While political criticism of a major corporation would seem to clearly fall under the First Amendment’s umbrella, intent isn’t a decisive factor, law professors said. However that shakes out, courts will likely still have leeway as they seek to delineate concepts like parody, criticism, expression, and confusion.
The Supreme Court could provide guidance any day, as attorneys await its decision over whether whiskey bottle-shaped “Bad Spaniels” dog toys infringe Jack Daniels Properties LLC’s trade dress. Some courts jump straight to a free speech test, while others incorporate such concerns into trademark law’s standard likelihood of consumer confusion analysis. But the First Amendment looms large when political speech comes into play, especially if DeSantis could successfully frame the hats as criticizing Disney.Ī litany of factors could prove important, if not decisive, as courts have taken varied approaches to weighing free speech against trademark rights when purported parody or criticism is involved. Walt Disney Co.-which has already sued DeSantis over alleged retaliation for its public criticism of his policy-could have a claim, trademark attorneys and professors say. It also would require tying the hat sales to his operation. Whether the caps-sold at a DeSantis book tour event and depicting his name in the typeface over “President 2024" in block text-raise trademark liability could turn on how the US Supreme Court interprets poop jokes on a dog toy. Baseball caps promoting Ron DeSantis for president using Disney’s iconic-and trademarked-script add intellectual property to the combustible standoff between the Florida governor and the state’s most recognizable corporate citizen.
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