Court Declines To Grant New Trial To Molson Coors And Stone Brewing Over Trademark Suit Result

Trademark

from the stonewalled dept

As you may recall, starting a little over 3 years ago we discussed Stone Brewing’s transformation from one-time icon of the craft brewing scene into a trademark bully. What kicked this whole thing off was Stone’s win in a trademark lawsuit against macro-brewer Molson Coors (then Miller Coors, but I will be using the company’s current name throughout the rest of this post). That suit was filed over Molson Coors changing the branding for its Keystone line of beers such that the word “STONE” became the focal point of the branding by way of font size and its prominence on the packaging. Stone Brewing argued this amounted to trademark infringement, something with which I absolutely disagree is the case, but also something for which a jury found in favor of Stone Brewing to the tune of $56 million. As someone who is quite familiar with both products and beer in general, the idea that anyone was mistakenly buying Keystone thinking it was a Stone Brewery product, well, just no. But that, I suppose, is why juries are made up of 12 peers and not 1 Timothy Geigner.

In any case, that wasn’t quite the end of the story. Both companies petitioned the court to keep this going. Stone Brewing amazingly wanted a new trial because that jury found that Molson Coors’ infringement was not willful, limiting the damages. You really would have thought $56 million and Keystone having to nix the new branding would have been enough, but I suppose once your company is bought by the much, much larger Sapporo Breweries out of Japan, all that matters now is getting those sweet returns for investors in any way you can.

Meanwhile, Molson Coors asked for either the court to simply nix the jury results and rule from the bench or issue a new trial as well on grounds that the jury found for Stone Brewing in error and/or that the award was simply out of line with the jury result. That request is more reasonable, I believe, but fairly unlikely, as courts are typically hesitant to simply throw out the result of a jury trial. Given that both parties requested a new trial, however, I had thought there might be some chance of it occurring.

But, no, the court recently told both parties to accept the results, denying all motions.

U.S. District Judge Roger Benitez said that Molson Coors was not entitled to a new trial or a court ruling in its favor, rejecting its arguments that the evidence did not support the verdict.

Benitez also denied Stone Brewing’s motion for a new bench trial on its allegations that Molson Coors used the “Stone” name in bad faith, which could have justified additional damages.

Molson Coors spokesperson Rachel Dickens said the company disagreed with the decision and is evaluating its options, including a potential appeal. Representatives for Stone Brewing did not immediately respond to a request for comment on the decision.

There are some interesting and silly tidbits in the ruling document itself (embedded below), as well as some very frustrating redactions.

For instance, Stone Brewing complained that it was not allowed to perform discovery on a late-added witness called by Molson Coors as one of its reasons for wanting a new trial. The court in turn points out that, uh, actually an offer for discovery of that witness was made and Stone declined it. Oops. There’s more like that, as this thing is 28 pages.

On Molson Coors’ end, it gets more interesting. The lower court, in its ruling documents, included some language that certainly called into question whether the jury reached the correct conclusion. Molson Coors pointed this out as a reason it should get a new trial or a bench ruling. The court not only disagrees, but repeats this language again, pointing out that the jury is tasked with fact-finding and the court’s opinion on the matter is non-material.

While Benitez previously said in an order that he would have ruled for Molson Coors on the question had he “been in the position of fact-finder,” he upheld the verdict on Monday because it was not “unreasonable or against the ‘great weight’ of the evidence.”

And, as the ruling lays out, that is 9th Circuit precedent. But then there’s some really juicy sounding bits in which Molson Coors suggests that, and the court sort of agrees, Stone Brewing withheld… something.

MillerCoors argues Stone’s failure to disclose [REDACTED] was prejudicial discovery misconduct that warrants a new trial. The [REDACTED] was not disclosed until [REDACTED]. The Court’s questioning revealed [REDACTED]. MillerCoors requested an instruction that the jury disregard the evidence, and the Court granted MillerCoors’ request.

MillerCoors argues that evidence of [REDACTED] would have undermined key aspects of Stone’s case, including that Stone’s damages are based on consumer’s negative associations between Stone and a “big beer company” like MillerCoors. Because [REDACTED] MillerCoors argues it could have used the [REDACTED] to undermine Stone’s arguments. Stone argues in turn that MillerCoors received exactly the remedy it asked for during trial (a limiting instruction), and there is a presumption that “curative instructions…[are] followed by the jury.”

Ultimately, the Court concludes that non-disclosure of [REDACTED] does not warrant a new trial. Although the Court feels Stone engaged in a certain level of gamesmanship through this concealment, the Court also finds the offer does not directly affect the issues presented at trial in the way MillerCoors argues. Mr. Koch testified [REDACTED].

Other than maybe knowing for sure who shot JFK, I don’t know that there is another thing in my life I have wanted to know more than what is in those redacted sections.

Ultimately it appears not to matter a great deal, however. The court declined the motions from both sides of this. I suppose Molson Coors could make good on its claim to want to appeal the decision; I certainly think it should have won the original case myself. Still, the company is starting to pile up losses on this whole thing and it might be time to simply cut its losses and put this to bed.

Filed Under: beer, keystone, likelihood of confusion, trademark
Companies: molson coors, stone brewing

Kids Are Smart: Teach Them To Be Safe Online

Policy

from the don't-hide-the-ball dept

Last April, Utah Governor Spencer Cox noted that “Kids are smart, they’ll find ways around” Utah’s new social media bans. But that’s not the reason why these laws will fail teens in Utah, Arkansas, and Texas. These laws will fail teens because state leaders don’t believe kids are smart enough to learn to use social media appropriately.

Florida, on the other hand, had the good sense to turn to education as a tool for keeping teens safe and healthy online.

You read that correctly — Florida. The same state that launched an unconstitutional attack on Section 230 last year. The same state actively working against the First Amendment. The same state picking fights with Disney, creator of the only mouse welcome in US households. Clearly, the state has problems. But sometimes it gets things closer to correct.

Florida’s not alone either. A bill from the California legislature, the same state that passed the first problematic age-verification law, is also leaning into education as an alternative to bans. If only that’s where the desire to regulate the internet “for the children” ended.

It may be a bit too soon to say, given the bipolar attitudes of these states toward tech, but this year they both acknowledged the reality of the situation and moved in a more positive direction. When it comes to the “future of society,” as Jonathan Haidt put it, kids become adults and move away. If we don’t equip them with a basic understanding of the world online because we’ve hidden them away, we’ve failed them.

As retired Utah teacher Linda Bettinger put it, “Media literacy is education for individual empowerment.” But in the face of rising teen depression, which some attribute to teen social media use, legislators across the country looked for a shutoff valve in the form of legislative age-gating.

To be sure, the list of serious issues teens face online is a long one, including cyberbullying and child sexual exploitation. Some in Utah felt that bans were the most appropriate solution to teen “algorithm addiction.”

When all of the above are merged into a one-pager, these issues become paramount in the minds of legislators, even in the face of clear privacy and cybersecurity risks.

But there’s also a long list of healthy and beneficial uses of social media. It can be useful for learning creative applications of physics and engineering, remembering the birthdays of faraway friends and relatives, discovering symptoms of difficult-to-diagnose diseases, finding jobs, and networking with professionals, just to name a few.

Each of these is contemplated in Florida’s law and notably absent from Utah’s. Florida’s approach also accounts for the efforts of social media companies to introduce tools and resources for parents.

Far from complacent, social media companies and internet service providers (ISPs) have responded to online threats by developing safety tools. The prevalent approach among them is giving parents a say in their children’s browsing experience using time limits. At the user level, social media companies and smartphone makers alike have also begun employing tools to give parents access to child accounts and blacklisting known harmful websites.

Of course, even though the trust and safety teams at social media companies, ISPs, and device manufacturers have unquestionably reduced the baseline level of risk out in the wild, some believe the danger to teens is still too great.

But where safety tools may fail, education and parental involvement have a major role to play in picking up the slack.

In this sense, states should look to update their educational curriculum instead of banning teens. Hefty civil penalties against social media companies may play well in headlines, but teens will pay the price if forced to grow up without learning to navigate the complex online world.

Florida’s Governor may have called the state the “Utah of the Southeast,” but when it comes to teen social media use, Florida leads the field.

Caden Rosenbaum is the technology and innovation policy analyst at Libertas Institute in Lehi, Utah.

Gavin Hickman is a technology and innovation policy intern at Libertas Institute in Lehi, Utah.

Filed Under: california, florida, media literacy, regulations, social media, social media addiction, utah

The New FTC Amazon Antitrust Case Is Better Than The Last One, But Still Weird

Legal Issues

from the closer-closer dept

It’s no secret that I think this FTC has been pretty disappointing and has missed a ton of opportunities to actually make things better for the public. For reasons I really don’t understand, it has filed a lot of antitrust cases against tech companies that have almost always seemed half-baked, resulting in a losing streak in court. I have no doubt that some of the big tech companies are doing some terrible things, but it’s been… weird at how little the FTC has actually been able to show in their main shots on goal.

Three years in, the FTC is at least getting a little better. As noted, I think the case that was filed against Google earlier this year finally had some strong arguments about how the company has abused its position in the online ads market. However, I still thought that the FTC’s complaint against Amazon early this summer regarding its methods of convincing people to sign up for Prime was, again, pretty weak. I’m surprised by this, as it seems like if there’s really problematic behavior, the FTC should have discovered it by now.

I don’t know why the FTC keeps splitting up its cases against these companies and filing multiple suits, but it has now filed another antitrust case against Amazon, and this one is definitely stronger! It actually suggests some activity that, if the complaint is accurate, seems pretty problematic! But then it dumps in a bunch of things that don’t seem problematic at all, and again I’m left perplexed. Why not just focus on the strong arguments that make your case look good?

The part that strikes me as strongest about the new lawsuit: the restrictions Amazon puts on sellers regarding how they can sell their products elsewhere, demanding that the lowest price must be on Amazon. As the complaint notes, Amazon used to do that contractually, but stopped once regulators started sniffing around:

Originally, Amazon imposed explicit contractual requirements barring all sellers from offering their goods for lower prices anywhere else. After European regulators began investigating, Amazon got rid of these requirements in Europe. After a U.S. senator called for antitrust scrutiny, Amazon did the same in the United States in 2019.

That’s good that they stopped this practice as it definitely limits competition and can harm consumers who would prefer not to use Amazon. However, the complaint notes that Amazon still punished sellers who then chose to sell things cheaper elsewhere:

One set of tactics stifles the ability of rivals to attract shoppers by offering lower prices. Amazon deploys a sophisticated surveillance network of web crawlers that constantly monitor the internet, searching for discounts that might threaten Amazon’s empire. When Amazon detects elsewhere online a product that is cheaper than a seller’s offer for the same product on Amazon, Amazon punishes that seller. It does so to prevent rivals from gaining business by offering shoppers or sellers lower prices

The details here matter, and I want to see Amazon’s explanation for this, but on a first pass, this looks bad, and certainly could be anti-competitive.

The complaint also notes that Amazon has gradually been increasing the fees it charges sellers, squeezing them. The details here will also matter, but I do know that back when we were looking for places to sell our CIA card game, it was cost prohibitive to offer it through Amazon directly, and friends who had sold directly through Amazon told us horror stories of hidden charges.

That, by itself, might not be anti-competitive, but when you combined it with Amazon pressuring sellers to offer their lowest price through Amazon, that combination can be a problem:

Moreover, Amazon’s one-two punch of seller punishments and high seller fees often forces sellers to use their inflated Amazon prices as a price floor everywhere else. As a result, Amazon’s conduct causes online shoppers to face artificially higher prices even when shopping somewhere other than Amazon. Amazon’s punitive regime distorts basic market signals: one of the ways sellers respond to Amazon’s fee hikes is by increasing their own prices off Amazon.

There are also some heavily redacted bits regarding an internal effort, named Project Nessie, that seems related to all of this, but the details are pretty much all blacked out, so it’s difficult to tell how serious it is.

The next part, though, seems pretty weak. The complaint says that it’s unfair for Amazon to say that to have your products be “Prime Eligible” you have to use Amazon’s own order fulfillment system. And, I get why that’s annoying for sellers, but it’s difficult to see how that’s directly anti-competitive, when there are some fairly obvious legitimate business reasons for doing so. Most obviously: in order to make Prime make sense, including the ability to ship things so fast at no extra charge, having Amazon handle the fulfillment seems completely reasonable?

Amazon requires sellers who want their products to be Prime eligible to use Amazon’s fulfillment service, Fulfillment by Amazon (“FBA”), even though many sellers would rather use an alternative fulfillment method to store and package customer orders.

So, the whole section about this being anti-competitive just seems really weak, and takes away from the other parts that seem like a stronger argument.

There is a redacted quote in this section of the complaint, which implies that Amazon believes it could do things differently here, and experimented with it, but changed its mind because it was too beneficial to sellers. But, again, the quote is redacted, so it’s not entirely clear.

Anyway, there’s a lot in this complaint, and as with any antitrust case, we’re talking many years before anything gets sorted. As noted, some of it makes some potentially stronger arguments, but some of it just seems weak, and it remains disappointing to see weak arguments trotted out, as it undermines the rest of the case.

Still, this does seem like a much better case than the one filed earlier this year.

Filed Under: amazon prime, antitrust, competition, ftc, retaliation
Companies: amazon

Privacy Activists Call Out UK Schools For Using An App To Monitor Students

Privacy

from the watching-out-for-the-watched dept

As we’re all too well aware, there’s plenty of money to be made in the surveillance business. The best surveillance businesses, though, are those that rely on captive markets.

Sure, kids aren’t actually “captive,” but they’re in school often enough it’s tempting to let tech pick up the slack when it comes to keeping tabs on students. That’s not just ever-present cameras keeping an eye on hallways and RFID-chipped student IDs that allow administrators to track attendance and movement.

It’s also embedded in the tech they use at school and bring home with them. It’s the spyware schools install to help prevent abuse of laptops. It’s the additional spyware that debuted during the COVID pandemic: anti-cheating software that does everything from continuously scan students’ rooms and homes via laptop cameras to constantly monitoring their activities while performing schoolwork.

Now, there’s a new wrinkle in always-on surveillance of students, as reported by Steven Morris for The Guardian.

Criminal justice and antiracist campaigners have raised concerns over an app being used by schools in Bristol to “monitor and profile” pupils and their families.

The app, which is being used by more than 100 schools, gives safeguarding leads quick, easy access to pupils’ and their families’ contacts with police, child protection and welfare services.

Sounds fairly innocuous. At least at first. Those raising concerns about the Think Family Education (TFE) app point out the app (and the database it utilizes, which contains data on 50,000 Bristol families) attempts to “analyze” which students might be more at risk of “exposure to criminality” — a phrase that could be used to cover anything from witnessing criminal acts to actually participating in them. Activists say this is the sort of thing that could lead to even more discriminatory policing efforts, using students’ data as the leverage point.

Defenders of the app — most of them Bristol government officials and local police representatives — claim this is all above-board and no one needs to worry about what the government is doing with all this data. Their cheery statements are seemingly contradicted by the assertions of the educators who deal directly with these students, who feel there’s pressure to keep this thing under wraps.

Staff using the app have told the criminal justice campaign charity Fair Trials that they keep it secret from parents and carers, and admitted many would be concerned about it if they knew of it.

Bristol city council and Avon and Somerset police, who worked together on the system, insist it is in place to protect children, not criminalise them, and deny it is secret, pointing out that information about its existence is publicly available.

It’s true. (Some) information about TFE is public. But what’s included in this public information isn’t exactly comforting. In fact, the Bristol government openly admits it is trying to pinpoint the sort of students who tend to have more frequent interactions with law enforcement — something that will undoubtedly lead to even more interactions, whether or not the student is actually at risk of anything, but just happens to live in an area where these sort of problems are commonplace.

Using targeted analytics, the system also helps identify children at risk of:  

sexual exploitation  
criminal exploitation 
not being in education, employment, or training 

Then there’s the fact that the program and the app were developed without any input from perhaps the most crucial stakeholders:

TFE was piloted at 4 schools in Bristol and developed with input from:

safeguarding staff
education inclusion managers
safeguarding education teams
information governance consultants
school consultations

Great. Except I’m not seeing students or parents on that list. All I’m seeing is a bunch of people — some of them possibly capable of advocating for students and parents, rather than for the government’s desires — who are going to be on the receiving end of the data collection. Almost no one directly targeted by this data collection was asked what they thought about this proposal.

Given that, it’s unsurprising teachers might feel pressured to withhold information from parents and students about the TFE app. Especially when the program does things like this:

Schools using the TFE app receive alerts about children’s and family members’ contact with police, antisocial behaviour and domestic violence incidents. The system also gives schools access to sensitive personal details about families’ financial situations.

That’s a lot of information that shouldn’t be in the hands of school administrators, at least if it’s not being collected without truly informed consent. This doesn’t appear to be an opt-in program. If your child attends one of these 100 schools in Bristol, you’re a participant whether you know it or not.

It’s not that something like this doesn’t have the ability to do good. It’s that when it’s handled like this — bypassing express consent and moving forward without input from parents or students — it lends itself to abuse because only those running the TFE program know what it’s truly capable of and how this data is being used.

Filed Under: privacy, students, surveillance, think family education, uk

Daily Deal: The Ultimate Bundle of StackSkills + Infosec4TC + Stone River

Deals

from the good-deals-on-cool-stuff dept

The Ultimate Bundle of StackSkills + Infosec4TC + Stone River gives you access to thousands of online courses to help you learn new skills. The bundle is on sale for $120.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

5th Circuit Does It Again: Puts Yet Another Law Already Deemed Unconstitutional Into Effect With No Explanation

Legal Issues

from the the-5th-circuit-is-lawless dept

What the fuck is going on with the 5th Circuit? Last week we wrote about it putting a law into effect just after a district court had laid out why it was unconstitutional (this was about mandatory made up “health warnings” and age verification on adult content websites). This followed on the 5th Circuit doing something similar last year, that caused the Supreme Court to give the 5th a gentle wrist slap (which apparently has ignored the message). In both cases, we highlighted how crazy it is for the appeals court to say “put this law into effect immediately” with zero explanation, especially after the district court judges went into great detail to explain why the law is unconstitutional.

And… here we are again, just one week later. Just last week, Judge Alan Albright (the same judge Alan Albright who is somewhat infamous for touring the country telling patent trolls to file cases in his court, where he is the only judge, leading him to get somewhere around 25% of all patent cases in the country) shot down yet another terrible Texas law (apparently sometimes Judge Albright can get things right).

The law in question is HB 900 which requires public school libraries to hide any materials that snowflake Republicans are scared might teach their kids that gay and trans people exist and are human beings. As highlighted last week by Chris Geidner at LawDork, Judge Albright found the whole thing blatantly in violation of the 1st Amendment as it is textbook prior restraint:

First, the Court holds that READER is a prior restraint. Defendants’ claims that “READER does not prohibit communication of any kind” and “Defendants are not forbidding anyone from any speech,” ECF No. 19 at 29, cannot be squared with TEX. EDUC. CODE § 35.002(b), which states, “A library material vendor may not sell library material rated sexually explicit material . . . .” Once TEA has confirmed that a book’s proper content rating is sexually explicit, all future attempts to sell that book to school districts are prohibited by law. This suffices as an “administrative . . . order[] forbidding certain communications when issued in advance of the time that such communications are to occur.” See Alexander, 509 U.S. at 550. Defendants similarly get things backwards by claiming that this issue revolves around “an amorphous right of students to receive information.” ECF No. 19 at 29. But see Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (“The right of freedom of speech and press has broad scope. . . . This freedom embraces the right to distribute literature and necessarily protects the right to receive it.”) (citation omitted) (emphasis added). For students to receive information, someone must be communicating it— namely, library material vendors such as Plaintiffs. READER’s prior restraint is on this communication. And it is no defense that books with sexually explicit or sexually relevant material can still be published and sold elsewhere, for the Supreme Court in Southeastern Promotions reminds us that “[e]ven if a privately owned forum had been available, that fact alone would not justify an otherwise impermissible prior restraint.” See 420 U.S. at 556; see also Schneider v. State of New Jersey, 308 U.S. 147, 163 (1939) (“[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”). It is therefore clear that READER is a prior restraint.

Answering the second question, like in Bantam Books and Southeastern Promotions, READER is an unconstitutional prior restraint. Because it does not consider whether books have literary, artistic, political or scientific value, as required by the Miller test, it sweeps a wide swath of constitutionally protected works within its definition of “sexually explicit material.” See Miller, 413 U.S. at 24. All books sold to a school district, even unquestionably non-obscene ones, are subject to READER’s rating regime. All books sold (or that have been sold) to a school district, even ones without a prior judicial determination of obscenity, are at risk of being labelled sexually explicit, either by the vendor or by the TEA. And, as explained supra Section III.B.4.a, READER nowhere mandates that either library material vendors or TEA evaluate books under Miller’s third prong. Such a regime is far too broad to fit within obscenity as a “narrowly defined exception[]” to the rule against prior restraints. See Se. Promotions, 420 U.S. at 559. And also like in Bantam Books and Southeastern Promotions, READER provides no opportunity for judicial review of the State’s final determinations. Indeed, booksellers have no opportunity to challenge the State’s “corrected” ratings or decision to ban them from selling books to public schools before the TEA, let alone a judicial body. In such circumstances, READER effectively makes TEA’s ratings final, and unappealable, which is unconstitutional. See Freedman, 380 U.S. at 58 (“[T]he requirement [of advance submission of films] cannot be administered in a manner which would lend an effect of finality to the censor’s determination whether a film constitutes protected expression.”).

The ruling is 59 pages with tons of careful details into how this law is unconstitutional and cannot go into effect.

A week later, and the 5th Circuit’s response is “put it into effect immediately” with the following explanation:

That’s it. That’s the whole damn thing.

The 5th Circuit is a lawless circuit.

This is the same thing it did last week with an “administrative stay.” The whole freaking point of “administrative stays” in the 5th Circuit is to temporarily leave in place the “status quo” so that the court can be fully briefed and make a decision. But in both of these cases, the court is using them for the opposite purpose. Rather than keeping in place the status quo in order to have time to be properly briefed, the lawless 5th Circuit is saying “let this law that has been credibly deemed unconstitutional go into effect immediately, and we’ll review the details later.”

That is, to put it mildly, fucking crazy.

Filed Under: 1st amendment, 5th circuit, alan albright, book banning, free speech, hb 900, libraries, prior restraint, school libraries, texas

AMC Defeats Liberty Tax Service Over Supposed Depiction In ‘Better Call Saul’

Trademark

from the death-and-taxes dept

A little over a year ago, Liberty Tax Service filed a trademark and defamation lawsuit against AMC. At issue was the depiction of a shady tax prep company run by con-men in the final season of the hit show Better Call Saul. In the show, the name of the tax prep company is “Sweet Liberty Tax”, run out of a trailer in the middle of the desert, with branding that included the use of the Statue of Liberty. Liberty Tax likewise uses Lady Liberty, typically by employing people to stand outside of its storefronts in costume, waving around signs to get people to come in for tax services. Liberty Tax claimed the show ripped off its name and branding, while also claiming that the negative connotation of the fictional tax company would either confuse the public into thinking that the real life company was itself shady, or that the company had some association with the depiction in the show.

“We were frankly shocked at the similarities between not only the name but the logo, the imagery; what we call the trade dress, frankly,” said Liberty Tax Service’s representing attorney Peter Siachos, partner with Gordon & Rees.

The federal lawsuit filed in New York claims Better Call Saul ripped off the trademarked name, look, and an inflatable Statue of Liberty that many Americans associate with Liberty Tax Service simply by adding the word “sweet” in front of the name. “They chose liberty, they chose the patriotic imagery, they chose the Statue of Liberty, and Liberty Tax has a trademark that gives it an exclusive use of the Statue of Liberty icon connecting with tax preparation services,” said Siachos.

The suit was questionable, in other words. The public knew they were watching a fictional show about fictional people and fictional companies. Confusion of association was never really a thing. Add to all of that the fact that the First Amendment protects the kind of artistic speech that the show was engaged in and you had all the hallmarks of a lawsuit destined for dismissal.

And that is exactly what has now happened. A Manhattan court has granted AMC’s motion to dismiss the suit, noting over the course of 30 pages that Liberty Tax Services failed to offer any real evidence that there was or could be confusion between the fictional depiction of a differently named company and the real life tax prep corporation.

U.S. District Judge Paul Gardephe in Manhattan ruled in favor of AMC Networks (AMCX.O) and Sony Pictures Television (6758.T) over the depiction of “Sweet Liberty Tax Services” in an April 2022 episode. Gardephe said Liberty Tax offered no “particularly compelling” allegations that viewers would be confused into thinking Sweet Liberty was one of its more than 2,500 offices.

The court’s decision, embedded below, takes the claims through the Rogers test. Seeing the court’s analysis on each prong is useful, but you can get a taste of how the court is viewing Liberty Tax’s claims by looking at the final prong, in which the company claims AMC’s use will have a negative impact on the public’s perception of the quality of the real life company’s service. After pointing out that the “products” each company is making in this case aren’t in the same marketplace at all, the court then moves on to Liberty Tax’s complaint that AMC is causing the public to “link Liberty Tax’s Trademarks and Trade Dress to inferior quality services and/or portray Liberty Tax’s marks and services in an unwholesome or unsavory context.” From the court document:

Plaintiff has not pled facts suggesting that viewers of the Show will not understand that “Sweet Liberty Tax Services” is a fictional business operated by fictional characters in a work of fiction.

And because this is an artistic work we’re talking about, the First Amendment applies with hefty weight.

So the case is dismissed. Liberty Tax has made some noises about looking to appeal the ruling, but it really should only do so at this point if it can find actual examples of confusion in the public to buttress its argument. After all, the episodes in question aired over a year ago. Were there to be any legitimacy to Liberty Tax’s concerns, surely they would have shown up in real world examples by now.

Filed Under: better call saul, likelihood of confusion, trademark
Companies: amc, liberty tax service