{"id":32002,"date":"2023-05-06T16:46:20","date_gmt":"2023-05-06T20:46:20","guid":{"rendered":"https:\/\/lakelandgazette.info\/news\/?p=32002"},"modified":"2023-05-06T16:46:24","modified_gmt":"2023-05-06T20:46:24","slug":"desantis-taunt-in-disney-typeface-tempts-trademark-punch-back","status":"publish","type":"post","link":"https:\/\/lakelandgazette.info\/news\/2023\/05\/06\/desantis-taunt-in-disney-typeface-tempts-trademark-punch-back\/","title":{"rendered":"DeSantis Taunt in Disney Typeface Tempts Trademark Punch back"},"content":{"rendered":"
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Baseball caps promoting Ron DeSantis for president using Disney\u2019s iconic\u2014and trademarked\u2014script add intellectual property to the combustible standoff between the Florida governor and the state\u2019s most recognizable corporate citizen.<\/p>\n\n\n\n

Whether the caps\u2014sold at a DeSantis book tour event and depicting his name in the typeface over \u201cPresident 2024″ in block text\u2014raise trademark liability could turn on how the US Supreme Court interprets poop jokes on a dog toy. It also would require tying the hat sales to his operation.<\/p>\n\n\n\n

Walt Disney Co.\u2014which has already sued DeSantis<\/a> over alleged retaliation for its public criticism of his policy\u2014could have a claim, trademark attorneys and professors say. But the First Amendment looms large when political speech comes into play, especially if DeSantis could successfully frame the hats as criticizing Disney.<\/p>\n\n\n\n

A litany of factors could prove important, if not decisive, as courts have taken varied approaches to weighing free speech against trademark rights when purported parody or criticism is involved. Some courts jump straight to a free speech test, while others incorporate such concerns into trademark law\u2019s standard likelihood of consumer confusion analysis.<\/p>\n\n\n\n

The Supreme Court could provide guidance any day, as attorneys await its decision<\/a> over whether whiskey bottle-shaped \u201cBad Spaniels\u201d dog toys infringe Jack Daniels Properties LLC\u2019s trade dress. However that shakes out, courts will likely still have leeway as they seek to delineate concepts like parody, criticism, expression, and confusion.<\/p>\n\n\n\n

Baseball caps promoting Florida Governor Ron DeSantis sit on a table before a book tour event at the North Charleston Coliseum on April 19, 2023, in North Charleston, South Carolina.<\/p>\n\n\n\n

Photo by Sean Rayford\/Getty Images<\/p>\n\n\n\n

While political criticism of a major corporation would seem to clearly fall under the First Amendment\u2019s umbrella, intent isn\u2019t a decisive factor, law professors said. Anyone unaware of the feud between DeSantis and Disney may perceive the hats as signaling mutual support and endorsement, the kind of confusion at the heart of trademark law.<\/p>\n\n\n\n

\u201cIf you take out the political stuff, it\u2019s a slam dunk case for Disney,\u201d IP law professor Jake Linford<\/a> of Florida State University said. \u201cDoes the political aspect change things? The answer is a solid \u2018maybe.\u2019\u201d<\/p>\n\n\n\n

IP law professor Christine Haight Farley<\/a> of American University said \u201cthere are a million different roads courts can take\u201d in free speech cases. She also said that even though the criticism of Disney is only implicit, the hats fall in a \u201czone of political speech.\u201d<\/p>\n\n\n\n

\u201cThis is an interesting theoretical question: \u2018what would trademark law say in a dispute like this?\u2019 Disney would be wise to not step in it,\u201d Farley said. \u201cThere is a case to be made there is a message here: \u2018Join me, we\u2019re going after Disney, I\u2019m trying to poke them in every way.\u2019\u201d<\/p>\n\n\n\n

Press contacts for the Florida governor\u2019s office and DeSantis\u2019 book publisher, HarperCollins, didn\u2019t respond to requests for comment.<\/p>\n\n\n\n

Chocolate, Porn, and Nukes<\/p>\n\n\n\n

Disney and DeSantis have already dropped the gloves<\/a> in Florida federal court. The company\u2019s April 26 complaint<\/a> says DeSantis threatened to void land-use contracts over its criticism of the \u201cdon\u2019t say gay\u201d bill he signed into law, restricting classroom instruction on sexual orientation and gender identity.<\/p>\n\n\n\n

DeSantis also moved to revoke the company\u2019s special tax and self-governing privileges, which the company has called unconstitutional retaliation for its criticism.<\/p>\n\n\n\n

The suit alleged that DeSantis warned Disney\u2019s then-CEO Bob Chapek to stay quiet about the legislation, saying \u201cit\u2019s not going to work out well for you.\u201d quoting an interview with DeSantis. DeSantis said in that interview that Disney was free to take a stance, but not to \u201cforce us all to subsidize their activism.\u201d A DeSantis-appointed board sued Disney<\/a> May 1 for trying to ward off the board\u2019s efforts to govern park operations.<\/p>\n\n\n\n

If Disney were to bring a trademark suit, DeSantis wouldn\u2019t be the first politician sued for stylizing his name to invoke a company. A Maryland federal court enjoined county commissioner candidate Steve Hershey from using political signage featuring Hershey Co. trade dress. The candidate backed down after losing a bid to dismiss the candy company\u2019s case.<\/p>\n\n\n\n

But the signs in that case didn\u2019t comment on Hershey\u2019s brand, implicitly or otherwise. Courts forced to balance First Amendment interests have taken differing approaches\u2014some of them still favorable to brands.<\/p>\n\n\n\n

The US Court of Appeals for the Second Circuit in 1979 upheld an injunction barring sale or exhibition of the pornographic movie \u201cDebbie Does Dallas\u201d featuring the Dallas Cowboys cheerleaders\u2019 trademark-protected uniforms. It said<\/a> trademark rights \u201cneed not yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication exist.\u201d<\/p>\n\n\n\n

That \u201calternative avenues\u201d test was also a Minnesota district court\u2019s rationale<\/a> in 1998 for enjoining use of \u201cDairy Queens\u201d as a title for the movie later renamed \u201cDrop Dead Gorgeous.\u201d A split Eighth Circuit panel applied the standard as it found merchandise protesting nuclear proliferation\u2014”Sponsored by Mutant of Omaha Nuclear Holocaust Insurance Co.”\u2014infringed<\/a> Mutual of Omaha\u2019s word and logo marks.<\/p>\n\n\n\n

Farley said the \u201calternate avenues\u201d test may be the \u201cleast favored route,\u201d and doubted a court would rule similarly today. But it still highlights the paths brand owners have found to overcome First Amendment defenses.<\/p>\n\n\n\n

Eye of the Beholder<\/p>\n\n\n\n

On the other end of the spectrum are courts that have broadly applied the Second Circuit\u2019s 1989 test from Rogers v. Grimaldi<\/a>, as the Ninth Circuit did<\/a> in the Bad Spaniels case.<\/p>\n\n\n\n

The test allows trademark use in expressive works if it\u2019s artistically relevant and not explicitly misleading. Justices hearing the Bad Spaniels oral arguments in March showed skepticism to both trademark and free speech extremes, and they appeared inclined to narrow the Rogers test regarding commercial products, or ditch it altogether.<\/p>\n\n\n\n

The Fourth Circuit went in yet another direction to clear a different pun-based dog toy. The court in 2007 held<\/a> the Chewy Vuiton toy was a parody during the course of a likelihood of confusion analysis.<\/p>\n\n\n\n

Supreme Court watchers and IP attorneys are waiting for the justices\u2019 decision on whether \u201cBad Spaniels\u201d dog toys infringe Jack Daniel\u2019s trademarks or are protected by the First Amendment.<\/p>\n\n\n\n

Illustration by Jonathan Hurtarte\/Bloomberg Law<\/p>\n\n\n\n

Defining parody generates controversy in general. The Fourth Circuit found the Chewy Vuiton dog toy satisfied the definition by invoking the brand but also clearly indicating the irreverent depiction is not the original. That court also said the toy pokes fun at the expensive Louis Vuitton handbags that, typically, one wouldn\u2019t let a dog chew.<\/p>\n\n\n\n

Jack Daniel\u2019s and its backers argued to the high court that merely making crass jokes doesn\u2019t provide immunity from infringement claims. Justice Elena Kagan appeared to agree, asking<\/a> \u201cwhat\u2019s the parody\u201d and whether any use of a large company\u2019s mark in a gag product counts.<\/p>\n\n\n\n

With DeSantis\u2019 Disney hats, there would be a question of how the use is perceived, IP law professor Jacqueline Lipton<\/a> of the University of Pittsburgh said.<\/p>\n\n\n\n

\u201cI\u2019m not even sure if that\u2019s a parody, but it\u2019s clearly a joke; it\u2019s about poop and dogs, and not about whiskey,\u201d Lipton said of Bad Spaniels. \u201cThis, it\u2019s a subtle political message. You\u2019d have to know the context of the fight between Disney and DeSantis to get the joke.\u201d<\/p>\n\n\n\n

What share of people have to understand the context also represents a debated threshold. Infringement doesn\u2019t necessarily require a huge share of consumers to be confused, but Farley said that some people not understanding shouldn\u2019t shut down First Amendment protections either.<\/p>\n\n\n\n

\u201dYou don\u2019t have to judge the speech by the lowest common denominator,\u201d Farley said. \u201cIt doesn\u2019t have to be a joke everybody gets. It doesn\u2019t have to be a critique everybody gets to be free speech-worthy.\u201d<\/p>\n\n\n\n

IP law professor Lisa Ramsey<\/a> of the University of San Diego said the hat \u201cseems like pure political speech.\u201d But she said a case could survive a motion to dismiss, adding: \u201cI don\u2019t know what doctrine the court would apply.\u201d<\/p>\n\n\n\n

Ramsey and Farley co-authored a 2023 paper, \u201dRaising the Threshold for Trademark Infringement to Protect Free Expression,\u201d that proposes a uniform, holistic fair use trademark test that incorporates a standard based on how a reasonable person would react.<\/p>\n\n\n\n

Liption said she\u2019s \u201csort of waffling\u201d on how a court would treat DeSantis\u2019 hats, but agreed he stands on fairly firm First Amendment ground.<\/p>\n\n\n\n

\u201cI think there\u2019s a way Disney could frame it in front of a sympathetic judge and get a decent hearing,\u201d Lipton said.<\/p>\n\n\n\n

\u201cBut it\u2019s political, it\u2019s free speech. He is criticizing Disney as part of his whole shtick.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

Baseball caps promoting Ron DeSantis for president using Disney\u2019s iconic\u2014and trademarked\u2014script add intellectual property to the combustible standoff between the Florida governor and the state\u2019s most recognizable corporate citizen. Whether… <\/p>\n","protected":false},"author":2,"featured_media":32003,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_seopress_titles_title":"","_seopress_titles_desc":"","_seopress_robots_index":"","_seopress_robots_follow":"","_seopress_robots_imageindex":"","_seopress_robots_snippet":"","_seopress_robots_primary_cat":"0","_seopress_robots_breadcrumbs":"","_seopress_robots_freeze_modified_date":"","_seopress_robots_custom_modified_date":"","_seopress_robots_canonical":"","_seopress_social_fb_title":"","_seopress_social_fb_desc":"","_seopress_social_fb_img":"","_seopress_social_fb_img_attachment_id":0,"_seopress_social_fb_img_width":0,"_seopress_social_fb_img_height":0,"_seopress_social_twitter_title":"","_seopress_social_twitter_desc":"","_seopress_social_twitter_img":"","_seopress_social_twitter_img_attachment_id":0,"_seopress_social_twitter_img_width":0,"_seopress_social_twitter_img_height":0,"_seopress_redirections_value":"","_seopress_redirections_enabled":"","_seopress_redirections_enabled_regex":"","_seopress_redirections_logged_status":"","_seopress_redirections_param":"","_seopress_redirections_type":0,"_seopress_analysis_target_kw":"","inline_featured_image":false,"_uf_show_specific_survey":0,"_uf_disable_surveys":false,"wpai_generated_summary":"","footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"dois","default_image_id":71799,"font":"","enabled":false},"version":2},"_wpas_customize_per_network":false},"categories":[15],"tags":[4980],"class_list":["post-32002","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-politics","tag-desantis-taunt-in-disney-typeface-tempts-trademark-punch-back"],"jetpack_publicize_connections":[],"_links":{"self":[{"href":"https:\/\/lakelandgazette.info\/news\/wp-json\/wp\/v2\/posts\/32002","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lakelandgazette.info\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lakelandgazette.info\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lakelandgazette.info\/news\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/lakelandgazette.info\/news\/wp-json\/wp\/v2\/comments?post=32002"}],"version-history":[{"count":0,"href":"https:\/\/lakelandgazette.info\/news\/wp-json\/wp\/v2\/posts\/32002\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/lakelandgazette.info\/news\/wp-json\/wp\/v2\/media\/32003"}],"wp:attachment":[{"href":"https:\/\/lakelandgazette.info\/news\/wp-json\/wp\/v2\/media?parent=32002"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lakelandgazette.info\/news\/wp-json\/wp\/v2\/categories?post=32002"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lakelandgazette.info\/news\/wp-json\/wp\/v2\/tags?post=32002"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}