which way home.
Now Anyone Can Invest in Startups—if They Have the Stomach for It
When Oculus VR sold to Facebook for $2 billion in 2014, some asked: What if the people who backed the virtual-reality startup two years earlier on the crowdfunding site Kickstarter had received shares instead of T-shirts or VR headsets?
They might have seen $100 turn into $14,000, says Richard Swart, chief strategy officer of NextGen Crowdfunding.
Until the past year or two, the Oculus approach to crowdfunding was the only one available to everyday investors who aren’t wealthy. Federal law prohibited Kickstarter and similar platforms from offering shares to backers, so startups doled ...
[Mehta v. Dept Of State Obtaining The Injuctive Relief]Justin Wilson
Explain what Injuctive Relief is, and explain what the individual is required to do or not to do. Also to inform audiences what Irreparable Harm is and explain why it cannot be compensated.
Without wasting too much ink (and time) discussing how the October 2015 Visa Bulletin was transformed by the Department of State (DOS) when it was originally released on September 9th, 2015, and how the Priority Dates (PD) were revised only four (4) days before its effective date, this article seeks to analyze the very important question of whether the Plaintiffs in the Class Action Lawsuit can obtain Injunctive Relief from the United States District Court for the Western District of Washington in Seattle.
After a period of sustained retail closures since the global pandemic, retailers are increasingly aware of the need to repurpose existing malls.
Information about repurposing retail malls, shopping mall facelift, abandoned malls, shopping mall renovation, mall renovation cost, strategies for repurposing retail malls,
This is the lawsuit filed by Monster and CEO Noel Lee against Beats Electronics, Dr. Dre and Jimmy Iovine. Filed Tuesday, Jan. 6, 2015, in San Mateo County Superior Court
ReferencesKahnke, R. E., Bundy, K. L., & Long, R. J. (2015). Key.docxsodhi3
References
Kahnke, R. E., Bundy, K. L., & Long, R. J. (2015). Key Developments in Trade Secrets Litigation. Business Torts Journal, 22(2), 7-12.
<!--Additional Information:
Persistent link to this record (Permalink): https://lopes.idm.oclc.org/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=102831068&site=eds-live&scope=site
End of citation-->
Key Developments in Trade Secrets Litigation
ARTICLES
Keywords: litigation; business torts; trade secrets; damages; patents; Defend Trade Secrets Act; Trade Secrets Protection Act
Trade secrets continue to increase in importance as companies and the U.S. government are focusing attention on their value and protection. This past year has brought a number of significant developments in trade secrets law. In this article, we highlight five of them: (1) the need to protect trade secrets during litigation, and the potential consequences of not doing so (i.e., the DuPont reversal); (2) the growing importance of specifically identifying trade secrets early in litigation; (3) the narrowing of patentable subject matter for software and the alternative of trade secret protection; (4) increasing support for passage of a federal civil trade secrets law; and (5) the continuing trend toward large damages awards and settlements in trade secrets cases.
The Reversal of a Massive Verdict on the Basis of Disclosure in Prior Litigation
When discussing reasonable efforts to protect trade secrets, the discussion typically focuses on the efforts taken by the company during its normal course of business. Equally important, however, are the reasonable efforts taken to protect trade secrets during litigation. Unsealed filings and public presentations in the course of past litigation can lead to a finding that the "trade secret" in question is no longer secret in future litigation, costing clients massive judgments. Such was the case in E.I. DuPont De Nemours & Co. v. Kolon Industries, Inc., 564 F. App'x 710, 714 (4th Cir. 2014).
In DuPont, the Fourth Circuit reversed a nearly $1 billion jury verdict on the basis of the lower court's evidentiary ruling. DuPont sued Kolon under the Virginia Uniform Trade Secrets Act, alleging that Kolon hired former DuPont employees in an effort to acquire its trade secrets related to the production of Kevlar, a proprietary DuPont product. At trial, Kolon intended to introduce evidence showing that a number of the alleged trade secrets at issue in the case involved publicly available information. Specifically, Kolon sought to demonstrate that DuPont had disclosed the trade secrets in the course of a 1980s intellectual property litigation between DuPont and a competitor called AkzoNobel.
According to Kolon, the Akzo litigation was a "widely publicized patent dispute" in which DuPont "disclosed vast amounts of technical information about the Kevlar manufacturing process-beyond its patent disclosures-in open court and public filings." Kolon contended that 42 of the 149 trad ...
United states securities_and_exchange_v_middleton_et_al__nyedce-19-04625__0001.0Hindenburg Research
SEC files emergency action to stop the founders of VERI tokens from dissipating the remaining $8 million of allegedly fraudulently raised crypto proceeds
12-‹#›1Describe the characteristics, valuation, and amo.docxdrennanmicah
12-‹#›
1Describe the characteristics, valuation, and amortization of intangible assets.
2Describe the accounting for various types of intangible assets.
3Explain the accounting issues for recording goodwill.
LEARNING OBJECTIVES
4Explain impairment procedures and presentation requirements for intangible assets.
5Describe accounting and presentation for research and development and similar costs.
After studying this chapter, you should be able to:
Intangible Assets
12
12-‹#›
PREVIEW OF CHAPTER 12
Intermediate Accounting
16th Edition
Kieso ● Weygandt ● Warfield
12-‹#›
LO 1 Describe the characteristics, valuation, and amortization of intangible assets.
Characteristics
Lack physical existence.
Not financial instruments.
Normally classified as long-term asset.
Common types of intangibles:
Patents
Copyrights
Franchises or licenses
Trademarks or trade names
Goodwill
INTANGIBLE ASSET ISSUES
The Coca-Cola Company’s success comes from its secret formula for making Coca-Cola, not
its plant facilities.
12-‹#›
Purchased Intangibles
Recorded at cost.
Includes all costs necessary to make the intangible asset ready for its intended use.
Typical costs include:
Purchase price.
Legal fees.
Other incidental expenses.
Valuation
INTANGIBLE ASSET ISSUES
LO 1
12-‹#›
Valuation
Google expensed the R&D costs incurred to develop its valuable search engine.
INTANGIBLE ASSET ISSUES
Internally Created Intangibles
Recorded at cost.
Generally expensed.
Only capitalize direct costs incurred in developing the intangible, such as legal costs.
LO 1
12-‹#›
Amortization of Intangibles
Limited-Life Intangibles
Amortize to expense over useful life.
Credit asset account or accumulated amortization.
Useful life should reflect the periods over which the asset will contribute to cash flows.
Amortization should be cost less residual value.
Companies should evaluate the limited-life intangibles for impairment.
INTANGIBLE ASSET ISSUES
LO 1
12-‹#›
Indefinite-Life Intangibles
No foreseeable limit on time the asset is expected to provide cash flows.
Must test indefinite-life intangibles for impairment at least annually.
No amortization.
INTANGIBLE ASSET ISSUES
Amortization of Intangibles
LO 1
12-‹#›
ILLUSTRATION 12-1
Accounting Treatment for Intangibles
INTANGIBLE ASSET ISSUES
Amortization of Intangibles
LO 1
12-‹#›
Does it matter how a company builds brand value? In a word, yes. If the brand is internally developed, its value does not appear in the financial statements. This is the case for The Coca-Cola Company, whose brand value is estimated to be roughly worth $79.2 billion but its balance sheet values its “trademarks within definite-lives” (i.e., brands) at just $6.7 billion. As you are learning in this chapter, this reporting results because the accounting rules prohibit companies from recognizing brands and many other “intangible” assets if they created them themselves. In contrast, when Procter & Gamble (P&G) acquired Gillette in 20.
QUIZ 3CMUN 272April 3, 2017Note You need to do two ou.docxmakdul
QUIZ 3 CMUN 272 April 3, 2017
Note: You need to do two out of three quizzes. If you did not do quiz 2, you must do quiz 3. If you choose to do three quizzes the lesser grade will be dropped. If you partnered for a previous quiz, do this alone. If you did previous quiz(zes) alone, you may partner with someone else for quiz 3.
Date due: Thursday, April 13, at 1:00 p.m. Please submit a hard copy in class and post an electronic copy in Sakai> Assignments. If you do quiz with someone else, submit only one hard copy but upload separately in Sakai.
Length: 2-3 pp. Single space. Double-sided is OK. You are encouraged to attach images. They do not count towards the minimum amount of pages. Please consult external references to back up or confirm historical or political facts, and consider the use of one or more maps.
· Make sure your answers are 1) well organized; 2) carefully proofread; 3) well argued for (with claims and evidence); and 4) cogent. Always re-read final draft to make sure you have addressed the questions asked.
· Be sure to cite, quote and paraphrase the textbook in a substantial manner (i.e., you need to demonstrate deep familiarity with the chapter’s content)
· Always re-read questions and final draft (aloud) to make sure you have addressed the questions asked.
· In order to answer this quiz you need to use and cite Chs. 4-5 from Sorrells (2013), as well as one of the films listed below.
· Use external sources to support your answers, and include a reference list.
· Provide a brief synopsis of the film and basic data (director, date of release, country of origin, actors, producers)
· Provide strong introductory and conclusion paragraphs
· Consider using stills from the film chosen.
Question: Using one the films listed below, please define, explain and apply four of the following clusters of concepts:
· Ascribed and avowed identity
· Cultural Spaces ( contested, hybrid, or segregated )
· Waves of immigration (first, second, third) and world systems theory
· Stages of adaptation (anticipation, shock and adjustment; and re-entry)
· Migrant-Host modes of relationship ( Assimilation, Separation, Marginalization, Integration)
· Migrant networks and Social capital.
Feature Films: Maria Full of Grace, Persepolis. Documentary: Which way home.
Now Anyone Can Invest in Startups—if They Have the Stomach for It
When Oculus VR sold to Facebook for $2 billion in 2014, some asked: What if the people who backed the virtual-reality startup two years earlier on the crowdfunding site Kickstarter had received shares instead of T-shirts or VR headsets?
They might have seen $100 turn into $14,000, says Richard Swart, chief strategy officer of NextGen Crowdfunding.
Until the past year or two, the Oculus approach to crowdfunding was the only one available to everyday investors who aren’t wealthy. Federal law prohibited Kickstarter and similar platforms from offering shares to backers, so startups doled ...
[Mehta v. Dept Of State Obtaining The Injuctive Relief]Justin Wilson
Explain what Injuctive Relief is, and explain what the individual is required to do or not to do. Also to inform audiences what Irreparable Harm is and explain why it cannot be compensated.
Without wasting too much ink (and time) discussing how the October 2015 Visa Bulletin was transformed by the Department of State (DOS) when it was originally released on September 9th, 2015, and how the Priority Dates (PD) were revised only four (4) days before its effective date, this article seeks to analyze the very important question of whether the Plaintiffs in the Class Action Lawsuit can obtain Injunctive Relief from the United States District Court for the Western District of Washington in Seattle.
Similar to Bad Spaniel's Consumer Survey on the Use of Disclaimers (20)
Ninth Circuit Court of Appeals Upholds Dismissal of Class Action case. The Court Found That the Consumer Survey Offered by Plaintiff Was Not Helpful and Did Not Show That Reasonable Consumers Would be Deceived.
In a recent trade dress dispute, In-N-Out Burgers and Doll n' Burgers fielded and submitted loads of consumer survey evidence for the court to consider. There are a number of issues and take-aways that are worthy of discussion and further consideration. Join me for this three-part series that takes a deep dive into the court's consumer survey analysis. Sign up for "Lanham Act Surveys for Lawyers" to keep current on all survey developments. https://www.linkedin.com/newsletters/7023348822592425985/
Synopsis On Annual General Meeting/Extra Ordinary General Meeting With Ordinary And Special Businesses And Ordinary And Special Resolutions with Companies (Postal Ballot) Regulations, 2018
A "File Trademark" is a legal term referring to the registration of a unique symbol, logo, or name used to identify and distinguish products or services. This process provides legal protection, granting exclusive rights to the trademark owner, and helps prevent unauthorized use by competitors.
Visit Now: https://www.tumblr.com/trademark-quick/751620857551634432/ensure-legal-protection-file-your-trademark-with?source=share
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
Military Commissions details LtCol Thomas Jasper as Detailed Defense CounselThomas (Tom) Jasper
Military Commissions Trial Judiciary, Guantanamo Bay, Cuba. Notice of the Chief Defense Counsel's detailing of LtCol Thomas F. Jasper, Jr. USMC, as Detailed Defense Counsel for Abd Al Hadi Al-Iraqi on 6 August 2014 in the case of United States v. Hadi al Iraqi (10026)
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
How to Obtain Permanent Residency in the NetherlandsBridgeWest.eu
You can rely on our assistance if you are ready to apply for permanent residency. Find out more at: https://immigration-netherlands.com/obtain-a-permanent-residence-permit-in-the-netherlands/.
Bad Spaniel's Consumer Survey on the Use of Disclaimers
1. 502
Volume 64 – Number 2
WILL BAD SPANIELS’ NEW “DISCLAIMER”
KEEP VIP PRODUCTS OUT OF THE
DOGHOUSE? A CONSUMER SURVEY
PROVIDES A CAUTIONARY TALE FOR
WOULD-BE PARODISTS
J. MICHAEL KEYES*
I. Introduction............................................................. 502
II. Procedural History and the May 2015 Survey........ 505
A. Procedural History .............................................. 505
B. The May 2015 Survey......................................... 506
III. The July 2023 Survey with Bad Spaniels' New
“Disclaimer”............................................................ 510
IV. The Tale of the Tape............................................... 515
I. INTRODUCTION
During the summer of 2023, the U.S. Supreme Court
issued its momentous Lanham Act ruling in Jack Daniel’s
Props. v. VIP Prods. L.L.C.1
The Court wiped out First
Amendment victories in the VIP Products’ lower court
decision sending this epic trademark tussle back to the lower
*
J. Michael Keyes is an intellectual property trial attorney and consumer
survey expert. He is a partner at Dorsey & Whitney, LLP, in Seattle,
WA, and leads the firm’s Consumer Insights Group. Mr. Keyes was not
retained by either party to conduct the survey research that is the subject
of this article.
1
Jack Daniel’s Props. v. VIP Prods. L.L.C., 599 U.S. 140 (2023).
2. Will Bad Spaniels’ New "Disclaimer" Keep VIP Products
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Volume 64 – Number 2
courts for further consideration.2
As of this writing, it
appears the sole issue left to decide is whether prospective
dog toy purchasers believe there is a connection or
association between Bad Spaniels and Jack Daniel’s.3
Will
the trier of fact view this as a playful canine caper? Or will
potential customer confusion win out? This article examines
that question by introducing a survey conducted by the
author in July 2023 (the “July 2023 Survey”). The July 2023
Survey assessed whether the current iteration of the toy—
now using a new and improved “parody” disclaimer—
effectively negates consumer confusion. Based on the
results of the July 2023 Survey, things may not be looking
good for the naughty doggie.4
When the trial court first decided the issue of
infringement in 2018,5
it relied heavily on a consumer
survey conducted by the late Dr. Gerald Ford (the “May
2015 Survey”).6
That survey showed that nearly 30% of the
respondents believed there was a connection or affiliation
between the famed whiskey maker and the scrappy dog toy
manufacturer.7
When the May 2015 Survey was conducted,
VIP Products had a very small disclaimer at the bottom of
the back of the hang tag stating “[t]his product is not
affiliated with Jack Daniel Distillery.”8
Since that time,
2
Id. at 144–45.
3
Id. at 163. It should be noted that the District Court has ordered the
parties to submit simultaneous motions for judgment as a matter of law
on Friday, February 16, 2024. See Order, dated November 28, 2023
(Dkt. 333).
4
J. Michael Keyes, Bad Spaniels Survey (July 2023) (unpublished
survey) (on file with author).
5
VIP Prods., L.L.C. v. Jack Daniel’s Props., 291 F. Supp. 3d 891, 907–
08 (D. Ariz. 2018).
6
Jack Daniel’s, 599 U.S. at 151–52.
7
VIP Prods., 291 F. Supp. 3d at 907.
8
Declaration and Rule 26 Report of Dr. Gerald L. Ford at 8, VIP Prods.,
L.L.C. v. Jack Daniel’s Props., 291 F. Supp. 3d 891 (D. Ariz. 2018)
[hereinafter Ford Report].
3. 504 IDEA The Law Review of the Franklin Pierce Center for IP
64 IDEA 502 (2024)
though, VIP Products has apparently “upped” its disclaiming
efforts. In an attempt to further distance itself from “Old No.
7,” the reverse side of the hang tag now prominently states
that this toy is a “parody,” that it has no affiliation with Jack
Daniel’s, and that consumers should not be “confused” into
believing there is a connection between the two companies.9
In fact, the reverse side of the hang tag goes so far as to
provide consumers with the “correct” answers to the original
survey questions from the May 2015 Survey.10
The problem for VIP Products is that, according to
this author’s survey, the “new and improved” disclaimer
appears to have been wholly ineffective at dispelling
confusion.11
According to the data, even after the new hang
tag disclaimer was shown to respondents, approximately
31% of them still believed there was a connection or
affiliation between the two companies.12
That’s a problem
for Bad Spaniels, but it may signal an even bigger problem
writ large for other would-be parodists seeking to distance
themselves from the subjects of their parodies through the
use of point-of-sale disclaimers.
Part II of this article describes the design and results
of the May 2015 Survey administered by Dr. Ford and
introduced in the case. It also briefly discusses the
procedural history of the case, including the Ninth Circuit
and U.S. Supreme Court decisions. Part III of this article
describes the structure, design, and results of the July 2023
Survey conducted by the author of this article to test the
effectiveness of the new Bad Spaniels disclaimer as
9
See infra Figure 2 and 3. The hangtag was obtained from a Bad
Spaniels dog toy purchased from the Silly Squeakers Official Store on
Amazon.com on June 11, 2023.
10
Id.
11
See generally Keyes, supra note 4.
12
Id. (noting that the calculations and percentages discussed throughout
were arrived at by reviewing the raw survey data, “coding” the responses
accordingly, and then performing the calculations as explained
throughout).
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Volume 64 – Number 2
compared to the May 2015 Survey. The July 2023 Survey
replicated the May 2015 Survey in all material respects,
including use of the same questions, age and gender quotas,
and the like. The key difference between the two surveys is
that the July 2023 Survey used the new hang tag as the
stimulus to test whether it was effective at negating
confusion. Part IV discusses the implications of the July
2023 Survey and some of the lessons that parodists—and
their counsel—should be mindful of when litigating these
sorts of trademark disputes.
II. PROCEDURAL HISTORY AND THE MAY 2015
SURVEY
A. Procedural History
Sometime in the last decade or so, VIP Products
launched its Silly Squeakers line of chewy dog toys.13
This
line of dog toys includes takeoffs and riffs on various liquor
and beverage brands such as Jose Perro (after Jose Cuervo
tequila), Mountain Drool (after Mountain Dew soda), and,
of course, Bad Spaniels (after Jack Daniel’s whiskey). Jack
Daniel’s Properties was none too pleased and demanded VIP
Products cease and desist.14
After VIP Products initiated a
declaratory judgment action in the U.S. District Court for the
District of Arizona, Jack Daniel’s Properties counterclaimed
for various trademark transgressions, including unfair
competition, infringement, and dilution.15
The case
ultimately proceeded to a four-day bench trial in 2017.16
13
VIP Prods., L.L.C. v. Jack Daniel’s Props., 291 F. Supp. 3d 891, 898
(D. Ariz. 2018).
14
Answer and Counterclaims of Defendant and Counterclaimant at 3,
VIP Prods., L.L.C. v. Jack Daniel’s Props., 291 F. Supp. 3d 891 (D. Ariz.
2018).
15
Id.
16
VIP Prods., 291 F. Supp. 3d at 897.
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64 IDEA 502 (2024)
Jack Daniel’s Properties cleaned house, prevailing
on the infringement and dilution claims.17
However, that
victory was fleeting as the Ninth Circuit reversed the
decision saying the trial court failed to analyze the
infringement and unfair competition claims under the
“artistic expression” test set forth in Rogers v. Grimaldi.18
On remand, the trial court (begrudgingly) found in favor of
VIP Products,19
which the Ninth Circuit summarily
affirmed.20
Jack Daniel’s Properties petitioned the U.S.
Supreme Court to step in.21
The U.S. Supreme Court
ultimately did step in.22
The Court reversed the Ninth
Circuit’s decision and held that because VIP Products used
Jack Daniel’s trademarks and trade dress as “source
identifiers,” Rogers v. Grimaldi did not hold sway.23
The
Court then remanded the case to the lower courts and made
it clear that VIP Products can still attempt to establish that
there is no likelihood of confusion.24
B. The May 2015 Survey
One central piece of evidence at the initial trial was
the consumer survey evidence produced by Jack Daniel’s
Properties, the May 2015 Survey. On the infringement and
unfair competition claims in particular, the trial court gave
17
Id. at 905, 911.
18
VIP Prods., L.L.C. v. Jack Daniel’s Props., 953 F.3d 1170, 1174–76
(9th Cir. 2020).
19
VIP Prods., L.L.C. v. Jack Daniel’s Props., No. CV-14-02057-PHX-
SMM, 2021 U.S. Dist. LEXIS 232410, at *20–21 (D. Ariz. Oct. 8, 2021).
20
VIP Prods., L.L.C. v. Jack Daniel’s Props., No. 21-16969, 2022 U.S.
App. LEXIS 14657, at *1 (9th Cir. Mar. 18, 2022).
21
Petition for Writ of Certiorari, Jack Daniel’s Prop. v. VIP Prods.,
L.L.C., 143 S. Ct. 486 (2022) (No. 22-248).
22
See generally Jack Daniel’s Props. v. VIP Prods., L.L.C., 599 U.S. 140
(2023).
23
Id. at 162.
24
Id. at 162–63.
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Volume 64 – Number 2
considerable weight to the May 2015 Survey conducted by
Dr. Gerald Ford of Ford Bubala:
The Court credits that Dr. Ford’s survey establishes
likelihood of confusion in this case. The survey
followed the Ever-Ready format, considered the
prevailing standard for trademark survey research in
cases involving strong marks. . . . Dr. Ford’s survey
results that 29% of potential purchasers were likely
confused is nearly double the threshold to show
infringement.25
The population for Dr. Ford’s survey consisted of
males and females twenty-one (21) years of age or older who
were likely, within the next six months, to purchase a dog
toy.26
Dr. Ford used “quota sampling,” and arrived at age
and gender quotas of purchasers “as follows: approximately
44% male and 56% female; among males, approximately
33% 21 to 34, 40% 35 to 54, and 27% 55 or over; and among
females, approximately 35% 21 to 34, 36% 35 to 54, and
29% 55 or over.”27
Dr. Ford’s internet survey used an experimental
design where respondents were randomly assigned to either
one of two conditions, a “test” cell or a “control” cell.28
211
respondents were assigned to the test cell.29
The test cell
respondents were shown the allegedly infringing dog toy and
the hang tag as follows:30
25
VIP Prods., L.L.C. v. Jack Daniel’s Props., 291 F. Supp. 3d 891, 908
(D. Ariz. 2018) (citation omitted).
26
Ford Report, supra note 8, at 6.
27
Id. at 6 n.4.
28
Id. at 2.
29
Id.
30
Id. at 8.
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64 IDEA 502 (2024)
Figure 131
Once the test cell survey respondents were shown
these images (and confirmed that they could clearly see
them), they were asked a series of questions as follows:
• “Who or what company do you believe makes or puts
out this product?” (Question No. 7.0)32
• “What other product or products, if any, do you
believe are made or put out by whoever makes or
puts out this product?” (Question No. 8.0)33
• Then, respondents were asked if they believed that
the product was “made or put out with the
31
The survey stimulus pictured in Figure 1 is a nearly identical version
of the actual survey stimulus shown to respondents who participated in
the May 2015. The picture of the stimulus in the Ford Report is pixilated
so an updated photo of the stimulus is provided for clarity.
32
Ford Report, supra note 8, at 13.
33
Id. at 14.
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Volume 64 – Number 2
authorization or approval of any other company.”
(Question No. 9.0)34
• If a respondent answered “yes,” they were then
asked, “What company or companies . . . ?”
(Question No. 9.1)35
• Finally, respondents were asked if they believed that
the company that puts out the product “has a business
affiliation or connection with any other . . .
companies.” (Question No. 10)36
• If a respondent answered “yes,” they were then asked
“What company or companies . . . ?” (Question
10.1)37
Dr. Ford’s Results. 62 out of 211 respondents (or
29.38%) answered “Jack Daniel’s” in response to one or
more of the above-referenced questions.38
Once these test
cell results were adjusted for “noise” contained in Dr. Ford’s
control cell, the net confusion rate was 28.90%.39
As the
trial court noted, such a confusion rate is “nearly double” the
threshold that other courts have observed would support a
finding of likely confusion.40
34
Id. at 15.
35
Id.
36
Id. at 16.
37
Id. at 17.
38
Id. at 18.
39
Ford Report, supra note 8, at 31 n.20 (explaining that only 1
respondent (.48%) in the control cell (n = 207) believed the control
product was made or put out by Jack Daniel’s, and thus, the test cell
results of 29.38% needs to be adjusted by .48% to arrive at “net”
confusion of 28.90%).
40
VIP Prods., L.L.C. v. Jack Daniel’s Props., 291 F. Supp. 3d 891, 908
(D. Ariz. 2018).
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III. THE JULY 2023 SURVEY WITH BAD SPANIELS’
NEW “DISCLAIMER”
Sometime after Dr. Ford conducted the May 2015
Survey, VIP Products apparently “pivoted” with how it
marketed its parody of Jack Daniel’s whiskey. In its current
formulation, the reverse side of the hang tag now (once it is
removed from the toy) attempts to expressly put consumers
on notice that it has “no affiliation” or “connection” with
Jack Daniel’s Properties.41
The reverse side of the hang tag
appears as follows:
Figure 2
41
See infra Figure 2 and 3; supra note 9.
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Figure 3
In fact, the reverse side of the hang tag now gives
consumers the “correct” answers to Dr. Ford’s survey
questions from the May 2015 Survey.42
To assess whether VIP Products’ modification of the
reverse side of the hang tag would be effective in
“disclaiming” any connection with Jack Daniel’s Properties,
the author of this article conducted a consumer survey in July
2023 (the “July 2023 Survey”).43
The purpose of the survey
was to compare whether there was any statistically
significant difference between Dr. Ford’s “test” cell results
from the May 2015 Survey (showing a confusion rate of
29.38%)44
and the July 2023 Survey results where
42
See infra Figure 2 and 3; supra note 9.
43
The July 2023 Survey was conducted by the author. See Keyes, supra
note 4.
44
Ford Report, supra note 8, at 18.
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64 IDEA 502 (2024)
consumers were shown the identical bottle with the modified
reverse hang tag.
The July 2023 Survey replicated Dr. Ford’s survey
structure in all material respects.45
Just as with Dr. Ford’s
survey, the population for the July 2023 Survey consisted of
males and females twenty-one (21) years of age or older who
were likely, within the next six months, to purchase a dog
toy.46
Dr. Ford’s same quota sampling method was used in
the July 2023 Survey, and it replicated the same age and
gender distributions.47
The identical number of survey respondents (211)48
participated in the July 2023 Survey. Respondents were
surveyed using an internet survey overseen by the author of
this article and administered by Qualtrics.com, a market
research firm specializing in conducting online surveys.49
Just as with Dr. Ford’s survey, the sample selection,
questions, questionnaire design, and interviewing
procedures employed in the July 2023 Survey were designed
in accordance with the generally accepted standards and
procedures in the field of survey research.50
Just as with the
May 2015 Survey, the July 2023 Survey was also designed
to meet the criteria for survey trustworthiness detailed in the
Reference Guide for Survey Research authored by Dr. Shari
Diamond.51
45
See generally Keyes, supra note 4. There were some minor differences
between the screening criteria. For example, in Dr. Ford’s 2015 survey,
he excluded respondents from taking surveys on their mobile phones.
Ford Report, supra note 8, at 6 n.3.
46
See Keyes, supra note 4; Ford Report, supra note 8, at 6.
47
See Keyes, supra note 4; Ford Report, supra note 8, at 6 n.4.
48
See Keyes, supra note 4; Ford Report, supra note 8, at 2.
49
See generally Keyes, supra note 4.
50
Id.
51
Id.; see generally Shari Seidman Diamond, Reference Guide for
Survey Research, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 359
(Nat’l Acad. Press ed., 3d ed. 2011).
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The July 2023 Survey respondents were shown the
allegedly infringing dog toy and the modified reverse side of
the hang tag as follows:
Figure 4
Once the July 2023 Survey respondents were shown
these images (and confirmed that they could clearly see
them), they were asked the identical series of questions
posed by the May 2015 Survey:
• “Who or what company do you believe makes or puts
out this product?” (Question No. 7.0)52
52
Keyes, supra note 4 (referring to information at column AA); Ford
Report, supra note 8, at 13.
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64 IDEA 502 (2024)
• “What other product or products, if any, do you
believe are made or put out by whoever makes or
puts out this product?” (Question No. 8.0)53
• Then, respondents were asked if they believed that
the product was “made or put out with the
authorization or approval of any other company.”
(Question No. 9.0)54
• If a respondent answered “yes,” they were then
asked, “What company or companies . . . ?”
(Question No. 9.1)55
• Finally, respondents were asked if they believed that
the company that puts out the product “has a business
affiliation or connection with any other . . .
companies . . .” (Question No. 10)56
• If a respondent answered “yes,” they were then asked
“What company or companies . . . ?” (Question
10.1)57
The July 2023 Survey Results. 67 out of 211
respondents (or 31.7%) answered “Jack Daniel’s” in
response to one or more of the above-referenced questions.58
This is directionally higher than the 62 out of 211
respondents (or 29.38%)59
who answered “Jack Daniel’s” in
the May 2015 Survey.
53
Keyes, supra note 4 (referring to information at column AG); Ford
Report, supra note 8, at 14.
54
Keyes, supra note 4 (referring to information at column AM); Ford
Report, supra note 8, at 15.
55
Keyes, supra note 4 (referring to information at column AN); Ford
Report, supra note 8, at 15.
56
Keyes, supra note 4 (referring to information at column AT); Ford
Report, supra note 8, at 16.
57
Keyes, supra note 4 (referring to information at column AU); Ford
Report, supra note 8, at 17.
58
Keyes, supra note 4 (the survey responses were coded by the author).
59
Ford Report, supra note 8, at 18.
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On just the “authorization or approval” question (Q.
9.0), significant differences were observed between the two
studies. With respect to the May 2015 Survey, 23 out of the
62 respondents (37%) believed that Bad Spaniels needed
Jack Daniel’s “approval” or “authorization.” With respect
to the July 2023 Survey, only 5 respondents out of the 67
respondents (7%) believed that Bad Spaniels needed Jack
Daniel’s “approval” or “authorization.” On the “business
affiliation or connection” question (Q. 10), significant
differences were observed, but in the other direction. With
respect to the May 2015 Survey, only 4 out of the 62
respondents (6%) believed there was a business “affiliation
or connection” between the two companies. Whereas with
respect to the July 2023 Survey, 21 respondents out of the 67
respondents (31%) believed there was such an “affiliation or
connection” between the two.
It should be noted that the coding of responses and
subsequent calculations may actually be underreporting
respondents who expressed a connection with Jack Daniel’s
whiskey. For example, 12 respondents (none of whom
mentioned Jack Daniel’s whiskey by name) responded
“liquor” to one or more of the survey questions.60
An
additional 5 respondents answered “Tennessee Whiskey” to
one or more of the above questions without mentioning Jack
Daniel’s whiskey by name.61
IV. THE TALE OF THE TAPE
What lessons can be drawn from the July 2023
Survey data and the effect of the modified hang tag in this
dog fight? There are a couple of important ones.
First, the modified hang tag was obviously not
effective at reducing the overall confusion rate compared to
the prior hang tag. The surveys show that about a third of
60
Keyes, supra note 4 (based on coded information).
61
Id.
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64 IDEA 502 (2024)
the respondents in both can be characterized as “confused.”
The bigger and more intriguing question is “why?” Why did
the modified hang tag fail to reduce the overall level of
confusion? That is more challenging to answer based on the
survey data and the varied symphony of responses.
It appears, though, that the more explicit, overt, and
direct VIP Products became in explaining that “this is a VIP
product,” that technique was effective in communicating that
VIP Products did not need “authorization or approval.” But
that only got VIP Products so far. That same explicit, overt,
and direct approach on the modified hang tag left a
significantly higher percentage of respondents with the
impression that there must still be an “affiliation or
connection” between these two companies regardless.
It might be a natural inclination to assume that survey
responses would move in tandem on the “authorization or
approval” and the “affiliation or connection” questions. But
that clearly is not what happened here because what the right
hand giveth, the left hand taketh.
Second, the results of this author’s experimental
survey may be of use to future parodists—and their counsel.
These results suggest that it might be wise to explore and test
the effectiveness of different disclaimers, to the extent those
are being used in order to disclaim any affiliation or
connection between two companies. Even prominent
disclaimers that say overtly and explicitly “this is a parody”
presented to consumers as part of a marketing plan might not
be effective at dispelling overall confusion rates, especially
if the disclaimer still uses lots of text and tries to convey
several points in one sitting.62
This may mean that when it
62
Some courts have expressed a healthy amount of skepticism over the
efficacy of disclaimers in Lanham Act cases. See Profitness Physical
Therapy Ctr. v. Pro-Fit Orthopedic & Sports Physical Therapy P.C., 314
F.3d 62, 70 (2d Cir. 2002) (noting a “growing body of academic
literature has concluded that disclaimers, especially those . . . which
employ brief negator words such as ‘no’ or ‘not,’ are
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comes to disclaimers, “less is more” for grabbing the
attention of consumers. Or, to put it another way, a lengthy
disclaimer may mean a would-be parodist will simply be
barking up the wrong tree.
generally ineffective”) (citation omitted); see also Ford Motor Co. v.
Lloyd Design Corp., 184 F. Supp. 2d 665, 673–74 (E.D. Mich. 2002)
(“The principle that disclaimers are often ineffective is especially
applicable when the infringer uses an exact replica of the relevant
trademark.”). Other courts appear more open to the effectiveness of such
disclaimers in certain circumstances. See TrafficSchool.com, Inc. v.
Edriver Inc., 653 F.3d 820, 824 (9th Cir. 2011) (upholding the splash
screen disclaimer).