Latest / Bloomberg Law / Weekend Law: Grand Jury Problems, SCOTUS Favors GOP & Taylor Swift

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Weekend Law: Grand Jury Problems, SCOTUS Favors GOP & Taylor Swift · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Under our system of justice, the government cannot force anyone
0:12
Speaker 2: to answer for a serious crime unless you, the people
0:16
Speaker 2: of the community sitting on a grand jury, decide there
0:19
Speaker 2: is enough evidence to warrant an indictment. It is you
0:23
Speaker 2: who protect the rights of both victims and defendants.
0:27
Speaker 3: In an orientation video for new grand jurors, the Chief
0:31
Speaker 3: Judge of New York, Rowan Wilson, explains the importance of
0:34
Speaker 3: the grand jury in protecting individuals from the power of
0:38
Speaker 3: an abusive prosecutor.
0:40
Speaker 2: But in the United States and the state of New York,
0:43
Speaker 2: we protect against prosecutorial abuse by requiring the prosecution to
0:48
Speaker 2: first convince a panel of regular citizens just like you,
0:52
Speaker 2: a grand jury, that there is probable cause or good
0:56
Speaker 2: reason to charge someone with a crime.
0:58
Speaker 3: And in the past several months, it appears that grand
1:01
Speaker 3: jurors across the country are doing just that. The Justice
1:06
Speaker 3: Department has encountered case after case where grand jurors are
1:10
Speaker 3: refusing to return indictments, and in some of those cases,
1:14
Speaker 3: federal judges have accused prosecutors of misconduct during the grand
1:19
Speaker 3: jury proceedings. One example in a high profile case at
1:23
Speaker 3: the end of May, just days before trial, there was
1:27
Speaker 3: a stunning implosion of a case against a group of
1:30
Speaker 3: protesters accused of blocking a federal agent from an ice
1:34
Speaker 3: facility in Chicago. Judge April Perry said her trust in
1:39
Speaker 3: federal prosecutors had been broken after finding out that prosecutors
1:44
Speaker 3: improperly spoke to grand jurors outside the grand jury room,
1:48
Speaker 3: personally vouched for the strength of the case, and excused
1:52
Speaker 3: grand jurors who disagreed with the government's case. My guest
1:55
Speaker 3: his former federal prosecutor, Jimmy Garoula, a professor at Notrede
2:00
Speaker 3: Law School. Jimmy, what's your reaction to the prosecutor's misconduct
2:04
Speaker 3: during the grand jury proceedings.
2:06
Speaker 4: They're shocking. It's a scandal.
2:09
Speaker 5: Prosecutors are supposed to be a minister of justice, not
2:12
Speaker 5: a minister of corruption, dishonesty, and deception, and that's what
2:16
Speaker 5: we're seeing here. I think this was just the end
2:19
Speaker 5: Justifi Sapedes, you know, they wanted to get indictments against
2:22
Speaker 5: the Chicago protesters and they were going to take no
2:25
Speaker 5: for an answers. So basically this was an attempt to
2:27
Speaker 5: rig the grand jury system to ensure that they would
2:30
Speaker 5: get the indictments that they were seeking.
2:32
Speaker 3: The judge said that she'd read through hundreds, if not thousands,
2:36
Speaker 3: of grand jury transcripts and she'd never seen this behavior
2:39
Speaker 3: from prosecutors. So let's go through some of the things
2:42
Speaker 3: she found disturbing. Explain what's wrong with a prosecutor vouching
2:47
Speaker 3: for the case saying something like, you can believe me,
2:50
Speaker 3: we have the evidence to prove this case.
2:53
Speaker 5: Grand jurors are to make the decision of whether or
2:57
Speaker 5: not there's probable cause to believe that a crime has
2:59
Speaker 5: been admitted, and if so, whether there's probable cost believe
3:03
Speaker 5: that the target of the grand jury investigation committed the crime,
3:06
Speaker 5: and those decisions should be made exclusively on the evidence
3:10
Speaker 5: that's been presented to the grand jury, not the prosecutor's
3:14
Speaker 5: opinion regarding the strength of the case, the strength of
3:18
Speaker 5: the evidence, but on the evidence itself. And this is
3:21
Speaker 5: very basic, fundamental you know, professional responsibility.
3:24
Speaker 4: One point. Oh, this wasn't a mistake.
3:27
Speaker 5: I mean, this was just a blatant violation of fundamental
3:29
Speaker 5: rules of professional responsibility and ethics.
3:32
Speaker 3: Talking about blatant speaking to grand jurors outside the grand
3:35
Speaker 3: jury room and then dismissing some grand jurors. How would
3:39
Speaker 3: they expect to get away with that? I mean, is
3:41
Speaker 3: the problem that the grand jury process is secret and
3:45
Speaker 3: how does a defense lawyer or judge know what's going on.
3:48
Speaker 4: That's exactly the case.
3:50
Speaker 5: And so because of the secretive nature of the granduurary proceedings,
3:54
Speaker 5: I'm sure the prosecutors think, well, whatever we're doing that's improper,
3:58
Speaker 5: whatever misconduct rings aged in is not going to be revealed,
4:02
Speaker 5: it's not going to be dislow.
4:03
Speaker 3: And I mean, this is not the only case. In Wyoming,
4:07
Speaker 3: a panel of three judges throughout nine indictments, including some
4:12
Speaker 3: for murder, after the examination of the grand jury proceedings
4:15
Speaker 3: revealed misconduct by the Trump appointed US attorney who had
4:19
Speaker 3: had no prosecutorial experience at all. So you have inexperienced
4:24
Speaker 3: people leading a US attorney's office. But some of this
4:28
Speaker 3: seems really basic.
4:30
Speaker 4: It is, you know, there's really no excuse.
4:32
Speaker 5: I mean, this goes to just fundamental principles of fairness
4:36
Speaker 5: and new process, independence, impartiality. As I stated, this is
4:40
Speaker 5: an attempt to rig the system to obtain the result
4:44
Speaker 5: of the prosecutors are seeking to obtain, which is shocking
4:48
Speaker 5: considering the fact that the granduury system really favors prosecutors.
4:52
Speaker 5: There's no judge, there's no defense lawyer. The standard of
4:56
Speaker 5: proof is merely probable cause, and then an ad tissue.
5:00
Speaker 5: The prosecutor doesn't have to prove probable cause by unanimous
5:05
Speaker 5: determination of the grand jurors. Well, they have to prove
5:08
Speaker 5: is twelve of the twenty three grand jurors, just a
5:11
Speaker 5: simple majority have concluded that there's probable cause. And further,
5:16
Speaker 5: the rules of evidence don't apply in the grand jury room,
5:19
Speaker 5: so prosecutors can introduce hearsay evidence, double hearsay, triple hearsay evidence.
5:25
Speaker 5: And despite all of these rules favoring the prosecution, these
5:29
Speaker 5: prosecutors still felt that it was necessary to rig the system.
5:34
Speaker 5: They were confident that they could prevail based upon those rules,
5:38
Speaker 5: and they needed to reach out and have improper contact
5:42
Speaker 5: with the members of the grand jury. With respect to
5:45
Speaker 5: grand jurors that had decided against them in prior cases,
5:49
Speaker 5: they decided, well, let's just exclude those grand jurors. We
5:52
Speaker 5: don't want them on the grand jury because they might
5:55
Speaker 5: decide against us. I mean, this is just shocking conduct
5:59
Speaker 5: and most it's not limited to the fairness and the
6:03
Speaker 5: injustice of the particular case, but it creates a loss
6:07
Speaker 5: of trust. There's this loss of trust in the Justice
6:10
Speaker 5: Department that's beginning to emerge, and judges across the country
6:15
Speaker 5: are beginning to question, can we really believe what the
6:19
Speaker 5: prosecutors say? Can we really trust the arguments and the
6:23
Speaker 5: representation that prosecutors are making.
6:25
Speaker 4: And when we get to that point, that becomes a crisis.
6:29
Speaker 5: I think that we're really on the verge of a
6:31
Speaker 5: crisis within the Department of Justice.
6:33
Speaker 3: And that appeared to have happened in this case. Judge
6:36
Speaker 3: Perry told Andrew Boutros, the US attorney for Chicago, who
6:41
Speaker 3: personally came into the courtroom to dismiss the case, quote,
6:45
Speaker 3: I do believe deeply the presumption of regularity and that
6:48
Speaker 3: most government attorneys are doing the best they can to
6:51
Speaker 3: do the right thing. That trust has been broken, and
6:55
Speaker 3: that's been happening in courtrooms across the country.
6:58
Speaker 5: And what we're beginning to see is in more and
7:01
Speaker 5: more cases, defendants are challenging raising legal challenges to the
7:05
Speaker 5: integrity of the procedures of process inside the grand jury room.
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Speaker 5: And this is now an argument that is being raised
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Speaker 5: in multiple cases across the country, again challenging the regularity
7:19
Speaker 5: of fairness, the presumption of regularity, and again I think
7:22
Speaker 5: it is creating a crisis of trust.
7:25
Speaker 4: Crisis of trust within the Department of Justice.
7:27
Speaker 5: And not only with judges, but I think more broadly
7:29
Speaker 5: with the public at large. If the public starts losing
7:32
Speaker 5: trust in the criminal justice system, starts losing trust in
7:36
Speaker 5: the integrity of prosecutor's offices, then that does not speak
7:39
Speaker 5: well for the future of criminal.
7:41
Speaker 4: Justice in this country.
7:42
Speaker 3: As you mentioned, lawyers in journalist Don Lemon's case as
7:46
Speaker 3: well as the case against the Southern Poverty Law Center
7:50
Speaker 3: reference this Chicago grand jury and some defense lawyers are
7:54
Speaker 3: trying to get the transcripts of the grand jury proceedings,
7:58
Speaker 3: which had always been super super secret, shall we say,
8:02
Speaker 3: but I mean Judge Perry is thinking of releasing the
8:05
Speaker 3: grand jury transcripts here. How else can defendants really find
8:09
Speaker 3: out what happened in the grand jury room?
8:11
Speaker 5: Well, that creates a problem because grand jury secrecy. It's
8:15
Speaker 5: embodied in Rule sixty of the Rules of Criminal Procedure,
8:19
Speaker 5: and it's important because we want persons that appear before
8:22
Speaker 5: the grand jury. We want them to testify openly, freely,
8:27
Speaker 5: be frank and open about what evidence they may have,
8:31
Speaker 5: and if their identity is going to be disclosed, then
8:35
Speaker 5: this could have a chilling effect on their willingness to
8:37
Speaker 5: participate in the grand jury proceding. So it has implications
8:42
Speaker 5: far beyond the individual case. But when the seed of
8:46
Speaker 5: distrust has been planted with the courts, with the general public,
8:50
Speaker 5: we're going to see more and more challenges to the
8:53
Speaker 5: integrity the grand jury process, and it could have a
8:56
Speaker 5: chilling effect with respect to witnesses willing to come forward
9:00
Speaker 5: and testified before the grand jury for fear that again
9:03
Speaker 5: the transferit is going to be disclosed, and maybe their
9:06
Speaker 5: name might not be disclosed, but someone could determine their
9:08
Speaker 5: identity based upon the testimony that is presented to the
9:12
Speaker 5: grand jury.
9:13
Speaker 3: The Chicago US Attorney's Office is reaching out to the
9:16
Speaker 3: defense attorneys in cases that were handled by these prosecutors,
9:22
Speaker 3: and they've agreed to give the defense the minutes of
9:24
Speaker 3: the grand jury proceedings in their cases.
9:27
Speaker 5: This is totally unhearbal and in all the years that
9:29
Speaker 5: I worked as a prosecutor, as an assistant US attorney,
9:33
Speaker 5: as a doj prosecutor, this didn't happen.
9:36
Speaker 4: What we're witnessing today is not normal.
9:39
Speaker 5: You know, this is exceedingly rare, and it's very disturbing
9:44
Speaker 5: and it raises serious consequences about prosecutors that are engaging
9:49
Speaker 5: in this misconduct and they should not be leaving their
9:52
Speaker 5: ethics outside of the Grand Jury of Rome. We need
9:55
Speaker 5: prosecutors that embrace honesty justice.
9:58
Speaker 3: They're going to have a say hearing. Do you think
10:01
Speaker 3: that these prosecutors will be sanctioned, Well.
10:03
Speaker 4: It's possible.
10:04
Speaker 5: This misconduct in the Chicago case in particular is quite
10:07
Speaker 5: quite eggregious, So I think that there could be some
10:11
Speaker 5: individual sanctions.
10:12
Speaker 4: We'll wait and see.
10:13
Speaker 5: When prosecutors engage in gross misconduct, there are very few
10:17
Speaker 5: sanctions that they are subjected to, and that's part of
10:20
Speaker 5: the problem. And that's in large part because of the
10:23
Speaker 5: qualified immunity. Because internal disciplinary proceedings within the bar, it's
10:29
Speaker 5: very difficult to a very very high standard, high bar
10:31
Speaker 5: that has we met in order to sanction the prosecutor,
10:35
Speaker 5: and so there isn't much of a deterrent effect. So
10:38
Speaker 5: if you engage in this type of misconduct, yeah, the
10:41
Speaker 5: case might be dismissed, but there's nothing that's going to
10:43
Speaker 5: happen to the prosecutor personally for his or her misconduct.
10:47
Speaker 5: And I think that's a problem. There's no price to pay,
10:50
Speaker 5: So if you're not going to be sanctioned, then what's
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Speaker 5: a disincentive here for engaging this kind of conduct.
10:55
Speaker 3: The Chicago US Attorney's Office is implementing a quote remediation
11:01
Speaker 3: plan for its grand jury procedures, and that includes increase
11:05
Speaker 3: and expanded education about grand jury presentations and extensive deep
11:10
Speaker 3: dive training from national experts outside the office.
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Speaker 5: You don't need deep dive training on the violations that
11:17
Speaker 5: are at issue here. I mean the prohibition on vouching
11:20
Speaker 5: regarding the evidence. That doesn't need any kind of a
11:22
Speaker 5: deep dive. That's not a complicated issue that requires, you know,
11:26
Speaker 5: extensive training. Dismissing members of the grand jury that you
11:31
Speaker 5: don't like. This stuff is just so fundamentally basic. It
11:35
Speaker 5: doesn't require any type of extensive, extra deep dive training
11:41
Speaker 5: for prosecutors to know right from wrong on these very
11:44
Speaker 5: fundamental issues.
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Speaker 4: It's just so disturbing.
11:46
Speaker 5: You know, we're seeing cases being dismissed because of selective prosecution.
11:50
Speaker 5: We're seeing grand jurors time and time again failing to
11:55
Speaker 5: bring charges because they think that the evidence doesn't support
11:58
Speaker 5: the charges, or the have been overcharged by the prosecutor,
12:02
Speaker 5: and all of it. It's really damaged the reputation of
12:06
Speaker 5: the Department of Justice, and it's going to take I
12:09
Speaker 5: think years and years to regain that trust with the judiciary,
12:14
Speaker 5: with members of the court, with the general public. This
12:18
Speaker 5: is going to be damaged. It's going to be a
12:19
Speaker 5: long lasting it's not going to be quickly remedy.
12:22
Speaker 3: I'm sure we're going to hear a lot more when
12:24
Speaker 3: grand jury transcripts are released in some of these cases.
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Speaker 3: Thanks for sharing your insights, Jimmy. That's Professor Jimmy Garula
12:32
Speaker 3: of Notre Dame Law School. Coming up, Taylor Swift is
12:35
Speaker 3: fighting allegations of trademark infringement over her hit album, The
12:40
Speaker 3: Life of a Showgirl. I'm June Grosso and you're listening
12:43
Speaker 3: to Bloomberg. The Supreme Court's conservatives made another decision this week,
12:49
Speaker 3: favoring Republicans in the redistricting frenzy. The Court itself set
12:53
Speaker 3: off with its decision eviscerating the Voting Rights Act in
12:57
Speaker 3: a six to three vote with Republican appointee in the
13:00
Speaker 3: majority and Democratic appointees in dissent. The Court reinstated a
13:05
Speaker 3: Republican friendly congressional map in Alabama. It allows the state
13:10
Speaker 3: to eliminate a majority black House district and likely flip
13:15
Speaker 3: that Democratic district in the midterms. In doing so, the
13:19
Speaker 3: Court rejected the decision of a panel of federal judges
13:23
Speaker 3: that found Alabama intentionally discriminated against black people when drawing
13:29
Speaker 3: that map. This ruling caps a run of redistricting decisions
13:34
Speaker 3: in the past six months that have bolstered Republican chances
13:37
Speaker 3: to retain their narrow majority in the House. Although Chief
13:41
Speaker 3: Justice John Roberts continues to insist that the Justices do
13:46
Speaker 3: not make decisions based on politics.
13:49
Speaker 6: The notion that we carry forward the views of the
13:52
Speaker 6: people that appointed us is absurd. President George W. Bush
13:59
Speaker 6: appointed me twenty years ago. The idea is that I'm
14:03
Speaker 6: carrying out his agenda somehow is absurd.
14:07
Speaker 3: If you're keeping count, the Alabama decision makes it Republicans
14:12
Speaker 3: five Democrats won in the redistricting battles before the Supreme Court.
14:17
Speaker 3: Joining me is Bloomberg. Supreme Court reporter Greg Store, who
14:21
Speaker 3: is keeping count Greg, I'm not going to ask you
14:24
Speaker 3: to go all the way back through the years, through
14:28
Speaker 3: all the times the Alabama legislature has been before the
14:31
Speaker 3: Supreme Court over its maps. Just go back to the
14:35
Speaker 3: latest decision by the three judge panel at the end
14:38
Speaker 3: of May.
14:39
Speaker 7: The three judge panel said that Alabama needed to keep
14:43
Speaker 7: a second majority black district, and it said that for
14:46
Speaker 7: two reasons. First of all, the court said Alabama had
14:50
Speaker 7: previously engaged in intentional discrimination and defied earlier court rulings
14:55
Speaker 7: by trying to draw a key district that had just
14:58
Speaker 7: a little bit less than majority of black voters. And secondly,
15:02
Speaker 7: the lower court said, the primary election is on August
15:07
Speaker 7: the eleventh, and there's just not enough time for the
15:11
Speaker 7: state to shift everybody to different districts in time.
15:14
Speaker 8: For that election.
15:15
Speaker 7: And so by keeping the existing map, which has the
15:17
Speaker 7: two majority black districts, we're actually reducing the amount of
15:21
Speaker 7: confusion that would occur over the next few weeks.
15:24
Speaker 3: And I just want to point out that that three
15:26
Speaker 3: judge panel consisted of two Trump appointees and a Clinton appointee.
15:31
Speaker 3: Now tell us about this unsigned Supreme Court decision of
15:35
Speaker 3: just a little over three pages rejecting the decision by
15:39
Speaker 3: the panel, which was supported by findings in a seventy
15:43
Speaker 3: nine page decision.
15:44
Speaker 7: It was an unsigned opinion, but it was basically a six'
15:47
Speaker 7: to three ruling with the six conservative justices the Six republican.
15:50
Speaker 8: Appointees in the.
15:51
Speaker 7: Majority and what they said is that the lower court
15:54
Speaker 7: got it wrong in multiple. Respects it, said among other,
15:57
Speaker 7: things this big ruling The Supreme court issue On april
16:01
Speaker 7: twenty ninth that really scaled back the use of The
16:03
Speaker 7: Voting Rights act and, redistricting that that undercut the claim Against.
16:08
Speaker 8: Alabama it also said.
16:10
Speaker 7: That the lower court was too quick to presume That
16:13
Speaker 7: alabama legislators were acting with racial, animus that they should
16:17
Speaker 7: have accorded more of a presumption of good faith for the.
16:20
Speaker 7: Legislature and, finally The Supreme court said the sixth and
16:24
Speaker 7: the majority said that if there's going to be chaos
16:27
Speaker 7: leading up to the, election that's the state's. Choice it's
16:31
Speaker 7: not for a lower court to intervene and say we're
16:34
Speaker 7: going to do something because it's going to reduce the
16:36
Speaker 7: confusion that's On. Alabama and if they want to proceed this,
16:40
Speaker 7: way they.
16:40
Speaker 3: Can just As Sonya sotomayor wrote a blistering, dissent and
16:45
Speaker 3: she said this decision corrodes the rule of.
16:48
Speaker 8: Law, well she didn't hold.
16:50
Speaker 7: Back she wrote for all three of The court's, liberals
16:53
Speaker 7: and she said that The court is disregarding both democratic
16:57
Speaker 7: values and the rule of. Law she said that when
17:00
Speaker 7: The Supreme court issued That Voting Rights act decision a
17:03
Speaker 7: few weeks, ago it explicitly left open the possibility that
17:08
Speaker 7: there could be a showing of intentional discrimination by a
17:12
Speaker 7: state against minority, voters and she said that's exactly what
17:15
Speaker 7: the lower court found in this. Case she also pointed
17:18
Speaker 7: out that This alabama case has a really, long entangled
17:22
Speaker 7: history THAT i won't walk all the way, through but
17:25
Speaker 7: The Supreme court has actually ruled in this very case
17:29
Speaker 7: after hearing arguments, before and what it said in that case,
17:32
Speaker 7: was we're going to uphold this lower court decision that
17:36
Speaker 7: says that there has to be a second district where
17:39
Speaker 7: black voters can select the candidate of their, choice And
17:42
Speaker 7: sodavirus says The Supreme court has effectively ignored. That and,
17:46
Speaker 7: finally she pointed out what the lower court pointed, out
17:49
Speaker 7: which is that this is going to invite chaos The
17:52
Speaker 7: director Of elections has suggested it's going to be near
17:55
Speaker 7: impossible to shift everybody into the proper districts in time
17:59
Speaker 7: for The august eleventh primary. Election and so we will
18:03
Speaker 7: see how that works out In, alabama but.
18:05
Speaker 8: She at least is skeptical that it will be a smooth.
18:07
Speaker 3: Process so this is the first test since The justice's
18:13
Speaker 3: WEEKEND i, say eviscerated The Voting Rights. Act is this
18:17
Speaker 3: sending a message that even findings of intentional discrimination are not?
18:21
Speaker 3: ENOUGH i, mean what's the message?
18:22
Speaker 7: Here it certainly suggests that that might be the. Case
18:26
Speaker 7: that was the area that The court said it.
18:29
Speaker 8: Was leaving open when it ruled in The Footing Rights
18:32
Speaker 8: act case On april twenty.
18:33
Speaker 7: Ninth but in this, case a lower, court as you
18:36
Speaker 7: pointed out in a lot of, detail explain, why in its,
18:40
Speaker 7: view this was different from that case because it involved
18:43
Speaker 7: that intentional, discrimination because they Said alabama legislators were trying
18:48
Speaker 7: to limit black voting, power and The Supreme court, said
18:52
Speaker 7: and even was willing to do it in this emergency
18:55
Speaker 7: posture where it didn't have allo a lot of time
18:56
Speaker 7: to hear arguments and that sort of, thing it was
18:59
Speaker 7: willing to say we're sure enough that the lower court
19:01
Speaker 7: got it wrong that we are going to block that
19:04
Speaker 7: ruling and allow this district that the lower court thinks
19:08
Speaker 7: is a product of intentional. Discrimination we're going to allow
19:10
Speaker 7: that map to be in place for The november.
19:13
Speaker 3: Election greg when you look at the redistricting decisions from
19:16
Speaker 3: The court Since, december they've overwhelmingly Favored, republicans and like
19:22
Speaker 3: in this, case it's always by six to three, votes
19:25
Speaker 3: with The republican appointees in the majority and The democratic
19:30
Speaker 3: appointees in. Dessent so it's hard to look at these
19:33
Speaker 3: decisions as anything but. Political despite how much the chief
19:38
Speaker 3: protest that they're not political, actors.
19:41
Speaker 7: It is certainly having a big, effect and that effect
19:44
Speaker 7: is to help The Republican party in particular for The november.
19:48
Speaker 7: Election so there are basically six states in this cycle
19:52
Speaker 7: where The Supreme court has acted in redisciping. Cases they
19:55
Speaker 7: are not all the, same But republicans have won five of.
19:59
Speaker 7: Them The Big Voting Rights act, case which was A louisiana,
20:02
Speaker 7: case there's this. One there's a case where they blocked
20:06
Speaker 7: a lower court ruling that would have required a new
20:08
Speaker 7: map In New. York there Was, virginia where The Supreme
20:12
Speaker 7: court refused to reinstate A democratic drawn map that the
20:16
Speaker 7: voters of the state had approved after the State Supreme
20:19
Speaker 7: court blocked that. Map and then there Was texas where
20:22
Speaker 7: they intervened to Let Texas republicans change the map. There,
20:26
Speaker 7: now The texas case was very similar to A california
20:29
Speaker 7: case later on that ended up Helping, democrats letting them
20:32
Speaker 7: put a new map in. Place then The Big Voting
20:34
Speaker 7: Rights act decision also spawned some redistricting in states Like,
20:38
Speaker 7: tennessee eliminating some majority black And democratic leaning. Districts and
20:43
Speaker 7: the upshot of that will be that there will be
20:46
Speaker 7: a number of districts that used to be fairly Safe
20:48
Speaker 7: democratic districts that are now going to be fairly Safe
20:51
Speaker 7: republican districts In. November and we haven't even talked about
20:55
Speaker 7: other types of, cases election cases The Supreme court has
20:58
Speaker 7: that might also affect the Election.
20:59
Speaker 3: November The percel principle about judges not interfering close to an.
21:05
Speaker 3: Election i've been discussing that a lot, lately And i'm
21:09
Speaker 3: confused about what The Supreme court considers The percel principle to.
21:14
Speaker 8: Be you Joined Justice Soda.
21:16
Speaker 7: Mayora there The percel, principle and it's named after the
21:20
Speaker 7: two thousand and six case that invoked the idea in
21:23
Speaker 7: the first.
21:23
Speaker 8: Place the idea is.
21:24
Speaker 7: That federal judges shouldn't intervene at kind of the last
21:27
Speaker 7: minute to change the rules of a state run. Election
21:31
Speaker 7: and The Supreme court over the years has started to
21:35
Speaker 7: make pretty clear that while that restricts lower court federal,
21:39
Speaker 7: judges it doesn't restrict. Them so in this, case one
21:43
Speaker 7: of the things The Supreme court said it didn't use
21:45
Speaker 7: the word, percel but that was the principle it, used
21:48
Speaker 7: was that when this three judge panel reinstated the earlier
21:52
Speaker 7: map and a ruling that came down just a week
21:55
Speaker 7: or two, ago that that was interjecting itself in properly
22:01
Speaker 7: in the way the state wanted to conduct the election
22:03
Speaker 7: with this other, map and it didn't matter to The
22:06
Speaker 7: Supreme court that the only reason the lower court had
22:09
Speaker 7: to act again was because The Supreme court itself had
22:13
Speaker 7: previously vacated a decision that everybody thought up until a
22:16
Speaker 7: month ago was going to govern the fall. Election so
22:20
Speaker 7: The Supreme court is restricting federal. Courts it is giving
22:24
Speaker 7: a lot of leeway to states that want a, redistrict
22:27
Speaker 7: particularly for partisan, purposes and it is leaving open the
22:32
Speaker 7: possibility that it itself might cause some, confusion as long
22:37
Speaker 7: as it is moving in support of those principles of
22:41
Speaker 7: letting states craft their own maps and keeping lower court
22:44
Speaker 7: judges from overstepping their.
22:46
Speaker 3: Authority it's nice to be able to exempt yourself from a.
22:48
Speaker 3: Rule greg Tell us about the two cases The Supreme
22:51
Speaker 3: court has yet to decide that may affect the.
22:54
Speaker 8: Elections one is a campaign finance.
22:57
Speaker 7: Case it involves what right now is a limit on
23:00
Speaker 7: so called coordinated party, expenditures in other, words money that
23:04
Speaker 7: political parties can spend in coordination with their, candidates and
23:09
Speaker 7: The Supreme court sure seems like it's going to overturn those.
23:12
Speaker 7: Limits this is a court that very much sees campaign
23:15
Speaker 7: finance restrictions as a problem for free, speech and if
23:18
Speaker 7: they do, that it will give parties a lot more,
23:20
Speaker 7: power and at least For, november will probably help The
23:24
Speaker 7: Republican party because they have a lot more cash on
23:27
Speaker 7: hand right now than The Democratic party, does and they.
23:30
Speaker 8: Will also be able to use this.
23:32
Speaker 7: Money when you spend money in coordination with the, candidate
23:34
Speaker 7: you can get these discounted rates that candidates can, get
23:38
Speaker 7: so that's one that The Republican party is almost certain to.
23:41
Speaker 7: Win the second case has to do with the deadlines
23:45
Speaker 7: for mail in, ballots in which the argument is That
23:48
Speaker 7: congress has set election day for a particular date In,
23:52
Speaker 7: november and all ballots have to be received by that.
23:57
Speaker 7: DAY a number of states right now have laws that's
24:00
Speaker 7: as long as the ballots are postmarked by that, day
24:02
Speaker 7: we'll give you a few extra days for them to actually.
24:05
Speaker 7: Arrive The Supreme court might knock out those. Laws republicans
24:09
Speaker 7: are the ones who are arguing for those strict, limits
24:11
Speaker 7: And democrats are the ones who say that grace periods are.
24:15
Speaker 7: Appropriate remains to be seen exactly how much effect that.
24:18
Speaker 3: Has The Supreme court is expected to announce decisions again This.
24:23
Speaker 3: Thursday we'll see if these are among. Them thanks so, Much.
24:26
Speaker 3: Greg That's, Bloomberg Supreme court Reporter Greg. Storr I'm June,
24:30
Speaker 3: grasso and this Is.
24:31
Speaker 9: Bloomberg her name Was kitty made the money being pretty and.
24:43
Speaker 9: Witty they gave her the keys to this. City then
24:47
Speaker 9: they said she did enjoy it.
24:49
Speaker 3: Legitly Taylor Swift's The life of A showgirl was the
24:53
Speaker 3: fastest selling album in. History it became the pop stars
24:57
Speaker 3: fifteenth number one. Album not quite it is fast. Moving in.
25:01
Speaker 3: Fact about six months later came the lawsuit by a
25:05
Speaker 3: Former Las vegas showgirl who claimed that the album's title
25:09
Speaker 3: infringed on her trademark for the phrase confessions of a,
25:13
Speaker 3: showgirl And Maren flagg is asking a court for a
25:17
Speaker 3: preliminary injunction to stops with from using the phrase while
25:21
Speaker 3: the litigation plays. Out my guest is intellectual property Litigator Terence,
25:26
Speaker 3: ross a partner At Katain Muchen Rosenman terry tell us
25:30
Speaker 3: about this trademark infringement.
25:32
Speaker 10: Dispute the plaintiff was a showgirl In Las.
25:36
Speaker 1: Vegas she at one point in time started a BLOG
25:42
Speaker 1: i guess it would have been called in those, days
25:45
Speaker 1: talking about her life as a showgirl and how challenging
25:48
Speaker 1: a difficult life in the entertainment Business Las vegas.
25:50
Speaker 10: Is it morphed over time into a cabaret.
25:55
Speaker 1: Show she at one point decided that she would register
26:00
Speaker 1: as a trademark the title she was using for, this
26:03
Speaker 1: which Is confessions of A. Showgirl and that was back
26:07
Speaker 1: in two thoy. Fourteen In august of twenty twenty. Five Last,
26:13
Speaker 1: August Taylor swift announces her next album will be Entitled
26:19
Speaker 1: The life of A, showgirl based on her experiences of
26:23
Speaker 1: her worldwide.
26:24
Speaker 10: Tour the, Plaintiff miss flag saw this at the, time
26:28
Speaker 10: as everybody In america.
26:29
Speaker 1: Did everybody knew That Taylor swift had a new album
26:32
Speaker 1: coming out was going to be Called life of a Show.
26:34
Speaker 1: Girl Miss flagg chose not to do anything in the.
26:38
Speaker 1: Paper she argues, that, well she did not realize that
26:42
Speaker 1: it was going to be used as. Broadly she did
26:44
Speaker 1: not realize That Taylor swift was going to see a
26:47
Speaker 1: trademark registration in.
26:48
Speaker 10: It she has other.
26:49
Speaker 1: Excuses shortly after the, Announcement Taylor swift's lawyers applied for
26:54
Speaker 1: a trademark registration in the word mark The life of
26:58
Speaker 1: A Showgirl IN i think it Was november of twenty twenty.
27:02
Speaker 10: Five The United.
27:04
Speaker 1: States Trademark office issued a non final office action saying
27:09
Speaker 1: that they were going to deny the application as likely
27:13
Speaker 1: confusing with other marks that already. Existed notwithstanding that the
27:18
Speaker 1: album was, launched wide range of products were. Sold the
27:24
Speaker 1: album used the Title The life of a Shell, girl
27:27
Speaker 1: and many of these products that were being sold By
27:30
Speaker 1: Taylor swift's various business entities also used that clearly in
27:34
Speaker 1: a trademark. Sense In march of twenty twenty, six The
27:39
Speaker 1: United Say Trademark office Suspended Taylor swift's. Application there is
27:43
Speaker 1: a suggestion in the papers that this was at the
27:45
Speaker 1: request of the, Plaintiff Marin. FLAG i don't know if
27:48
Speaker 1: that's true or, not but within weeks of the suspension
27:52
Speaker 1: Of Taylor swift's trademark, Registration Miss flag filed a lawsuit
27:57
Speaker 1: in The Central district To, california which is the law
27:59
Speaker 1: Same angela's, area in which she alleged trademark infringement of
28:04
Speaker 1: her registered mark in The Trademark confessions of a Show,
28:08
Speaker 1: girl as well as a federal cause of action for
28:12
Speaker 1: unfair competition in A california state cause of action for unfair.
28:15
Speaker 1: Competition and a couple weeks after filing the, Lawsuit Miss
28:19
Speaker 1: flag also filed a motion for a preliminary. Injunction now
28:23
Speaker 1: preliminary injunction essentially is a procedure by which a plaintive
28:28
Speaker 1: and a lawsuit can have something stopped pending the outcome
28:33
Speaker 1: of the. Lawsuit it is a very hard thing to
28:36
Speaker 1: get and for understandable. Reasons no decision is made on
28:39
Speaker 1: the merits of the, case and yet you're asking the
28:42
Speaker 1: court to make the defendant stop doing. Something so there's
28:46
Speaker 1: a very high bar to obtain a preliminary. Injunction Miss
28:50
Speaker 1: swift and her business entities responded and opposed that motion
28:54
Speaker 1: for a preliminary, junction as you, expect and a hearing
28:58
Speaker 1: was held On may twenty, seven twenty, six in front
29:01
Speaker 1: Of Judge marillo in The Central, District. California and that's
29:04
Speaker 1: essentially where we are, procedurally.
29:06
Speaker 3: And at the hearing on the motion for a preliminary
29:09
Speaker 3: injunction last, Week Taylor swift's attorney argued That The life
29:13
Speaker 3: of A showgirl didn't infringe On flagg's trademark because it
29:18
Speaker 3: was absolutely undisputed that the album is an expressive work
29:23
Speaker 3: entitled to legal protection so protected by The First. Amendment
29:27
Speaker 3: is that the basic defense, argument.
29:29
Speaker 10: Well that's one of many.
29:31
Speaker 1: Arguments the defense took the typical shotgun approach where it
29:34
Speaker 1: threw up every argument under the, sun some of which
29:37
Speaker 1: are stronger than. Others clearly at the core of the, argument,
29:41
Speaker 1: however was the notion that The First amendment protects express's
29:46
Speaker 1: speech against trademark. Liability and this is a doctrine that
29:52
Speaker 1: was first pioneered by The Second, circuit which Is New
29:55
Speaker 1: york And, connecticut in connection with a movie that Used
29:59
Speaker 1: Ginger rogers name as part of the. Title and that
30:02
Speaker 1: lawsuit was Called rogers Versus, grimaldi and the test that was,
30:06
Speaker 1: developed the doctrine that came out that became known as
30:08
Speaker 1: The Rogers, Test and at its, core it says that
30:11
Speaker 1: you cannot use trademark to restrict expressive speech because of
30:15
Speaker 1: The First amendment. Protections you AND i talked about a
30:18
Speaker 1: case about a year and a half ago in The
30:21
Speaker 1: Supreme court that adjusted The Rogers. Test it was a
30:25
Speaker 1: case Involving Jack daniels VERSUS Vip. Toys in that, case
30:30
Speaker 1: The Supreme court cabined The rogers. Doctrine in other, words
30:34
Speaker 1: it took position That rogers doctrine has to be narrowly
30:36
Speaker 1: interpreted to apply to the titles of expressive. Works in
30:41
Speaker 1: light of that, case a lot of changes have happened
30:44
Speaker 1: in the way we approach trademark law in the context
30:47
Speaker 1: of expressive works such As Taylor swift's. Album, now all
30:51
Speaker 1: of that, said it seems pretty clear to me that
30:53
Speaker 1: the album's Title life of Jo girl is going to
30:56
Speaker 1: be preserved even in its changed. Form The rogers test
30:59
Speaker 1: will still protect that because it is being used as
31:02
Speaker 1: a title of an expressive Work Taylor swift's sound.
31:06
Speaker 10: Recordings and SO i think at the end of the,
31:08
Speaker 10: day that's a win For Taylor.
31:09
Speaker 1: Swift and, indeed it seems as if in her briefs the,
31:13
Speaker 1: Plantiff Miss flagg conceives that that The rogers test applies
31:17
Speaker 1: to the title of the. Album the distinction drawn by
31:20
Speaker 1: A planeff is it should not apply to anything, else
31:23
Speaker 1: and that is a slightly better argument by The.
31:25
Speaker 3: Planeff swift's attorney also argued that the plaintiff waited eight
31:29
Speaker 3: months after the album was first announced to ask for an,
31:33
Speaker 3: injunction and that shows there's no urgency or need for immediate,
31:37
Speaker 3: relief and also that during some of those months she
31:41
Speaker 3: tried to associate herself With swift and The life of
31:45
Speaker 3: A showgirl album in her. Messaging the defense is in one,
31:49
Speaker 3: post the plaintiff used an album cover logo audio from
31:54
Speaker 3: the album's title track hashtags including The life of A, Showgirl, Swift,
32:00
Speaker 3: ease And Tailor. Nation is that a problem for the, plaintiff.
32:04
Speaker 1: It's probably worthwhile to, briefly without giving a law school,
32:07
Speaker 1: lecture explains how you get preliminary.
32:09
Speaker 10: Junction it's very hard to. Get the party seeking a
32:12
Speaker 10: preliminary junction has to prove fourth.
32:14
Speaker 1: Things they have to prove first and foremost a likelihood
32:17
Speaker 1: of success on the merits that at the end of
32:19
Speaker 1: the day they're going to, win and it's not worth
32:22
Speaker 1: the time to.
32:22
Speaker 10: Wait just give me the injunction.
32:24
Speaker 1: Now the second thing they have to prove is irreparable
32:27
Speaker 1: harm that money damages at the end of the process
32:30
Speaker 1: isn't going to be good. Enough and the third thing
32:32
Speaker 1: that go to show is that the balance of hardships
32:35
Speaker 1: tips in their. Favor more pain is going to be.
32:37
Speaker 1: Inflicted more damage is going to be inflicted on the
32:40
Speaker 1: plaintiff by waiting until the end of the case for
32:43
Speaker 1: an adjunction than inflicted upon the defendant by granting the injunction.
32:47
Speaker 1: Now and then the fourth thing you have to show
32:49
Speaker 1: is that a preliminary junction would be in the public.
32:51
Speaker 8: Interest so this is.
32:53
Speaker 1: Part of what it's known in the Old english law
32:55
Speaker 1: procedure is equitable. Jurisdiction so it's within the equity power
32:58
Speaker 1: of the. Court you don't have a jury deciding, This
33:00
Speaker 1: it's decided by the. Court if you come into equity
33:03
Speaker 1: seeking some sort of equity, remedy as Miss flagg pass,
33:06
Speaker 1: here you have to do, equity and one of the
33:10
Speaker 1: ways you get undone one of the ways you aren't
33:13
Speaker 1: doing equity is to come into equity with unclean. Hands
33:17
Speaker 1: is the doctor and That stone Has and here the
33:20
Speaker 1: defense is making the argument that Miss flagg has been
33:23
Speaker 1: writing the coattails Of Taylor swift and her phenomenal new
33:27
Speaker 1: Album life of A, showgirl and that constitutes unclean, hands and,
33:32
Speaker 1: therefore on that ground, alone a preliminary junction has to
33:34
Speaker 1: be denied because coming into equity and she's not doing.
33:38
Speaker 10: EQUITY i think it's a real stretch of an.
33:40
Speaker 1: ARGUMENT i think it is an argument that makes more
33:43
Speaker 1: sense in a jury setting where you can persuade lay.
33:47
Speaker 1: People that's just unfair what's going on. HERE i don't
33:50
Speaker 1: think that argument in the self will go very. Far
33:53
Speaker 1: it's like a flavor of the.
33:54
Speaker 3: Case so, then what do you think Is swift's best?
33:57
Speaker 1: ARGUMENT i think the strongest argument for the defense here
34:02
Speaker 1: was the one they made that there's no likelihood of
34:03
Speaker 1: success of the, merits and every circuit, court Every court
34:06
Speaker 1: Of appeals has a different standard and different. Name but
34:10
Speaker 1: here in The Ninth circuit it's referred to as the
34:12
Speaker 1: Sleek craft. Factors based on an Old ninth, circucase there
34:15
Speaker 1: are eight things you have to show to prove likelihood of.
34:19
Speaker 1: Confusion they are questions of. Fact questions of fact have
34:24
Speaker 1: to be decided by a, jury not by a. Judge
34:28
Speaker 1: it makes it really really hard in trying to get
34:31
Speaker 1: A pi in a trademark case to satisfy the likelihood
34:35
Speaker 1: of success of the Merrit just think about this. Way
34:38
Speaker 1: are you confused by this Notion confessions of a showgirl
34:42
Speaker 1: versus life of a? Showgirl knowing that the one Is Taylor.
34:45
Speaker 1: Swift this is the problem with plaint suing. Celebrities everybody
34:49
Speaker 1: in the world Knows Taylor. Swift come, on let's be.
34:51
Speaker 1: Honest and this is the best selling album of all
34:54
Speaker 1: the great albums.
34:54
Speaker 10: As long as she's.
34:55
Speaker 1: Had this is the best selling album so far in her,
34:59
Speaker 1: career AND I i, believe the best selling album of all.
35:02
Speaker 10: Time and it makes it.
35:04
Speaker 1: Real hard to think in your mind, that, oh this
35:08
Speaker 1: cabaret act being done by mister flive is somehow associated
35:11
Speaker 1: with tailor.
35:12
Speaker 10: Swift it's just very hard to.
35:13
Speaker 1: See but that, said a jury gets to make that,
35:17
Speaker 1: decision and one big part of that is has.
35:21
Speaker 10: Anybody really been confused out? There the planiff, says, oh,
35:24
Speaker 10: yeah there's all these acts of.
35:25
Speaker 1: Confusion people are hashtagging me into, conversations hashtagging my market
35:29
Speaker 1: in the conversation vice. VERSA i don't know that that's actual.
35:33
Speaker 1: Confusion so that's why we do expert. Surveys we go
35:36
Speaker 1: out and we find the audience for these types of
35:39
Speaker 1: goods and products and entertainment, services and we have the
35:42
Speaker 1: experts due to surveys see if anybody's actually.
35:44
Speaker 10: Confused we haven't done that.
35:45
Speaker 1: Yet at the end of the, DAY i think the
35:47
Speaker 1: district court judge is likely to SAY i can't on
35:50
Speaker 1: this record find a likelihood of success on the merits
35:53
Speaker 1: BECAUSE i can't find likely, confusion.
35:56
Speaker 10: And therefore could deny the preliminary in.
35:58
Speaker 1: Junction that's just my, Opinion but you, know reading the
36:01
Speaker 1: tea leaves of the oral argument at the, hearing seemed
36:04
Speaker 1: like the judge was disinclined to grant preliminary junction, anyway.
36:08
Speaker 3: Putting the preliminary injunction, aside let's say this goes to,
36:12
Speaker 3: trial which side has the better.
36:15
Speaker 1: CASE i think this is one of the more interesting
36:18
Speaker 1: celebrity cases That i've seen come, along because both sides
36:21
Speaker 1: have pretty good, arguments and we are living in Post
36:25
Speaker 1: Jack daniels world where The Supreme court has changed The
36:28
Speaker 1: rogers test and we really don't know the parameters of.
36:31
Speaker 1: It the one Thing i'm pretty confident of is that
36:34
Speaker 1: the album will not have to change its, name and
36:37
Speaker 1: that the album will not get recalled or felling of
36:41
Speaker 1: the album gets, stopped or streaming of the songs get.
36:43
Speaker 1: STOPPED i would bet dollars to donates on. That and
36:46
Speaker 1: that's not simply because the music's phenomenal And Taylor.
36:49
Speaker 10: Swift is who she.
36:50
Speaker 1: IS i, think as a matter of law and approaching
36:52
Speaker 1: this from a neutral, PERSPECTIVE i think The rogers test
36:55
Speaker 1: still applies to titles of musical, works and SO i
36:59
Speaker 1: think that's the one Outcome i'm certain. Of, However i'm
37:03
Speaker 1: really uncertain about all the other products that are being
37:06
Speaker 1: selled By Taylor swift entities that are also using the
37:10
Speaker 1: Trademark life of A. Showgirl i'll give you one, Example
37:13
Speaker 1: apparently Some Taylor swift entity is selling candles with that.
37:17
Speaker 1: NAME i don't know why they would choose to sell
37:21
Speaker 1: candles with that. Name i'm not enough of a SWIFTYE
37:24
Speaker 1: i guess to understand THAT i probably should have consulted
37:27
Speaker 1: one of my. Daughters but it is using that, mark
37:30
Speaker 1: and that's not expressive, conduct and therefore it's not, entitled
37:34
Speaker 1: in my, view to the protection of The rogers.
37:36
Speaker 10: Test, now the defense argues it's.
37:39
Speaker 1: A promotional product to support the, album And i'm really
37:43
Speaker 1: hard pressed to see. THAT i went online and it
37:46
Speaker 1: looked like these products are just goods being sold to the.
37:48
Speaker 1: Public And Taylor swift's business entities do this all the.
37:51
Speaker 1: Time they're constantly SELLING t shirts and things of. That, like,
37:55
Speaker 1: hey don't see how this promotes the. Album Maybe i'm missing.
37:58
Speaker 1: Something the defense points to another case that came out
38:03
Speaker 1: recently in same, Court Central Distric. California different, judge, though
38:07
Speaker 1: that took the position that promotional products are protected by
38:10
Speaker 1: The rogers, test and they're not a lot of casel
38:12
Speaker 1: on that out. There i'm not sure that court got it.
38:15
Speaker 1: Right but ALSO i think it's factually different from, here
38:18
Speaker 1: where we're selling. CANDLES i, mean if you're Selling Taylor
38:21
Speaker 1: swift t shirts with that logo on it had A
38:23
Speaker 1: life of The showgirl, CONCERT i think you've probably got
38:26
Speaker 1: an argument it's a promotional. Product BUT i don't know
38:28
Speaker 1: if these candles and other goods are promotional. Products one and,
38:32
Speaker 1: two The Supreme court didn't tell us whether or not
38:35
Speaker 1: promotional products are covered by The rogers test. Anymore the
38:39
Speaker 1: other argument that's made by the plaintive THAT i think
38:43
Speaker 1: is a very interesting argument is that the fact That
38:47
Speaker 1: Taylor swift went out and applied for a trademark. Registration
38:50
Speaker 1: you only apply for trademark registrations if you intend to
38:53
Speaker 1: label or brand a good or a, service and that's
38:56
Speaker 1: exactly what The Supreme Court Jack daniels, said is not
38:58
Speaker 1: protected by The Rogers so that might have been a
39:02
Speaker 1: mistake on the part of the Tailor swift, entities BECAUSE
39:05
Speaker 1: i think by applying for the, trademark they're sort of
39:08
Speaker 1: conceding that the Phrase life of Show girl is going
39:12
Speaker 1: to be used in a business identifier, sense and The
39:16
Speaker 1: Supreme court, said, sorry you lose protection when you do.
39:18
Speaker 10: That but these are all issues of first.
39:20
Speaker 1: Impression because we're in this new world with this New
39:25
Speaker 1: rogers test Post Supreme horse that's In Jack, daniels and
39:28
Speaker 1: that's what makes this so.
39:29
Speaker 10: INTERESTING i consider it fascinating.
39:31
Speaker 1: And an interesting point that the plaintiff makes in its
39:36
Speaker 1: motion for preliminary junction is the fact that if the
39:39
Speaker 1: lawyers who applied For life of A showgirl registration on
39:44
Speaker 1: behalf Of Taylor swift had done the most cursory trademark,
39:48
Speaker 1: search they would have found her trademark and that should.
39:52
Speaker 10: Have given them.
39:53
Speaker 1: Pause and the paper then goes on to explain that
39:57
Speaker 1: assuming that the lawyers did such to, search that means
40:01
Speaker 1: That Taylor swift went forward with the application and use
40:04
Speaker 1: of the mark knowing that there was another mark out,
40:07
Speaker 1: there and therefore the infringement has to be branded as
40:11
Speaker 1: willful and, intentional.
40:13
Speaker 10: Which is bad thing, obviously especially on the damages.
40:15
Speaker 1: Side it is absolutely true that whenever we file for
40:20
Speaker 1: a trademark, application we conduct a search of the existing
40:24
Speaker 1: register marks at a, minimum in a really important trademark,
40:27
Speaker 1: application AS i would consider this to be a really
40:30
Speaker 1: really important trademark applications For Taylor swift's new. Album in
40:34
Speaker 1: addition to searching the trademark registration, list we would search
40:39
Speaker 1: all the fifty states doing business names in corporation, names
40:44
Speaker 1: we would do A google. Search is a really comprehensive
40:46
Speaker 1: search to make sure we weren't getting into trouble and
40:49
Speaker 1: that we were using a viable name and getting registration
40:52
Speaker 1: on viable name before we launched the. BUSINESS i can't
40:55
Speaker 1: imagine that didn't happen, here and that makes it even
40:58
Speaker 1: more interesting or. Not the lawyers who did the search
41:02
Speaker 1: and reported back To Taylor swift gave her some sort
41:05
Speaker 1: of assurance or opinion that she would prevail if, challenged
41:09
Speaker 1: AND i would have loved to have been a fly
41:11
Speaker 1: on the wall that discussion when they came back and
41:14
Speaker 1: Told Taylor, Swift i'm, sorry somebody has already Got confessions
41:18
Speaker 1: of The Shell, girl so we got a problem.
41:19
Speaker 10: HERE i, mean that would have been very interesting.
41:21
Speaker 1: To see for her, reaction but that is ignored completely
41:25
Speaker 1: in the defense opposition to the motion for prelimity, junction
41:30
Speaker 1: WHICH i also found interesting and very telling that they
41:33
Speaker 1: want to stay away from any discussion of whether or
41:35
Speaker 1: not they did a search and what the search, found
41:38
Speaker 1: and why they went forward with the name.
41:40
Speaker 10: Anyway these little.
41:42
Speaker 1: Subtleties and Briefs it's always interesting to see what the
41:45
Speaker 1: thinking is and what's going on behind the scenes by
41:47
Speaker 1: a few little subtleties in the briefs like.
41:49
Speaker 3: That, So, terry just to clarify one, Thing let's say
41:52
Speaker 3: The rogers test doesn't apply because of the trademark element to.
41:56
Speaker 3: IT i, mean do they then go to a likelhood confusion.
41:59
Speaker 3: Test what's the t after?
42:00
Speaker 10: That, yes that's exactly.
42:02
Speaker 1: Right that means that the central Defense First amendment defense
42:07
Speaker 1: is not, applicable and so you engage in ordinary process
42:11
Speaker 1: of determining whether or not trademark infringement has taken, place
42:14
Speaker 1: and that is the likelihood of confusion.
42:16
Speaker 10: Tests is the consumer for these goods and.
42:19
Speaker 1: Services likely to be confused between the two products the
42:23
Speaker 1: two services as a result of the two different trademarks being,
42:27
Speaker 1: Used and again THAT'S whatu go to the jury for a.
42:30
Speaker 10: DECISION i would love.
42:32
Speaker 1: To see how the survey of consumers is, constructed BECAUSE
42:36
Speaker 1: i think that would be.
42:37
Speaker 10: Complicated i'd love to see the results.
42:39
Speaker 3: You may get.
42:40
Speaker 10: To we may. Well you, know there's an.
42:43
Speaker 1: Interesting subtext in the pleadings on the motion for preliminary.
42:47
Speaker 1: Injunction one of the requirements is you have to show
42:51
Speaker 1: that the harm is, irreparable and by irreparable they mean
42:54
Speaker 1: can't be fixed by monetary. Damages in arguing that the
42:57
Speaker 1: harm is not, irreparable these uns argued that we can
43:02
Speaker 1: simply pay money to the plaintiff at the end of
43:05
Speaker 1: the day if this is.
43:06
Speaker 10: Infringing AND i don't know how.
43:09
Speaker 1: That was, intended BUT i read it as an invitation
43:11
Speaker 1: to settlement talks that will simply buy the mark from.
43:15
Speaker 1: You and Certainly Taylor swift's in a position to throw
43:18
Speaker 1: money at problems like. This AND i think if the
43:23
Speaker 1: plaintiff loses the preliminary junction, motion that Puts Taylor swift
43:27
Speaker 1: in the defendant's a much stronger bargain, pocision and we
43:30
Speaker 1: might then see a settlement and we might never get
43:33
Speaker 1: to see a. Survey we might never get to see
43:35
Speaker 1: how the jury reacts to any of, This but that's
43:37
Speaker 1: probably for the best.
43:38
Speaker 10: For the judicial, system although for those of us.
43:40
Speaker 1: Who follow these, things we'd really like to see a
43:42
Speaker 1: judicial decision on some of these. ISSUES a first, impression.
43:45
Speaker 3: Oh, Yeah Taylor swift to the, courtroom, Please that would be.
43:48
Speaker 1: Fascinating that would be a hard ticket to, get almost
43:50
Speaker 1: as hard as her.
43:51
Speaker 3: Tour don't forget to ask your daughters about those, Candles,
43:54
Speaker 3: terry thanks so. Much as, always that's intellectual property Litigator Terrence.
43:59
Speaker 3: Ross and that's it for this edition Of The Bloomberg Law.
44:02
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