On November 21, 2022 the U.S. Supreme Court agreed—after passing on the issue once before—to hear Jack Daniel’s (JDPI) challenge to the Ninth Circuit’s ruling in VIP Prods. LLC v. Jack Daniel’s Props, where the Ninth Circuit affirmed without opinion the district court’s grant of summary judgment to VIP and the dismissal of JDPI’s trademark infringement claim,[1] on the grounds that JDPI could not satisfy either prong of the Rogers test. The Rogers test balances free expression under the First Amendment against the trademark protections of the Lanham Act. The Supreme Court granted certiorari on the questions of whether parody uses of another’s mark receive First Amendment protection from liability under the Lanham Act and whether parody is exempt from claims of dilution by tarnishment under 15 U.S.C. § 1125(c)(3)(C). The decision could clarify the balance between trademark and the First Amendment, an issue that has long-confounded practitioners.
Litigation Recall Report: Nationwide Lawsuit Follows Lyons Magnus Recall of Contaminated Products
Consumer-driven lawsuits that follow product recalls often focus on what the manufacturer knew and when, bringing a host of fraud-based common law and statutory claims. Sometimes lawsuits go a different route, insisting that companies should warn consumers about every possible complication that could result from the products they manufacture, no matter how remote. A new class action against Lyons Magnus, in Catalono v. Lyons Magnus, LLC, No. 7:22-cv-06867 (S.D.N.Y filed Aug. 11, 2022), is one such case.
In July and August, Lyons Magnus voluntarily recalled 90 of its nutritional beverage products due to possible bacterial contamination from Cronobacter sakazakii and Clostridium botulinum, which can cause food poisoning, fever, and/or urinary tract infection, and in very severe cases, respiratory paralysis and death. And on August 11, 2022, a New York resident sued Lyons Magnus on behalf of nationwide and New York classes of purchasers of the recalled products.