Tuesday, June 12, 2012

The Rogers test gets new life

The University of Alabama Board of Trustees v. New Life Art, Inc., No. 09-16412 (11th Cir. June 11, 2012):

[W]e need not in this case settle upon a precise evaluation of the strength of the mark or the degree of likelihood of confusion.  As our discussion below indicates, we conclude that the First Amendment interests in artistic expression so clearly outweigh whatever consumer confusion that might exist on these facts that we must necessarily conclude that there has been no violation of the Lanham Act with respect to the paintings, prints, and calendars.

Congratulations to Mr. Moore, the artist, and to Mark McKenna, who organized the IP professors’ amicus brief. The court declined to consider some arguments New Life didn’t make, but I think the amicus brief set forth important arguments making clear what was at stake, and will be useful in future battles as well.

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