ASU sued Doe over a dumb Instagram account, "asu_covid_parties," and correctly lost its TM claims despite Doe's default. Undeterred, ASU appealed. Eugene Volokh and his students have filed an amicus supporting the result below and one of the students will argue the case--an excellent opportunity. Mark Lemley, Mark McKenna, James Weinstein, and I also filed an amicus brief pointing out that, even if there had been a party (there wasn't), it still wouldn't have infringed ASU's trademarks. Although doctrines like Rogers v. Grimaldi and nominative fair use support this result, the deeper core is that the Lanham Act shouldn't be read to cover noncommercial speech in the first place.
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