PIJIP Faculty Director Christine Haight Farley was recently quoted in a Bloomberg Law story about Ron DeSantis hats that use the trademarked Disney script. Prof. Farley and other legal experts in the piece debate whether the Walt Disney Co. could have a successful trademark claim, or whether First Amendment protections of political speech would protect this use of the script.

Bloomberg Law quotes Prof. Farley describing the use of the hats as within the “zone of political speech.” She says: “This is an interesting theoretical question: ‘what would trademark law say in a dispute like this?’ Disney would be wise to not step in it... There is a case to be made there is a message here: ‘Join me, we’re going after Disney, I’m trying to poke them in every way.’” 

Disney's rights in the situation could be affected by how the Supreme Court rules in a Jack Daniel’s Properties, Inc. v. VIP Products LLC. In this case, the Court will decide whether a parody use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims. Professor Farley and University of San Diego Prof. Lisa Ramsey address this issue in a forthcoming paper, Raising the Threshold for Trademark Infringement to Protect Free Expression. As noted by Bloomberg Law, Farley and Ramesy propose "uniform, holistic fair use trademark test that incorporates a standard based on how a reasonable person would react."

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