It was his name that gave him away.

"Hey, are you the 75-year-old guy who was hit in Buffalo?" a post office worker asked.

Martin Gugino, 75, of Amherst, wasnt expecting to be recognized in public, especially wearing a face mask.

But the videos that captured the moment when Buffalo Police officers shoved Gugino backward in front of Buffalos City Hall in June during a protest over the death of George Floyd, causing him to fall and crack his skull on the pavement, had been seen around the world.

Gugino, speaking to the USA TODAYNetwork's New York State Team last week in his first extended interview, was reluctant to go into detail about the incident, which sent him to the hospital for a month to recover from a brain injury and a fractured skull.

That's because he doesnt remember the moment he was shoved, and he has flashes of memory in the minutes before or after. Video recordings helped him fill in the blank spots of what happened that evening.

He is seemingly uninterested in becoming a symbol of a trend or a movement, or drawing attention to himself.

When asked about the context surrounding his fall and injuries, he noted that "a lot of people are injured, and a lot of people are killed," and often, nothing is done about those incidents, especially if there was no record of it on video.

Still, he called the incident a "turning point" for him.

He will continue to participate in grassroots activism around the First Amendment, as he has done for decades. Hell continue to write about climate change and injustices at Guantanamo Bay on his blog and on Twitter.

"My life is headed in a new direction," Gugino said. "How is it different? Im not really sure yet."

Why are they carrying batons?

Gugino showed up at a Black Lives Matter rally in downtown Buffalo on June 4 at around 7:45 p.m., 15 minutes before the city-imposed curfew went into effect.

The night prior, a number of Buffalo police officers tooka knee with community members in solidarity with the protests around the murder of Floyd by police in Minneapolis on May 25.

Just minutes before police began moving toward the crowd, Gugino noticed they were outfitted with helmets, vests and batons:"I thought, Why are they carrying batons?'"

Earlier in the evening, he had approached several police officers to ask whether they thought the Mayor Byron Browns curfew order could legitimately make an assembly illegal.

They didnt respond, other than to offer to read the mayors statements to him.

Gugino also had a conversation with several bystanders, which was caught on video and appeared to show at least one person expressing anger toward him.

Gugino said one individual thought he was an undercover cop, which Gugino denies.

At around 8:10 p.m., as seen in several videos of the incident, a group of officers began walking toward a few dozen rally attendees who were still in the downtown area after curfew.

Video footage shows a tall, white-haired Gugino approaching the officers head on.

Gugino said he remembers alarmed thoughts flashing through his head when he saw officers moving toward the demonstrators, but "has no idea" what he said to police in that moment.

"I thought, Oh my God and thats all I can remember," he said.

In the seconds following, two officers in the advancing group shoved Gugino away from them and he stumbled and fell backward, his head audibly cracking against the pavement.

Emergency personnel arrived soon after, and Gugino was whisked to the Erie County Medical Center.

The two officers involved, Robert McCabe and Aaron Torgalski, were suspended without pay and later charged with second-degree assault.

They pleaded not guilty, and are currently suspended with pay, as officers cannot be suspended without pay for more than 30 days, according to a city spokesperson.

The City of Buffalo and the Buffalo Police Department declined to comment further on the incident.

More: Buffalo police officers seen pushing man to ground charged with assault

More: New York signs sweeping police reforms into law after George Floyd death. What they will do

Take your best shot

What followed for Gugino werean avalanche of tests, scans and physical therapy for the hospital. After weeks in bed, standing or walking became a challenge, and he had vivid nightmares.

"Every time youd sit up, you would get dizzy," he said. "It was like you were on a boat all the time."

His pain was manageable with Tylenol, which he said he rarely used for minor aches and pains, even at 75.

He was monitored by medical staff day and night, and couldnt get out of bed or go to the bathroom without their help.

On the positive side, hed be offered cookies in the middle of the night. His flavor of choice? Coconut.

Meanwhile, cards, letters and other well wishes poured in. He slept for hours in the days after the incident, disconnected from the whirlwind of global internet commentary around his actions and the police response.

He has since seen and heard snippets of strangers accusations that he was a "leftist provocateur," that his fall was a hoax or that he was wearing a pack of fake blood under his mask.

President Donald Trump publicly considered the validity of such theories about Gugino on Twitter the following week, saying that Gugino "could be an antifa provocateur" and that he "was pushed away after appearing to scan police communications in order to black out the equipment."

Guginos lawyers got angry emails questioning why theyd defend "a faker," he said. But Gugino is unfazed by the accusations.

"I was like, Go ahead, take your best shot," he said.

The incident didnt cloud his view of police; he still regards them as regular citizens who work within a system he believes is broken.

"I come from the suburbs, and theres no problem with police in a white neighborhood," he said. "Im not scared of the policemen, but the system is screwed up."

After about a month, Gugino was released from the hospital and was able to walk out using a cane.

Hes living with family outside of New York and plans to close on a new home in Buffalo in September.

'Black Lives Matter': Amherst man pushed by police responds after Trump tweet

Martin Gugino's lawyer: He has brain injury, fractured skull after being pushed by police

When it comes to justice, Gugino is interested in so many causes that hell start talking about a new one before hes finished discussing the first.

He retired in 2003 after decades of working at FirstEnergy Corp. in Cleveland, Ohio, and a stint living in California. He eventually moved back to Buffalo to care for his ailing mother, who died six years ago. He has no spouse or children.

Even after a brain injury, he has split-second recall for specific details about years-old court cases, such as the Benny Warr case in Rochester, in which a black man in a wheelchair alleged that he was unlawfully arrested and beaten by police.

Guginos values rest solidly on the rights enshrined in the Constitutions First Amendment, which reads that "Congress shall make no law... abridging the freedom of speech...or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

But he believes these values are often lost on modern government and law enforcement officials.

He used the example of a 2010 Veterans for Peace rally in front of the White House, which protested the wars in Afghanistan, Iraq and other conflicts. More than 130 attendees were arrested.

"Youre going to the White House and youre saying, Stop the war. That means the United States should come out and say, Thank you so much, and were writing down all your complaints," Gugino said.

Given the countrys foundation, those involved in more recent protests and rallies should be treated with personal and ideological respect, and law enforcement officials should know whether the laws they protect are themselves legal, he said.

Still, he has hope, because of his countrys democratic roots.

He pointed to Mao Zedongs Hundred Flowers campaign in Communist China in the 1950s, where Zedongs solicitation of feedback on his government from the intellectual community quickly turned into a crackdown on ideological critics.

"In America, we decided to let a hundred flowers bloom," Gugino said.

"And you know what that means? People are going to get together and start complaining, and realizing how theyre being treated. Are you going to invite them in? Are you going to understand what theyre up to? Thats what democracy does. Thats the difference between Mao Zedong and George Washington."

More: Buffalo protester Martin Gugino released from hospital and 'looks great'

More: Its time has come and gone; lets retire the word 'elderly'

Sarah Taddeo is the consumer watchdog reporter for USA Today Network's New York State Team.She investigates stories about your consumer rights, including scams, negligent landlords, safety issues and wayward businesses.

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Buffalo man shoved by police speaks on incident, his recovery and the First Amendment - The Times Telegram

NASHVILLE, Tenn. Abortion rights groups on Monday filed a lawsuit challenging a newly enacted Tennessee law that would require women undergoing drug-induced abortions be informed the procedure can be reversed.

The complaint is the second legal battle targeting a sweeping anti-abortion measure Republican Gov. Bill Lee signed off on earlier this year.

The law focuses mainly on banning abortion once a fetal heartbeat is detected about six weeks into pregnancy, before many women know they're pregnant. That portion was challenged just hours after the GOP-dominated Statehouse advanced the bill during the final hours of the annual legislative session.

However, also tucked in the 38-page law is a requirement that doctors must inform women that drug-induced abortions may be halted halfway. Medical groups say the claim isn't backed up by science and there is little information about the reversal procedure's safety

Those who fail to comply with the law which doesn't go into effect until Oct. 1 will face a Class E felony, punishable by up to six years in prison. The lawsuit filed Monday seeks to prevent that requirement from being implemented.

A federal judge in North Dakota blocked a similar law last year.

"This medically unsound and factually inaccurate requirement is part of the coordinated war on truth and has no basis in science," Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said in a statement.

"Patients shouldn't be subjected to misinformation just to get a medication abortion. Adding insult to injury, threatening doctors with prison time makes this law that much more dangerous," McGill added.

Along with Planned Parenthood, plaintiffs include the Center for Reproductive Rights and the American Civil Liberties Union. These same groups are also involved in the initial lawsuit challenging the fetal heartbeat ban.

A federal judge has since granted a temporary restraining order on the festal heartbeat ban, arguing that he was "bound by the Supreme Court holdings prohibiting undue burdens on the availability of pre-viability abortions."

According to the lawsuit submitted Monday, attorneys argue the law infringes on the First Amendment because it requires doctors to "communicate a content-based, viewpoint-based, and/or controversial government-mandated message that they would not otherwise recite concerning an experimental medical treatment that has not been shown to be safe or effective."

The suit also claims the law violates the Fourteenth Amendment because it illegally singles out abortion patients and physicians who provide the procedure.

Meanwhile, Lee has previously promised to do "whatever it takes in court" to defend the anti-abortion law. The Republican frequently touted that "protecting life" by limiting abortion is a top priority for his administration.

Later, as COVID-19 first began sweeping across Tennessee earlier this year, Lee attempted to block abortions under an executive order banning nonessential medical procedures that was issued to slow the spread of COVID-19.

A federal judge later ruled that Tennessee had to continue allowing abortions, arguing the state did not show any appreciable amount of personal protective equipment would be saved if the ban was applied to abortions.

The plaintiffs in that legal case are now seeking to have the state cover nearly $100,000 in legal fees.

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Lawsuit seeks to block Tennessee abortion reversal law - Minneapolis Star Tribune

Three days after Gov. Charlie Baker called 1,000 members of the Massachusetts National Guard into active duty, he has ended his activation order and acknowledged the move was made in response to potential protests.

Baker's order, which was announced Friday, did not give a detailed reason for the activation. His administration said at the time the order was given "in the event that municipal leaders require their assistance." But the call-up coincided with a weekend that saw violence crop up at and around demonstrations over policing and racial justice in other parts of the country.

"Following coordination with municipal leaders through the weekend regarding potential large scale demonstrations, Governor Baker today authorized the Adjutant General of the Massachusetts National Guard to end the Governor's Aug. 28 activation order," a spokesperson from the Executive Office of Public Safety & Security said in a statement Monday. "That activation, which made Guard personnel available in the event that municipal leaders required their assistance, will end at midnight tonight."

The governor's order said the Guard was being called upon "to provide necessary assistance to State and local civilian authorities and/or special duty and emergency assistance for the preservation of life and property, preservation of order, and to afford protection to persons."

The administration's announcement of the call-up suggested that the National Guard was being tapped to function in a law enforcement capacity. The administration noted that National Guard military police units go through federally-accredited police training and are trained to Massachusetts standards and that members of the National Guard assisted local law enforcement agencies throughout the COVID-19 pandemic.

The project is a private-public partnership involving the state and local governments as well as entities such as MGM, Winn Companies and MassMutual.

It was not immediately clear whether or where the Guard was actually deployed. On Sunday, one Boston-area reporter shared video that appeared to show about two dozen Guard personnel and rows of Guard vehicles in Boston. Another reporter posted a photo from a demonstration in Roxbury where attendees held signs critical of Baker's decision to call upon the National Guard.

Karyn Regal, a reporter for WBZ Newsradio, reported late Monday morning that Massachusetts State Police Col. Christopher Mason said there was no specific threat to Massachusetts but that the National Guard was called up as part of "an abundance of caution" to "staff up and we prepare for all those contingencies."

"I think the call-up of the National Guard was a nod to ensuring that we would have the capacity to continue to be able to facilitate those First Amendment gatherings and make sure people can be heard and make sure people can execute their right, or utilize their right, of public gathering, and they can deliver the message," Mason said at an unrelated press conference, according to Regal. "We certainly have heard the message. And so we want to make sure we continue that people can peacefully gather, that they can voice their concerns, and that they can provide an opportunity for us to hear them."

Baker last held a public event on Thursday, in Springfield.

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Why Did Gov. Baker Activate the National Guard? - NBC10 Boston

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Mayoral candidate Kevin Lindke delivers remarks during a hearing regarding his qualifications to run for mayor Tuesday, July 28, 2020, in the Municipal Office Center in Port Huron. Port Huron's election commission agreed unanimously to reject his qualifications to run for mayor based on the city's one-year residency requirement.(Photo: Brian Wells/Times Herald)

The Port Huron mayoral hopeful whose qualifications to run for office were rejected by an election commission this summer is seeking to have that decision reversed in court.

Kevin Lindke, whos picked up a local social media following for being critical of officials, filedto run for mayor by the July deadline. Days after a fraud investigation by police, however, the citys election commission ruled he was ineligible to run because he didn't meet thecitys one-year residency requirement.

Now, a hearing is set for Sept. 14 beforeCircuit Judge Michael West.

Lindke is asking the court to reverse the commissions decision.

The issue for me is, the burden is on them, Lindkesaid last week. Like you ask for leases, I gave you leases. You ask for a verified statement, I gave you a verified statement. You don't get to then tell me where I live (and) where I don't live.

The city is asking the courtto dismiss Lindkes request, reiterating concerns from officials over alleged discrepancies among the multiple addresses he provided to the city as his place of residence.

Todd Shoudy, contracted attorney for the city of Port Huron, speaks during a hearing regarding mayoral candidate Kevin Lindke's qualifications to run for mayor Tuesday, July 28, 2020, in the Municipal Office Center in Port Huron.(Photo: Brian Wells/Times Herald)

In the citys reply to Lindkes courtfiling and in a July police report, the cityalleges Lindke provided addresses on 21st, 23rd and Minnie streets on separate occasions while trying to confirm residency in petition forms to file to run for mayor. It also reported he registered to vote using a commercial address on Poplar Street.

According to the city, officials were unable to verify concrete residency at any of them. They pointed to interviews of neighbors and other associates, lack of utility use and real estate changes.

During their July 28 hearing, members of Port Hurons election commission asked if Lindke could provide other evidence he resides in the city. Candidates for mayor and City Council must live in the city for at least a year before the election to be eligible.

But Lindke told officials he didnt believe he had to provide additional proof.

In his circuit court request, Lindke claims the investigation didnt disprove residency and that the commission very suspiciously convened and conspired to deny his candidacy.

The citys reply maintains the city clerk had received information from Lindke that cast serious doubt on whether he met requirements. It also mentions that Lindke did not obtain an order to show cause or set the matter for a timely hearing.

Todd Shoudy, the citys attorney, said they had requested the hearing, expecting to move forward with the Sept. 14 date despite time constraints on when election ballots would be printed.

Lindke, who is litigating the issue without a lawyer, said he thought the citys fraud investigation of his addresses seemed to confirm his fear that officials would use reported residences to put me under surveillance. On Friday, he acknowledged hes always used the address of a relatives house in East China for court documents for the same reason.

Lindke also has two open federal lawsuits one against Port Huron City Manager James Freed and another against Circuit Judge Cynthia Lane. Both involve social media and First Amendment rights.

The latter was first filed in June 2019 after Lane granted a personal protection order against Lindke for an ex-spousal relative.It was over Facebook posts referencingthat relative and the proximity of a sex offender to his young daughter while visiting amid an ongoing custody dispute.

The original complaint called Lanes granting the PPO a social media injunction that constitutes a content-based legal prohibition on constitutionally protected free speech. Philip Ellison, Lindkes attorney in both lawsuits, called it a gag order.

An amended complaint later incorporated St. Clair County Sheriff Tim Donnellon as an additional defendant over enforcement of the PPO.

Circuit Judge Cynthia Lane speaks during a sentencing hearing in February 2017.(Photo: JEFFREY M. SMITH, TIMES HERALD)

St. Clair Countys reply to the complaints rejected the claims, maintaining officials acted on statute and adding that Lindke should be required to complete a pending hearing on his motion to terminate the PPO.

After Lindkes complaint was twice updated, Shoudy, whose firm also represents the county, said another motion to dismiss is still pending.

But he said theres also another underlying question about the case.

When should a federal court get involved in a state circuit court ruling where the allegation is that a PPO violated Mr. Lindkes First Amendment rights? Shoudy said. So, it'd be like the ex parte PPO that was entered. So, the question is, if he wants to challenge that, should he go to the Michigan Court of Appeals? Or can he go to the federal United States District Court for the Eastern District of Michigan? That's the procedural issue that is currently awaiting a judicial ruling. And I don't expect a ruling any time soon.

The lawsuit against Freed is more recent.

Port Huron City Manager James Freed discusses measurements being taken by the city to prevent the spread of coronavirus during a media briefing Thursday, March 12, 2020, in the Municipal Office Center in Port Huron.(Photo: Brian Wells/Times Herald)

It was filed in April after comments by Lindkeon Freeds Facebook page were deleted and Lindke was blocked. That complaint alleges Lindkes First Amendment rights were once again violated and that Freed only deleted comments about the citys response to COVID-19 to suppress dissent in a public forum.

In its reply to the complaint, the city admits Freed has kept a Facebook page categorized as a public figure but that, despite sharing some local goings-on about the city, he also posts personal items, such as pictures of his family. Shoudy said there remained a question of how personal the page was, entitling Freed to discretion.

Currently, Shoudy said that case is in its discovery phase and that hes awaiting more information after requesting details on Lindkes own social media use.

Lindkes reply asked the federal court to reject that request questioning relevancy and keeping the focus on Freeds Facebook. In response, the citys alleges a long history of Lindke using cyberbullying or cyberstalking tactics in an attempt to harm or destroy the personal life of both private and public individuals on social media.

Ellison said his client is trying to hold people accountable who are generally not, and that in one case, to question those who put a wedge minimally between him and his daughter.

I think what's important behind it is if Kevin was alone in his own thinking, he wouldn't have the following that he has, Ellison said, referring to Lindkes Facebook following. And I think the fact that his following, for the Port Huron area itself, is large and continues to grow is a reflection of (the) disenchantment by citizens of the area who probably have been suffering from the same sort of discontent from their local leaders as Kevin has.

Contact Jackie Smith at (810) 989-6270 or jssmith@gannett.com. Follow her on Twitter @Jackie20Smith.

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Hearing for Kevin Lindke's appeal of Port Huron election commission decision set for Sept. 14 - The Times Herald

Food and beverage brands are routinely listed among the most famous and valuable brands in the world.1 With fame, however, comes the increased chance that a brand will be a target for trademark parodists. A March 2020 appellate court decision in a case involving the famous whiskey brand JACK DANIELS illustrates the difficulties brands face when pursuing claims against trademark parodies in the U.S.2

U.S. law does not provide for strict liability preventing the unauthorized use of anothers trademark. Instead, the parodists use must trigger liability under trademark laws prohibiting infringement or dilution or through common law unfair competition claims:

An infringement or unfair competition claim requires proof that the parodists use is likely to cause confusion.

A dilution claim requires proof that the parodists use is likely to blur or tarnish the brand owners famous mark.

There is also no automatic parody defense to an infringement claim. Common sense suggests it may be difficult to prove likelihood of confusion sufficient to meet the test for trademark infringement when faced with a successful parody, i.e., one that immediately communicates that the parodist is making a commentary about a brand through humor or criticism. If the humor or criticism is recognized and obvious making the parody successful why would consumers be confused? On the other hand, if it is difficult to detect the commentary and instead only the brand attributes are readily apparent in the parodists product making the attempt at parody unsuccessful the brand owner is more readily able to prove that confusion is likely.

In contrast to infringement claims, there is a parody defense under the fair use exclusion to federal dilution claims for at least some parodies. The Trademark Dilution Revision Act (TDRA) excludes from its coverage both parodies involving fair use of a famous mark other than as a designation of source for the parodists own goods or services and any noncommercial use of a mark.3 The fair use defense does not apply when the parodist uses the parody as its own trademark. Still, the brand owner must prove that the parody is likely to dilute the distinctiveness of the brand owners mark either by blurring or by tarnishment, with proof that the association of the parody with the brand is likely to impair or harm the brand. Such proof may not be obvious or readily available as to a parody that is perceived as a mere joke in the form of a noncompetitive product like a dog toy using as its brand name a play on words to mimic the brand of a luxury product, together with trade dress copied from the luxury product.4

On the other hand, a competitors advertisement that uses alterations to mock and belittle a brands mascot, even if amusing, crosses the line.5

In addition to the potential difficulties with proving the elements of the underlying claims, free speech considerations may come into play and override the brand owners trademark rights. The First Amendment to the U.S. Constitution provides that Congress shall make no law abridging the freedom of speech.6 Parody has been recognized as a form of artistic expression, and, where artistic expression is involved, the public interest in avoiding consumer confusion must be balanced against the public interest in free speech.7 Thus, the First Amendment right to freedom of speech can conflict with the consumer and brand owner protection goals of trademark laws. When an expressive work protected by the First Amendment is involved, courts apply the Rogers v. Grimaldi test and the brand owner must show that defendants use of the mark is either (1) not artistically relevant to the underlying work or (2) explicitly misleads consumers as to the source or content of the work.8

Historically, this test comes into play in cases involving works that are clearly artistic and expressive at their very core, such as movies, songs, opinion pieces and articles appearing on websites.9 The recent JACK DANIELS case extended the test to a novelty commercial product, namely dog chew toys, leaving brand owners to wonder just how far Rogers v. Grimaldi will be taken by the courts.10

In response to VIP Products suit for a declaratory judgment, Jack Daniels challenged VIP Products use of JACK DANIELS trade dress in connection with its dog chew toy shown below,11 which features the name BAD SPANIELS and various scatological references:

The district court found in favor of Jack Daniels on both infringement and dilution grounds.12 On the infringement claim, the court found that confusion was likely, with the factors that favored Jack Daniels including actual confusion demonstrated through a survey, VIPs intent to capitalize on the brands goodwill, the strength of the JACK DANIELS marks, the proximity of the goods (due to the Jack Daniels licensing program, which included dog products), the similarity of the marks and the marketing channels, and the low degree of care exercised by the buyer when purchasing the inexpensive dog toy novelty products. The district court also found that Jack Daniels established at the bench trial all the requisite elements for dilution by tarnishment: fame, similarity, and reputational harm.13 The lower court concluded that the claim of parody should be disregarded where the parodist seeks to capitalize on a famous marks popularity for the parodists own commercial use.14

As part of its trial evidence, Jack Daniels submitted testimony from an expert in consumer behavior, who relied on general consumer psychology research to opine that the association of any food or beverage with defecation creates disgust in the mind of the consumer with respect to that food or beverage. The court described this as [w]ell documented empirical research support[ing] that the negative associations of Old No. 2 defecation and poo by weight [on the parody product label] creates disgust in the mind of the consumer when the consumer is evaluating [the brand owners] Jack Daniels whiskey.15 The court accepted this testimony to support a finding of reputational harm to Jack Daniels, because the parodying products references to defecation would creat[e] negative associations, either consciously or unconsciously, and undermin[e] the pre-existing positive associations with its whiskey that would be particularly harmful for a brand selling goods for human consumption: human consumption and canine excrement do not mix.16

The court also found tarnishment based on associating the whiskey brand with toys, particularly the kinds of toys that might appeal to children, because Jack Daniels, as a seller of alcoholic beverages, has a policy that it does not market to children, does not license goods for children, and does not license goods that might appeal to children.17

While the First Amendment was not addressed in the final district court decision, the court had held earlier in the litigation that the First Amendment does not establish protection for the adaptation of the JACK DANIELS trademark and trade dress for the commercial selling of a noncompeting product, distinguishing the dog toy from the expressive works to which the Rogers test had been applied in the Ninth Circuit.18

In a somewhat surprising decision in March 2020, the Ninth Circuit disagreed with the district court regarding whether the dog chew toy is an expressive work. The circuit court held that VIPs Bad Spaniels dog toy is an expressive work entitled to First Amendment protection, reversed the district courts judgment on the dilution claim on the grounds that the noncommercial use defense applied, vacated the judgment on trademark infringement, and remanded back to the lower court for further proceedings on the infringement claim. The appeals court acknowledged that the dog toy was surely not the equivalent of the Mona Lisa but held that the humorous message was sufficient expressive content and that such expressive content is not rendered non-expressive simply because [the product] is sold commercially.19

Jack Daniels sought rehearing en banc by the full appeals court, arguing that the Ninth Circuits designation of a commercial novelty product as an expressive work:

erroneously reaches ordinary commercial products creatively marketed by their manufacturers, thus producing an exception that swallows the traditional rules governing trademark infringement. It also unnecessarily injects constitutional issues into routine cases and threatens the publics ability to avoid confusion, as well as trademark owners ability to protect their marks.20

The Ninth Circuit denied the request for rehearing en banc on June 3, 2020.

Now back at the district court, in order to succeed, Jack Daniels will be required to first satisfy at least one of the two prongs of the Rogers v. Grimaldi test: that the use of the JACK DANIELS marks by VIP was either not artistically relevant or explicitly misleading. Artistic relevance is usually found, giving a parodist broad artistic license, so to speak. Similarly, for a reference to be explicitly misleading, the abuse of the brand owners mark must be particularly compelling. The upshot is that only rarely has a brand owner been able to avoid a swift loss once Rogers is applied, reflecting the difficulty of meeting this test.21

It remains to be seen whether the Ninth Circuits application of the Rogers test to a novelty product will be accepted in other circuits or will be further challenged through a petition for review by the Supreme Court. Meanwhile, brand owners wishing to bring action to stop novelty parody products may wish to avoid the Ninth Circuit.

1 See, e.g., The Worlds Most Valuable Brands 2020, available at https://www.forbes.com/the-worlds-most-valuable-brands/#1c950ba8119c (last accessed Aug. 2, 2020), listing McDonalds, Budweiser, Coca-Cola, Pepsi, Nescafe, Starbucks and Frito-Lay among the first 50 such brands.

2 VIP Prods., LLC v. Jack Daniels Props., Inc., 953 F. 3d 1170 (9th Cir. 2020).

3 15 U.S.C. 1125(c)(3).

4 See, e.g., Louis Vuitton Malletier S.A.v. Haute Diggity Dog, LLC, 507 F.3d 252, 252 (4th Cir. 2007). But see Anheuser-Busch, Inc. v. VIP Prods., LLC, 666 F. Supp. 2d 974 (E.D. Mo. 2008), where a dog chew toy offered by VIP Products using BUDWEISER trade dress and the BUTTWIPER name was enjoined. For images from these and other parody cases, as well as a check list of pertinent factual considerations, see the authors article, Free Ride or Free Speech? Predicting Results and Providing Advice for Trademark Disputes Involving Parody, 109 The Trademark Reporter 691 (July-Aug. 2019).

5 Deere & Co. v. MTD Prods., Inc., 41 F.3d 39, 46 (2d Cir. 1994).

6 U.S. Const. amend. I.

7 Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F. Supp. 2d 410, 414 (S.D.N.Y. 2002).

8 Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989).

9 Id. at 999 (movie title); Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002) (song title); Radiance Found., Inc. v. NAACP, 786 F.3d 316 (4th Cir. 2015) (website and opinion piece).

10 See Amicus Brief of the International Trademark Association submitted in support of Jack Daniels Petition for Rehearing or Rehearing En Banc, arguing that the appellate court holding has the potential to exempt from trademark infringement liability any product that employs a modicum of creative expression on packaging or on the products themselves. Available at https://www.inta.org/wp-content/uploads/public-files/advocacy/amicus-briefs/INTA-Amicus-Brief-VIP-v-JDPI.pdf (last accessed Aug. 2, 2020).

11 Images from VIPs Opening Brief on Appeal, filed Nov. 9, 2018, available at Dkt. No. 16, p. 20-21, in VIP Prods., LLC v. Jack Daniels Props., Inc., Appeal No. 18-16012 (9th Cir.).

12 VIP Prods., LLC v. Jack Daniels Props., Inc., 291 F. Supp. 3d 891 (D. Ariz. 2018).

13 Id. at 905.

14 Id. at 908. To support this proposition, the court cited Grey v. Campbell Soup Co., 650 F. Supp. 1166, 1175 (C.D. Cal. 1986), where DOGIVA dog biscuits were enjoined based on likely confusion and/or dilution with GODIVA chocolates. In the Grey case, the parodists testimony regarding development of the parody products and permission allegedly received from a former GODIVA business person was found to be internally inconsistent and contradicted in significant part by the testimony of others and documentary evidence. In other words, the court found that the parodist was a liar and that finding permeates the opinion and likely influenced the outcome.

15 Id. at 903.

16 Id. at 904.

17 Id.

18 Decision on Summary Judgment, VIP Prods., LLC v. Jack Daniels Props., Inc., No. CV-14-2057-PHX-SMM (D. Ariz. Sept. 27, 2016).

19 953 F. 3d at 1175.

20 Jack Daniels Petition for Rehearing and Petition for Rehearing En Banc, VIP Prods., LLC v. Jack Daniels Props., Inc., No. 18-16012 (9th Cir. Apr. 14, 2020 (Dkt 63-1 at 6)).

21 In Parks v. LaFace Records, for example, plaintiff was able to convince an appeals court that a triable issue of fact was presented as to whether defendants use of Rosa Parks as the title of the song was artistically relevant to the song content, where the song was not about Ms. Parks but did use the refrain Everybody move to the back of the bus. 329 F.3d 437, 451-452 (6th Cir. 2003), rehg and suggestion for rehg en banc denied (July 2, 2003), and cert. denied, 540 U.S. 1074 (2003). In Gordon v. Drape Creative, Inc., 909 F.3d 257, 270271 (9th Cir. 2018), the Ninth Circuit found there was a triable issue of fact as to whether defendants simple use of Gordons mark Honey Badger dont care on greeting cards with minimal artistic expression of their own in the same way that Gordon was using the mark was explicitly misleading.

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Trademark Parody and Freedom of Speech in the U.S. - JD Supra

CINCINNATI, Aug. 31, 2020 /PRNewswire/ --As families across the country enter a back-to-school season unlike any before, employees of The E.W. Scripps Company (NASDAQ: SSP) and communities where it does business in more than 40 markets across the country are raising money to ensure kids in low-income households have access to books.

The "If You Give a Child a Book " childhood literacy campaign is an annual drive led by the Scripps Howard Foundation and supported by Scripps employees and Scripps family members. Over the last four years, the campaign has donated more than352,000 new books to children facing poverty in communities served by Scripps businesses.

This year for the first time, Scripps is inviting its audiences to support the cause. Fundraising campaigns kick off today across Scripps' local and national media platforms:

Each TV station and national brand will select low-income schools and nonprofits in their communities to distribute the books to ensure they go to children who need them most, whether children are learning in a traditional classroom setting, remote learning or a hybrid of the two.

"Research shows the achievement gap that exists between low-income and high-income children can be narrowed or even closed simply bygivingbooks to kids who may not have them in their homes," said Liz Carter, president and CEO of the Scripps Howard Foundation. "When you give a child a book, you give them a chance at success. Kids who learn to read are more likely to graduate, to vote and to be civically involved. Because of this inextricable connection, childhood literacy is a key part of our mission to create a better-informed world and our responsibility to the communities we serve."

Scripps businesses regularly give back to their local communities, including raising more than $2 million for food banks across the country.

The multi-platform "If You Give a Child a Book " fundraising campaigns run through Sept. 11. Learn more and donate at ifyougiveabook.com.

About the Scripps Howard FoundationTheScripps Howard Foundationsupports philanthropic causes important to The E.W. Scripps Company (NASDAQ: SSP) and the communities it serves, with a special emphasis on excellence in journalism. At the crossroads of the classroom and the newsroom, the Foundation is a leader in supporting journalism education, scholarships, internships, minority recruitment and development, literacy and First Amendment causes. The Scripps Howard Awards stand as one of the industry's top honors for outstanding journalism. The Foundation improves lives and helps build thriving communities. It partners with Scripps brands to create awareness of local issues and supports impactful organizations to drive solutions.

SOURCE The E.W. Scripps Company

http://www.scripps.com

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Scripps launches national fundraising campaign to give books to kids in need - PRNewswire