Louisville Courier-Journal Wins 'Derby Pie' Trademark Dispute
Last month, we discussed a crazy lawsuit brought by Alan Rupp, owner of Kern's Kitchen and the trademark for the fairly famous "Derby Pie." Rupp has a reputation for policing his trademark aggressively, having gone after a myriad of online publications and blogs for publishing their own recipes, leading to the EFF at one point posting its own recipe for a "censorship pie."But threatening blogs is one thing. Going after an established newspaper like the Louisville Courier-Journal is something quite different. Especially when that paper's only actions were, (1) publishing its own recipe for a "derby pie" that differed from that of Kern's Kitchen and, (2) reporting on the existence of other storefronts that sold derby-pie-flavored things. The paper had very clear First Amendment protections for its writings, not to mention that it wasn't using the mark in any kind of commerce. The courts have now agreed, with the latest appeal being tossed.
The Louisville Courier-Journal’s use of the words “derby pie” in a recipe and article featuring variations of the dessert did not infringe on a bakery owner’s trademark rights, the Sixth Circuit ruled. An unpublished decision released Monday by the Cincinnati-based appeals court found the 2017 articles used the term in a non-trademark fashion and therefore did not violate the Derby Pie trademark owned by Alan Rupp.As far as the court's reasoning, it never even got to the First Amendment questions before tossing this thing in the trash. Instead, the unanimous ruling simply pointed out that the LCJ wasn't using the mark in a commercial fashion and therefore wasn't infringing on Rupp's mark. Going further, the courts pointed out that the manner in which the paper used the term resulted in no reasonable chance that anyone would be confused as to any source of goods or associations to Rupp or his bakery. In the below, Siler is the judge who wrote the opinion.
The first article included a recipe for derby pie, but Siler emphasized the article “does not denote the recipe for the Derby-Pie but a recipe for a ‘Derby pie’ … and simply informs the reader of the type of pie – a chocolate-walnut pie – that the reader can make from the recipe provided.” Siler also pointed out the article identified the Captain’s Quarters restaurant as the source of the recipe on at least two occasions, and the recipe in question was substantially different from the Rupp family recipe in that it included bourbon and excluded vanilla.“No reader,” the judge wrote, “could possibly think that a so-called ‘Derby pie’ containing bourbon and no vanilla came from the company or companies associated with Derby-Pie.”The opinion goes on to note that the article about how other companies were selling similar items, but not pies, could "not possibly" come to think that any of those companies were related to Rupp or Kern's Kitchen.Again, the court never even got to the First Amendment protections the LCJ has in all of this, which would have been yet another reason to toss this case in the trash. In the end, Rupp's lawsuit was always a longshot that very few would have bet on. Now that it's dead, hopefully it will find its way to the glue factory for good.
Read more here
posted at: 12:00am on 13-Jan-2021
path: /Policy | permalink | edit (requires password)
No Qualified Immunity For Cops Who Made Stuff Up To Justify Seizing A Man's Phone For Twelve Days
Here's an interesting decision [PDF] by the Eighth Circuit Court of Appeals. On one hand, it says cops can possibly hassle people for filming them if they can find almost any reason at all to justify it. On the other hand, it says they definitely cannot take people's property (cameras, phones) just because their nearly unjustified hassling gave them the opportunity to seize it.Here's the setup for the multiple rights violations, courtesy of the Appeals Court:
Daniel Robbins was recording illegally parked vehicles from a public sidewalk adjacent to the Des Moines Police Station when officers approached him and asked him what he was doing. Robbins was uncooperative, and the officers temporarily seized him and his camera and cell phone.This probably would have gone unhassled if it hadn't occurred near a police station. When citizens record officers on their home turf, they become inordinately defensive. Claims of terrorist attacks or the War On Cops™ often arise, even though -- as officers should be painfully aware -- anything they do on public property is observable by the public. The presence of recording equipment shouldn't change a thing.Nevertheless, the Des Moines police officers decided to make it a thing. Someone referred to here as a "detective" decided to (inadvertently) make a federal case about a citizen recording illegally-parked cars and cops going to and from the station. He had reasons.
While walking towards his car, Detective Youngblut observed Robbins recording vehicles as well as officers and civilian employees entering and leaving the police station. Because he was aware that vehicles had recently been stolen from and vandalized in that area, and because he was aware of a previous incident in which two officers had been murdered by a person with a history of filming the police, Detective Youngblut approached Robbins to make an inquiry.LOL. OK. Well, let's just ground all the planes and hassle every passenger because one time people flew planes into buildings, killing a few thousand people. While this "suspicion" may have justified a quick, consensual Q&A with Robbins, "Detective" [these scare quotes will be even more justified in a moment…] Youngblut decided to go further.Other officers -- apparently similarly offended by this reckless display of First Amendment rights -- got to Robbins first. And they applied pressure.
Robbins refused to identify himself or respond to law enforcement inquiries, explaining “I’m taking pictures because it’s perfectly legal for me to do so.” Lieutenant Leo initiated physical contact when he lifted the back of Robbins’s shirt, grabbed his forearm and placed it above his head, and patted him down. Robbins repeatedly asked what about his conduct was illegal, and the officers responded that while he was not doing anything illegal, he was suspicious.Ah. Not illegal. Just worth getting uptight about. The officers ordered Robbins to leave. He refused. So they got even stupider. They demanded Robbins ID himself. This was also wrong. Iowa has no law requiring citizens to ID themselves when interacting with police officers.But it wouldn't have mattered for Robbins. Why? Because the man with all the investigative skills -- Detective Youngblut -- told the officers to just make something up.
Detective Youngblut suggested that the officers “just make a suspicious activity case . . . [and] confiscate the camera until we have a reason for what we’re doing.”Swell. If you don't have a REAL reason for doing something, just find ANY reason.Robbins asked if he was under arrest and being detained against his will. The answer to both questions was yes, provided by the detective who said to make something up. At that point, the illegality started to pile up.
The officers seized Robbins’s cell phone and camera. Detective Youngblut photographed Robbins for his file and then told him that he was free to go. The encounter lasted approximately twelve minutes.The "encounter" may have lasted 12 minutes, but the seizure of Robbins' phone and camera lasted 12 days. Robbins lost both on May 10. It wasn't until his lawyer spoke to the police department that his items were returned.Unfortunately, the court says all of this bullshit -- including the detective suggesting someone just make something up -- isn't a violation of Robbins' First Amendment rights. According to the Eighth Circuit, there was enough non-made-up suspicion to justify the rousting of Robbins.
Here, law enforcement officers observed Robbins recording both vehicles near the police station and officers and civilian employees entering and leaving the police station. The officers also possessed other significant information: they were aware of recent criminal activity involving cars parked in the area, and they were aware of a previous filming and stalking incident that escalated into the murder of two officers. Armed with this knowledge, Officer Youngblut approached Robbins and asked him what he was doing. Robbins was non-responsive, evasive, and confrontational. Officer Youngblut reasonably found Robbins’s behavior suspicious.Robbins’ behavior that went beyond any constitutionally protected recording activity when combined with the officers’ knowledge about vehicles being stolen and vandalized in the area and the previous filming that led to officers being murdered could cause an objectively reasonable person in the officers’ position to suspect Robbins was up to more than simply recording the police. Under these circumstances, we can neither say that the officers’ conduct was objectively unreasonable under clearly established law, nor in violation of the First Amendment.According to the court, Robbins' filming of police was suspicious enough to justify this interaction. But it was not suspicious enough to justify the seizing of his recording equipment. And definitely not enough to justify holding onto it for 12 days.The officers argued they never arrested Robbins, therefore the court should bypass analysis of the seizure of Robbins himself. The court says it's pretty clear Robbins was arrested, even if momentarily. That much was made clear by Detective Youngblut, who told Robbins he was both arrested and detained.Having failed to sway the court with this "non-arrest" argument, the officers went fishing for arrest reasons. One theory was "loitering." Wrong, says the court.
Viewing the facts in a light most favorable to Robbins, a reasonable officer would not have believed he had probable cause to arrest Robbins for loitering because there is no evidence Robbins was blocking the sidewalk or disrupting the activity of the police station.The other theory was Robbins providing officers with a false name when hassled: "John Doe." Wrong again, says the court. This fake name wasn't presented until after Robbins was already under arrest. It's impossible to arrest someone for something they didn't do until after they were arrested.Despite there being a clear warrant requirement for search and seizure of cellphones following the Riley decision, the cops argued their seizure of Robbins' recording equipment fell into a "narrow exception'' that covers "brief detentions" of personal property that are "minimally invasive." But the officers could not explain how a 12-day seizure was "brief," even if it was "minimally invasive." GTFO, says the Eighth.
The Supreme Court concluded that a ninety-minute detention of a suspect’s luggage based only on reasonable suspicion was unreasonable.Regardless of whether the Place exception applies to personal effects such as cell phones and cameras, the duration of the seizure – twelve days – was unreasonable.The refusal to return the property to Robbins made it worse. And it shows Detective Youngblut really hasn't earned that title.
In addition, the officers did not tell Robbins with any precision when or how he would get his property back. Rather, Detective Youngblut told Robbins he was investigating a homicide and would apply for a search warrant “at some point.” Detective Youngblut disposed of his suspicions and the need for a search warrant after discovering Robbins had a YouTube page dedicated to illegally-parked vehicles. Even so, Detective Youngblut continued to detain Robbins’s property until his counsel demanded its return.Owning a fishing rod doesn't automatically make you a great fisherman. And it sure as shit doesn't make you a good detective. This was a punitive seizure and Youngblut couldn't even be bothered to come up with a credible excuse for separating Robbins from his phone and camera for 12 days.The court says being a jerk isn't a crime. None of this was justified.
Under the facts of this case, the governmental interest, presumably to dispel whatever suspicion the officers had about Robbins, does not outweigh the intrusion to Robbins. The seizure was unreasonable in the absence of arguable probable cause. See Place, 462 U.S. at 707–10.The defendants alternatively argue that Robbins’s uncooperativeness gave them probable cause to seize his property. This argument fails for the reasons stated above. The defendant officers violated Robbins’s clearly established right to be free of unreasonable seizures of his property, see id., and are not entitled to qualified immunity.The case heads back to the district court. The officers -- including this so-called "detective" -- will have to take their chances on a jury finding illegal arrest and follow-up seizure were somehow justified. This seems unlikely. Chances are Robbins will receive a settlement before a jury has a chance to receive instructions from a federal judge. The officers may have had their reasons to approach a man filming a police station, but nothing they did after they approached him was Constitutional.
Read more here
posted at: 12:00am on 13-Jan-2021
path: /Policy | permalink | edit (requires password)