Petitions of the week: “Bad Spaniels,” false testimony and more

[Elderberry]

SCOTUSblog by Andrew Hamm 10/16/2020

This week we highlight cert petitions that ask the Supreme Court to decide, among other things, how humor affects trademark liability and the extent of a prosecutor’s duty to correct false testimony.

Jack Daniel’s Properties Inc. v. VIP Products LLC is a trademark case between the Tennessee whiskey distillery and an Arizona company that produces chew toys for dogs. In addition to selling liquor, Jack Daniel’s licenses its trademarks. VIP Products sells chew toys that combine alcohol and soda brands with bathroom and dog humor. Among the company’s merchandise are bottle-shaped toys bearing logos such as “ButtWiper,” “Heini Sniff’n” and, in this case, “Bad Spaniels.” VIP Products did not get a license from Jack Daniel’s before using the spoofed logo. Jack Daniel’s sued under the Lanham Act for trademark infringement and dilution, but the U.S. Court of Appeals for the 9th Circuit ruled in favor of VIP Products. On infringement, the 9th Circuit determined that VIP Products’ humor makes the dog toy expressive and protected under a heightened First Amendment test. On dilution, the 9th Circuit ruled that the humorous message makes the use “noncommercial” and therefore excluded from dilution liability. In its petition, Jack Daniel’s argues that lower courts are split about liability for humorous uses of trademarks and asks the justices to review both aspects of the 9th Circuit’s decision.



In 1963’s Brady v. Maryland, the Supreme Court ruled that, in criminal prosecutions, the government must hand over all exculpatory evidence to the defendant. Since then, lower courts have split on whether the government violates due process if it knowingly relies on false testimony in a criminal trial — so long as it properly divulged the evidence during discovery. Mitchell Stein, a publicly traded company’s in-house counsel, was convicted of fraud for a scheme to inflate the company’s stock prices. As part of the government’s evidence that Stein had made up purchases and purchase orders for three press releases, two company witnesses testified that they had never received any documentation substantiating Stein’s allegedly “phantom” orders. However, within the 1.75 million pages of documents that the government procured during its investigation were an email, check and deposit slip showing that the two witnesses had in fact received information about Stein’s orders. The U.S. Court of Appeals for the 11th Circuit determined that a due process violation did not occur because the government had not suppressed evidence showing the falsity of the witnesses’ testimony. In Stein v. United States, Stein asks the justices to hold that a prosecution’s use of false evidence is not excused simply because it disclosed proof of the falsity.

More: https://www.scotusblog.com/2020/10/petitions-of-the-week-bad-spaniels-false-testimony-and-more/#more-297118