[music] This is Bloomberg Law with June

Graasso from Bloomberg Radio.

Under our system of justice, [music] the

government cannot force anyone to answer

for a serious crime unless you, [music]

the people of the community sitting on a

grand jury, decide there is enough

evidence to warrant an indictment. It is

you who protect the rights of both

victims [music] and defendants. In an

orientation video for new grand jurors,

the chief judge of New York, Rowan

Wilson, explains the importance of the

grand jury in protecting individuals

from the power of an abusive prosecutor.

But in the United States and the state

[music] of New York, we protect against

prosecutorial abuse by requiring the

prosecution to first convince a panel of

regular [music] citizens just like you,

a grand jury, that there is probable

cause or good reason to charge someone

with a crime.

>> And in the past several months, it

appears that grand jurors across the

country are doing just that. The Justice

Department has encountered case after

case where grand jurors are refusing to

return indictments. And in some of those

cases, federal judges have accused

prosecutors of misconduct during the

grand jury proceedings. One example, in

a high-profile case, at the end of May,

just days before trial, there was a

stunning implosion of a case against a

group of protesters accused of blocking

a federal agent from an ICE facility in

Chicago. Judge April Perry said her

trust in federal prosecutors had been

broken after finding out that

prosecutors improperly spoke to grand

jurors outside the grand jury room,

personally vouched for the strength of

the case, and excused grand jurors who

disagreed with the government's case. My

guest is former federal prosecutor Jimmy

Gerle, a professor at Notre Dame Law

School. Jimmy, what's your reaction to

the prosecutor's misconduct during the

grand jury proceedings?

>> They're shocking. It's a scandal.

Prosecutors are supposed to be a

minister of justice, not a minister of

corruption, dishonesty, and deception.

And that's what we're seeing here. I

think this was just the end justifies.

You know, they wanted to get indictments

against these Chicago protesters, and

they were going to take no for an

answer. So basically, this was an

attempt to rig the grand jury system to

ensure that they would get the

indictments that they were seeking.

>> The judge said that she'd read through

hundreds, if not thousands of grand jury

transcripts, and she'd never seen this

behavior from prosecutors. So, let's go

through some of the things she found

disturbing. Explain what's wrong with a

prosecutor vouching for the case, saying

something like, "You can believe me. We

have the evidence to prove this case."

The grand jurors are to make the

decision of whether or not there's

probable cause to believe that a crime

has been committed and if so whether

there's probable cause to believe that

the target of the grand jury

investigation committed the crime. And

those decisions should be made

exclusively on the evidence that's been

presented to the grand jury. Not the

prosecutor's opinion regarding the

strength of the case, the strength of

the evidence, but on the evidence

itself. And this is very basic

fundamental, you know, professional

responsibility 1.0. This wasn't a

mistake. I mean, this was just a blatant

violation of fundamental rules of

professional responsibility and ethics.

>> Talking about blatant speaking to grand

jurors outside the grand jury room and

then dismissing some grand jurors, how

would they expect to get away with that?

I mean, is the problem that the grand

jury process is secret? And how does a

defense lawyer or a judge know what's

going on? That's exactly the case. And

so because of the secretive nature of

the grand jury proceedings, I'm sure

that prosecutors think, well, whatever

we're doing that's improper, whatever

misconduct we're engaged in is not going

to be revealed. It's not going to be

disclosed.

>> And I mean, this is not the only case.

In Wyoming, a panel of three judges

threw out nine indictments, including

some for murder after the examination of

the grand jury proceedings revealed

misconduct by the Trump appointed US

attorney who had had no prosecutorial

experience at all. So, you have

inexperienced people leading a US

attorney's office, but some of this

seems really basic.

>> Oh, it is. You know, there's really no

excuse. I mean, this goes to just

fundamental principles of fairness and

due process, independence, impartiality.

As I stated, this is an attempt to rig

the system to obtain the result that the

prosecutors are seeking to obtain, which

is shocking considering the fact that

the grand jury system really favors

prosecutors. There's no judge. There's

no defense lawyer. The standard of proof

is merely probable cause. And then in

addition, the prosecutor doesn't have to

prove probable cause by unanimous

determination of the grand jurors. All

they have to prove is 12 of the 23 grand

jurors. Just a simple majority have

concluded that there's probable cause.

And further, the rules of evidence don't

apply in the grand jury room. So

prosecutors can introduce hearsay

evidence, double hearsay, triple hearsay

evidence. And despite all of these rules

favoring the prosecution, these

prosecutors still felt that it was

necessary to rig the system. They were

confident that they could prevail based

upon those rules and they needed to

reach out and have improper contact with

the members of the grand jury with

respect to grand jurors that had decided

against them in prior cases. They

decided, well, let's just exclude those

grand jurors. We don't want them on the

grand jury because they might decide

against us. I mean, this is just

shocking conduct and most disturbing.

It's not limited to the fairness and the

injustice of the particular case, but it

creates a loss of trust. There's this

loss of trust in the Justice Department

that's beginning to emerge and judges

across the country are beginning to

question, can we really believe what the

prosecutor is saying? and we really

trust the arguments and the

representation that prosecutors are

making. And when we get to that point,

that becomes a crisis. I think that

we're really on the verge of a crisis

within the Department of Justice.

>> And that appeared to have happened in

this case. Judge Perry told Andrew Bros,

the US attorney for Chicago, who

personally came into the courtroom to

dismiss the case. Quote, I do believe

deeply in the presumption of regularity

and that most government attorneys are

doing the best they can to do the right

thing. That trust has been broken and

that's been happening in courtrooms

across the country. And what we're

beginning to see is in more and more

cases, defendants are challenging,

raising legal challenges to the

integrity of the procedures of process

inside the grand jury room. And this is

now an argument that is being raised in

multiple cases across the country.

Again, challenging the regularity of

fairness, the presumption of regularity.

And again, I think it is creating a

crisis of trust, crisis of trust within

the Department of Justice. and not only

with judges but I think more broadly

with the public at large. If the public

starts losing trust in the criminal

justice system starts losing trust in

the integrity of prosecutor's offices

then that does not speak well for the

future of criminal justice in this

country. As you mentioned, lawyers in

journalist Don Lemon's case as well as

the case against the Southern Poverty

Law Center referenced the Chicago Grand

Jury. And some defense lawyers are

trying to get the transcripts of the

grand jury proceedings, which had always

been super super secret, shall we say?

But I mean, Judge Perry is thinking of

releasing the grand jury transcripts

here. How else can defendants really

find out what happened in the grand jury

room? Well, that creates a problem

because grand jury secrecy is threatful.

It's embodied in rule 6 of the rules of

criminal procedure. And it's important

because we want persons that appear

before the grand jury. We want them to

testify openly, freely, be frank, and

open about what evidence they may have.

And if their identity is going to be

disclosed, then this could have a

chilling effect on their willingness to

participate in the grand jury

proceeding. So it has implications far

beyond the individual case. But when the

seed of distrust has been planted with

the courts, with the general public,

we're going to see more and more

challenges to the integrity of the grand

jury process. And it could have a

chilling effect with respect to

witnesses willing to come forward and

testify before the grand jury for fear

that again the transcript is going to be

disclosed and maybe their name might not

be disclosed but someone could determine

their identity based upon the testimony

that is presented to the grand jury. The

Chicago US Attorney's Office is reaching

out to the defense attorneys in cases

that were handled by these prosecutors

and they've agreed to give the defense

the minutes of the grand jury

proceedings in their cases.

>> This is totally unheard of. In all the

years that I worked as a prosecutor, as

an assistant US attorney, as a DOJ

prosecutor, this didn't happen. What

we're witnessing today is not normal.

You know, this is exceedingly rare and

it's very disturbing and it raises

serious consequences about prosecutors

that are engaging in this misconduct and

they should not be leaving their ethics

outside the grand jury room. We need

prosecutors that embrace honesty,

justice.

>> They're going to have a sanctions

hearing. Do you think that these

prosecutors will be sanctioned?

>> Well, it's possible this misconduct in

the Chicago case in particular is quite

quite egregious. So, I think that there

could be some individual sanctions.

We'll wait and see. When prosecutors

engage in gross misconduct, there are

very few sanctions that they are

subjected to. And that's part of the

problem. And that's in large part

because of qualified immunity because

internal disciplinary proceedings within

the bar is very difficult. It's a very,

very high standard, high bar that has to

be met in order to to sanction the

prosecutor. And so there isn't much of a

deterrent effect. So if if you engage in

this type of misconduct, yeah, the case

might be dismissed, but there's nothing

that's going to happen to the prosecutor

personally for his or her misconduct.

And I think that's a problem. There's no

price to pay. So if you're not going to

be sanctioned, then what's a

disincentive here for engaging this kind

of conduct? The Chicago US Attorney's

Office is implementing a quote

remediation plan for its grand jury

procedures and that includes increased

and expanded education about grand jury

presentations and extensive deep dive

training from national experts outside

the office.

>> You don't need deep dive training on the

violations that are at issued here. I

mean, the prohibition on vouching

regarding the evidence, that doesn't

need any kind of a deep dive. That's not

a a complicated issue that requires, you

know, extensive training. Dismissing

members of the grand jury that you don't

like. This stuff is just so

fundamentally basic. It doesn't require

any type of extensive extra deep dive

training for prosecutors to know right

from wrong on these very fundamental

issues. It's just so disturbing. You

know, we're seeing cases being dismissed

because of selective prosecution. We're

seeing grand jurors time and time again

failing to uh to bring charges because

they think that the evidence doesn't

support the charges or they've been

overcharged by the prosecutor and all of

it is just it's really damaged the

reputation of the Department of Justice

and it's going to take I think years and

years to regain that trust with the

judiciary with members of the court with

the general public. This is going to be

damaged. It's going to be longlasting.

It's not going to be quickly remedied.

>> I'm sure we're going to hear a lot more

when grand jury transcripts are released

in some of these cases. Thanks for

sharing your insights, Jimmy. That's

Professor Jimmy Gerle of Notre Dame Law

School. Coming up, Taylor Swift is

fighting allegations of trademark

infringement over her hit album, The

Life of a Showgirl. I'm June Grao and

you're listening to Bloomberg. The

Supreme Court's conservatives made

another decision this week, favoring

Republicans in the redistricting frenzy.

The court itself set off with its

decision eviscerating the Voting Rights

Act in a 6 to3 vote with Republican

appointees in the majority and

Democratic appointees in descent. The

court reinstated a Republicanfriendly

congressional map in Alabama. It allows

the state to eliminate a majority black

house district and likely flip that

Democratic district in the midterms. In

doing so, the court rejected the

decision of a panel of federal judges

that found Alabama intentionally

discriminated against black people when

drawing that map. This ruling caps a run

of redistricting decisions in the past

six months that have bolstered

Republican chances to retain their

narrow majority in the House. Although

Chief Justice John Roberts continues to

insist that the justices do not make

decisions based on politics,

>> the notion that we carry forward the

views of the people that appointed us is

is absurd.

President George W. Bush appointed me 20

years ago. The idea that I'm carrying

out his agenda somehow is absurd.

>> If you're keeping count, the Alabama

decision makes it Republicans five,

Democrats won in the redistricting

battles before the Supreme Court.

Joining me is Bloomberg Supreme Court

reporter Greg Store, who is keeping

count. Greg, I'm not going to ask you to

go all the way back through the years,

through all the times the Alabama

legislature has been before the Supreme

Court over its maps. Just go back to the

latest decision by the three judge panel

at the end of May.

>> The three judge panel said that Alabama

needed to keep a second majority black

district. And it said that for two

reasons. First of all, the court said

Alabama had previously engaged in

intentional discrimination and defied

earlier court rulings by trying to draw

a key district that had just a little

bit less than a majority of black

voters. And secondly, the lower court

said the primary election is on August

the 11th and there's just not enough

time for the state to shift everybody to

different districts in time for that

election. And so by keeping the existing

map which has the two majority black

districts, we're actually reducing the

amount of confusion that would occur

over the next few weeks.

>> And I just want to point out that that

three judge panel consisted of two Trump

appointees and a Clinton appointee. Now

tell us about this unsigned Supreme

Court decision of just a little over

three pages rejecting the decision by

the panel which was supported by

findings in a 79page decision. It was an

unsigned opinion, but it was basically a

6-3 ruling with the six conservative

justices, the six Republican appointees

in the majority. And what they said is

that the lower court got it wrong in

multiple respects. It said, among other

things, this big ruling the Supreme

Court issue on April 29th that really

scaled back the use of the Voting Rights

Act and redistricting that that undercut

the claim against Alabama. It also said

that the lower court was too quick to

presume that Alabama legislators were

acting with racial animous that they

should have accorded more of a

presumption of good faith for the

legislature. And finally, the Supreme

Court said the six and the majority said

that if there's going to be chaos

leading up to the election, that's the

state's choice. It's not for a lower

court to intervene and say we're going

to do something because it's going to

reduce the confusion. that's on Alabama

and if they want to proceed this way

they can.

>> Justice Sonia Sotomayor wrote a

blistering disscent and she said this

decision corrods the rule of law.

>> Well, she she didn't hold back. She

wrote for all three of the court's

liberals and she said that the court is

disregarding both democratic values and

the rule of law. She said that when the

Supreme Court issued that Voting Rights

Act decision a few weeks ago, it

explicitly left open the possibility

that there could be a showing of

intentional discrimination by a state

against minority voters. And she said

that's exactly what the lower court

found in this case. She also pointed out

that, you know, this Alabama case has a

really long entangled history that I

won't walk all the way through, but the

Supreme Court has actually ruled in this

very case after hearing arguments

before. And what it said in that case

was we're going to uphold this lower

court decision that says that there has

to be a second district where black

voters can select the candidate of their

choice. And so says that the Supreme

Court has effectively ignored that. And

finally, she pointed out what the lower

court pointed out, which is that this is

going to invite chaos. The director of

elections has suggested it's going to be

near impossible to shift everybody into

the proper districts in time for the

August 11th primary election. And so, we

will see how that works out in Alabama,

but she at least is skeptical that it

will be a smooth process. So this is the

first test since the justices weakened,

I say, eviscerated the Voting Rights

Act. Is this sending a message that even

findings of intentional discrimination

are not enough? I mean, what's the

message here?

>> It certainly suggests that that might be

the case. That was the area that the

court said it was leaving open when it

ruled in the Voting Rights Act case on

April 29th. But in this case, a lower

court, as you pointed out, in a lot of

detail, explained why in its view, this

was different from that case because it

involved that intentional discrimination

because they said Alabama legislators

were trying to limit black voting power.

And the Supreme Court said, and even was

willing to do it in this emergency

posture where it didn't have a whole lot

of time to, you know, hear arguments and

that sort of thing. It was willing to

say, "We're sure enough that the lower

court got it wrong, that we are going to

block that ruling and allow this

district that the lower court thinks is

a product of intentional discrimination.

We're going to allow that map to be in

place for the November election."

>> Greg, when you look at the redistricting

decisions from the court since December,

they've overwhelmingly favored

Republicans. And like in this case, it's

always by 6 to3 votes with the

Republican appointees in the majority

and the Democratic appointees in

descent. So it's hard to look at these

decisions as anything but political

despite how much the chief protests that

they're not political actors.

>> It is certainly having a big effect and

that effect is to help the Republican

party and in particular for the November

election. So there are basically six

states in this cycle where the Supreme

Court has acted in redistricting cases.

They're not all the same, but

Republicans have won five of them. So

there was the Big Voting Rights Act

case, which was a Louisiana case.

There's this one. There's a case where

they blocked a lower court ruling that

would have required a new map in New

York. There was Virginia where the

Supreme Court refused to reinstate a

Democratic drawn map that the voters of

the state had approved after the state

supreme court blocked that map. And then

there was Texas where they interveneed

to let Texas Republicans change the map

there. Now the Texas case was very

similar to a California case later on

that ended up helping Democrats letting

them put a new map in place. Then the

the big voting rights act decision also

spawns some redistricting in states like

Tennessee, eliminating some majority

black and Democraticleaning districts.

And the upshot of that will be that

there will be a number of districts that

used to be fairly safe Democratic

districts that are now going to be

fairly safe Republican districts in

November. And we haven't even talked

about other types of cases, election

cases the Supreme Court has that might

also affect the election in November.

the PCEL principle about judges not

interfering close to an election. I've

been discussing that a lot lately and

I'm confused about what the Supreme

Court considers the Purcell principle to

be.

>> You join Justice Sotomayor there. Um the

PCEL principle and it's named after this

2006 case that invoked the idea in the

first place. The idea is that federal

judges shouldn't intervene at kind of

the last minute to change the rules of a

state-run election. And the Supreme

Court over the years has started to make

pretty clear that while that restricts

lower court federal judges, it doesn't

restrict them. So in this case, one of

the things the Supreme Court said, it

didn't use the word PCEL, but that was

the principle it used was that when this

three judge panel reinstated the earlier

map in a ruling that came down just a

week or two ago, that that was

interjecting itself improperly in the

way the state wanted to conduct the

election with this other map. And it

didn't matter to the Supreme Court that

the only reason the lower court had to

act again was because the Supreme Court

itself had previously vacated a decision

that everybody thought up until a month

ago was going to govern the fall

election. So the Supreme Court is

restricting federal courts. It is giving

a lot of leeway to states that want to

redistrict, particularly for partisan

purposes. and it is leaving open the

possibility that it itself might cause

some confusion as long as it is moving

in support of those principles of

letting states craft their own maps and

keeping lower court judges from

overstepping their authority.

>> It's nice to be able to exempt yourself

from a rule. Greg, tell us about the two

cases the Supreme Court has yet to

decide that may affect the elections.

>> One is a campaign finance case. It

involves what right now is a limit on

so-called coordinated party

expenditures. In other words, money that

political parties can spend in

coordination with their candidates. And

the Supreme Court sure seems like it's

going to overturn those limits. This is

a court that very much sees campaign

finance restrictions as a problem for

free speech. And if they do that, it

will give parties a lot more power and

at least for November will probably help

the Republican party because they have a

lot more cash on hand right now than the

Democratic party does. And they will

also be able to use this money when you

spend money in coordination with a

candidate. You can get these discounted

rates that candidates can get. So that's

one that the Republican party is almost

certain to win. The second case has to

do with the deadlines for mail-in

ballots in which the argument is that

Congress has set election day for a

particular date in November and all

ballots have to be received by that day.

A number of states right now have laws

that say as long as the ballots are

postmarked by that day, we'll give you a

few extra days for them to actually

arrive. The Supreme Court might knock

out those laws. Republicans are the ones

who are arguing for those strict limits

and Democrats are the ones who say that

grace periods are appropriate. Remains

to be seen exactly how much effect that

has.

>> The Supreme Court is expected to

announce decisions again this Thursday.

We'll see if these are among them.

Thanks so much, Greg. That's Bloomberg

Supreme Court reporter Greg Store. I'm

June Grao and this is Bloomberg.

>> [music]

>> Her name was Kitty. Made her money being

pretty and witty. They [music] gave her

the keys to this city. Then they said

she didn't do it legitly.

>> Taylor Swift's The Life of a Showgirl

[music] was the fastest selling album in

history. It became the pop star's 15th

number one album. Not quite as fastm

moving. In fact, about 6 months later

came the lawsuit by a former Las Vegas

showgirl who claimed that the album's

title infringed on her trademark for the

phrase confessions of a showgirl. And

Maron Flag is asking a court for a

preliminary injunction to stop swift

from using the phrase while the

litigation plays out. My guest is

intellectual property litigator Terren

Ross, a partner at Katen Rosenman.

Terry, tell us about this trademark

infringement dispute.

>> The plaintiff was a showgirl in Las

Vegas. She at one point in time started

a blog, I guess it would have been

called in those days, talking about her

life as a showgirl and how challenging

and difficult life in the entertainment

business Las Vegas is. It morphed over

time into a cabaret show. She at one

point decided that she would register as

a trademark the title she was using for

this which is Confessions of a Showgirl.

And that was back in 2014.

In August of 2025, last August, Taylor

Swift announces her next album will be

entitled The Life of a Showgirl based on

her experiences of her worldwide tour.

The plaintiff, Miss Flag, saw this at

the time as everybody in America did.

Everybody knew that Taylor Swift had a

new album coming out. It was going to be

called Life of a Show of Girl. Miss Flag

chose not to do anything. In the paper,

she argues that, well, she did not

realize that it was going to be used as

broadly. She did not realize that Taylor

Swift was going to seek a trademark

registration in it. She has other

excuses. Shortly after the announcement,

Taylor Swift's lawyers applied for a

trademark registration in the word mark,

The Life of a Showgirl. In I think it

was November of 2025, the United States

Trademark Office issued a non-final

office action saying that they were

going to deny the application as likely

confusing with other marks that already

existed. Notwithstanding that, the album

was launched. A wide range of products

were sold. The album used the title The

Life of a Shell Girl and many of these

products that were being sold by Taylor

Swift's various business entities also

used that clearly in a trademark sense.

In March of 2026, the United States

Trademark Office suspended Taylor

Swift's application. There is a

suggestion in the papers that this was

at the request of the plaintiff, Marin

Flag. I don't know if that's true or

not, but within weeks of the suspension

of Taylor Swift's trademark

registration, Miss Flag filed a lawsuit

in the Central District of California,

which is the Los Angeles area, in which

she alleged trademark infringement of

her registered mark in the trademark

confessions of a showgirl, as well as a

federal cause of action for unfair

competition and a California state cause

of action for unfair competition. And a

couple weeks after filing the lawsuit,

Miss Flag also filed a motion for a

preliminary injunction. Now, a

preliminary injunction essentially is a

procedure by which a plaintiff in a

lawsuit can have something stopped

pending the outcome of the lawsuit. It

is a very hard thing to get and for

understandable reasons. No decision is

made on the merits of the case and yet

you're asking the court to make the

defendant stop doing something. So there

it's a very high bar to obtain a

preliminary injunction. Miss Swift and

her business entities responded and

opposed that motion for a preliminary

injunction as you expect. And a hearing

was held on May 27th, 2026 in front of

Judge Marillo in the Central District

California. And that's essentially where

we are procedurally. And at the hearing

on the motion for preliminary injunction

last week, Taylor Swift's attorney

argued that The Life of a Showgirl

didn't infringe on Flag's trademark

because it was absolutely undisputed

that the album is an expressive work

entitled to legal protection. So

protected by the First Amendment. Is

that the basic defense argument?

>> Well, that's one of many arguments. The

defense took the typical shotgun

approach where it threw up every

argument under the sun, some of which

are stronger than others. Clearly, at

the core of the argument, however, was

the notion that the First Amendment

protects expressive speech against

trademark liability. And this is a

doctrine that was first pioneered by the

second circuit which is New York and

Connecticut in connection with a movie

that used Ginger Rogers name as part of

the title. And that lawsuit was called

Rogers versus Grimaldi. And the test

that was developed, the doctrine that

came out of that became known as the

Rogers test. And at its core, it says

that you cannot use trademark to

restrict expressive speech because of

the first amendment protections. You and

I talked about a case about a year and a

half ago in the Supreme Court that

adjusted the Rogers test. It was a case

involving Jack Daniels versus VIP Toys.

In that case, the Supreme Court cabined

the Rogers doctrine. In other words, it

took a position that Rogers doctrine has

to be narrowly interpreted to apply to

the titles of expressive works. In light

of that case, a lot of changes have

happened in the way we approach

trademark law in the context of

expressive work, such as Taylor Swift's

album. Now, all that said, it seems

pretty clear to me that the album's

title, Life of Sha, is going to be

preserved even in its changed form, the

Rogers test will still protect that

because it is being used as a title of

an expressive work, Taylor Swift's sound

recordings. And so, I think at the end

of the day, that's a win for Taylor

Swift. And indeed it seems as if in her

briefs the plaint of Miss Flag concedes

that that the Rogers test applies to the

title of the album. The distinction

drawn by a plaintiff is it should not

apply to anything else and that is a

slightly better argument by the

plaintiff.

>> Swift's attorney also argued that the

plaintiff waited 8 months after the

album was first announced to ask for an

injunction and that shows there's no

urgency or need for immediate relief.

and also that during some of those

months she tried to associate herself

with Swift and the Life of a Showgirl

album in her messaging. The defense says

in one post the plaintiff used an album

cover logo, audio from the album's title

track, hashtags including the life of a

showgirl, Swifties, and Taylor Nation.

Is that a problem for the plaintiff?

It's probably worthwhile to briefly

without giving a law school lecture

explain how you get preliminary

injunction. It's very hard to get it.

The party seeking a preliminary

injunction has to prove four things.

They have to prove first and foremost a

likelihood of success on the merits.

That at the end of the day, they're

going to win and it's not worth the time

to wait. Just give me the injunction.

Now, the second thing they have to prove

is irreparable harm. That money damages

at the end of the process isn't going to

be good enough. And the third thing they

got to show is that the balance of

hardships tips in their favor. More pain

is going to be inflicted, more damage is

going to be inflicted on the plaintiff

by waiting until the end of the case for

an injunction than inflicted upon the

defendant by granting the injunction

now. And then the fourth thing you have

to show is that a preliminary junction

would be in the public interest. So this

is part of what is known in the old

English law procedure is equitable

jurisdiction. So it's within the equity

power of the court. You don't have a

jury deciding this. It's decided by the

court. If you come into equity seeking

some sort of equity remedy, as Miss Flag

has here, you have to do equity. And one

of the ways you get undone, one of the

ways you aren't doing equity is to come

into equity with unclean hands is the

doctrine that Stone has. And here the

defense is making the argument that Miss

Flag has been riding the coattales of

Taylor Swift and her phenomenal new

album, Life of a Showgirl. and that

constitutes unclean hands and therefore

on that ground alone a preliminary

injunction has to be denied because

coming into equity and she's not doing

equity. I think it's a real stretch of

an argument. I think it is an argument

that makes more sense in a jury setting

where you can persuade lay people that's

just unfair what's going on here. I

don't think that argument in of itself

will go very far. It's like a flavor of

the case.

>> So then what do you think is Swift's

best argument? I think the strongest

argument for the defense here was the

one they made that there's no likelihood

of success on the merits. And every

circuit court, every court of appeals

has a different standard and different

name. But here in the ninth circuit,

it's referred to as the sleek craft

factors based on an old ninth circuit

case. There are eight things you have to

show to prove likelihood of confusion.

They are questions of fact. Questions of

fact have to be decided by a jury, not

by a judge. It makes it really, really

hard in trying to get a PI in a

trademark case to satisfy the likelihood

of success in the marriage. Just think

about it this way. Are you confused by

this notion confessions of a showgirl

versus life of a showgirl knowing that

the one is Taylor Swift? This is the

problem with plaintiffs suing

celebrities. Everybody in the world

knows Taylor Swift. Come on, let's be

honest. And this is the bestselling

album of all the great albums and songs

she's had. This is the bestselling album

so far in her career. And I believe the

bestselling album of all time. And it

makes it real hard to think in your mind

that oh, this cabaret act being done by

M. Flag is somehow associated with

Taylor Swift. It's just very hard to

see. But that said, a jury gets to make

that decision. And one big part of that

is has anybody really been confused out

there? The plaintiff says, "Oh yeah,

there's all these acts of confusion.

People are hashtagging me into

conversations, hashtagging my mark into

conversations, vice versa." I don't know

that that's actual confusion. So that's

why we do expert surveys. We go out and

we find the audience for these types of

goods and products and entertainment

services and we have the experts do

survey to see if anybody's actually

confused. We haven't done that yet. At

the end of the day, I think the district

court judge is likely to say, "I can't

on this record find a likelihood of

success on the merits because I can't

find likely confusion and therefore

could deny the preliminary injunction."

That's just my opinion. But, you know,

reading the tea leaves of the oral

argument at the hearing seemed like the

judge was disincined to grant

preliminary injunction. Anyway,

>> putting the preliminary injunction

aside, let's say this goes to trial.

Which side has the better case? I think

this is one of the more interesting

celebrity cases that I've seen come

along because both sides have pretty

good arguments and we are living in a

postJ Daniels world where the Supreme

Court has changed the Rogers test and we

really don't know the parameters of it.

The one thing I'm pretty confident of is

that the album will not have to change

its name and that the album will not get

recalled or selling of the album gets

stopped or streaming of the songs get

stopped. I would bet dollars to donuts

on that. And that's not simply because

the music's phenomenal and Taylor Swift

is who she is. I think as a matter of

law and approaching this from a neutral

perspective, I think the Rogers test

still applies to titles of musical

works. And so I think that's the one

outcome I'm certain of. However, I'm

really uncertain about all the other

products that are being sold by Taylor

Swift entities that are also using the

trademark Life of a Showgirl. I'll give

you one example. Apparently, some Taylor

Swift entity is selling candles with

that name. I don't know why they would

choose to sell candles with that name.

I'm not enough of a Swifty, I guess, to

understand that. I probably should have

consulted one of my daughters, but it is

using that that mark and that's not

expressive conduct and therefore it's

not entitled in my view to the

protection of the Rogers test. Now, the

defense argues it's a promotional

product to support the album. And I'm

really hardressed to see that. I went

online and it looked like these products

are just goods being sold to the public.

And Taylor Swift's business entities do

this all the time. They're constantly

selling t-shirts and things of that.

Like, I don't see how this promotes the

album. Maybe I'm missing something. The

defense points to another case that came

out recently in same court, Central

District, California, different judge

though that took the position that

promotional products are protected by

the Rogers test. And there not a lot of

case law on that out there. I'm not sure

that court got it right. But also, I

think it's factually different from here

where we're selling candles. I mean, if

you're selling Taylor Swift t-shirts

with that logo on it at a Life of the

Showgirl concert, I think you probably

got an argument. It's promotional

product. But I don't know if these

candles and other goods are promotional

products. One, and two, the Supreme

Court didn't tell us whether or not

promotional products are covered by the

Rogers test anymore. The other argument

that's made by the plaintiff that I

think is a very interesting argument is

that the fact that Taylor Swift went out

and applied for a trademark

registration. You only apply for

trademark registrations if you intend to

label or brand a good or service. And

that's exactly what the Supreme Court

Jack Daniels said is not protected by

the Rogers test. So that might have been

a mistake on the part of the Taylor

Swift entities because I think by

applying for the trademark, they're sort

of conceding that the phrase life of

Shuggirl is going to be used in a

business identifier sense. And the

Supreme Court said, "Sorry, you lose

protection when you do that." But these

are all issues of first impression

because we're in this new world with

this new Rogers test post Supreme

Court's decision Jack Daniels. And

that's what makes this so interesting. I

consider it fascinating. And an

interesting point that the plaintiff

makes in its motion for preliminary

junction is the fact that if the lawyers

who applied for Life of a Showgirl

registration on behalf of Taylor Swift

had done the most cursory trademark

search, they would have found her

trademark and that should have given

them pause. And the paper then goes on

to explain that assuming that the

lawyers did such a search that means

that Taylor Swift went forward with the

application and use of the mark knowing

that there was another mark out there

and therefore the infringement has to be

branded as willful and intentional which

is bad thing obviously especially on the

damages side. It is absolutely true that

whenever we file for a trademark

application, we conduct a search of the

existing register marks at a minimum. in

a really important trademark

application, as I would consider this to

be a really, really important trademark

application for Taylor Swift's new

album. In addition to searching the

trademark registration list, we would

search all the 50 states doing business

names, uh, incorporation names. We would

do a Google search is a really

comprehensive search to make sure we

weren't getting into trouble and that we

were using a viable name and getting

registration, a viable name before we

launched the business. I can't imagine

that didn't happen here. And that makes

it even more interesting whether or not

the lawyers who did the search and

reported back to Taylor Swift gave her

some sort of assurance or opinion that

she would prevail if challenged. And I

would have loved to been a fly in the

wall that discussion when they came back

and told Taylor Swift, "Uh, I'm sorry.

Somebody's already got confessions on

the show, girl. So, we got a problem

here." I mean, that would have been very

interesting to see her reaction. But

that is ignored completely in the

defense opposition to the motion for

preliminary injunction, which I also

found interesting and very telling that

they want to stay away from any

discussion of whether or not they did a

search and what the search found and why

they went forward with the name. Anyway,

these little little subtleties in

briefs, it's always interesting to see

what the thinking is and what's going on

behind the scenes by a few little

subtleties in the briefs like that. So

Terry, just to clarify one thing, let's

say the Rogers test doesn't apply

because of the trademark element to it.

I mean, do they then go to a likelihood

of confusion test? What's the test after

that?

>> Yes, that's exactly right. That means

that the central defense, first

amendment defense is not applicable. And

so you engage in ordinary process of

determining whether or not trademark

infringement has taken place. And that

is the likelihood of confusion test. is

the consumer for these goods and

services likely to be confused between

the two products, the two services as a

result of the two different trademarks

being used. And again, that's would go

to the jury for a decision. I I would

love to see how the survey of consumers

is constructed because I think that

would be complicated. I'd love to see

the results. You may get to

>> we may well you know there's an

interesting subtext in the pleadings on

the motion for preliminary injunction.

One of the requirements is you have to

show that the harm is irreparable. And

by irreparable they mean can't be fixed

by monetary damages. In arguing that the

harm is not irreparable, the defense

argued that we can simply pay money to

the plaintiff at the end of the day if

this is infringing. And I don't know how

that was intended, but I read it as an

invitation to settlement talks that

we'll simply buy the mark from you. And

certainly Taylor Swift's in a position

to throw money at at problems like this.

And I think if the plaintiff loses the

preliminary injunction motion, that puts

Taylor Swift and the defendants in much

stronger bargaining position. And we

might then see a settlement. And we

might never get to see a survey. We

might never get to see how the jury

reacts to any of this. But that's

probably for the best for the judicial

system. Although for those of us who

follow these things, we'd really like to

see a judicial decision on some of these

issues of first impression.

>> Oh yeah. Taylor Swift to the courtroom,

please.

>> That would be fascinating. That would be

a hard ticket to get. Almost as hard as

her tour.

>> Don't forget to ask your daughters about

those candles, Terry. Thanks so much as

always. That's intellectual property

litigator Terrence Ross. And that's it

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