It was a gratuitous shot at Yale Law School, because Blatt wasn't arguing about Alito's knowledge of law compared to that of ordinary people, but reacting to his assertion that no reasonable person would think Jack Daniel's had authorized a dog toy shaped like a bottle of Jack Daniel's but bearing references to dog urine and feces. He'd said:
Let me envision this scene. Somebody in Jack Daniel's comes to the CEO and says, I have a great idea for a product that we're going to produce. It's going to be a dog toy, and it's going to have a label that looks a lot like our label, and it's going to have a name that looks a lot like our name, Bad Spaniels, and what's going to be in -- purportedly in this dog toy is dog urine. You think the CEO is going to say that's a great idea, we're going to produce that thing?
Blatt's point was, to put it bluntly, people are dumb — too dumb to be imagined by a big brain like Alito's.
Here's the audio.
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28 comments:
I think you are committing the Scott Adams crime of 'mind reading.'
I don't get where the "bottle" was implied to be filled with dog urine and feces. My impression is that the bottle is a cleaner that cleans such messes off your carpet. That it is a dog toy is just another level removed from that.
I hope Jack Daniel's loses this lawsuit.
People aren’t THAT dumb. Even dummies know the difference between Jack and dog piss.
There is a Wikipedia entry for "Hard cases make bad law."
Footnote 6 in that Wikipedia entry is to legal scholar and legal writing critic Bryan Garner (a frequent collaborator with the late Justice Scalia on legal writing books). Garner -- something of a hero to me -- doesn't like the adage. But I always found it to be a useful maxim if deployed very carefully. In my usage, it means that cases which have closely competitive equities, and which are also complicated, are not so susceptible to clear rulings that become precedential.
And that, I admit, is a bit different from the original usage of the phrase. In which clearly applied law sometimes ignored the human interests of the party who was on the wrong side of the law.
It's a good blog post, Althouse.
Bad jokes make bad law.
The news coverage always seems to pick up on the dog poop angle, which is not central. The issue is whether humorous use of another’s trademark on a commercial product is subject to the Lanham Act’s likelihood-of-confusion analysis, or instead is noncommercial speech permitted due to First Amendment protection. I see a significant chilling effect if Jack Daniels wins.
According to Rebecca Tushnet, the big academic brain in this area, "lower courts have implicitly devised a compromise by which trademark is pulled back to a more traditional anti-fraud-like scope when it is applied to noncommercial speech sold in the marketplace, such as movies, newspapers, songs, and visual art..." That sort of intermediate approach is probably where the Court should go.
People are dumb.
I'm telling everyone here that that the 8th Circuit "Mutant of Omaha" case is controlling.
In that case, some nuke freeze people made T-shirts that showed the Mutual of Omaha Indianhead logo as a mutuant. A mutant because the Soviets had vaporized Omaha.
Mutual won!
Mutual now has a lion. The Indian was too offensive.
Yale and Stanford LS have taken big hits lately but retired law professors and others will not notice.
I think her point was not that he's too smart to imagine what an ordinary person would think but rather that he's too elevated and out of touch (not to mention, too conservative):
MS. BLATT: --it's just a little rich for people who are at your level to --to say that you know what the average purchasing public thinks about all kinds of female products that you don't know anything about or dog toys that you might not know anything about.
Dangerous territory for an attorney arguing a case if you ask me.
- Krumhorn
Serious Question..
IF this product was delivered in a plastic bag.. Would the bag have printed on it:
This is NOT a Toy?
I'm just thinking that maybe the average person IS considered to be pretty stupid
"Well, I went to a law school where I didn't learn any law."
My Cousin Sammy.
"Didn't they teach that in law school?"
I see that Justice Ketanji Brown is "the Lone Dissenter" ..
Justice Ketanji Brown Jackson is lone dissenter as Supreme Court vacates abortion ruling
I wonder if she went to Yale? (actually, i know better Harvard Law)
Still.. I'd think, that Lone Dissenter would be Pretty Lonely
"I didn't learn any law at Yale" is a standard, self deprecating joke among Yalies. I heard it from numerous profs, judges, and lawyers over 40 years practicing law in Chicago.
Obviously!, people are dumb to even forward such an argument.
The guy who sued Pepsi for the Harrier jet had a much better case, and it was dismissed by a judge who said no reasonable person would take the offer seriously. Except that a reasonable person had taken it seriously.
The chance of a reasonable person here taking this product as made by JD is less than zero. Yet somehow it reached SCOTUS.
My first car was a VW Beetle. It came with a tool kit and instructions on how to fix everything on the car. Today the owners manual tells you not to drink the battery acid.
So, yeah, people are dumb.
Tom Killian, Sherman McCoy's lawyer, made a similar joke about his time at Yale Law.
The "Feces" reference is the chew toy having "The Old No. 2" on the bottle's label in place of the Jack Daniel's "Old No. 7 brand".
It was a gratuitous shot at Yale Law School
There's nothing gratuitous about any shots at Yale Activist Indoctrination camp
A huge hanging curve left out there.
"So if I understand you correctly, Counsellor, your concern is that the typical American consumer may be unable to distinguish between your client's whiskey and...dog piss?"
Gilbar: The bag also would have a label on it that said "Do Not Place This Bag Over Your Head or That of Your Dog."
"It was a gratuitous shot at Yale Law School"
Why? Yalies are so superior, they can safely say that.
Plus, is he wrong? Yale grad lawyers I know learned on the job(s).
"Well, I went to a law school where I didn't learn any law."
So true, Alito may think he is taking a swipe at Yale Law School but is actually admitting a very deep truth about himself.
Interviewer: How do you explain this 4 year gap on your resume?
Sven: That’s when I went to Yale...
Interviewer: That’s impressive. You are hired.
Sven: Thanks. I really need this Yob.
MarcusB. THEOLDMAN
cassandra lite said...
The chance of a reasonable person here taking this product as made by JD is less than zero. Yet somehow it reached SCOTUS.
They attempted to steal Jack Daniel's look, Jack Daniel's "trade dress", and when called on it said "oh, we were just kidding."
Fuck them.
JD should obviously win. Calling something "a parody" doesn't make it so.
Feel free to explain exactly how this is a "Parody of Jack Daniels", rather than just an attempt to us their likeness to put money in your pocket.
And if you can't see any difference between the two, the problem is that you have no clue what a parody is
"Tom Killian, Sherman McCoy's lawyer, made a similar joke about his time at Yale Law."
LOL! I was thinking about the same thing! Something about Yale Law preparing you for anything not involving actual people.
Oh, jeez, did Left Bank go to Yale Law, too? Or was it Hollywood Upstairs Law School?
Scram-burgler-helper anti home invasion clumping pepper spray.
What's the point of going to a super-elite school and using the super-elite credential you get there to obtain a super-elite job/position if you can't take a gratuitous shot or two at the school and your fellow alumni?
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